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Quick takes on Thursday's Illinois Supreme Court opinions

Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases McFatridge v. Madigan, Standard Mutual Insurance Company v. Lay, In re Marriage of Mayfield and In re the Parentage of J.W. and the criminal cases People v. Henderson and In re M.I.

CIVIL

McFatridge v. Madigan

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The State of Illinois need not pick up the litigation tab incurred by an elected state official in defending a civil lawsuit where the claim arises from certain types of misconduct, even if he acts in the scope of employment. Accordingly, the Illinois Supreme Court upheld a circuit court's dismissal of the complaint of Michael McFatridge, a former Edgar County State's Attorney, seeking to force Attorney General Lisa Madigan to approve payment of McFatridge's legal expenses.

The lawsuit arose from the 1987 prosecution and murder conviction of two men, Gordon Steidl and Herbert Whitlock. Years after their convictions the men were released from custody after their convictions were vacated. Alleging civil rights violations, malicious prosecution, and other legal theories, Steidl and Whitlock accused McFatridge and others involved in the prosecution of fabricating evidence, coercing witness testimony and suppressing favorable evidence. McFatridge sought representation pursuant to 5 ILCS 350/2 (West 2010), which requires the Attorney General to cover reasonable litigation expenses as incurred for lawsuits against a state employee if the lawsuit arises from an act or omission in the scope of  employment. The statute, however, allows the Attorney General to decline a request if the act was intentional, wilful or wanton. Citing this provision of the statute, the Attorney General refused McFatridge's request, subject to another provision in the statute allowing a state employee to renew the request if a jury finds that the subject acts did not fall into the excluded category. If that were to occur, the state would pay reasonable expenses as well as any judgment.

The supreme court analyzed the statute in the context of a mandamus action brought by McFatridge and Edgar County against Madigan. Citing a provision of the statute that allows elected officials to select their own counsel in such situations, they contended that the intentional acts exception applied to other state employees but not to elected officials such as McFatridge.

The supreme court rejected this distinction. Like any other state employee, McFatridge would have to foot the bill himself for defense costs arising from intentional, wilful or wanton misconduct. The court explained that the legislature only had distinguished elected officials in allowing them to select their own counsel - unlike judges, who, under the statute, expressly are provided representation and indemnity for civil liability, regardless of the legal theory, so long as the claim results from a judge's decision, ruling or order in the court of his official duties. Accordingly, the court concluded that the plaintiffs failed to establish the high standard for mandamus relief - a clear and undoubted right to relief.   

Standard Mutual Insurance Company v. Lay

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

In this insurance coverage case, the Court skirted the policy-changing issue of whether punitive damages should be held to be insurable.  The Court decided, however, that liquidated damages under the Telephone Consumer Protection Act of 1991 (“TCPA”) are remedial, not punitive.  Because it was unnecessary to reach the issue, the Court decided to not address whether to change existing law holding punitive damages uninsurable as a matter of Illinois public policy.

The coverage matter arose out of an underlying case where Lay sent unsolicited faxes advertising its business to about 5,000 fax numbers.  Locklear and a class of about 3,500 others sued Lay under the TCPA. The TCPA provides that a person aggrieved by receiving an unauthorized fax solicitation can sue for actual monetary loss from such violation or $500 in damages per violation, whichever is greater. 

Lay’s insurer, Standard, defended under a reservation of rights, contending that coverage might be excluded for various reasons, including that the TCPA is a penal statute.  Lay’s personal counsel ultimately settled the class action, which terms included that Locklear would seek recovery only against Lay’s insurer.

Standard filed a declaratory judgment action seeking a determination of no coverage.  The circuit court granted summary judgment to Standard and the Appellate Court affirmed on the basis that the TCPA-prescribed damages were punitive and not insurable as a matter of law.  The Supreme Court reversed that finding.  It held that the primary purpose of the TCPA is remedial not punitive.  The statute also provides for treble damages for willful violations, further illustrating that the liquidated damages are not punitive. The Court remanded to the Appellate Court to determine the remaining coverage issues.

