The Illinois Supreme Court handed down nine opinions on Thursday, Nov. 29. The court determined that amendments to Supreme Court Rule 604(d) do not apply retroactively in People v. Easton, confronted whether a defendant who is able to retain counsel to prepare and file his post-conviction petition is entitled to any guaranteed level of assistance from that counsel in People v. Johnson, and articulated the contours of “waiver by conduct” in regard to appointed counsel for post-conviction petitions in People v. Lesley. The supreme court also determined that two corporate defendants were both liable in tort and their relative culpability was equal in Sperl v. Henry, opined that “transactional test” for res judicata should also be applied to the separate doctrine of the single refiling rule to determine whether two or more lawsuits assert the same cause of action in First Midwest Bank v. Cobo, and held that an injured worker was barred from intervening in her employer’s subrogation action brought against third-party tortfeasors in A&R Janitorial v. Pepper Construction Co. The supreme court also weighed in on statutory changes to the Illinois Pension Code and their impacts upon affected employees in Carmichael v. Laborers & Retirement Board Employees’ Annuity & Benefit Fund of Chicago, discussed the court’s jurisdiction, supervisory authority, and the framework for a circuit court to address the constitutionality of an Illinois statute in Gonzalez v. Union Health Service, Inc., and addressed judicial review of executive power in Gregg v. Rauner.

People v. Easton

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

In People v. Jordan Easton, the Illinois Supreme Court resolved a question that has plagued appellate courts in recent years: whether recent amendments to Supreme Court Rule 604(d) apply retroactively to cases pending on direct appeal. The appellate court held that the amendments apply retroactively, but the supreme court today clarified that they do not. The supreme court went on to affirm the appellate court’s decision in the case, however, because even under the pre-amendment version of Rule 604(d), defendant’s post-plea counsel failed to strictly comply with the certificate requirement of the rule.

At the time of the post-plea proceedings in this case, Rule 604(d) required that counsel representing a defendant on a post-plea motion file a certificate stating that the attorney consulted with defendant to ascertain his or her “contentions of error in the sentence or the entry of the plea of guilty,” examined the trial court file and report of proceedings of the plea, and made any necessary amendments to the post-plea motion. In December 2015, Rule 604(d) was amended to require that counsel certify that he or she consulted with defendant about claims of error “in the sentence and the entry of the plea” and that counsel examined the report of proceedings of both the plea and the sentencing.

First, the supreme court concluded that the amendments do not apply retroactively, largely following the reasoning of its recent decision in People v. Hunter, 2017 IL 121306. Because the rule amendment did not specify its temporal reach, the court looked to Section 4 of the Statute on Statutes to consider retroactivity. In Hunter, the court noted that under Section 4, procedural amendments generally apply retroactively to “ongoing proceedings.” Here, however, the post-plea proceedings in the trial court had concluded more than a year prior to the rule’s amendment. So, there were no “ongoing proceedings” to which the amended rule could apply.

The court went on to consider whether counsel’s certificate was strictly compliant with the version of the rule in existence at the time it was filed. Counsel’s certificate mirrored the language of that version of the rule, stating that counsel had consulted with defendant about his claims of error “in the imposition of the sentence or the entry of plea” and had reviewed the report of proceedings of the plea. Despite the literal compliance, however, the court held that the certificate was deficient.

The court’s conclusion was premised on its 2014 decision in People v. Tousignant. There, the court held that the “or” in the rule’s consultation requirement had to be construed to mean “and” in order to effectuate the intent of the rule, which is to ensure that any potential errors in the entry of a guilty plea and sentence are brought to the attention of the trial court prior to appeal. Thus, strict compliance required counsel to certify that he consulted with defendant about any claims of error in both the plea and sentencing. Because counsel’s certificate here said he consulted about errors in the plea or sentencing, it was deficient.

