September 2005Volume 7Number 1PDF icon PDF version (for best printing)

Case law update

Administrative law

Rodriguez v. Sheriff’s Merit Comm’n of Kane County., 355 Ill. App. 3d 676 (2nd Dist., February 4, 2005). Trial court erred when it dismissed complaint for administrative review of decision of sheriff’s commission for failure to pay for cost of transcript of record pursuant to section 3-109 of the Code of Civil Procedure (735 ILCS 5/3-109 (West 2002)) because: (a) payment was not required while commission’s motion to dismiss was pending; and (b) there is no evidence that commission ever informed plaintiff of the cost of the transcript or demanded payment until complaint had been pending more than five months. Further, trial court properly denied motion to dismiss for lack of subject matter jurisdiction because Supreme Court Rule 11 notice of decision was not mailed to plaintiff’s attorney, as is required.

Home Depot, U.S.A. Inc. v. Department of Revenue, 355 Ill. App. 3d 370 (2nd Dist., February 8, 2005). Because trial court correctly concluded that Department of Revenue maintains principal offices in only Cook and Sangamon Counties, the majority of its employees and administrative nerve centers being located there, it correctly granted motion to transfer venue of plaintiff’s declaratory judgment complaint challenging inclusion of earnings from what department determined were unitary corporations, pursuant to section 2-103(a) of Code of Civil Procedure (735 ILCS 5/2-103 (West 2003 Supp.)) on de novo review.

Morris v. Department of Professional Regulation, 356 Ill. App. 3d 83 (1st Dist., February 18, 2005). Because plaintiff violated Nursing and Advanced Practice Nursing Act (225 ILCS 65/51 et seq. (West 2000)) by practicing midwifery without advanced practice nursing license, the Department was entitled to obtain cease and desist order directing plaintiff to stop practicing midwifery; and Department’s decision to suspend plaintiff’s registered nurse license does not violate plaintiff’s due process rights. However, order compelling 12-hour ethics course is not reasonably related to purposes of Nursing and Advanced Practice Act and was vacated.

Berg v. White, 357 Ill. App. 3d 496 (4th Dist., May 12, 2005). After trial court took administrative review of Secretary of State’s decision denying rescission of order revoking defendant’s driver’s license under advisement, docket entry affirming Secretary of State’s decision was final order, despite failure of clerk to send a copy of that order to plaintiff’s counsel; and subsequent order attempting to fix date of entry of final order at later date, was ineffective to make plaintiff’s subsequent notice of appeal timely under Supreme Court Rule 303.

Constitutional law

In Re D.W. Minor, 214 Ill. 2d 289 (March 24, 2005). Section 1(D)(q) of the Adoption Act (750 ILCS 50/1(D)(q) (West 2000)), which contains irrefutable presumption that parent who has been criminally convicted of aggravated battery, heinous battery, or attempted murder of any child, is unfit, violates equal protection because it is not narrowly tailored to serve the compelling State interest of protecting children.

Scachitti v. UBS Financial Services, 215 Ill. 2d 484 (June 3, 2005). Trial court correctly held that private taxpayers lack standing to bring common law actions on behalf of State, it being exclusive province of Attorney General. Further, because Attorney General is constitutional office, which powers may not be abridged by legislature, provisions of section 20-104(b) of the Code of Civil Procedure (735 ILCS 5/20-104(b) (West 2002)) are unconstitutional to the extent they authorize private citizens to file suit to recover public funds where State is real party in interest. However, private persons do have standing to bring suit on behalf of the State under the qui tam provisions of the Whistleblower Reward and Protection Act (740 ILCS 175/1 et seq. (West 2002)), which is constitutional because qui tam plaintiff has real stake in outcome, and Attorney General maintains right to control litigation.

County of Cook v. Bear Stearns & Co. Inc., 215 Ill. 2d 466 (June 3, 2005). Private citizens’ complaint against financial institutions alleging excess profits earned on refunding bonds was properly dismissed for lack of standing because: (a) the provisions of section 20-104(b) of the Code of Civil Procedure (735 ILCS 5/20-104 (West 1998)) are unconstitutional to the extent that they purport to give private citizens the right to pursue actions where county is real party in interest, the office of state’s attorney being a constitutional office, which duties and responsibilities may not be abridged by statute; and (b) Counties Code (55 ILCS 5/1-1001 et seq. (West 1998)) gives no private right of action for taxpayer claims, where injury is not allegedly result of official misconduct.

