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The Public Servant
The newsletter of the ISBA’s Standing Committee on Government Lawyers

May 2003, vol. 4, no. 5

Case law update

Administrative law

South 51 Development Corp. v. Vega, No. 1-01-3251, 1-01-3255, 1-01-3260 cons. (1st District, November 26, 2002). Amendment to the Consumer Installment Loan Act (205 ILCS 670/1 et seq. (West 2000)), authorizing the Illinois Department of Financial Institutions to enact rules "that are necessary and appropriate for the protection of consumers," in response to a report identifying problems with short-term lending practices, was neither impermissibly vague nor improper delegation by the General Assembly. In addition, rules were promulgated in compliance with the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2000)) and not in derogation of the dictates of the legislature despite containing language substantially identical to that in a bill that the General Assembly failed to pass.

Prairie Rivers Network v. Illinois Pollution Control Board, No. 4-01-0801 (4th District, October 24, 2002). The Illinois Pollution Control Board properly imposed burden of proof on third-party appellant to demonstrate that the National Pollutant Discharge Elimination System (NPDES) permit, as issued, violated Illinois or federal law. Further, there is no requirement under the Federal Clean Water Act (33 U.S.C. '1342(b) (2000)) or under the Illinois NPDES rules that a drastically altered permit be resubmitted to public hearing and comment after amendment or a prohibition against considering material submitted by an applicant after public comment period. Therefore, the appeal of the grant of a NPDES permit was properly denied.

Wilson v. State Employees' Retirement System, No. 1-02-0083 (1st District, December 20, 2002). Trial court was required to dismiss review of administrative determination by the Board of Trustees of the State Employees' Retirement System (SERS) to deny appeal from decision of the Executive Committee of SERS with regard to overpayment to plaintiff because plaintiff named SERS and Executive Committee of SERS as defendants but failed to name Board of Trustees of SERS as defendant. Because the Board of Trustees of SERS is the body that rendered the final administrative decision, the Board must be named to satisfy the provisions of section 3-107 of the Administrative Review Law (735 ILCS 5/3-107 (West 1998)). Further, failure to raise issue prior to court's decision to reverse administrative order does not waive it.

Blumhorst v. Illinois Department of Employment Security, No. 4-02-0038 (4th District, December 12, 2002). Because the record contains no evidence that plaintiff took action to request summons be served by circuit clerk within 35 days of issuance of final administrative decision denying him unemployment compensation benefits, trial court erred when it denied defendants' motion to dismiss asserting a violation of section 3-103 of the Administrative Review Law (735 ILCS 5/3-103 (West 2000)).

Cisneros v. White, No. 1-01-1254 (1st District, January 24, 2003). Although trial court correctly noted errors in findings of secretary of state's administrative law judge with regards to hardship that was imposed on applicant for restrictive driving permit by revocation of his driver's license, applicant's driving record (he was caught driving with no license or with revoked license) prevents him from proving that administrative law judge's conclusion that he failed to demonstrate that he was not a risk to public safety is against the manifest weight of the evidence.

Civil procedure

People v. Allen, No. 2-01-0977 (2nd District, February 4, 2003). After defendant was involved in an automobile collision in Illinois and transported to Iowa for treatment, the trial court erred by applying Iowa's physician-patient privilege to exclude results of blood alcohol test in DUI trial. As the forum state, with insufficient "special reason" to exclude results, Illinois exception to privilege found in 625 ILCS 5/11-501.4 (West 2000)) should have been applied.

Constitutional law

People v. Law, No. 93389 (December 5, 2002). Because section 6-16(c) of the Liquor Control Act of 1934 (235 ILCS 5/6-16 (c) (West 2000)), creating a misdemeanor offense of resident allowing a person under 21 to leave the residence after consuming alcohol, is unconstitutionally vague on its face, the trial court properly dismissed complaint against defendant.

