Quick Takes on Illinois Supreme Court Opinions Issued Thursday, October 21, 2021

Our panel of leading appellate attorneys reviews the seven Illinois Supreme Court opinions handed down Thursday, October 21. 

The People of the State of Illinois v. Michael S. Yost, 2021 IL 126187

By Amelia Buragas

A criminal defendant’s Sixth Amendment right to effective assistance of counsel includes the right to conflict-free representation. Illinois is among the jurisdictions that recognize two types of conflicts of interest—actual or per se. A per se conflict of interest exists when specific facts about the attorney’s status, by themselves, create a disabling conflict. Defendant Michael Yost was charged with multiple counts of first-degree murder in connection with the fatal stabbing of his former girlfriend and was found guilty after a bench trial. Less than a week after the trial, the defendant informed the court that his appointed counsel previously represented the victim. After further proceedings, the trial court conducted a Krankel hearing and found that a per se conflict did not exist because defense counsel’s representation of the victim “concluded long before” the criminal matter. The appellate court reversed. The Supreme Court granted leave to appeal to address the question of whether a per se conflict of interest exists when defense counsel previously represented the victim of the defendant’s crime. 

The Supreme Court noted that the per se conflict of interest rule exists because a defense counsel’s association with or connection with the victim, the prosecution, or a prosecution witness “may have a subtle or subliminal effect on counsel’s performance that is difficult to detect.” Nevertheless, the Court agreed with the trial court and found that a per se conflict of interest does not exist merely because defense counsel previously represented the victim. The Court explained that a per se conflict exists only where the representation is contemporaneous. In so doing, the Court modified its holding in People v. Hernandez, 231 Ill.2d 134 (2008), to clarify that a per se conflict based on defense counsel’s representation of the victim only when that representation is contemporaneous with counsel’s representation of the criminal defendant. With this modification, the Court noted that caselaw now recognizes only three categories of per se conflict of interest: 1) when defense counsel has a contemporaneous association with the victim, the prosecution, or any entity assisting the prosecution; 2) when defense counsel contemporaneously represents a prosecution witness; and 3) when defense counsel was a former prosecutor who was personally involved in the prosecution of the defendant. In instances where there is no per se conflict of interest, the defendant may still seek to prove that an actual conflict of interest exists.

The People of the State of Illinois v. Lavail D. Davis , 2021 IL 126435

By Kerry J. Bryson, Office of the State Appellate Defender

Pursuant to 720 ILCS 5/14-3(q), the Kankakee County State’s Attorney authorized the Kankakee Area Metropolitan Enforcement Group (KAMEG) to secretly record a controlled buy between a confidential informant and another individual, not Lavail Davis. The CI went to the target’s home, wearing a concealed recording device, but did not locate that individual. Subsequently, the CI walked to a different home and conducted a drug transaction with Davis, That transaction was recorded by the CI’s concealed recording device. Davis was charged with unlawful delivery of a controlled substance based on the transaction with the CI.

Davis filed a motion to suppress the recording and the CI’s testimony about the transaction pursuant to 720 ILCS 5/14-5 because he was not the named target of the authorized eavesdropping. While the State conceded that the audio portion of the recording should be suppressed because it violated the eavesdropping statute, it disputed Davis’s claim that the video recording and the testimony of the CI should also be suppressed. The circuit court granted the motion to suppress in total, barring admission of the audio, video, and testimony. 

The appellate court reversed as to the video and the CI’s testimony. The appellate court found that the video did not derive from the eavesdropping activity and that the CI was a party to the conversation and therefore did not eavesdrop. 

In the Supreme Court, Davis argued that the plain language of section 14-5 barred admission of “any evidence obtained in violation” of the eavesdropping statute, and accordingly the audio, video, and testimony must all be suppressed. The Court disagreed, noting that only the audio recording violated the eavesdropping statute, which is concerned with the unlawful transmission or recording of oral conversation. Thus, suppression of the video and testimony was not required pursuant to the plain language of section 14-5.

