The newsletter of the ISBA’s Standing Committee on Government Lawyers
Case law update
Chicago Housing Authority v. Human Rights Commission, No. 1-99-3885 (1st District, October 12, 2001.) Administrative law judge and Illinois Human Rights Commission correctly applied the "mixed-motive" theory of discharge to employee's retaliatory discharge claim. Plaintiff senior attorney alleged that his employer, the Chicago Housing Authority, violated his rights by discharging him for filing a complaint with the EEOC and the Illinois Department of Human Rights. Decision that firing was motivated by both discriminatory and nondiscriminatory reasons, but that employer failed to meet its burden of proof that employee would have been fired without discriminatory reason, was not against manifest weight of the evidence. Moreover, the employee has no burden to plead a mixed-motive approach. Further, where administrative law judge has determined that employee's mental health is not at issue and no waiver of confidentiality has occurred, refusal to allow employer to subpoena employee's mental heath records, or cross examine with regards to history of mental illness, in an effort to challenge his credibility, was correct.
People ex rel. Ryan v. Telemarketing Associates, Inc., No. 89738 ( November 21, 2001.) Both the circuit and appellate courts correctly concluded that a motion to dismiss pursuant to section 2-0615 of the Code of Civil Procedure should be allowed. The Attorney General's complaint was found not to be legally sufficient to state a cause of action for common law fraud or for breach of duty as fiduciaries of charitable assets against professional fund raisers who solicited funds for charitable organizations without informing prospective donors that only 15 percent of funds collected would be transferred to the charity. Charitable appeals for funds fall within the protection of the first amendment. Thus, a definition of fraud which places on solicitors the affirmative duty to disclose to potential donors, at the point of solicitation, the net proceeds to be returned to the charity is an impermissible restraint on the solicitor's freedom of speech.
Arnett v. Snyder No. 4-00-0895 (4th District, October 30, 2001.) Plaintiff inmates were not subjected to cruel and unusual punishment by administration of special "meal loaf" diet as discipline for infractions mostly related to throwing food or utensils. Further, since plaintiffs do not have a protected liberty interest in selection of food, they were not entitled to a hearing before imposition of "controlled-feeding status." Therefore, summary judgment in favor of the prison's warden was proper.
Morton v. Madison County Nursing Home Auxiliary, No. 90796 (November 21, 2001.) Plaintiff timely filed a wrongful death complaint against a county nursing home auxiliary and served its registered agent, the director of the nursing home. Upon discovery of the naming of the incorrect party, plaintiff sought to file an amended complaint adding the county as a defendant. The county filed a motion to dismiss arguing that plaintiff's amended complaint was not entitled to the benefit of relation back provisions of subsection 2-0616(d) of the Code of Civil Procedure. Trial court granted county's motion to dismiss, because service of the county did not occur within the limitations period. Supreme court concluded that service under section 2-0616(d)(3) must be accomplished within the statute of limitations.
County of Lake v. Board of Education of Lake Bluff School District No. 65, No. 2-00-1092 (2nd District, November 7, 2001.) The Illinois Health/Life Safety Code for Public Schools promulgated pursuant to the provisions of section 2-3.12 of the School Code, and not a county's building code, applied to regulate use of a school building that was "used for public school purposes." "Public school purposes" includes using a facility for a school function once or twice per month and for storage with regards to ten to fifteen percent of floor space.
County of Lake v. Fox Waterway Agency No. 2-00-1375 (2nd District, November 20, 2001.) Fox Waterway Agency, which was created by specific legislation and which was given express authority to implement projects such as the rebuilding of an island in Chain O Lakes waters, is not required to obtain a permit from plaintiff's Stormwater Management Commission in order to undertake flooding prevention projects. The Fox Waterway Agency's legislative grant of authority is more specific than that of the county's Stormwater Management Commission, which derives its authority from the Counties Code coupled with a delegation of authority from the Illinois Department of Natural Resources. Moreover, when two unequal legislative bodies have inconsistent enactments, the enactment of the more powerful body will preempt that of the lesser.
People v. Simpson, No. 85084, 86926 cons. (September 27, 2001.) Defendant's post-conviction petition challenging death penalty sentence was properly dismissed by trial court without an evidentiary hearing. Enactment of new rules in capital cases does not imply that death penalty cases conducted under old rules were constitutionally infirm. Rather, the new rules are intended to provide a mechanism to achieve fair and accurate results in capital trials by establishing rules of procedure. The new rules do not set a new constitutional standard. Capital cases tried without the benefit of the new rules were frequently tried by competent defense and prosecuting attorneys.
