The newsletter of the ISBA’s Standing Committee on Government Lawyers
Case law update
Dahman v. Illinois Department of Human Rights, No. 4-01-0675 (4th District, October 18, 2002). Plaintiff's petition for direct administrative review of the decision of the chief legal counsel of the Illinois Department of Human Rights to dismiss plaintiff's complaint for sexual harassment against respondent for lack of substantial evidence must be dismissed because plaintiff failed to name and serve employee-respondent, a party of record in the administrative hearing, as required by Supreme Court Rule 335 and the Administrative Review Law (735 ILCS 5/3-113(b) (West 2000)).
People v. Purcell, No. 92739 (October 3, 2002). Because section 110-4(b) of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-4(b) (West 2000)) places the burden on a defendant to demonstrate his or her entitlement to pre-trial bail in opposition to the language of article I, section 9 of the Illinois Constitution of 1970, the appellate court correctly concluded that section 110-4(b) of the Code unconstitutionally violates defendant's due process rights.
In re D.D., No. 1-01-2698 (1st District, September 30, 2002). A juvenile court's order requiring a school district to pay the educational component of a delinquent minor's residential placement is a final and appealable order. Because an appeal from an order entered in a delinquency hearing is governed by criminal appeals rules, the school district's appeal of an order requiring reimbursement of the State for the educational component of the costs of out-of-state residential facility to which minor was committed was not required to contain language pursuant to the provisions of Supreme Court Rule 304(a). Although juvenile court had subject matter jurisdiction to order the payment of the educational component of delinquent minor's out-of-state residential placement, the order requiring the school district to pay for the costs is contrary to the provisions of the Juvenile Court Act.
People v. Brooks, No. 5-01-0081 (5th District, October 7, 2002). Although a defendant's refusal to submit to a portable breath test and the results of such a test are generally inadmissible in a DUI trial, failure to object to evidence of refusal did not prejudice defendant because he also refused to submit to standard breathalyzer test. Furthermore, defendant was not deprived of effective assistance of counsel by virtue of complained of trial strategy.
People v. Morris, No. 1-00-0916 (1st District, November 7, 2002). Defendant is entitled to evidentiary hearing at third stage of post conviction petition process because record, petition and affidavits supporting it demonstrate a substantial showing of ineffective assistance of counsel prejudicing outcome of trial by virtue of counsel's failure to investigate, interview, disclose in discovery, and secure by way of subpoena, defendant's alibi witnesses.
People v. Soto, No. 2-01-0119 (2nd District, November 12, 2002). Because the State expanded the indictment by submitting murder based on accountability theory jury instruction, defendant was entitled to instruction on conspiracy to commit murder as lesser-included offense. Further, defendant's silence while on electronic monitors to statement made by co-defendant was not admissible as tacit admission. In addition, prosecutor's closing argument, which contained statements not supported by any evidence in record, was improper.
People v. Callahan, No. 4-99-1043 (4th District, October 18, 2002). Although counsel's failure to challenge confession or tender instruction of involuntary manslaughter defining "recklessness" did not prejudice defendant, his failure to make Speedy Trial Act objection to armed violence charges filed on eve of trial deprived defendant of effective assistance of counsel. Further, sentence of natural life based on brutal nature of murder without specific finding by jury violates Apprendi.
People v. Fletcher, No. 5-01-0878 (5th District, November 20, 2002). Defendant was deprived of effective counsel when his attorney introduced, and allowed the State to introduce, his entire record of previous criminality when only one prior misdemeanor conviction was actually admissible.
People v. Caballero, No. 88784 (October 18, 2002). Defendant was not denied due process because he was sentenced to death while co-defendants received prison terms. Although defendant's criminal record was not as extensive as the co-defendant who was sentenced to natural life, he had just as dismal potential for rehabilitation, and was just as culpable. Further, United Mexican States, asamicus, may not raise issues not raised by the parties.