Davis also argued that the video and CI testimony were subject to suppression as fruits of the poisonous tree in that the illegally-recorded conversation led to both the appearance of drugs on the video recording and the CI’s testimony about the drug transaction. The Supreme Court disagreed, relying on People v. Gervasi, 89 Ill. 2d 522 (1982). The fruit of the poisonous tree doctrine did not apply because the CI was a participant in the conversation with Davis, so his testimony about the drug transaction was not derived from the illegal audio recording. Similarly, the video recording was made simultaneously with the audio recording and therefore could not have been derived from it. Thus, neither the CI’s testimony nor the video recording were fruits of the illegal audio recording and suppression was not required. 

The People of the State of Illinois v. Robert J. Rogers , 2021 IL 126163

By Kerry J. Bryson, Office of the State Appellate Defender

Following a motor vehicle accident, Robert Rogers was charged by uniform citation with driving under the influence of drugs or a combination of drugs in violation of 625 ILCS 5/11-501(a)(4). At the time of his arrest, Rogers underwent a blood test at the hospital, revealing the presence of THC. Subsequently, the State added a second DUI count by superseding information. That count alleged that Rogers drove with any amount of drugs in his system in violation of 11-501(a)(6). And, several months later the State added a third DUI count, alleging a violation of 11-501(a)(7) for having THC in his blood while driving or within two hours of driving. Rogers was subsequently convicted of violation of 11-501(a)(6), based on stipulated evidence that he had THC in his system and was in actual physical control of the vehicle.

On appeal, Rogers argued that he received ineffective assistance of trial counsel where counsel failed to move for dismissal on speedy trial grounds. More specifically, Rogers argued that compulsory joinder applied to the later-added DUI charges (including the charge of which he was convicted). The compulsory joinder statute provides that where several offenses are known to the proper prosecuting officer at the time of commencing the prosecution, they must be prosecuted together if based on the same act. When compulsory joinder applies, any delays in the speedy trial term which occurred prior to the filing of a new charge are attributable to the State with regard to that subsequently-added charge. If compulsory joinder applied here, it would have meant that the 160-day speedy-trial period had expired prior to Rogers’ trial on the 11-501(a)(6) charge.

Rogers argued that compulsory joinder applied here, where the original misdemeanor DUI charge was brought by uniform citation and the later-added charges were also misdemeanors and thus could have been charged by a police officer via uniform citation, as well. Rogers distinguished his situation from People v. Jackson, 118 Ill. 2d 179 (1987), where the Supreme Court had previously held that compulsory joinder did not apply to later-brought felony charges where the original prosecution was commenced by uniform citation because felony charges required involvement of the State’s Attorney as the proper prosecuting officer.

The Supreme Court majority rejected Rogers’ claim without resolving the question of whether compulsory joinder applied. The majority held that Rogers did not receive ineffective assistance of counsel because controlling precedent from the Third District Appellate Court, People v. Kazenko, 2012 IL App (3d) 110529, held that compulsory joinder does not apply where the original charge is brought by uniform citation, even where the later added charges are also misdemeanors. While there was conflicting authority from the Second District, People v. Thomas, 2014 IL App (2d) 130660, the circuit court of Will County would have been compelled to follow Third District authority because it sits in that district. Thus, defendant’s trial counsel could not be considered ineffective for failing to make a meritless motion.

In a special concurrence, Chief Justice Anne Burke, joined by Justice Neville, criticized the majority for failing to address the compulsory joinder issue that had been briefed and argued by the parties, especially given that there is a clear conflict between the districts of the appellate court on the issue. The special concurrence would have followed Kazenko and held that compulsory-joinder does not apply to offenses initially charged by uniform citation. Regardless of whether the later-filed charges are misdemeanor or felony counts, it is the State’s Attorney, and not a police officer, who is the “proper prosecuting officer” for purposes of the compulsory joinder analysis. Because a uniform citation is issued by a police officer without the involvement of the State’s Attorney, it does not trigger compulsory joinder. 