People v. Turner, 325 Ill. App. 3d 185 (5th District, 2001.) Although the Public Act under which defendant was convicted has been declared void ab initio by the Illinois Supreme Court, it does not invalidate the defendant's conviction based upon the entry of a guilty plea until the defendant challenges his conviction. Therefore, the state cannot unilaterally re-charge defendant for the same acts to which he pled guilty after he has already served term for first conviction without subjecting defendant to double jeopardy.
People v. Brown, No. 3-00-0669 (3rd District, November 1, 2001.) State failed to prove that defendant, John E. Brown, was guilty of unlawful possession of weapon by a felon, because only evidence introduced of status of defendant as felon was certified record of felony conviction of "John Brown" from Cook County. Person charged with crime is "John E. Brown," thereby disqualifying case from presumption of identity.
People v. Edmonds, No. 1-00-1827 (1st District, September 20, 2001.) Trial court did not err when it allowed the state to amend its indictment at trial to include a citation to the statute regarding the delivery of a controlled substance within 1,000 feet of a school. The amendment was formal in nature, and the indictment prior to amendment was sufficiently specific and adequately apprized the defendant of the nature of the charge against him.
In re R.A.B., 197 Ill. 2d 358 (2001.) The appellate court correctly concluded that respondent, charged with robbery and prosecuted as a violent juvenile offender, did not voluntarily waive his right to jury trial during his stipulated bench trial. The record indicates that neither the right to a jury trial nor a jury waiver was discussed in the respondent's presence in open court. Moreover, respondent's silence cannot be construed as a valid waiver.
People v. Stafford No. 1-99-1770 (1st District, October 26, 2001.) Trial court deprived defendant of due process when it allowed the state to reinstate attempted murder charges, after a motion to nolle prose qui had been entered earlier in the case. In order to reinstate its prosecution, the state must file a new charging instrument. At no time did the state re-indict the defendant on the attempted murder charges or provide a preliminary hearing on the reinstated charges. The trial court's refusal to instruct jury on attempted murder charges could not eliminate the prejudice caused defendant and his counsel by the surprise, unfairness and inadequate opportunity for preparation where new charges were alleged on the eve of trial. Although defendant may be retried on murder charges, after charges are terminated by entry of an order of nolle prose qui, reindictment is prohibited if the circumstances indicate a realistic likelihood of vindictiveness by the state.
People v. Abadia, No. 1-99-2023 & 1-99-2685 (cons.) (1st District, November 13, 2001.) Although evidence was sufficient to convict defendants of murder, attempted murder, and armed violence, case must be remanded for new trial, because prosecutor's comments during rebuttal argument, during which he accused defense counsel of misconduct, of mistreating witnesses and of fabricating defense theory, and the defendants of intimidating witnesses, caused substantial prejudice and deprived defendants of a fundamentally fair trial.
People v. Anderson, No. 3-00-0514 (3rd District, September 14, 2001.) Defendant, who was convicted of escape for failing to return as scheduled from work release, was not denied effective assistance of counsel because of counsel's failure to file a motion to dismiss based on Speedy Trial Act. Although defendant was serving a sentence in a Department of Corrections facility at the time of his indictment for escape, he was not served with the arrest warrant for escape until the last day of his sentence for a felony drug conviction. Therefore, defendant was not "in custody" for purposes of Speedy Trial Act while he was at the Department of Corrections facility.
State's attorneys' authority
People v. Knippenberg, No. 3-00-0101 (3rd District, October 4, 2001.) Subsection 9 (a) of the Solicitation of Charity Act provides that violations of the Act may be prosecuted by the Attorney General. The Attorney General has exclusive authority to initiate and prosecute cases only when a statute so provides. Nothing in the plain language of the statute indicates an intent by the General Assembly to change the concurrent power of the Attorney General and the state's attorney to prosecute criminal violations under the Act. Therefore, a state's attorney has the authority to prosecute violations of the Solicitation for Charity Act; and defendant, tried in absentia, was properly convicted of six counts of theft, disbursing charitable trust funds without authority and for his personal benefit, and failure to register as a professional fund raiser. Evidence showed that he collected funds in name of the Veterans Assistance Corporation, a fund raising division of the Veterans of Foreign Wars, and kept the net receipts.