People v. Pulliam, No. 89141 (October 18, 2002). Defendant's post conviction petition must be remanded in order for the trial court to hold a de novoevidentiary hearing to determine whether defendant is mentally retarded in light of the United States Supreme Court's holding in Atkins v. Virginia, 536 U.S. ___, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002), prohibiting the execution of mentally retarded individuals.
People v. Coleman, No. 89159 (October 18, 2002). Trial court properly dismissed defendant's post conviction petition and his motion under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)) seeking to set aside guilty verdict and death penalty. Defendant was not entitled to cross-examine police officer and prosecutors about collateral matters that had no bearing on any potential motivation to testify falsely in defendant's case. Further, defendant could have discovered before two years after conviction the failure on the part of one of his prosecutors to disclose Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), violations in application for associate judge.
People v. Brown, No. 89226 (October 18, 2002). Although the State did not improperly manipulate docket so that case remanded by appellate court would be tried first, (thereby providing additional factor in aggravation for death penalty hearing on remand in case sub judice) trial court erred by refusing to ask each juror whether they would automatically vote for death penalty for any defendant convicted of murder.
People v. Tenner, No. 90394 (October 18, 2002). Because identical issues of whether there was a bona fide issue of defendant's mental capacity to stand trial was previously disposed of by first post conviction petition, defendant is collaterally estopped from raising it again. Trial court properly dismissed post conviction petition without evidentiary hearing.
People v. Wharton, No. 4-00-0769 (4th District, October 28, 2002). After defendant was acquitted of home invasion, he could not be retried for burglary and armed robbery without subjecting him to double jeopardy because jury could not acquit him of home invasion without disbelieving witnesses on whose testimony proof burglary and robbery depend.
People v. Roake, No. 2-01-0491 (2nd District, October 3, 2002). Statute setting forth circumstances justifying emergency eavesdropping overhears is in the disjunctive. The short time period before anticipated drug transaction qualified as an "emergency" within definition of Eavesdropping statue. Further, although subsequently obtained written order failed to comply with statute, its noncompliance does not undermine basic procedural safeguards and does not create grounds to suppress tapes.
False personation of peace officer
People v. Thoennes, No. 4-00-0776 (4th District, October 9, 2002). The statute creating the offense of false personation of a police officer (720 ILCS 5/32-5.1 (West 1998)) is neither overbroad nor violative of due process, and serves a legitimate government purpose even though it does not require improper purpose on the part of the defendant.
Fabiano v. City of Palos Hills, No. 1-00-1266 (1st District, November 25, 2002). Trial court erred when it granted summary judgment in favor of defendant police officers and police chief from the City of Palos Heights dismissing plaintiff's malicious prosecution complaint because trial court based its ruling on affidavits containing impermissible conclusions, and admissible evidence was insufficient to establish lack of probable cause, malice or commencement as a matter of law. Further, city officials were not entitled to absolute immunity or immunity pursuant to the Local Governmental and Governmental Employees Tort Immunity Act. However, plaintiff failed to prove that denial of motion to compel discovery of the personnel records of the police officers was an abuse of discretion.
Sexually dangerous persons
People v. Kastman, No. 2-00-1425 (2nd District, October 28, 2002). Trial court erred by placing burden on respondent to prove that he was recovered rather than on the State to prove that he remained sexually dangerous in hearing on application for recovery. However, the court did not err by accepting socio-psychiatric report prepared by the State containing input from unlicensed clinical psychologist and licensed clinical social worker as sociologist.
Kaemmerer v. St. Clair County Electoral Board, No. 5-02-0504 (5th District, October 4, 2002). When identical objections to nominating papers of four candidates for county office were filed, all of the members of the county's electoral board whose opponents were being challenged based upon those objections should have been substituted from consideration of all of the candidates objections, not just their individual opponents. Further, trial court exceeded its authority by ordering names placed on the ballot. Matter must be remanded for consideration by properly constituted board.