Criminal law

People v. Watson, 214 Ill. 2d 271 (January 21, 2005). The only limitation placed on the issuance of a Grand Jury subpoena for invasive bodily specimens is that it be supported by probable cause; the Grand Jury’s subpoena for extraction and testing of defendant’s blood was supported by probable cause. People v. Cuadrado, 214 Ill. 2d 79 (January 21, 2005). Indictment alleging that defendant “solicited,” rather than “procured,” another to murder her husband failed to allege essential element of offense. Defendant was not prejudiced by indictment alleging that she “solicited,” rather than procured, another to murder her husband, overruling People v. Scott, 285 Ill. App. 3d 95 (1996)).

People v. Norris, 214 Ill 2d 92 (January 21, 2005). Because neither Supreme Court Rule 504 nor Supreme Court Rule 505 guarantee the defendant the right to a trial on the merits at the first appearance date, State could nolle prosequi traffic tickets and refile them. The trial court has discretion to grant a continuance.

People v. Ramirez, 214 Ill. 2d 176 (January 21, 2005). Appellate court cor rectly held that trial court erred by proceeding to trial in absentia after defendant was not present when trial was set because the defendant was served with notice of the trial date by ordinary mail, as opposed to certified mail, as mandated by section 115-4.1(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4.1(a) (West 1992)).

People v. Roberts, 214 Ill. 2d 106 (February 3, 2005). Trial court abused its discretion when it allowed alternate juror to replace original juror after deliberations had already begun because it substantially prejudiced defendant, the remaining jurors having been aware that excused juror had been contacted by witness and was acting nervous, but having failed to immediately apprise court of same, and the remaining jurors had already formed their opinions of defendant’s guilt, having taken two votes before juror was excused.

City of Champaign v. Torres, 214 Ill. 2d 234 (February 17, 2005). Although owner or occupier of apartment would have had standing to disobey police officer and slam door as officer was attempting to block it open, defendant, guest, did not. Therefore, he had no 4th amendment defense to municipal charge of obstructing police officer. Neither may he assert defense of section 7-2 of Criminal Code of 1961 (720 ILCS 5/7-2 (West 2002)), as it is not applicable to municipal ordinance violations.

People v. Willis, 215 Ill. 2d 517 (June 3, 2005). Although delay of 87 hours before presenting defendant to court for probable cause hearing is unreasonable and violates 4th amendment, delay alone was insufficient to suppress confession given after 73 hours in detention. Proper test for admissibility of confession made by defendant during the unreasonable delay between his warrantless arrest and probable cause hearing was whether the confession was voluntary.

People v. Alexander, 354 Ill. App. 3d 832 (5th Dist., December 17, 2004). Defendant was properly convicted of murder in Illinois based on evidence that he participated in beating of victim in Illinois, who was semi-conscious or unconscious, and then left along road in Missouri, where he was struck and killed by oncoming vehicle. Because initial conduct, the beating, occurred in Illinois, it has jurisdiction over the murder. Further, any claimed errors committed by his attorney were either legitimate trial strategy or harmless. However, battery conviction must be vacated as lesser included offense of first-degree murder.

People v. Foster, 354 Ill. App. 3d 564 (1st Dist., December 20, 2004). Because identity of building as place of worship can be inferred from use of word “church” in its name, defendant was properly convicted of delivery of controlled substance within 1000 ft. of place of worship. Further, police officer’s testimony that he properly inventoried seized substance with identification number was sufficient to establish chain of custody from officer to the lab. In addition, section 5-4-3 of the Unified Code of Corrections (730 ILCS 5/5-4-3 (West 2002)) concerning mandatory collection of DNA samples provision does not violate defendant’s constitutional right to be free from unreasonable searches and seizures.

People v. Mendoza, 354 Ill App. 3d 621 (1st Dist., December 22, 2004). Although version of reckless homicide statute in effect at time of defendant’s bench trial contained impermissible mandatory presumption (see 720 ILCS 5/9-3(b) (West 2000)) and had already been held unconstitutional by the Supreme Court (People v. Pomykala, 203 Ill. 2d 198, 209 (2003)), record contained no evidence that trial court or prosecutor relied upon the presumption. Since trial judge is presumed to know and follow the law, defendant has failed to establish reversible error.

People v. Pickens, 354 Ill. App. 3d 904 (1st Dist., December 28, 2004). Evidence that defendant slammed door on wife’s foot is sufficient to support conviction of domestic battery. Further, unavailability of court supervision for finding of guilty of domestic battery (720 ILCS 5/12-3.2(a)(2) (West 2002)) does not violate proportionate penalties clause because domestic battery statute does not have same purpose as battery. Thus, proportionate-penalties clause of the Constitution (Ill. Const. 1970, art. I, §11) was not implicated under identical-elements test.

