Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case In re Estate of Boyar and the criminal cases People v. Fitzpatrick, People v. Le Mirage, Inc. and People v. Hunter.

CIVIL

In re Estate of Boyar

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

Most notable about this decision is what the Court decided not to decide.  Finding that the elements of the “doctrine of election” did not apply factually, the Court refused to decide the legal issue upon which leave to appeal was granted: whether the doctrine of election applicable to will contests should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.

Robert Boyar died and, pursuant to his will, all of his property was distributed to a living trust. Under the trust terms, his children were to allocate nonbusiness tangible personal property among themselves.Decedent executed various amendments to the trust, one of which named Grant Dixon as a cotrustee who was not subject to removal.

Following Mr. Boyar’s death, his children agreed upon a division of personal property. Mr. Boyar’s son (also Robert) challenged the validity of the amendment naming Dixon as cotrustee, claiming it was procured by undue influence. Dixon moved to dismiss Robert’s trust petition, asserting that under the doctrine of election, because Robert had accepted benefits of the trust (taking personal property) he was estopped from asserting a claim contrary to it (the challenge to the cotrustee amendment). The trial court granted the motion, dismissing the petition, and the appellate court affirmed.

On review, the Supreme Court reversed and remanded. The doctrine of election presupposes the existence of two inconsistent claims to property. That element was missing in this case. Therefore, it did not need to reach the larger legal issue.

The majority acknowledged that it had never spoken to the question of whether the doctrine of election applies to trust contests. The dissent criticized the Court’s failure to speak now. The dissent opined that by avoiding the issue on the justification that it was the “judicious” thing to do, the Court was undermining its role in the legal system of deciding generally important legal principles.

CRIMINAL

People v. Le Mirage, Inc.

By Jay Wiegman, Office of the State Appellate Defender

In the early 2000's, the respondents in People ex rel. City of Chicago v. Le  Mirage, Inc., 2013 IL 11348 operated a first-floor restaurant (known as Epitome), and a second-floor nightclub (known as Epitome 2, or E2) within a two-story building located at 2347 South Michigan Avenue in the City of Chicago. Around the upper edges of E2 was a mezzanine -- which included "V.I.P" rooms -- that was  suspended from the ceiling. City inspectors questioned the structural support for the mezzanine and court orders prohibiting occupancy of the second floor were entered.

In  2003, a fight  occurred in E2. Security guards used pepper spray to break up the fight, and a rush to the exits ensued. Twenty-one people perished in the resulting stampede. The next day, the City of Chicago sought to have the defendants held in indirect contempt for willful violation of orders entered by the circuit court concerning building code violations. Defendants were ultimately convicted and sentenced to prison terms of two years.

On appeal, Respondents argued that the trial court did not properly instruct the jury, that the trial court improperly barred certain evidence, and that there had been sentencing errors. Defendants also argued that the building court’s orders in this case were unclear as to whether the prohibition  against  occupying the "2nd floor" pertained to E2 or just the mezzanine. The First District Appellate Court agreed that the building court order was ambiguous  as to what was meant by “2nd floor,” and thus determined that the defendants had not been proved guilty beyond a reasonable doubt. Because this required reversal of the defendants' convictions, their other arguments were not considered.

In  People  ex  rel.  City  of Chicago v. Le Mirage, Inc., 2013 IL 11348, a unanimous Illinois Supreme Court reversed. The Court concluded that "the '2nd floor' of the 'subject premises' means the '2nd  floor' of the building; it does not mean the mezzanine level of the nightclub, as respondents argue. Therefore, the building court’s orders in this case were sufficiently certain, clear, and concise to support a finding of contempt." Le Mirage, 2013 IL 11348, ¶67. Moreover, even if the orders could be viewed as forbidding only use of the mezzanine, the defendants had not complied even with this requirement. Le Mirage, 2013 IL 11348, ¶74. The Supreme Court noted that the Appellate Court seemingly conceded that the orders were not ambiguous when the Appellate Court stated that “[a]t first blush the language appears clear.”  Le Mirage, 2013 IL 11348, ¶72. Some evidence that might have suggested ambiguity -- such as the transcripts from the hearings preceding the entry of the orders and the building court’s half sheet -- were not relevant, said the Supreme Court, because the respondents were not charged with contempt for violating these transcripts or the half sheet. Le Mirage, 2013 IL 11348, ¶72.  While this evidence might have shed some light on the willfulness of the defendants, other evidence supported the charges, and it was within the jury's domain to weigh all of the evidence.

The appellate court  was reversed on this point but, because it had not reached all of the issues raised in the appeal, the cause was remanded there so that it could do so.