In reaching this conclusion, the court rejected the state’s argument that because “or” means “and” in the rule, “or” should also mean “and” in the certificate. The court distinguished the two uses, noting that in interpreting the language of the rule, it was construing the intent of the drafters in protecting defendant’s interests by means of adequate consultation. But, when construing the language of a certificate, the court is looking to see if counsel’s past conduct (as described in the certificate) strictly complied with the duties of consultation imposed by the Rule. Further, the court noted that in Tousignant, it expressly stated that “counsel is required to certify” consultation with defendant concerning both the plea and sentencing.

As is customary in deficient-certificate cases, the court remanded the case to the circuit court for new post-plea proceedings, including the filing of a new certificate, the opportunity to file a new post-plea motion, and a new post-plea motion hearing. The court specifically stated that on remand counsel must comply with the current, amended version of the rule.

People v. Johnson

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

In People v. Johnson, the supreme court confronted the question of whether a defendant who is able to retain counsel to prepare and file his post-conviction petition is entitled to any guaranteed level of assistance from that counsel. In Johnson, counsel filed defendant’s post-conviction petition, and it was summarily dismissed. Subsequently, defendant filed a motion to reconsider the dismissal, seeking to supplement the petition with claims that had not been presented in the petition and alleging that retained counsel had failed to include the claims despite defendant’s wishes. The circuit court denied the motion without reaching the merits, concluding that it was an improper attempt to assert new post-conviction issues that had been waived.

In the appellate court, defendant argued that he was denied reasonable assistance of post-conviction counsel, but the appellate court followed a line of cases holding that there was no right to reasonable assistance at the first stage of post-conviction proceedings. Accordingly, the appellate court concluded that the circuit court had properly refused to consider the merits of defendant’s motion to reconsider.

The supreme court disagreed. The court first noted that it is well established that defendants are entitled to reasonable assistance of counsel at both the second and third stages of post-conviction proceedings, regardless of whether counsel is appointed or retained. The reasonable-assistance guarantee flows from the purpose of the Post-Conviction Hearing Act (the Act), which is to provide a statutory mechanism for addressing unconstitutional deprivations of liberty. While deficient representation in most civil contexts can be remedied by a legal malpractice suit, such is not the case for deficient representation which results in loss of liberty. Accordingly, the reasonable assistance standard is in place for post-conviction proceedings.

The court went on to conclude that requiring reasonable assistance of retained counsel at the first stage of post-conviction proceedings is consistent with the purpose of the Act. Although defendants are not entitled to appointed counsel at the first stage of proceedings, there is no disparity in requiring reasonable assistance on behalf of those defendants who are able to retain counsel. Indeed, insisting on reasonable assistance at the first stage helps to put defendants who retain counsel on equal footing with pro se defendants. A pro se defendant can file any claims he chooses in his post-conviction petition while a defendant with retained counsel is bound by his counsel’s actions. If retained counsel fails to include one or more of defendant’s claims, defendant can bring that failure to the court’s attention for a determination of whether it was reasonable. Like the pro se defendant, then, the represented defendant will be able to obtain a preliminary review of all his claims, and counsel will only be found unreasonable if defendant’s claims are not frivolous or patently without merit.

Because the circuit court had refused to consider the merits of defendant’s claims in his pro se motion to reconsider, the supreme court remanded the matter to the circuit court for such consideration.

People v. Lesley

By Jay Wiegman, Office of the State Appellate Defender

The Post-Conviction Hearing Act provides a forum for individuals serving criminal sentences to challenge convictions that resulted from the denial of a constitutional right. 725 ILCS 5/122-4. Because most petitions are filed by pro se litigants, counsel is generally appointed if, upon initial review, the circuit court determines that the petition is not frivolous or patently without merit. The legislature intended that defendants be afforded the advantages of legal representation if their petitions survived the initial screening. People v. Pendleton, 223 Ill.2d 458, 472-73 (2006). However, there is no constitutional right to the assistance of counsel during post-conviction proceedings; rather, the Act provides a post-conviction petitioner with “reasonable” assistance. People v. Hardin, 217 Ill.2d 289, 299 (2005).