People v. Hudson, 354 Ill. App. 3d 648 (1st Dist., December 30, 2004). Trial court gave proper modified IPI 7.01 instruction telling jury that defendant was guilty of felony murder if, during the course of a forcible felony, he set in motion a chain of events which resulted in the death, rather than imposing additional requirement that defendant contemplated, or should have contemplated the potential of someone dying in course of felony, as defendant proposed.

People v. Gallano, 354 Ill. App. 3d 941 (1st Dist., December 30, 2004). Trial court erred when it dismissed juror during deliberation after he sent note out to judge indicating that the other jurors were willing to convict, but he had reasonable doubts. Timing of discharge and transcript from trial demonstrate that juror was dismissed because of his hold out position and not because of newly discovered evidence that juror had been untruthful during voir dire. Further, because statement by co-defendant would have been inadmissible hearsay, defendant has established no due process violation by co-defendant invoking privilege against self incrimination and refusing to testify.

People v. West, 355 Ill. App. 3d 28 (1st Dist., January 5, 2005). Although alleged sexual assault victim’s statements made to individual to whose residence she ran to for aid and statements made to police officer at that person’s house and to the 911 dispatcher with regards to nature of attack on her and injuries she sustained were not testimonial in nature, the statements she made to 911 dispatcher and police officers at the hospital which described the defendant, identified the vehicle, the direction he fled and the personal property he took were testimonial and were admitted in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Victim’s statements to emergency room nurse and emergency room physician regarding the nature of alleged attack and cause of her symptoms and pain were admissible under the medical treatment exception to hearsay rule. The court properly allowed testimony of prior bad acts by defendant at sentencing hearing.

In re E.H., 355 Ill. App. 3d 364 (1st Dist., January 28, 2005). In adjudicatory hearing of respondent’s juvenile delinquency petition for aggravated sexual abuse and assault, hearsay statements of nontestifying child victim to her grandmother were admitted in violation of respondent’s constitutional right of confrontation as described in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because statements, although not to governmental official, were testimonial in nature. Further, section 115-10 of the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2000)), under which statements were admitted, is unconstitutional.

People v. Dahlberg, 355 Ill. App. 3d 308 (2nd Dist., February 9, 2005). Jeopardy attached to trial of defendant for domestic battery when trial court, without giving defendant an opportunity to object or consider other alternatives, declared mistrial when defense counsel questioned complaining witness about other complaints she has filed against other men for domestic violence. Defendant’s failure to object to mistrial did not constitute an acquiescence to the mistrial. Because there was no manifest necessity for trial court to declare mistrial, defendant may not be retried.

Girard v. White, 356 Ill. App. 3d 11 (1st Dist., March 14, 2005). Illinois law does not permit application for driver’s license by new resident whose Florida driver’s license has been revoked following four driving under the influence convictions. People v. Mitchell, 356 Ill. App. 3d 158 (2nd Dist., March 31, 2005). Delay of 14 years between filing of complaint for arrest warrant and arrest and indictment of defendant for attempted murder of his wife did not give rise to speedy trial violation because defendant’s right to a speedy trial did not accrue until he was arrested and indicted in 2003. Therefore, trial court erred when it dismissed indictment.

People v. Ingram, 357 Ill. App. 3d 228 (5th Dist., April 7, 2005). Defendant was not entitled to dismissal of his aggravated criminal sexual assault charges based on amended speedy trial provisions (725 ILCS 5/103-5(a) (West 2002)) because he failed to affirmatively object to continuance of case when State moved for additional hair samples and tendered additional discovery. Motion for continuance by State is not required pursuant to amended speedy trial provisions.

People v. Downin, 357 Ill. App. 3d 193 (3rd Dist., April 29, 2005). Aggravated criminal sexual abuse statute, of which defendant was convicted, does not violate equal protection even though persons of same age as defendant and 15 year-old victim may engage in sexual intercourse when married with parental or court permission pursuant to Illinois Marriage and Dissolution of Marriage Act because parental or court permission to marry reduces likelihood of exploitation by virtue of age difference. Further, trial court properly admitted print out of e-mail purportedly sent by defendant despite testimony of computer expert that it could not be definitely authenticated and could be falsified without identification of ip address from which it was sent.

People v. Blakely, 357 Ill. App. 3d 477 (4th Dist., May 26, 2005). Trial court erred when it imposed $1,000 mileage fee for sheriff returning the defendant from Colorado in each of two simultaneously pending cases. Cost assessment must be divided between cases, and defendant is only required to pay the actual costs incurred.