Both the majority and concurrence began by addressing the question of whether Rogers was even entitled to the effective assistance of counsel where he did not have a federal constitutional right to counsel because he was not sentenced to a term of imprisonment and where he was represented by retained, rather than appointed, counsel. The majority concluded that regardless of whether a defendant is entitled to appointed counsel, the US and Illinois constitutions provide the right to effective counsel. 

The concurrence, on the other hand, noted that under Scott v. Illinois, 440 U.S. 367 (1979), a defendant may challenge his conviction on sixth amendment ineffective-assistance grounds only if he was sentenced to a term of imprisonment. Rogers was sentenced to 12 months of supervision, which is not imprisonment within the meaning of Scott. See City of Urbana v. Andrew N.B., 21 Ill. 2d 456 (2004). But, Rogers did have a statutory right to counsel under 725 ILCS 5/113-3(b) (indigent defendant entitled to appointment of counsel in all cases except where penalty is a fine only). The concurrence declined to address the level of assistance which counsel must provide under that statute, however, because Rogers could not prevail under any standard where the concurrence rejected his compulsory joinder claim on the merits. 

The People of the State of Illinois v. John T. McCavitt , 2021 IL 125550

By Jay Wiegman, Assistant Appellate Defender

In People v. McCavitt, 2021 IL 125550, the Illinois Supreme Court considered the extent to which a defendant’s acquittal of a specific charge affected his expectation of privacy in computer data obtained pursuant to a search warrant that authorized the seizure of evidence related to two or more particular offenses, and whether the fourth amendment required the police to obtain a new warrant before searching the date for evidence of the other suspected crimes. To determine this case, the Court considered the interplay of four concepts: (1) a person’s reasonable expectation of privacy in data on an electronic storage device that is subject to search, (2) double jeopardy principles, (3) the fourth amendment’s particularity requirement as applied to electronic storage devices, and (4) the plain view doctrine.

In McCavitt, the defendant was initially investigated for criminal sexual assault of a houseguest. The Illinois State Police obtained a warrant that authorized the ISP to search the home of the defendant, then a Peoria police officer, for evidence of the alleged sexual assault; because the search warrant complaint alleged that digital evidence could be found on the defendant’s cellphone, the warrant authorized the seizure of any electronic media equipment capable of video and audio recording or storing pictures, audio and video. 

The defendant did not answer the door for two hours after the police arrived at his home to execute the warrant. The police then seized both the defendant’s cellphone and a computer tower; the computer’s file history showed that more than 16,500 photos were recently deleted from the hard drive. When the initial examination of the hard drive revealed what appeared to be secretly recorded video of an unidentified woman stepping out of the shower in the defendant’s bathroom, the police, on July 24, 2013, obtained a second warrant, which authorized the search of McCavitt’s computer for any evidence of aggravated criminal sexual assault, unlawful restraint, and unauthorized video recording or live transmission. The ISP made an exact, unalterable digital copy of the hard drive using Encase software and provided it to the Peoria Police department.

Evidence of the offense involving the houseguest was found on the computer, and the defendant was charged with aggravated criminal sexual assault and criminal sexual assault. A jury found him not guilty of these charges. Immediately following the guilty verdicts, defense counsel moved for the return of defendant’s personal property; the request was made orally and specifically mentioned only the defendant’s “collector guns.” the circuit court directed counsel to file a written motion.

The day following the defendant’s acquittal, a detective from the Peoria police department (which had been prohibited by the police department’s collective bargaining agreement from conducting an internal investigation during the pendency of the defendant’s criminal case), began a forensic digital analysis of the computer file recovered by the ISP. Four days later, after finding two images that appeared to be child pornography, the detective, James Feehan, applied for a new warrant to search the file for child pornography. On that same date, the defendant filed a motion seeking the return of his property; the motion did not state the legal basis for the proposed disposition of his property. (The motion was never fully resolved). 