People v. Carrera, No. 91465 (December 19, 2002). Appellate court correctly reversed trial court's denial of motion to suppress evidence seized by Chicago police officers outside of city limits pursuant to section 7-4-8 of the Illinois Municipal Code (65 ILCS 5/7-4-8 (West 1996)), which was later determined to be unconstitutional.

People v. Morgan, No. 90891 (January 24, 2003). Because the sentencing range for attempted murder after the enactment of Public Act 91-404 (15-20-25 to life sentencing) is greater than that for second-degree murder, because a defendant charged with attempted murder is not allowed to present evidence of mitigating circumstances available for defendant charged with second- degree murder, and because attempted second-degree murder has been deemed to be a logical impossibility, the attempt statute found in section 8-4 of the Criminal Code of 1961 (720 ILCS 5/8-4 (West 2000)), as amended by Public Act 91-404, violates the proportionate penalties clause of article II, section 11 of the Illinois Constitution of 1970. Therefore, the trial court was correct to dismiss charges against defendant for attempted murder.

People v. Pomykala, No. 93089 (January 24, 2003). Appellate court correctly concluded that section 9-3(b) of the Criminal Code of 1961 (720 ILCS 5/9-3(b) (West 2000)) is unconstitutional because it imposes a mandatory presumption on jury when deliberating reckless homicide case to find defendant guilty of recklessness if his blood alcohol exceeds legal limit. Case must be remanded for new trial without instruction containing presumption.

Friends of the Parks v. Chicago Park District, No. 93852 (February 21, 2003). Because section 3 of the Illinois Sports Facility Authority Act (70 ILCS 3205/3 (West 2000)), enabling the renovation of Soldier Field, violates neither the public purpose doctrine nor the public trust doctrine and because the enrolled-bill doctrine precludes court enforcement of the three-readings requirement for certified legislation, trial court's entry of summary judgment in favor of respondent in complaint challenging renovation project was correct.

Criminal law

Criminal counsel

People v. Harris, No. 88468 (December 19, 2002). Although trial court properly dismissed defendant's claim of ineffective assistance of counsel without evidentiary hearing pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1996)), affidavits attached to defendant's petition do establish potential Brady violation by virtue of the state's failure to disclose information that key witness in death penalty portion of hearing may have committed perjury.

People v. Johnson, No. 89910 (December 19, 2002). Trial court's decision to summarily dismiss defendant's claims of post-conviction petition is reviewed de novo. Defendant's petition failed to establish either bona fide doubt as to fitness to stand trial or ineffective assistance of counsel, the affidavits in support thereof being cumulative of trial testimony.

People v. Sparks, No. 2-01-0247 (2nd District, November 27, 2002). In trial for selling controlled substance within 1,000 feet of church, defendant's counsel was not ineffective by failing to raise foundation objections to the introduction of a measurement tool known as a "Light Detection and Ranging Device" used to measure distance between his sale of controlled substance and entrance to Salvation Army chapel. Further, measurement is to be made along straight line and not as one would walk. In addition, Salvation Army chapel qualifies as "church" within definition of statute because primary purpose is for religious worship.

People v. Allen, No. 4-00-0786 (4th District, December 10, 2002). Although introduction of other crimes evidence did not properly qualify as modus operandi or state of mind, and prosecutor improperly referred to the defendant as a "bad man," the identification testimony in defendant's trial for kidnapping was so strong that defendant was not deprived of a fair trial. Further, defendant was properly sentenced to life imprisonment as habitual criminal under section 33B-1 of the Criminal Code of 1961 (720 ILCS 5/33B-1 (West 2000)).

People v. Little, No. 4-01-0536 (4th District, January 8, 2003). Defendant's post conviction petition is subject to summary dismissal because it fails to establish that failure to conduct sophisticated survey concerning the effect of pretrial publicity to support her motion to change venue constituted ineffective assistance of counsel when record shows that selected jury was fair and impartial.