People v. Brener, No. 2-04-0411 (2nd Dist., June 1, 2005). Because defendant’s one-hour, alcohol impaired drive through three counties looking for his brother’s broken down motorcycle constitutes one continuing offense that is a single act, his guilty plea in Winnebago County to DUI charges properly resulted in dismissal, on grounds of double jeopardy, of aggravated DUI charges in Jo Daviess County, where he accidentally ran over his sister causing serious injuries.

People v. Buckner, No. 3-03-0611 (3rd Dist., June 13, 2005). Trial court erred by failing to conduct Boose hearing to ascertain whether extraordinary security device was necessary before allowing sheriff to force defendant to wear electronic security belt during trial for burglary. Rather than order new trial, trial court is ordered to conduct retrospective Boose hearing.

Criminal counsel

People v. Hart, 214 Ill. 2d 490 (April 7, 2005). There was no Supreme Court Rule 402(f) (177 Ill. 2d R. 402(f)) violation when, after defense failed to object to testimony from detective that defendant attempted to plea bargain. Prosecutor commented on inference  of guilt from defendant’s statements in closing arguments. Further, any Doyle violation was harmless error; defendant was not deprived of a fair trial.

People v. Lander, 215 Ill. 2d 577 (June 3, 2005). Because courtappointed attorneys are required to comply with consultation and affidavit requirements of Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) even when defendant’s pro se post-conviction petition was filed beyond statutorily permitted period, defendant was deprived of sufficient representation and dismissal of his post conviction petition must be reversed and remanded. However, defendant’s affidavit, that he relied on bad information given by law clerks, law librarian and “jailhouse lawyers,” is insufficient to establish delay was not due to defendant’s culpable negligence and justify late filing of petition.

People v. Cichon, 354 Ill. App. 3d 200 (3rd Dist., December 14, 2004). It was not error for the trial court to summarily dismiss post-conviction petition alleging that State’s Attorney Appellate Prosecutor had no authority to act as special prosecutor in his case. Section 3-9008 of Counties Code (55 ILCS 3-9008 (West 2000)) allows court to appoint any licensed attorney as special prosecutor and motion alleging conflict on part of State’s Attorney was made and allowed.

Alexander v. Pearson, 354 Ill. App. 3d 643 (1st Dist., December 16, 2004). State Appellate Defender’s office is not required or authorized to represent prisoners in the prosecution of habeas corpus petitions, and plaintiff is not entitled to appointed counsel to represent him in the appeal of the dismissal of his habeas petition. Therefore, the Appellate Defender is given leave to withdraw. Further, because habeas petition raises as its sole basis, the propriety of his extended term sentence, and Apprendi does not apply retroactively and may not be raised in collateral proceedings, plaintiff’s habeas petition was properly dismissed by the trial court.

People v. Vaughn, 354 Ill. App. 3d 917 (1st Dist., December 23, 2004). In defendant’s jury trial for driving under the influence and driving with a suspended license, the trial judge went beyond role of neutral decisionmaker and assumed role of trial strategist when he interrupted defendant’s testimony and made comments sufficient to induce defendant to retract decision to testify and then instructed jury to disregard defendant’s previous testimony. Therefore, he should have granted defendant’s motion for mistrial. However, although judges conduct affected outcome of DUI charge, it did not affect outcome of driving while suspended charge, which defendant’s stricken testimony essentially admitted.

People v. Young, 355 Ill. App. 3d 317 (2nd Dist., January 26, 2005). Trial court erred when it dismissed defendant’s pro se post-conviction petition alleging ineffective assistance of counsel when his attorney pressured him into accepting plea agreement by misinforming him about sentence he would be required to serve. Trial court erroneously applied two-year statute of limitations of 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)) to conclude that petition was time-barred and failed to inquire whether defendant was indigent and, if so, desired appointed counsel.

People v. Roby, 356 Ill. App. 3d 567 (5th Dist., March 17, 2005). Trial court erred when it conducted hearing on defendant’s motion to withdraw his guilty plea despite report of psychiatrist that defendant was unfit to assist his counsel in presentation of motion, particularly since defendant was not competent to waive attorney client privilege in order for counsel at time of guilty plea to testify.

People v. Ogurek, 356 Ill. App. 3d 429 (2nd Dist., March 30, 2005). When defendant expressed dissatisfaction with public defender, trial court properly admonished him and instructed him to put his reasons for wanting a different public defender in writing in the form of a motion. Defendant’s waiver of counsel was therefore properly executed. Further, trial court did not impliedly revoke waiver of defense counsel by appointing stand-by counsel.