After obtaining the new warrant, Feehan found additional images of child pornography. Feehan also discovered evidence that the defendant had used a computer program to permanently delete data from his computer while the police waited outside his house to execute the search warrant.
Defendant filed a motion to suppress, which the trial court denied. The circuit court noted that the defendant had not challenged the initial warrants issued in 2013, the original search and seizure of the computer, or the ISP’s creation of the EnCase file. The court further observed that even had the defendant’s computer been returned to him, the police would still have had the separately created EnCase file. The trial court found the seizure of the computer files was reasonable because it was conducted pursuant to an unchallenged warrant. The defendant was ultimately convicted of 15 of 17 counts of child pornography and sentenced to 5 years in the Department of Corrections.

The Appellate Court, Third District, reversed the defendant’s convictions. The majority held that the police had no authority to retain the EnCase file after McCavitt’s acquittal, and therefore Feehan’s initial search violated the defendant’s fourth amendment rights. In dissent, Justice Wright concluded that because Feehan was merely reviewing information that had already been lawfully seized by another detective who had made it part of his working file, the defendant’s reasonable expectation of privacy remained diminished after he lawfully lost possession of the computer pursuant to the search warrant. The Illinois Supreme Court allowed the State leave to appeal.

In a 6-to-1 decision, the Illinois Supreme Court reversed the Appellate Court. Writing for the majority, Justice Michael Burke identified the appeal’s concern as being whether the defendant’s actual expectation of privacy was objectively reasonable. The majority agreed with the defendant’s assertion that his privacy interest in the computer’s contents extended to the EnCase file, but found that his property interest in the data was not dispositive of the search’s reasonableness, “otherwise mere proof of ownership in a place or item to be searched would be sufficient for suppression.” McCavitt, 2021 IL 125550, ¶ 69. Thus, the appeal turned on defendant’s privacy interest in light of the warrant and the reasonableness of the detective’s examination of the EnCase file following the defendant’s acquittal in the sexual assault proceeding. The majority then concluded that the defendant’s acquittal only partially restored his reasonable expectation of privacy in his computer. While the fifth amendment barred a second prosecution for the criminal sexual assault charges, thus restoring the defendant’s reasonable expectation of privacy concerning the data that represented evidence of those crimes, the Court found that the defendant could not establish a formal property interest in the computer or an informal property interest in its contents because there is no automatic provision for the return of property, seized pursuant to a warrant, following an acquittal, and the defendant did not press his rights in the sexual assault proceeding.

Moreover, the acquittal did not nullify the warrant entirely. Indeed, the warrant was not limited to uncovering evidence of the sexual assault of which the defendant was acquitted. Rather, the warrant also authorized a search for digital evidence of unauthorized video recording. Because Feehan was properly searching for evidence of unauthorized video recording, his search and subjective intent were consistent with the warrant. The majority further stated that the fourth amendment did not place explicit limits on the duration of any forensic evidence authorized by a warrant. McCavitt, 2021 IL 125550, ¶ 106. Given that the detective was properly searching the EnCase file for evidence of unauthorized videorecording, the plain-view exception applied: “This case presents the most common use of the plain view doctrine in the context of digital data, which occurs when law enforcement examines a computer pursuant to a search warrant and discovers evidence of a separate crime that falls outside the scope of the search warrant. The inquiry focuses on whether an officer is exploring hard drive locations and opening files responsive to the warrant, considering both the types of files accessed and the crimes specified in the warrant.” McCavitt, 2021 IL 125550, ¶ 112. 
Thus, the majority concluded that the warrant authorizing the search of defendant’s computer data diminished the defendant’s expectation of privacy in the types of files described in the warrant. Had the search that was conducted after his acquittal of the sexual assault charges uncovered further evidence of the sexual assault, then the search would have exceeded the scope of the warrant. But, because the detective’s data search was within the scope of the warrant – authorizing a search for evidence of unauthorized video – the search was not directed at finding evidence of criminal activity not described in the warrant. Therefore, the search was reasonable under the fourth amendment and resulted in the lawful discovery of child pornography in plain view.