People v. Soto, No. 2-01-0119 (2nd District, January 15, 2003). Because the state effectively modified 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, because defendant was under arrest, in police custody and had already been warned that anything he said could be used against him at trial, his silence to statement made by codefendant was not admissible as tacit-admission. In addition, the state concedes prosecutor's closing argument, which contained statements not supported by any evidence in record, was improper.

People v. Turner, No. 1-00-3452 (1st District, January 24, 2003). Under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)), a defendant had three years from the date of conviction to file a post-conviction petition for relief. Defendant's supplemental post-conviction petition filed 13 years after his original conviction was subject to dismissal after appointment of counsel but without an evidentiary hearing because it was not timely with no showing of lack of culpable negligence. Further, it failed to allege gist of viable constitutional claim of ineffective assistance of counsel, the failure to tender involuntary manslaughter conviction being a matter of trial strategy at time of trial and there being no evidentiary basis for court to have given instruction.

People v. Cooper, No. 1-01-1715, 1-01-2823 cons. (1st District, January 24, 2003). Defendant was properly convicted of possession of .7 mg of heroin based on testimony of police officers that they observed defendant taking cash from individuals and then reaching into plastic bag located on fence and handing them packets, when they moved in and arrested defendant and found heroin in plastic bag. However, since none of the purchasers were arrested, and since amount seized is amount that could be intended for personal use, evidence was insufficient to sustain conviction for possession with intent to deliver. Further, because alleged errors by defense counsel would not have resulted in different outcome, Strickland standard is not met for reversal based on ineffective assistance of counsel.

People v. Rish, No. 3-01-0161 (3rd District, February 11, 2003). Trial court erred when it dismissed post-conviction petition of murder defendant without an evidentiary hearing because petition and affidavits sufficiently allege violation of defendant's due process when attorney representing her allowed her to make series of inconsistent statements during two days of interrogation without informing her that he was a close personal friend of the victim and of the attorney for the police officer involved in the investigation. Further, petitions contain sufficient allegations of Brady violation based on lies by investigator.

People v. Kellerman, No. 3-01-0713 (3rd District, March 5, 2003). Defendant's appeal from the summary dismissal of his post-conviction petition was timely filed by means of letter mailed from prison within 30 days of dismissal titled, "Notice of Filing Notice of Appeal" in which he requested that trial court's dismissal of his petition be appealed. Further, post-conviction petition was not waived by failure to file motion to withdraw guilty plea or appeal from sentence imposed pursuant to plea because it contained allegations of ineffective assistance, to wit: that counsel incorrectly advised him that statements made by police that state's attorney would offer him sentence of three or four years if he confessed, had no legal effect, and could not have been raised on direct appeal.

Double jeopardy

People v. Gray, No. 4-02-0274 (4th District, January 15, 2003). Despite previous charges in Coles County of aggravated criminal sexual assault for same acts as are charged in pending case in Champaign County, for which defendant entered into plea agreement, double jeopardy does not preclude prosecution for predatory criminal sexual assault of a child because the state's attorney of Coles County was not the proper prosecuting authority for offenses committed in Champaign County, thus avoiding the bar of sections 3-3(b) and 3-4(b) of the Criminal Code of 1961 (720 ILCS 3-3(b), 3-4(b) (West 1998)). Further, the prosecution does not violate the plea agreement because the charges in the two counties are not the same.


People v. Vaden, No. 3-01-0555 (3rd District, February 4, 2003). Defendant was properly convicted of delivery of controlled substance within 1,000 feet of a church based, in part, on videotape and audiotape introduced into evidence with proper foundation. For purposes of videotape, "silent witness" theory may be used to lay foundation, i.e., proof that the process by which the tape was produced was reliable.

Expert testimony

People v. Taylor, No. 2-01-0494 (2nd District, December 30, 2002). Trial court erred by allowing expert psychological testimony of likelihood of recidivism of respondent based, in part, on use of actuarial tests (MnSOST, MnSOST-R, RRASOR, and Static-99), which have not satisfied the Frye test by gaining general acceptance in the psychological community, and without proper foundation with regards to the propriety of their methodology.