In re Marriage of Mayfield

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

Where a supporting spouse received a lump sum workers’ compensation award, rather than monthly payments, the trial court properly set child support at 20% of that lump sum. 

After he was divorced, Howard Mayfield suffered a workplace injury and received a lump-sum settlement.  He did not advise his ex-wife of the settlement but she learned of it four years later when she filed a petition to modify support payments.  Then, the couple’s older child was past majority and the younger child, Jessica, was 14 years old. 

The settlement stated that it was the equivalent of monthly payments for 34 years.  Mayfield argued that his child support should be 20% of the prorated monthly amount of the settlement, retroactive to the date of the settlement.  Otherwise, the amount ordered would constitute child support beyond Jessica’s majority.

The trial court disagreed, stating that if Mayfield desired to pay his child support in monthly payments, he could have elected not to take a lump sum and taken his workers’ compensation over his life expectancy.

The Appellate Court and the Supreme Court affirmed. Under the Dissolution Act, to determine child support, the trial court determines the parties’ net income, apportions that income, and sets an amount of support for the non-custodial parent. Net income undisputedly includes workers’ compensation. The Act provides guidelines to determine the minimum amount of child support, which is 20% of the supporting party’s net income for one child.  The Act further provides that the court should apply the guidelines unless a deviation is appropriate.  

The Court stated that a one-time payment is income, but its nonrecurring nature may factor into the trial court’s decision on how to allocate it. Here, Mayfield never specifically asked the trial court to depart from the guidelines and presented insufficient evidence to warrant a deviation.

In re the Parentage of J.W.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

A man who discovered he had a seven-year-old daughter when he saw her photograph on her mother's social media site established paternity and assumed child support obligations but failed in his quest to obtain visitation rights. The case turned on the narrow question of which of two statutes provides the legal standard for determining a noncustodial parent's right to seek visitation.

Amy Wills-Merrill became pregnant with a daughter, J.W., as a result of a one-time encounter with Steve Taylor. Amy then was involved with Jason Wills, whom she assumed was the father and whom she married. After Jason and Amy divorced, she remarried. The court describes J.W.'s life as chaotic for a time after the divorce and to the point that Steve discovered her. Steve established paternity, and Amy introduced him to J.W. as her "real dad." Along with members of his family, Steve became involved in J.W.'s and Amy's lives. Jason, however, objected. He had been identified as J.W.'s father on her birth certificate, raised her with Amy until their divorce when J.W. was four, had visitation rights and support obligations post-dissolution and maintained a strong parental bond. Jason and Amy agreed to a court order barring Amy from living with Steve and prohibiting contact between Steve and J.W.

Dissolution proceedings between Amy and Jason were consolidated with Steve's parentage action, in which DNA testing proved his paternity. The circuit court then held a hearing on Steve's request for visitation. After hearing extensive testimony, including conflicting expert psychological testimony concerning the impact of having a relationship with Steve on eight-year-old J.W., the court determined that Steve had not established that visitation would be in J.W.'s "best interests" pursuant to the Marriage Act, 750 ILCS 5/602 (West 2010). The court denied the petition for visitation subject to annual evaluation. Steve appealed the ruling and obtained a reversal of the order based on the appellate court's determination that, under section 607(a) of the Marriage Act, Steve enjoyed a presumption entitling him to visitation, which could be overcome only by evidence of serious endangerment of the child.