Justice Neville dissented. While Justice Neville agreed with the majority that McCavitt had a reasonable expectation of privacy in the data on his computer hard drive, and that the defendant’s acquittal of the sexual assault charges affected his privacy rights in his property, Justice Neville would find that the warrant was void because the police failed to execute the warrant and search the defendant’s hard drive within 96 hours, as required by 725 ILCS 5/108-6; the police could not search the hard drive without a valid warrant; and the defendant’s acquittal required the trial judge to enter an order directing the police to return McCavitt’s property immediately. Consistent with this, the dissenting Justice stated that the legislature should amend section 108 11 of the Code and make it clear that, after an acquittal, a citizen’s property that is seized pursuant to a valid search warrant, and that is not contraband or obscene, must be returned immediately.  

Cahokia Unit School District No. 187 v. J.B. Pritzker, 2021 IL 126212

By Michael T. Reagan, Law Offices of Michael T. Reagan

The plaintiff school districts from southern and central Illinois sought to once again raise constitutional and statutory arguments that the Governor and the State have not met asserted obligations to adequately fund local school districts. In Committee for Educational Rights v. Edgar, 174 Ill.2d 1 (1996), the court concluded that the question of whether the educational institutions and services in Illinois are of “high quality” is “outside the sphere of the judicial function.” The general tenor of that opinion was reaffirmed in Lewis E. v. Spagnolo, 186 Ill.2d 198 (1999), with the court saying that the definition of a high-quality education “simply cannot be determined by any judicially discoverable or manageable standards.” Here, the plaintiff school districts seek to challenge that precedent by relying upon changed conditions. In 1997, the State Board of Education adopted Illinois Learning Standards, with subsequent detailed revisions with specific benchmarks. Among those revisions were the adoption in 2010 of the Common Core State Standards as required by the School Code. The circuit court dismissed the complaint in its entirety and the appellate court affirmed, with an extensive separate opinion concurring and dissenting by Justice Wharton. 

In the supreme court, plaintiffs asserted in their brief that they appealed only the judgment relating to the Governor, “thereby voluntarily dismissing the State itself from the case.” Although the supreme court unanimously affirmed both courts below, the clarity and organization of this opinion for the court by Justice Carter will cause it to serve as a useful resource in many areas of law involving the requirements of declaratory judgment actions and the nature of justiciability. 

The court held that the Governor is not a proper defendant because he does not have authority to grant the relief requested by plaintiffs. Accordingly, the case does not involve an actual controversy as is required to grant declaratory relief. The Governor advanced five reasons why the complaint is not justiciable. Among those reasons is that he has no authority to spend State funds not appropriated by the General Assembly, and that the requested judgment dictating how he exercises his discretionary authority to propose state budgets would violate both the State’s sovereign immunity and separation of powers principles. The detail of the court’s reasoning cannot fairly be summarized in these few sentences. Generally stated, the court identified the “critical problem” with plaintiffs’ claims to be that the “essential relief requested by the plaintiff school districts is a court order requiring the Governor to provide them with additional public funding.” The court analyzed the separation of powers in concluding that that request could not be met. Because effective relief could not be granted, “the proposed orders would essentially amount to an advisory opinion, contrary to the actual controversy requirement for a declaratory action.” 

Gathering skeins of the law together, the court states that “the concept of justiciability is divided into different categories, including advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions.” The court set out the essential requirements for a declaratory judgment action, including the fundamental of the existence of an actual controversy. That requirement “ensures that courts will not pass judgment on mere abstract propositions of law, render an advisory opinion, or give legal advice as to future events.” Because the Governor would be precluded from granting the relief requested, then an actual controversy does not exist.