Unlawful use of weapon

People v. Cameron, No. 4-01-0537 (4th District, February 7, 2003). In defendant's trial for unlawful use of weapon, trial court correctly refused instruction based on container exception provided by section 24-1(a)(4)(iii) of the Criminal Code of 1961 (720 ILCS 5/24-1(a)(4)(iii) (West 2000)), because a vehicle's glove compartment in which weapon was transported does not qualify as an "other container."

Election law

Brennan v. Kolman, No. 1-02-2903 (1st District, November 27, 2002.) Back door referenda petitions substantially complied with the provisions of section 28-3 of the Election Code (10 ILCS 5/28-3 (West 2001 Supp.)) despite the odd location on the petitions of the signature of the circulators and the absence of a complete affidavit of circulators that signatories were registered voters of village. Village was required to provide forms for petitions and is estopped from claiming errors caused by its form.

Brennan v. Illinois State Board of Elections, No. 1-01-3712 (1st District, December 26, 2002). Order of the State Board of Elections finding violations of the Election Code by plaintiff did not deprive him of due process and is not against the manifest weight of the evidence. Because 60- day requirement for Board decisions is not accompanied by any penalties, it is directory and not mandatory. Further, plaintiff was given proper notice and opportunity to be heard with regard to amended complaint, which resulted from investigation of others. Furthermore, evidence was sufficient to support conclusion that plaintiff willfully circumvented the Election Code by ordering and paying for videotape in opposition to four candidates for school board without timely disclosure of establishment of committee or expenditures in violation of sections 9-2, 9-3, 9-7, 9-10 and 9-26 of the Election Code (10 ILCS 5/9-2, 9-3, 9-7, 9-10 and 9-26 (West 2000)).

Potts v. Fitzgerald, No. 2-02-0064 (2nd District, February 7, 2003). Pursuant to the provisions of section 23-23 of the Election Code (10 ILCS 5/23-23 (West 2000)), a local election commission is not entitled to statutory costs and attorney fees for recount requested by petitioner after recount changed outcome of election, even though a candidate other than petitioner was declared victor.

Powell v. East St. Louis Electoral Board, No. 5-03-0071 (5th District, February 19, 2003). The local election commission acted within the mandates of the Election Code (10 ILCS 5/10-5 (West 2000)) when it struck plaintiffs' nominating petitions for the offices of mayor and city council for failure to file with their petitions a receipt for the filing of their statements of economic interest with the county clerk. Further, any violation by the local election commission of the provisions of the Open Meetings Act (5 ILCS 120/2 (West 2000)) does not render its action void.

Employment law

Applegate v. State of Illinois Department of Transportation, No. 4-01-0582 (4th District, November 15, 2002). Although a writ of certiorari is the proper remedy for review of the discharge of an exempt employee from the Department of Transportation, the trial court erred by reversing the decision of the Secretary of the Department of Transportation without giving proper deference to Secretary's interpretation of the Department's personnel manual.

Juvenile law

In re Omar A., No. 2-01-0967 (2nd District, December 20, 2002). Juvenile delinquency disposition must be remanded to trial court after juvenile admitted to several sex offenses because trial court failed to deliver Rule 605(b) admonition and defense counsel failed to file proper Rule 604(d) certification. State's suggestion that most efficient method to deal with this endemic problem is to dismiss appeal and allow respondent to file post-conviction petition fails to protect respondents from blatant ineffectiveness of counsel.

People v. Quezada, No. 2-01-0235 (2nd District, November 27, 2002). Although police officers failed to comply with section 5-405 of the Juvenile Court Act (705 ILCS 405/5-405 (West 1998)) when they waited an hour to contact defendant's father after arresting him, 15-year- old defendant made knowing and voluntary waiver of his Miranda rights prior to giving confession. Further, evidence of murder was overwhelming, thereby undermining his claim of ineffective assistance of counsel.