People v. Pendleton, 356 Ill. App. 3d 863 (2nd Dist., April 13, 2005). Defendant did not receive reasonable level of assistance required by Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)) when his appointed counsel failed to raise, in amended post-conviction petition, trial court’s failure to give proper admonitions pursuant to Supreme Court Rule 605(b) (Official Reports Advance Sheet No. 21 (October 17, 2001)) when accepting guilty plea.

People v. Wooddell, 357 Ill. App. 3d 208 (4th Dist., May 2, 2005). When defendant was released from Department of Corrections on mandatory supervised release, she was no longer subject to speedy-trial provisions of Intrastate Detainers Act (730 ILCS 5/3-8-10 (West 2002)) and was required to file new speedy-trial demand pursuant to Speedy Trial Act (725 ILCS 5/1035 (West 2002)). Therefore, trial court erred in dismissing the charges against the defendant based on speedy-trial demand made pursuant to Intrastate Detainers Act.

In re Robert S., 357 Ill. App. 3d 214 (4th Dist., May 13, 2005). Trial court committed reversible error when it allowed defense counsel’s motion to withdraw and then immediately proceeded to hearing of State’s petition to terminate respondent’s parental rights without allowing 21-day grace period to obtain alternate counsel or demanding compliance with notice provisions of Supreme Court Rule 13 (c).

People v. Brown, No. 5-03-0489 (5th Dist., May 27, 2005). Defendant was deprived of effective assistance of counsel in his trial for murder when defense attorney failed to move to suppress recordings and documents made while defendant was in custody through the use of a fellow inmate, who regularly induced inculpatory statements from fellow inmates while in custody. That witness’ credibility was suspect without corroborating recordings and documents, which were induced in violation of sixth amendment right to counsel.

People v. Sales, No. 2-04-0371 (2nd Dist., June 10, 2005). Although Assistant State’s Attorney repeatedly violated order in limine, and trial court granted new trial because of it, double jeopardy does not bar defendant’s retrial for sexual exploitation of a child. Grant of a new trial is not the functional equivalent of a mistrial.

Criminal sentencing

People v. Bishop, 354 Ill. App. 3d 549 (1st Dist., December 13, 2004). Because substantial compliance with Illinois State Police Regulations (20 Ill. Adm Code §1286.330(d) (2002)) related to collection of urine sample is sufficient, fact that sample taken from defendant in hospital after accident was not first urine sample taken does not defeat use of its test results for DUI. Further, passage of 15 days before sample was submitted to police lab is not fatal. In addition, because defendant failed to present any evidence that medication that he was administered at hospital affected test results, State was not required to prove that blood alcohol results were not tainted by it, particularly since defense counsel objected to relevancy of questioning of lab technician on that subject during trial. Also, Trauma Center Fund fee and Spinal Cord Injury Paralysis Cure Research Fund fee imposed by court pursuant to statutes enacted after defendant’s offense was committed were not fines and not subject to ex post facto prohibitions.

People v. Aleman, 355 Ill. App. 3d 619 (2nd Dist., February 16, 2005). Defendant, who pled guilty to bail bond violation in DuPage County, with underlying charge of armed robbery subject to nolle prosequi, was properly sentenced to six years to be served consecutively with sentence for armed robbery to which he pled guilty in Cook County, pursuant to section 5-8-4(h) of the Unified Code of Corrections (Ill. Rev. Stat. 1991, ch. 38, par. 1005-84(h)), because Cook County crime was committed while he was out on bond.

People v. Bonner, 356 Ill. App. 3d 386 (1st Dist., March 1, 2005). Defendant could be convicted of felony of failing to register as sex offender after having pled guilty to sexual exploitation of a child, a misdemeanor, and placement on probation because the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2000)) and sexual exploitation of a child statute have distinct legislative purposes and are not subject to proportionate penalty analysis.

People v. Rosenberg, 356 Ill. App. 3d 219 (3rd Dist., March 7, 2005). State was not required to prove that defendant intended controlled substance, which his accomplice was transporting through Illinois, to be delivered in Illinois in order to convict defendant of controlled substance-trafficking. Further, because large-scale interstate drug trafficking poses a unique threat to peace, health and welfare of the citizens of Illinois more severe sentence for  it than possession with intent to deliver a controlled substance does not violate proportionate penalties clause.

People v. Harris, 357 Ill. App. 3d 253 (1st Dist., April 28, 2005). When Governor commuted defendant’s death penalty and imposed life imprisonment as sentence, he substituted defendant’s judicially imposed sentence for an executively imposed one and rendered defendant’s post-conviction petition challenging his death sentence based on ineffectiveness of counsel moot.