Substitution of judges
People v. Jones, 197 Ill. 2d 346 (2001). Trial court erred when it denied a motion for substitution of judge for cause as being untimely because motion was filed on remand for second trial. A substantive ruling made in an initial trial does not by itself bar a subsequent substitution for cause motion on remand. A substitution for cause motion is not per se untimely when a trial court issues substantive rulings and adequate grounds for substitution for cause subsequently arise. Although motions for automatic substitution of judge cannot timely be made on retrial of criminal complaint, motions for substitution of judge for cause filed before judge has made any substantive ruling after remand is timely, and should have been referred to a different judge for hearing as required by subsection 114-5(d) of Code of Criminal Procedure of 1963.
Hatch v. Szymanski, No. 3-00-0832 (3rd District, November 8, 2001.) Prisoner's pro se complaint seeking a writ of mandamus to compel prison officials to hire him in the correctional center's wood shop or garment shop after he turned down the position of janitor in the correctional center's soap shop because of personal concern for his health failed to state a cause of action, particularly since assignment is a matter of discretion and not a mandatory official duty. Therefore, trial court was correct to grant the section 2-0615 motion to dismiss.
1350 Lake Shore Associates. v. Hill, No. 1-00-1119 (1st District, November 29, 2001.) Plaintiff was entitled to a writ of mandamus directing defendant, the Commissioner of the Department of Planning and Development of the City of Chicago, to issue it a "Part II Approval Letter," a necessary prerequisite to the issuance of a building permit for construction on property located within a residential planned development. Since the City of Chicago admitted that the proposed development complies with the residential planned development, plaintiff is entitled to the issuance of the approval letter despite the subsequent amendment of the City's zoning ordinance.
Moller v. Civil Service Commission of the City of Blue Island, No. 1-00-0100 (1st District, November 29, 2001.) Defendant did not violate the provisions of section 10-1-13 of the Illinois Municipal Code by failing to promote plaintiff to the rank of corporal even though he was second on the promotion eligibility list. When the first ranked person on the list was promoted, plaintiff was not elevated to the first ranked person on list, but rather remained second. As the second ranked person, he was not passed over for promotion more than twice as proscribed by section 10-1-13 of the Municipal Code. Plaintiff does not have an entitlement to promotion. Thus, there is no protected property right requiring that he be promoted according to the order on the promotion eligibility list. Therefore, the decision of the Civil Service Commission to follow the recommendations of the police chief was not clearly erroneous.
Prevailing Wage Act
Seaman v. Thompson Electronics Co., No. 3-01-0101 (3rd District, September 28, 2001.) Article I, section 13 of the Illinois Constitution guarantees the right to a jury trial in actions that carried such a right under the English common law. Although the English common law included an action to recover wages based on breach of contract, such an action differs from a recovery under the provisions of the Prevailing Wage Act. Consequently, plaintiffs do not have a right to a jury trial of their complaint alleging a violation of the Prevailing Wage Act. Therefore, trial judge should have allowed motion of defendant to strike jury demand. However, trial court's denial of defendant's motion to dismiss complaint based on limitations defense was correct, since five year limitations period of section 13-205 of the Code of Civil Procedure applies to claims filed under Act.
Separation of powers
In re K.C., No. 1-98-3715 (1st District, October 9, 2001.) The circuit court's order that a team of caseworkers be removed from a case concerning the abuse and neglect of minors and that alternative caseworkers be assigned to the matter, after the repeated failure by the original Illinois Department of Children and Family Services caseworkers assigned to the case to comply with court orders, was neither beyond the court's jurisdiction, inconsistent with the Juvenile Court Act of 1987, nor a violation of the doctrine of separation of powers.
Single subject rule
People v. Sypien, No. 89265 (September 20, 2001.) Public Act 90-456 violates the single subject clause of the Illinois Constitution, because there is no natural or logical connection between the abuse, neglect and dependancy hearing amendments under the Juvenile Court Act of 1987 and the public act's stated subject of "criminal law." Therefore, dismissal of the complaint against defendant, wherein he was charged with disorderly conduct for filing a police report alleging criminal conduct without reasonable cause, was proper.
People v. Philip Morris, Inc., No. 90185, 90186 cons. (October 18, 2001.) The circuit court has the jurisdiction to adjudicate an attorney's lien claim against the proceeds of a settlement where the State of Illinois was the plaintiff in the underlying action and where the settlement funds have never come into the possession or control of the state. The tobacco settlement funds, which have never been in the state's hands, are not "state funds" until after attorney fees are paid and the funds go into the state treasury. Thus, the attorney's lien is not a claim against the state's treasury; but against the funds to be paid by the defendants. Therefore, sovereign immunity is not implicated.