Initially the supreme court reviewed the scheme of the Parentage Act for determining paternity and for establishing custody, visitation, and support. 750 ILCS 45/14(a)(1) (West 2010). The court observed that the best interests of the child is the "guiding star" for all matters affecting children and found this general policy to be applicable not only in dissolution situations but also in the context of a paternity action where visitation is at issue. Overruling several appellate decisions reaching a contradictory conclusion, the supreme court held that the appellate court erred in applying the "serious endangerment" standard in determining visitation privileges under the Parentage Act. The supreme court held that the burden is on the petitioner to prove, under section 602 of the Marriage Act, that visitation serves the best interests of the child. The court concluded that the circuit court's ruling under the correct legal standard was not against the manifest weight of the evidence and affirmed the original judgment.

CRIMINAL

People v. Henderson

By Jay Wiegman, Office of the State Appellate Defender

In People v. Henderson, 2013 IL 114040, a unanimous Supreme Court provided clarification as to what a criminal defendant must show to demonstrate when counsel is ineffective for failing to file a motion to suppress, and, in doing so, clarified that flight following an illegal arrest can interrupt the causal connection between the two events.

Henderson was one of several passengers in a car that was pulled over by police officers who had been told, by an unidentified man who flagged them down, that there was a "possible gun" in a car matching the description of the car in which defendant was a passenger. The officers stopped it, and when the driver exited the car, he was placed in handcuffs. No traffic violations supported the stop. After being ordered out of the car, defendant “took off running” and dropped to the ground a .22-caliber handgun that was loaded with four rounds. The gun was found two feet from the car. Defendant continued to run, but was arrested after he fell.

Defense counsel did not file a motion to suppress.  Defendant was convicted in  a  bench  trial  of aggravated unlawful use of a weapon and received an eight-year prison term.  The trial court, in its oral ruling, stated that a motion  to  suppress  the  gun  would  not  have succeeded.  On appeal, the defendant  argued  that  the  failure  to file a motion to suppress the gun demonstrated  ineffective  assistance  on the part of his defense attorney. The  Appellate  Court,  First  District, affirmed, holding that a motion to suppress would not have succeeded.

Writing  for  the  Court,  Justice  Theis  noted  that,  in a line of cases beginning  with  People v. Orange, 168 Ill. 2d 138, 153 (1995), the Supreme Court   has   stated  that,  in  order  to  establish  prejudice  where  an ineffectiveness claim is based on the failure to file a suppression motion, the  defendant must show that a reasonable probability exists both that the motion would have been granted, and that the result of the trial would have been  different had the evidence been suppressed.  This has been dubbed the "reasonable  probability  standard."   It  was also noted, however, that in another  line of cases, notably People v., Harris, 182 Ill.2d 114 (1998), a more  stringent  standard, the "meritorious standard" stated that defendant must  establish  that  the unargued suppression motion was "meritorious," , i.e.,  that  "it  would  have  succeeded  and that a reasonable probability exists  that  the  trial  outcome  would  have  been  different without the challenged evidence.  Henderson, 2013 IL 114040, ¶12.  Both standards trace back to Kimmelman v. Morrison, 477 U.S. 365 (1986), but the Henderson Court observed  that Orange did not "faithfully set forth the standard adopted in that  case."   Henderson,  2013  IL  114040,  ¶15.   Thus,  the court today clarified  that  "where  an  ineffectiveness  claim  is  based on counsel's failure to file a suppression motion, in order to establish prejudice under Strickland,  the  defendant  must demonstrate that the unargued suppression motion  is  meritorious,  and that a reasonable probability exists that the trial  outcome would have been different had the evidence been suppressed." Henderson, 2013 IL 114040, ¶15.

Henderson  could  not  meet that burden.  Although the Supreme Court agreed with  the  Appellate  Court,  First  District, that the initial seizure was illegal  because it was based on an anonymous tip that was not sufficiently reliable to provide the officers with a reasonable suspicion that defendant was  engaged  in criminal activity that would justify a criminal stop under Terry  v. Ohio,392 U.S. 1 (1968), the Supreme Court determined that the gun was  not  the  fruit of that illegal seizure.  Rather, the Court determined that defendant's flight ended the seizure, thus attenuating his arrest from the  initial  stop.   Moreover,  the  officers  did  not engage in flagrant misconduct  when they stopped the car, even though reasonable suspicion was lacking,  and  the  evidence  was  not  obtained by the exploitation of the illegal  stop.  As  a  result,  a  motion  to suppress  would not have been granted.