Justice Neville specially concurred. He did not disagree with any aspect of the court’s opinion. Rather, he wrote so that his concurrence in that opinion “should not be construed as diminishing the significance of the need for equitable school funding.” He wrote separately “to give voice to the magnitude of that issue.” He expressed his view that the court, “as a coequal branch of Illinois government,” must acknowledge the extreme disparity in school funding across the state. He ultimately concluded that “the starvation of resources in public schools effectively perpetuates the unequal education that was outlawed in Brown v. Board of Education.” He recognized that the solution must be legislative and urged the legislature to remedy the “dire situation” he identified. 

Western Illinois University v. The Illinois Educational Labor Relations Board, 2021 IL 126082

By Joanne R. Driscoll, Forde & O’Meara LLP

In this case, the supreme court construed the Illinois Educational Labor Relations Act (Act) (115 ILCS 5/1 et seq. (West 2016)) to determine the extent of an arbitrator’s “remedy jurisdiction” to review a party’s compliance with an arbitration award. Under the Act, refusal to comply with a binding arbitration award results in an “unfair labor practice” that is reviewed and enforced exclusively by the Illinois Educational Labor Relations Board (Board). Id. §§ 2(h), 14(a)(8), 15.
After several professors were laid off the by Western Illinois University (University), the University Professionals of Illinois, Local 4100, IFT-AFT, AFL-CIO (Union), filed grievances pursuant to the parties’ collective bargaining agreement (CBA). The arbitrator found that University violated the CBA as to two professors and ordered the University to take certain actions. Claiming the University did not comply, the Union asked the arbitrator to exercise its remedy jurisdiction. The University argued it had complied and that only the Board had authority to review compliance. The Union then filed an unfair labor practice charge with the Board. 
The arbitrator held a hearing and entered a supplemental award against the University. The Union added the University’s failure to comply with that award to its unfair labor practice charge pending before the Board. In proceedings before the Board, the University sought to introduce evidence not considered by the arbitrator. The administrative law judge (ALJ) allowed the evidence over the Union’s objection. Finding no factual issue to resolve, the ALJ removed the case to the Board. 
The Board found that the arbitrator’s compliance review did not conflict with its own statutory authority. Deferring to the arbitrator’s decisions, the Board held that the University committed an unfair labor practice in violation of section 14(a)(8) and, derivatively, section 14(a)(1) of the Act by failing to comply with the original and supplemental awards. On direct administrative review, the appellate court disagreed, holding that the arbitrator lacked authority to issue the supplemental award. It also held that the Board erred by not considering the University’s new evidence.
In a 5-2 opinion written by Justice Garman, the majority affirmed the appellate court. It held that the Act’s plain and unambiguous language sets forth “a natural and reasonable chain of procedures” that vests exclusive primary jurisdiction over compliance review of arbitration awards with the Board. No other entity, including the original arbitrator, has such authority. The court rejected attempts by the Union and the Board to create ambiguity using other statutory schemes and extrinsic sources, noting that they cannot be used to create ambiguity but, rather, to explain an ambiguity that is found to exist.
On the issue of whether the arbitrator had engaged in compliance review, the court thoroughly examined the language used by the arbitrator throughout the entirety of the supplemental award and proceedings.  It determined that the arbitrator’s conduct could not be construed as “effectuating anything other than compliance review with the original award.” 
Next, the court reviewed the Board’s decision that the University had engaged in an unfair labor practice when it failed to comply with the original and supplemental arbitration awards. Applying a clearly erroneous standard of review to the mixed question of law and fact, the court found error. The University did not engage in an unfair labor practice when it refused to comply with the supplemental award because the arbitrator lacked authority to enter that award. As to the original award, the court found error with the Board’s refusal to consider the University’s new evidence, noting that the Act specifically grants parties the right to present evidence in their defense of an unfair labor practice charge to the Board. 115 ILCS 5/15 (West 2016). 
The court vacated the Board’s opinion and order and remanded the matter to the Board to consider all the evidence and determine whether the University complied with the original arbitration award.
In his dissent (joined by Chief Justice Anne Burke), Justice Neville opined that the arbitrator properly utilized his remedy jurisdiction in this case. The dissent distinguished between a party’s refusal to comply with an arbitration award and a dispute over whether a party has complied with the award, which was what occurred here. The dissent opined that the determination of whether compliance occurred was within the arbitrator’s remedy authority. 
According to the dissent, the majority rewrote the term “refusal” in section 14(a)(8) of the Act to include all failures to comply, whether deliberate or not. It predicted that this reading of the Act will prevent the arbitrator from ascertaining whether the parties have both understood and implemented the terms of an arbitration decision and “will generate a multiplicity of unfair labor practice proceedings before the Board that could more easily and efficiently be resolved by the arbitrator.” 