People v. Sterling, 357 Ill. App. 3d 235 (1st Dist., May 2, 2005). Trial court properly imposed extended-term sentence of 70 years for murder based on defendant’s prior convictions. However, court erred when it imposed additional extended-term for robbery, because extended-term is available only for most serious offense.

People v. Barcik, No. 2-03-1045, 2-04-0476 Cons. (2nd Dist., June 2, 2005). Trial court lacked jurisdiction to modify judgment against defendant by merging multiple driving under the influence (DUI) and driving while license revoked (DWLR) convictions into one, because defendant’s filing of a notice of appeal deprived trial court of jurisdiction. Further, trial court should have merged multiple DUI convictions into one conviction and multiple DWLR convictions into second, as result of one-act, one-crime rule. In addition, court erred when it imposed extended-term sentence for both convictions, because only the more serious Class 2 felony, aggravated DUI, was subject to extended sentence. Appellate court lacks jurisdiction to consider appeal from denial of defendant’s post trial motion, there being insufficient proof of mailing notice of appeal to establish service within 30 days.

People v. Jennings, No. 1-03-3207 (1st Dist., June 2, 2005). Trial court erred when it sentenced defendant after purported waiver by defendant of presentence investigation report without agreement on the record to the imposition of a specific sentence.

People v. White, No. 3-04-0708 (3rd Dist., June 3, 2005). After defendant was sentenced to five years for forgery, trial court erred when it refused to give him credit for presentence custody, because his conduct violated terms of his mandatory supervised release for prior conviction, and filing of forgery charges several months later. State manipulated defendant’s liberty by not charging him until several months after his detention. Defendant is not precluded from raising issue on appeal because of failure to file timely post-trial motion.

Election law

Qualkinbush v. Skubisz, No. 103-2528 (1st Dist., March 31, 2005). Exclusion of votes, rather than apportionment, was the appropriate sanction imposed by the trial court on candidate for mayor whose worker committed vote fraud by illegally obtaining and assisting with absentee ballots in violation of section the 19-3 of Election Code (10 ILCS 5/19-3 (West 2002)). In addition, section 19-3 is not preempted by federal Voting Rights Act (42 U.S.C. §1973aa-6 (2003)) and Americans with Disabilities Act of 1990 (42 U.S.C. §12132 (1995)), and does not violate equal protection.

State Board of Elections v. Shelden, 354 Ill. App. 3d 506 (4th Dist., December 15, 2004). In mandamus action by State Board of Elections, trial court should have concluded that the Election Code requires county clerk to submit to State Board, the telephone numbers of registered voters which the clerk has compiled in an electronic format. The court correctly held that the clerk is not required to submit telephone numbers collected on paper records that were never entered in computer registration file.

Green Party v. Henrichs, 355 Ill. App. 3d 445 (3rd Dist., January 21, 2005). Trial court correctly refused to allow petition by new party to place candidates on ballot because petitions failed to include full slate of county candidates, omitting candidates for 13 county board seats, in violation of section 10-2 of Election Code (10 ILCS 5/10-2 (West 2002)).

People v. Baumgartner, 355 Ill. App. 3d 842 (4th Dist., February 16, 2005). Defendant’s conviction for perjury for filing a false statement of candidacy when he signed a sworn statement that he resided in Moultrie County, where he successfully ran for county board, must be reversed. Defendant, by maintaining voter registration, driver’s license address and family home in Moultrie County, despite 10 years as student and purchase of home in Champaign County, demonstrated choice of Moultrie County as his residence for purposes of Election Code.

McNamara v. Oak Lawn Municipal Officers Electoral Board, 356 Ill. App. 3d 961 (1st Dist., April 11, 2005). Although nominating papers combining two independent candidates for village office—president and clerk—violate section 10-3 of Election Code (10 ILCS 5/10-3 (West 2002)), the names should not have been stricken from ballot because State statute is silent regarding remedy for failure to comply with section 10-3 of the Code.

Salgado v. Marquez, 356 Ill. App. 3d 1072 (2nd Dist., April 20, 2005). Nominating petitions of candidate for alderman were deficient because they did not list municipal office which candidate was seeking, thereby failing to comply with provisions of section 7-10 of the Election Code (10 ILCS 5/7-10 (West 2002)). Therefore trial court erred by affirming dismissal of objection by election board.

Marquez v. Aurora Board of Election Commissioners, 357 Ill. App. 3d 187 (2nd Distr., May 12, 2005). Trial court properly dismissed mandamus complaint filed by plaintiff for alderman seeking to compel election authority to count write-in votes for him because notice of intent was not filed in a timely manner as required by section 18-9.1 of the Election Code (10 ILCS 5/18-9.1 (West 2002)). Pendency of litigation over nomination petitions does not excuse delay in filing, and provisions of section 18-9.1 are mandatory not directory.