City of Champaign v. Montrell D.H., No. 4-02-0125 (4th District, February 7, 2003). Section 5-125 of the Juvenile Court Act (705 ILCS 405/5-125 (West 2000)), which exempts actions to enforce municipal ordinances from its provisions, violates neither respondent's due process nor equal protection rights. Therefore, trial court properly imposed period of detention on respondent for indirect criminal contempt of court after respondent violated terms of supervision imposed for violation of curfew.

Municipal law

Raintree Homes, Inc. v. Village of Long Grove, No. 2-01-1292 (2nd District, November 22, 2002). Complaint challenging authority of village to impose impact fees for building permits is not barred by the one-year statute of limitations contained in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 2000)) and should not have been dismissed. However, trial court properly struck paragraphs of complaint containing conclusory statements of law rather than allegations of fact.

Gallik v. County of Lake, No. 2-01-1387 (2nd District, November 22, 2002). The denial of a conditional use permit by a county board is an administrative action and is subject to administrative review under the Administrative Review Act (735 ILCS 5/3-101 et seq. (West 2000)).

Waicekauskas v. Burke, No. 1-01-3673 (1st District, December 13, 2002). A village ordinance setting forth an administrative procedure for contesting a municipal parking violation and which sets forth a fine schedule imposing an increased fine on those who wish to contest a violation on its merits, is unconstitutional in violation of the due process clause of both the United States and Illinois Constitutions.

Miller v. Hill, No. 3-00-0673, 3-00-1002, 3-01-0940, 3-01-0952 cons. (3rd District, February 6, 2003). Trial court correctly held that the decision of the county zoning board to issue a conditional use permit to operators of a firing range is not against the manifest weight of the evidence. Although plaintiffs presented unrebutted evidence from appraisers that shooting range diminished their property values, it was insufficiently specific to assist the zoning board in its determination. Further, although initial notice of hearing was defective, error was cured by plaintiffs being given three separate occasions to present evidence. In addition, section 5 of the Premises Liability Act (740 ILCS 130/5 (West 2000)) immunizes defendant from injunction and damage claim of plaintiffs for nuisance allegedly resulting from noise emissions on firing range.

Special prosecutors

In re Harris, No. 1-00-1394 (1st District, November 26, 2002). The petition to appoint a special prosecutor failed to allege sufficient facts to demonstrate a personal "interest" on the part of the state's attorney sufficient to satisfy the provisions of section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West1998)). Familial relationship between a police officer, who allegedly acted improperly during an investigation, and an assistant state's attorney, who is not in the same unit of the state's attorney's office as that which would investigate and charge police misconduct, is insufficient. Complaint was therefore properly dismissed.

Tort immunity and liability

Carver v. Sheriff of La Salle County, No. 91108 (February 6, 2003). Under Illinois law, counties are required to indemnify sheriffs for "any judgment recovered against him or her as the result of [an injury to the person or property of another caused by the sheriff or deputy in the performance of his or her duties], except where the injury results from the wilful misconduct of the sheriff." Therefore, pursuant to the provisions of section 5-1002 of Counties Code (55 ILCS 5/5-1002 (West 2000)), the county must pay a judgment entered against the former sheriff for acts committed in his official capacity as sheriff as result of complaint alleging sexual harassment, even though judgment was entered by consent decree. Pursuant to section 9-102 of the Tort Immunity Act (745 ILCS 10/ 9-102 (West 2000)), a county sheriff, in his or her official capacity, is vested by the General Assembly with the authority to settle litigation filed against the sheriff's office and to direct the office to pay that settlement.