Still,  the  better  practice  might  be to file the motion to suppress, at least  from  the perspective of an appellate practitioner.  A higher burden is  placed  on  a defendant when no motion to suppress is filed.  Moreover, the Court in Henderson, before discussing the legality of the stop, engaged in  a  preliminary  discussion  that highlighted the difficulties generally present  when  no motion to suppress is filed.  Ordinarily, where no motion to  suppress  is  filed,  the  record  is  not developed for the purpose of litigating  or preserving a claim that suppression should have been granted (that  was  not  an  issue  in  this case, as the judge in this bench trial granted  significant leeway to explore questions regarding the propriety of the stop with the officers).  Thus, not only does a defendant face a higher burden  on  appeal,  but  he generally has less evidentiary support for his claims.

In re M.I.

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

The minor was charged with various firearm offenses, including counts of aggravated discharge of a firearm and aggravated unlawful use of a weapon for which he was ultimately adjudicated delinquent.  Prior to trial, the State filed a motion to designate the proceedings as an extended juvenile jurisdiction (EJJ) prosecution.  Hearing on the motion was continued several times, ultimately being held 98 days after it was filed.

On appeal, the minor argued that the EJJ statute mandated that the hearing be held within 60 days, and argued that because it was not the adult sentence imposed pursuant to the EJJ statute was void.  The Supreme Court reviewed the EJJ statute and determined that it is directory, not mandatory, noting that although the statute uses language that a hearing “shall” be conducted within 60 days, the use of “shall” has never controlled the outcome in a mandatory/directory determination.  A statute using “shall” is presumed directory, and that presumption is only overcome where (1) there is negative language prohibiting further action in the case of noncompliance, or (2) the right the provision is designed to protect would be injured under a directory reading.  The EJJ statute contains no specific consequences for failure to comply with the 60-day limit, so the first exception did not apply.  The right protected by the statute is the minor’s right to a hearing before being subject to an EJJ prosecution, and that right is protected regardless of delay, because the hearing must be
held before trial.

A minor subject to an EJJ prosecution receives both a juvenile and an adult sentence, but the adult sentence is stayed.  A petition to revoke the stay can be filed based on either the minor’s violation of a condition of the juvenile sentence or the minor’s commission of a new offense.  The minor challenged this portion of the EJJ statute as unconstitutionally vague, arguing that it does not provide fair notice of the conduct which will invoke imposition of the stayed adult sentence.  The minor’s challenge was directed toward the first basis – the violation of a condition of the juvenile sentence.  By the time this case reached the Illinois Supreme Court, however, the minor had been the subject of a petition to revoke based on the second basis – the commission of a new offense.  Given that the minor was not affected by the first provision, the Court found that he had no standing to pursue a vagueness challenge regarding that provision.

Finally, the minor argued that the EJJ statute was unconstitutional under Apprendi because the facts that qualified him for EJJ prosecution were not required to be submitted to a jury or proved beyond a reasonable doubt. The Court readily rejected that challenge, concluding that the EJJ statute was dispositional, not adjudicatory; the EJJ determination governs the forum in which a case will be heard, but does not determine defendant’s guilt or specific sentence.  Even if Apprendi did apply, the EJJ statute is not unconstitutional because the minor’s actual adult sentence is determined based on the offense(s) having been found proved beyond a reasonable doubt by the trier of fact.

This case settles questions surrounding portions of the EJJ statute and contains a good discussion of the mandatory/directory versus mandatory/permissive questions which arise in statutory interpretation across all types of cases, not just juvenile matters.

Posted on May 23, 2013 by Chris Bonjean
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