Environmental law

Roti v. LTD Commodities, 355 Ill. App. 3d 1039 (2nd Dist., February 9, 2005). Residents of neighborhood could maintain private cause of action before Pollution Control Board against distribution business for noise pollution pursuant to section 24 of the Environmental Protection Act (415 ILCS 5/24 (West 2002)) and its regulations (35 Ill. Adm Code §900.102 (2002)).

Waste Management of Illinois Inc. v. Illinois Pollution Control Board, 356 Ill. App. 3d 229 (3rd Dist., March 23, 2005). Pollution Control Board correctly found, based on undisputed facts, that siting approval by county must be reversed because petitioner failed to give requisite notice to adjoining landowner of application for expansion of existing landfill pursuant to section 39.2(b) of Environmental Protection Act (415 ILCS 5/38.2(b) (West 2004)). Because statute clearly requires that notice be given by personal service or registered mail, neither posting nor regular mail was sufficient to give county board jurisdiction to consider application.

Valstad v. Cipriano, No. 4-04-0223 (4th Dist., May 10, 2005). Plaintiffs’ complaint challenging assessment of additional fees pursuant to the State Budget Implementation Act for 2004 (Public Act 93-32) is subject to dismissal under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-612 (West 2002)) because trial court properly held, as a matter of law, that fee imposed on aggregate NPDES permit holders does not violate uniformity, equal protection, appropriations, or due process clauses of Illinois Constitution, the classification bearing reasonable relationship to legislative purpose. Further, there is no constitutional prohibition against transferring excess funds to general revenue fund, nor is the statute preempted by federal law.

Labor law

Champaign-Urbana Public Health District v. Illinois Labor Relations Board, 354 Ill. App. 3d 482 (4th Dist., December 13, 2004). ILRB’s certification of union as exclusive bargaining unit for combined group of professional and nonprofessional employees based on newly adopted emergency rules was improper. The ILRB’s rules were not properly adopted under the Illinois Administrative Procedure Act (5 ILCS 100/1-1 et seq. (West 2002)). Enactment of new legislation with immediate effective date is not sufficient grounds for exercise of emergency rule making authority.

Walters v. Department of Labor, 356 Ill. App. 3d 785 (1st Dist., March 24, 2005). Because section 11 of Wage Payment and Collection Act (820 ILCS 115/11 (West 2002)) gives the Department of Labor no authority to issue adjudicatory orders, but provides for only investigative findings, the Department’s determination that plaintiff is responsible employer for purposes of Act is not subject to either administrative review or certiorari, and the circuit court lacked jurisdiction to reverse it.

Illinois Department of Revenue v. Illinois Civil Service Comm’n, 357 Ill App. 3d 352 (1st Dist., April 8, 2005). Illinois Civil Service Commission lacked jurisdiction to order reinstatement of certain employees appointed by previous gubernatorial administration without competitive examination and use of eligibility lists and erred as a matter of law when it ordered reinstatement of seven other employees appointed pursuant to newly enacted rules that contradict the Illinois Personnel Code (20 ILCS 415/1 et seq. (West 2000)).

Municipal law

Village of Glenview v. Zwick, 356 Ill App. 3d 630 (1st Dist., March 31, 2005). Trial court correctly held that village ordinance, that imposes attorney’s fees on defendants who are found to have violated municipal ordinance, imposes impermissible burden on the court system. The administration of justice is a matter of statewide concern and does not pertain to local government and affairs. Therefore, a municipality may not exercise its home rule powers to implement a fee-shifting policy for attorney’s fees in ordinance violation cases.

People v. Brown, 356 Ill. App. 3d 1096 (3rd Dist., April 25, 2005). Because there is an inherent conflict between the elected positions of city alderman and park district board commissioner, trial court properly granted summary judgment in favor of state’s attorney ordering defendant removed from his position as park district board commissioner.

Open Meetings

Act Henry v. Anderson, 356 Ill. App. 3d 952 (2nd Dist., April 18, 2005). Although school board was not required to cite statutory provision before voting to close meeting to the public, and it was sufficient that they cited “to discuss employment matter, specifically the reclassification of employee,” the school board violated the Open Meetings Act at second meeting by voting to close meeting to discuss “potential litigation” and employment matters without first making finding that litigation was “probable or imminent.”