Forcade-Osborn v. Madison County Electoral Board, No. 5-02-0521 (5thDistrict, October 23, 2002). Court lacks jurisdiction to hear appeal from circuit court's affirmance of decision of electoral board striking plaintiff's nomination for county office because complaint for review of decision was filed in the circuit court before there was a written decision of electoral board.
Preuter v. State Officers Electoral Board, No. 1-02-2545 (1st District, October 25, 2002). Because section 10-2 of the Election Code (10 ILCS 5/10-2 (West 2000)) is ambiguous with regard to whether a political party whose candidate garners more than five percent of the votes in an election in a district qualifies as an established political party in each of the legislative districts to which its precincts are redistricted, and because the State Board of Elections specifically addressed this scenario in its publication and concluded that it does, the State Board of Elections is estopped from taking the opposite position in its hearing of an objection to the nominations of Libertarian candidates for State representative in the three districts to which the former 39th Representative District were assigned. Therefore, the circuit court was correct to reverse its allowance of the objection.
Vestrup v. Du Page County Election Comm'n, No. 2-01-1034 (2nd District, October 31, 2002). Contrary to the court's holding in Merz v. Volberding, 94 Ill. App. 3d 1111 (1981), the electoral board properly struck the Libertarian candidate from the ballot for State representative as member of established political party despite party polling more than five percent of voters in previous election in district from which current district was partly drawn after remap. Libertarians were not established political party in newly drawn district.
Graham v. Reid, No. 1-02-1827 (1st District, November 1, 2002). Trial court erred when it ordered new primary election to select Democratic candidate for State representative rather than continue with recount. Illinois has sufficient standards and procedures to constitutionally conduct recount even when ballots in entire precinct are missing.
People v. Klaeren II, No. 90537 (October 18, 2002). Village board deprived adjoining landowner of his due process rights when it refused to allow any cross examination of witnesses whatsoever in public hearing at which it considered, among other matters, an application for special use permit. Therefore, trial and appellate court properly enjoined continuation of site preparation for proposed use.
People v. City of Chicago, No. 93978 (October 18, 2002). The city was entitled to summary judgment dismissing complaint seeking a declaratory judgment and an injunction prohibiting Chicago from proceeding with planned terminal and ground transportation improvement without certification from the Illinois Department of Transportation (IDOT) because IDOT's regulations interpreting section 47 of the Illinois Aeronautics Act (620 ILCS 5/47 (West 2000)), which is entitled to deference, construe "improvements" requiring certification to mean only those alterations which affect runways or flight patterns.
People v. Barwig, No. 5-01-0356 (5th District, October 9, 2002). Sections 7-4-7 and 7-4-8 of the Illinois Municipal Code (65 ILCS 5/7-4-7, 7-4-8 (West 2000)) authorizing the police officers of a municipality to exercise their police powers outside of city's limits is constitutional. Therefore, Benton police officer was properly exercising his authority when arresting defendant in West City for driving under the influence. Further, because defendant did not present prima facie case for rescission of statutory summary suspension, evidence that police officer failed to enter results of test in log or observe defendant for continuous period of time prior to administering breathalyzer test did not entitle defendant to rescission.
Village of Lake Villa v. Stokovich, No. 2-00-0943 (2nd District, October 21, 2002). Section 11-31-1 of the Illinois Municipal Code (65 ILCS 5/11-31-1 (West 2000)) is unconstitutional because it fails to use the least restrictive reasonable means to protect the public safety. It allows the demolition of a building without offering the owner a reasonable opportunity to cure the defect. Therefore, the trial court erred by entering a demolition order without providing the owner with the opportunity to make repair.
City of Chicago v. Beretta U.S.A. Corp., No. 1-00-3541 (1st District, November 4, 2002). Plaintiffs' complaint alleging public nuisance against gun manufacturers and distributors for intentionally creating illegal secondary market in firearms and flooding the market with excess handguns states viable cause of action which trial court should not have dismissed.