ABN Ambro Services Co., Inc., v. Naperville Park District, No. 2-00-0491 (2nd District, September 18, 2001.) A park district need not allege that representation by the state's attorney is inadequate in order to intervene as a matter of right pursuant to the provisions of section 2-408(a)(3) of the Code of Civil Procedure in a tax rate objection case filed pursuant to the provisions of section 23-10 of the Property Tax Code. However, the park district must prove that it qualifies by satisfying all requirements for intervention in section 2-408(a)(3) of the Code of Civil Procedure. Further, the park district will not be allowed to control the litigation.
Dundee Township v. Department of Revenue, No. 2-00-0835 (2nd District, October 15, 2001.) The trial court was correct when it affirmed the decision of the Illinois Department of Revenue that the portion of property acquired by the township for "open space" but leased for commercial farming was not exempt from property taxes under section 9-195 of the Property Tax Code or section 115-115 of the Township Code.
Tort immunity and liability
Harrison v. Hardin County Community Unit School District No. 1, No. 89661 (October 18, 2001.) Trial court correctly concluded that school district principal, who refused permission to student to leave early because of inclement weather, was exercising discretion. As a result, the principal was immune from liability under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act for injuries suffered by the occupant of a vehicle which the student struck when he lost control of his vehicle. Appellate court's opinion that immunity did not attach is erroneous.
Watts v. City of Chicago, No. 1-99-2381 (1st District, September 24, 2001.) Plaintiff sought recovery under either a negligence or a willful and wanton standard of care for the alleged misconduct of two paramedics employed by the City of Chicago. The circuit court concluded that defendant and its employee paramedics owed no duty to protect the plaintiff from the intentional acts of third parties. Defendants only owed a duty to transport and treat plaintiff based on medical necessity. Therefore, complaint asserting liability for plaintiff's injuries, which he sustained when he left back of ambulance and was struck in the eye by a bottle, was properly dismissed pursuant to a motion for summary judgment.
People ex rel. Birkett v. City of Chicago, No. 2-00-0615, 2-00-0715 cons. (2nd District, October 10, 2001.) Plaintiffs, the Roman Catholic Diocese of Joliet and the People of the State of Illinois, separately sued defendant, the City of Chicago, for nuisance. Plaintiffs alleged that aircraft arriving at and departing from the City's O'Hare International Airport generate noise that interferes with the operation of the Diocese's schools and sought monetary damages for the soundproofing of the schools. The trial court dismissed the nuisance counts of plaintiffs' complaints because the City's conduct alleged in the complaint was discretionary in nature within the meaning of sections 2-201 and 2-109 of the Local Governmental and Governmental Employees Tort Immunity Act. Dismissal was modified to be without prejudice to allow plaintiffs to amend their complaints to seek equitable relief.
Brugger v. Joseph Academy, Inc., No. 1-00-3171 (1st District, November 16, 2001.) Circuit court erred when it granted summary judgment to a private, not-for-profit school dismissing complaint seeking damages for knee injuries suffered by a student when she was ordered to play the game of bombardment in a physical education class despite a note from her physician that she should not be required to perform any activity requiring sideways movement. The provisions of the Local Governmental and Governmental Employees Tort Immunity Act do not apply to private schools, but only to public schools. Therefore, a private school and private school teachers are not granted immunity for their acts. Moreover, a question of material fact exists as to whether defendant school personnel committed willful and wanton conduct by disregarding the physician's note.
Brown v. King, No. 1-99-4510 (1st District, November 27, 2001.) Trial court erred in dismissing the Cook County Sheriff from a complaint alleging liability for injuries sustained by plaintiff when he was shot in the leg by an off-duty deputy investigating an automobile accident. Whether deputy was acting within the scope of his employment is question of fact for which the deputy's plea of guilty to aggravated battery as result of the incident is not dispositive. Further, section 3-6016 of the Counties Code expands the liability of the sheriff by making him liable for the negligent acts of his deputies in addition to any liability the sheriff might have for intentional and wanton misconduct of those same deputies under the Tort Immunity Act and traditional respondeat superior principles.
Byron Dragway, Inc. v. County of Ogle, No. 2-00-0934 (2nd District, November 14, 2001.) A motion to dismiss under section 2-0619 of the Code of Civil Procedure is not the appropriate mechanism to address declaratory judgment action alleging that amendment to vehicle racing business licensing ordinance restricting hours of operation of a raceway was illegal taking of property without just compensation. Issue of whether restriction on operating hours is legitimate nuisance abatement measure, which does not trigger "taking" clause of constitution, presents complex factual issues not amenable to summary disposition through section 2-0619 motion to dismiss.