School law

People v. Wilson, 357 Ill. App. 3d 204 (3rd Dist., April 25, 2005). Trial court correctly concluded that section 1 of the Public Officers Prohibited Activities Act (50 ILCS 105/1 (West 2002)) prohibits simultaneous service on county boards and school district boards in counties with population over 40,000. However, trial court should have ordered defendant’s removal from school board, rather than county board, because school board election of sitting county board member is void.


Allegis Realty Investors v. Novak, 356 Ill. App. 3d 887 (2nd Dist., April 21, 2005). Trial court erred when it granted summary judgment dismissing objection to highway tax levy because, after court previously held that increase authorized by referendum had expired, section 30-20(b) of the Township Code (60 ILCS 1/30-20 (West 1996)) required referendum to authorize continuation of expired rate to be requested by petitions signed by 10% of voters of township, as it was referendum to “establish or increase” rate, which raises material issue of fact.

Church of Peace v. City of Rock Island, 357 Ill. App. 3d 471 (3rd Dist., May 12, 2005). Churches, which are exempt from property taxes by virtue of use of property for religious and charitable purposes, are subject to an ordinance imposing storm water service charge on property owners. Charge was a fee and not a tax. The charge was for a dedicated purpose; the fee is proportionate to service rendered. The opt out provision, although not practical, makes it voluntary.

Tort immunity and liability

Moore v. Chicago Police Department Officer Green, 355 Ill. App. 3d 506 (1st Dist., December 29, 2004). Section 305 of the Illinois Domestic Violence Act of 1986 (750 ILCS 60/305 (West 2002)) supersedes provisions of section 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4107 (West 2002)) and authorizes civil cause of action against law enforcement authorities for willful and wanton misconduct associated with failure to protect decedent from her husband, after she called “911” to report his presence in her home in derogation of order of protection. Therefore, trial court properly refused to grant section 2-619 motion to dismiss.

Wheaton v. Suwana, 355 Ill. App. 3d 506 (5th Dist., January 11, 2005). Because defendant, physician was an employee of county hospital, it having the ability to control his conduct, and because one-year statute of limitations pursuant to Local Governmental and Governmental Employees Tort Immunity Act had already expired at time statute was amended to provide for two-year statute of limitations period, defendant had vested right in expiration of limitations period, and complaint filed after expiration of one-year period was properly dismissed.

Floyd v. Rockford Park District, 355 Ill. App. 3d 695 (2nd Dist., January 12, 2005). Complaint against park district for allowing belligerent recreational program participant to use metal golf club with which he struck plaintiff is subject to section 2-615 dismissal pursuant to section 3-108 of Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-108 (West 2000)), because it fails to allege acts sufficient to state willful and wanton conduct as defined by the Act.

Governmental Interinsurance Exchange v. Judge, 356 Ill. App. 3d 264 (4th Dist., March 16, 2005). In legal malpractice action by county against insurer and attorneys retained by them to defend county for failure to perfect appeal from denial of motion to dismiss based on Local Governmental and Governmental Employees Tort Immunity Act, trial court correctly held that issue of proximate cause is an issue of law. Section 3-104 immunity under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-104 (West 2002)) does not apply to county for the improper placement of traffic control devices and markings. Defendants were entitled to summary judgment dismissing plaintiff’s complaint.

Sandoval v. City of Chicago, No. 1-04-1368 (1st Dist., June 3, 2005). City was entitled to summary judgment dismissing plaintiff’s complaint for negligence in maintenance of sidewalk, which contained large crater-like defect, that had existed for four years and in which plaintiff fell. Because defendant in no way created, contributed to, or was responsible for, plaintiff’s distraction, distraction exception was not available to impose duty on landowner to warn of open and obvious conditions.

Brooks v. Illinois Central R.R. Co., No. 1-04-2607 (1st Dist., June 2, 2005). Because language of Contribution Act (735 ILCS 5/13-204 (West 2002)) gives it priority, two-year statute of limitations period contained in it, rather than one-year period contained in Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 2002)) applied to third party plaintiff, railroad’s third party complaint against Metra, a municipal corporation, for contribution. Therefore, trial court erred when it dismissed it.

Copeland v. County of Macon, Illinois, 403 F. 3d 929 (7th Cir. Ct. App., April 13, 2005). District court erred in granting plaintiff-pretrial detainee’s motion for summary judgment in action seeking indemnification from defendant-county under section 9-102 of Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/9-102 (West 2002)) where plaintiff had previously obtained $400,000 judgment against jailer who had encouraged inmates to severely injure plaintiff. While jailer was working within time and space limits of his employment at time of attack, defendant was not required to indemnify plaintiff for acts of jailer since at time of attack jailer was not acting within scope of his employment in terms of either performing authorized acts or acting with purpose of serving his “master.”

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