Village of McCook v. Illinois Bell Telephone Co., No. 1-01-1848 (1st District, November 7, 2002). Plaintiff lacks standing to enforce the provisions of the Illinois Emergency Telephone System Act requiring telephone company to collect surcharge to fund 9-1-1 system because legislature conferred enforcement authority exclusively on the Attorney General and because Act was designed to benefit public as a whole. Further, breach of contract action is impermissible attempt to create private cause of action for public claim. Therefore, trial court should have granted defendant's motion to dismiss.
Chicago Limousine Service Inc., v. City of Chicago, No. 1-00-4149 (November 12, 2002). Plaintiff cab company did not have a private cause of action for breach of contract and promissory estoppel against city after city amended ordinance setting forth number of licenses that city could issue for livery services and procedures for issuing additional licenses. Ordinance did not specify plaintiff as licensee; nor did it require plaintiff to surrender anything but cost of license upon application. Therefore, trial court properly dismissed complaint.
In re Marriage of Menken, No. 2-01-0610 (2nd District, October 3, 2002). The trial court lacked the authority to order respondent, who had been a participant in the police pension fund prior to the enactment of section 1-119 of the Illinois Pension Code, which created the qualified Illinois domestic relations order, to a execute consent form authorizing the police pension fund to pay a portion of his pension directly to his former wife as part of dissolution of marriage. Therefore, the previous order directing him to pay ex-wife money from pension within specified time of receipt is reinstated.
Chicago Teachers Union v. Illinois Educational Labor Relations Board, No. 1-01-0293, 1-01-2510 cons. (1st District, October 24, 2002). Decision of the Illinois Educational Labor Relations Board that grievance over selection of teachers to teach summer school was not subject to collective bargaining arbitration because it was issue of "class staffing and assignment" was clearly erroneous. Grievances involved issue of whether teachers were hired for additional summer employment not what classroom they were assigned or staffing level.
Land v. Board of Education, No. 92837 (November 21, 2002). Although Chicago School Board may delegate its statutory authority to lay off tenured teachers, and section 34-18 of the School Code permits them to do so without cause, as defined by section 34-85 of the Code, the record is insufficient to justify summary judgment in favor of the Board. There is insufficient evidence that it properly followed its own procedures.
Tort immunity and liability
Antonacci v. City of Chicago, No. 1-01-3317 (1st District, November 6, 2002). Trial court erred when it dismissed complaint against City of Chicago alleging willful and wanton negligence of emergency personnel for failing to perform EKG or defibrillation of plaintiff's decedent after correctly diagnosing his heart attack. Allegations, with physician's report attached, fit within the exception set out in section 6-106(d) of the Local Governmental and Governmental Employees Tort Immunity Act.
Repede v. Community Unit School District, No. 300 No. 2-01-0940 (2ndDistrict, October 31, 2002). Trial court properly dismissed a complaint against school district for negligence associated with broken arm received while practicing pyramid stunt in cheerleading pursuant to Local Governmental and Governmental Employees Tort Immunity Act. School district did not assume liability by joining IHSA and adopting its spirit rules.
Brugger v. Joseph Academy, Inc., No. 92887 (November 21, 2002). A private, not-for-profit corporation operating private special education facility which receives most of its funding from tuition payments from public school districts is not so enmeshed with government that it qualifies for protection under the Local Governmental and Governmental Employees Tort Immunity Act. Therefore, appellate court properly reversed trial court's grant of summary judgment in school's favor.
People ex rel. Levenstein v. Salafsky, No. 2-01-0378 (2nd District, October 31, 2002). A complaint by a member of the faculty of the University of Illinois Medical School B Rockford, against the dean pursuant to the Whistleblower's Reward and Protection Act alleging misuse of University funds derived, in part, from the State of Illinois states a cause of action despite the absence of any election on the part of the University to adopt the provisions of the Act. Further, the litigation is not barred by case pending in Federal court alleging improper firing in retaliation for reporting alleged misuse of funds.