Washington v. City of Evanston, No. 1-01-0881 (1st District, December 19, 2002). Hospital and physician who instructed emergency personnel in the field were immune from liability pursuant to the Emergency Medical Services Systems Act (210 ILCS 50/1 et seq. (West 1996)), even though OB resident giving telephone instructions was not trained emergency person because she was acting as designee of emergency physician. Further, since emergency personnel made good faith efforts to save breach baby in process of birth, plaintiffs cannot prove willful and wanton negligence as a matter of law. Therefore, trial court properly entered summary judgment in favor of defendants.

Zakoff v. Chicago Transit Authority, No. 1-00-3642 (1st District, December 20, 2002). Because CTA, as occupier of substation adjacent to Kennedy Expressway, owed no duty to locate concrete barrier and chain link fence with sufficient distance from roadway to protect motorists and bicyclists who might stray off roadway, trial court's grant of summary judgment dismissing wrongful death complaint by administrator of estate of bicyclist who crashed into barrier and chain link fence to his demise was appropriate.

Romine v. Village of Irving, No. 5-01-0798 (5th District, January 15, 2003). Defendant-village was entitled to summary judgment dismissing plaintiff's complaint for personal injuries suffered when struck by intoxicated motorist after police officer directed the motorist to leave premises. Not only is injury to plaintiff not reasonably foreseeable, but public policy argues against imposition of duty. Police officers' actions did not constitute willful and wanton conduct. Officers' actions are protected under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-202 (West 2000)).

Doe v. Dimovski, No. 2-01-1444 (2nd District, January 15, 2003). Plaintiff's complaint states a cause of action that is not barred by sections 2-201 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201, 3-108 (West 2000)) for negligence and for willful and wanton conduct based on allegations that defendants ignored reports of sexual abuse by teacher against student, failed to file mandatory report with the Department of Children and Family Services pursuant to Abused and Neglected Child Reporting Act (325 ILCS 5/1 et seq. (West 2000)), and failed to take appropriate action to curtail activities of teacher, thus exposing plaintiff's ward to subsequent sexual abuse. Therefore, the trial court erred by dismissing those counts of plaintiff's complaint.

Village of Sleepy Hollow v. Pulte Home Corp., No. 2-02-0410 (2nd District, January 27, 2003). Because sections 2-201 and 2-208 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201, 2-208 (West 2000)) do not afford immunity to village from liability for damages pursuant to section 11-110 of the Code of Civil Procedure (735 ILCS 5/11-110 (West 2000)), trial court properly denied village's motion to dismiss.

Valentino v. Hilquist, No. 1-01-2407 (1st District, January 24, 2003). Plaintiff's claim against community college board for failure to supervise employee who abused and battered plaintiff is immune from liability pursuant to section 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-108 (West 1996)). However, supervisor is not exempt for acts of battery and intentional infliction of emotional distress. In addition, Workers' Compensation Act (820 ILCS 305/5(a) (West 1996)) does not exempt employee from intentional torts. Further, trial court erred when it denied supervisor's request for exemption from appeal bond while granting board's, because board is required to indemnify supervisor from torts which arise out of employment. In addition, court erred in its jury instruction with regards to intentional infliction of emotional distress.

Jinkins v. Lee, No. 1-01-3937 (1st District, February 5, 2003). Trial court erred when it dismissed plaintiff's complaint for wrongful death of decedent against physicians at Madden Mental Health Center when decedent committed suicide an hour after defendants examined him and ordered decedent released despite transfer from hospital with diagnosis of acute psychosis and exhibition of suicidal behavior. Complaint falls within exception to sovereign immunity for diagnosis and treatment which physicians owe to patient independent of physician's state employment.

Wren v. Reddick Community Fire Protection District, No. 3-02-0214, 3-02-0226 cons. (3rd District, February 26, 2003). Trial court erred when it held that volunteer firefighters, who filed common law complaint against fire district and driver of truck for negligence for personal injuries suffered in collision while riding on truck, were barred from pursuing common law remedy by virtue of exclusive remedy provision of Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1998)), merely because they accepted unsolicited payments of medical and temporary total disability benefits and subsequently filed application for adjustment of claim in order to avoid limitations bar.