The fact-intensive nature of this decision likely limits its application to other cases.

People v. Hunter

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

Officers conducted surveillance on Hunter and a co-defendant on October 5, 2008, observing an unknown person approach and give money to the co-defendant, who then nodded to Hunter, who retrieved an item from the vestibule of the building where he was standing and gave the item to the unknown person. The officers approached, arrested the men, and recovered cannabis and two guns from the vestibule.

On October 6, 2008, Hunter appeared in court on the single charge of possession of cannabis with intent to deliver. Probable cause was found, and bail was set. Hunter filed a written trial demand.

Several months later, on March 30, 2009, the grand jury returned an indictment on the original cannabis charge, as well as five gun-related charges. This was 175 days after Hunter’s October 6 trial demand. Hunter filed a motion to dismiss the new charges on compulsory joinder-speedy trial grounds. The circuit court granted the motion.

The State conceded that the new charges were filed outside of the applicable 160-day statutory speedy trial term. The State also conceded that the gun-related offenses were known at the time the cannabis charge originally was filed. The question was whether the charges were “based on the same act” within the meaning of the compulsory joinder statute.

Citing to familiar principles of statutory construction – including the plain language of the statute and the persuasive nature of committee comments to the statute – the Supreme Court found that the charges were “based on the same act.”  Specifically, for purposes of compulsory joinder, Hunter’s simultaneous possession of multiple items of contraband constituted the “same act.”

The Court rejected the State’s argument for an elements-based analysis, similar to that used in one-act, one-crime and double jeopardy analyses. The Court also noted that the State could have avoided this problem by charging all of the offenses when they were known and then seeking delay or severance as necessary.

The Court’s decision makes clear that simultaneous possession of multiple items of contraband, supporting multiple charges, will subject those multiple charges to compulsory joinder, particularly where the multiple items were discovered during the same search of the same place at the same time.'

People v. Fitzpatrick

By Jay Wiegman, Office of the State Appellate Defender

In 2001, the United States Supreme Court held that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”  Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).  While conceding that this issue has long been settled under the Fourth Amendment of the United States Constitution, Lewis Fitzpatrick -- who was found to be in possession of cocaine after he was arrested and taken into custody for the petty offense of walking down the middle of the street -- argued that the Illinois Constitution can be interpreted more broadly when he filed a motion to suppress in the trial court. People v. Fitzpatrick, 2013 IL 113449. That argument was rejected by a unanimous Illinois Supreme Court.

Writing for the Court, Justice Thomas first noted that in People v. Caballes, 221 Ill.2d 282, 309-10 (2006), the Illinois Supreme Court held that it applies a “limited lockstep”approach to analyzing cognate provisions of the Illinois Constitution of 1970 and the United States Constitution. Under this approach, the Supreme Court construes the Illinois constitution as providing greater protection than its federal counterpart when something in the language of the Illinois constitution, or in the
debates and the committee reports of the constitutional convention, indicate that Illinois' Constitutional provisions are intended to be construed differently than are similar provisions in the Federal Constitution. Fitzpatrick, 2013 IL 113449, ¶15. The Court in Caballes also noted that this "limited lockstep approach" would allow for
consideration of "state tradition and values as reflected by long-standing state case precedent."  Fitzpatrick, 2013 IL 113449, ¶16. Fitzpatrick therefore argued that long-standing state history and traditions compel the rejection of Atwater. Defendant relied in part on People v. Watkins, 19 Ill. 2d 11 (1960), in which the defendant sought to suppress evidence found after police arrested him for parking too close to the sidewalk. Justice Thomas, however, noted that just two years after Watkins, the Illinois Supreme Court "decided People v. McDonald, 26 Ill. 2d 325 (1962), in which an arrest for a fine-only offense and a search incident to that arrest were
upheld as justified. Thus, since 1962, Illinois has consistently recognized that police are allowed to conduct a custodial search after an arrest for a traffic or petty offense." Fitzpatrick, 2013 IL 113449, ¶19. Rather than illustrate a long-standing tradition that custodial arrests and searches are unreasonable after an arrest for a petty or traffic offense, Illinois law in the last 50 years reveals the opposite. Fitzpatrick, 2013 IL 113449, ¶19.

Defendant also argued, in his briefs, that because the trial court did not hold a hearing on defendant's ability to pay public defender fees within 90 days of the final judgment, that the appellate court erred in remanding the cause for such a hearing. Fitzpatrick, 2013 IL 113449, ¶26. The Supreme Court held that the argument was waived because it was not included in the defendant's petition for leave to appeal. Fitzpatrick, 2013 IL 113449, ¶26.