Guns Save Lives, Inc., v. Zahra Ali, 2021 IL 126014

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In accordance with federal law establishing that the second amendment to the United States Constitution protects the rights of citizens to keep and bear arms for self-defense in their homes, the Illinois Supreme Court found unconstitutional two Cook County ordinances taxing the retail purchase of firearms and ammunition. The court reasoned that the taxes directly burdened the second amendment right to acquire arms and ammunition, and the ordinances lacked a sufficient relationship to the legislative purpose or to public policy.
Guns Save Lives, Inc., and two other plaintiffs, a retailer and an individual, sued Cook County and county officials for declaratory and injunctive relief. Among other arguments, they claimed the ordinances violated the second amendment of the United States Constitution and the uniformity clause of the Illinois Constitution, which requires, in part, that  “[i]n any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly.”  One of the ordinances imposed a $25 tax on the retail purchase of a firearm; the other imposed a per cartridge tax on ammunition.
Two of the plaintiffs encountered standing challenges in the lower courts, where the claims also failed on the merits. Among other rulings, the lower courts determined that the taxes constituted a proper exercise of the county’s home rule taxing powers; that the taxes did not meaningfully affect plaintiffs’ exercise of the right to bear arms; and that, even if the taxes burdened constitutionally protected conduct, they passed muster based on a substantial relationship to the important government interest in public safety by providing revenue to programs designed to combat gun violence.
The supreme court reversed. In a decision written by Justice Mary Jane Theis, the court agreed with the plaintiffs that the ordinances impose a burden on the exercise of a fundamental right protected by the second amendment in that the taxes impact a citizen’s right to acquire a firearm and ammunition for self-defense in the home. Given the direct effect of the taxes on a fundamental right, the supreme court’s majority determined that the government had to establish that the tax classification was substantially related to the object of the legislation. The court acknowledged the substantial cost that gun violence imposes on society and noted the statistics cited by the county, including health care costs, in excess of $30 million annually, much of which is not covered by health insurance. Yet the majority found an insufficient relationship between the tax classification and the stated goal: the language of the ordinances did not direct the use of the tax proceeds to any fund or program specifically designed to ameliorate the costs of gun violence. Accordingly, the ordinances fell short under the uniformity clause. The court remanded the case to the circuit court to enter summary judgment for plaintiffs.
Specially concurring, Justice Michael Burke found “an even greater problem” with the county’s tax on the purchase of firearms and ammunition and wrote that the majority’s analysis erroneously suggested that a more narrowly tailored tax, sufficiently tied to the objective of curbing gun violence or reducing its cost, may satisfy the mandates of the Illinois Constitution. In Justice Burke’s view, however, the county has no power to tax the exercise of a citizen’s second amendment rights. Justice Burke distinguished the county’s power to impose a tax burdening second amendment rights from the county’s police power to regulate them.   

Posted on October 25, 2021 by Celeste Antoinette Niemann
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