A defendant may relinquish his right to counsel in one of three ways: waiver, forfeiture, and waiver by conduct. People v. Ames, 2012 IL App (4th) 110513). In People v. Lesley, 2018 IL 122100, the supreme court addressed what steps a circuit court must take when a defendant’s misconduct amounts to forfeiture or waiver of counsel. In the circuit court, the defendant had repeatedly refused to cooperate with counsel, and the circuit court repeatedly told the defendant that he had three choices: cooperate with counsel, retain private counsel, or proceed on his own. While the appellate court commended the circuit court for its patience and resolve during the extensive delays that occurred in the post-conviction proceedings, a majority of the appellate court found that “the trial court never warned defendant that he would lose his right to appointed counsel if his misconduct toward his appointed attorney continued.” People v. Lesley, 2017 IL App (3d) 140793, 21. In the absence of such a warning, the majority of the appellate court determined that Lesley’s repeated failure to cooperate with appointed counsel could not be construed as a knowing waiver. Lesley, 2017 IL App (3d) 140793, 21. Further, the majority did not consider the defendant’s misconduct “so severe that no warning was necessary or feasible.” Lesley, 2017 IL App (3d) 140793, 25.

A unanimous supreme court disagreed. Writing for the court, Justice Neville stated that the “key to waiver by conduct is misconduct occurring after an express warning has been given to the defendant about the defendant’s behavior and the consequences of proceeding without counsel.”  Lesley, 2018 IL 122100, 42. The court detailed the several hearings at which the defendant appeared with different appointed counsel, as well as the continuances that were granted to afford defendant an opportunity to retain counsel, and concluded that early on the defendant had been “expressly warned” that “if he refused to cooperate with appointed counsel, then he had to inform the court whether he wanted to retain counsel or proceed pro se.” Lesley, 2018 IL 122100, 45. Having been sufficiently warned, the court found that the defendant clearly chose to proceed pro se, even if he never enunciated that choice; “ ‘[I]f a person is offered a choice between three things’—an appointed attorney, hired counsel, or self‑representation—‘and says “no” to the first and the second, he’s chosen the third even if he stands mute when asked whether the third is indeed his choice.’ ” Lesley, 2018 IL 122100, 46 [citations omitted]. Having found that the defendant waived his right to counsel by his conduct, and that his waiver was knowing and intelligent, the court reversed the appellate court. Because the defendant’s substantive argument had not been addressed by the appellate court, the supreme court remanded the matter for the disposition of the defendant’s remaining contention.

This case does not represent a sea-change in the law. The supreme court and the appellate court majority agreed on the legal principles to be applied and differed only as to their application. The court specifically “decline[d] to impose specific requirements on circuit courts faced with difficult defendants in postconviction proceedings, [but] instruct[ed] them to warn defendants of the consequences of their repeated refusals to work with appointed counsel and the difficulties of self-representation before requiring them to proceed pro se.” Lesley, 2018 IL 122100, 61. As before, this requires a case-by-case analysis, but it appears that if a defendant is advised of the three choices available to him – appointed counsel, retained counsel or self-representation – and the defendant then refuses to cooperate with appointed counsel and cannot retain private counsel, his decision to proceed pro se is presumed.

Sperl v. Henry

By Michael T. Reagan, Law Offices of Michael T. Reagan

This opinion resolves an interesting question presented under the Contribution Act.  Two unrelated corporate defendants in a prior wrongful death and personal injury case were each found to be vicariously liable for the negligence of a truck driver for one of the corporations.  The other corporation ultimately paid the judgments in full, totaling more than $28 million, once the appeal was concluded in the underlying case.  Thereafter, in additional proceedings in the underlying case, the second corporation sought contribution from the first corporation in three counts, in part asserting a difference in culpability of the two contribution parties.  The first corporation contended, in summary, that contribution was not available because  neither corporation was “at fault” within the meaning of the Contribution Act, and that the second corporation had not paid more than its pro rata share of liability in that both corporations were each “100% liable” vicariously for the driver’s negligent operation of the truck. 

Here, the supreme court held that both principals are subject to liability in tort and that their relative culpability, for the actions of the common agent, is equal.  The court arrived at that conclusion both under the plain language of the Contribution Act, and also in furtherance of the public policies served by the act, including equitable apportionment of damages and the efficient settlement of cases. 

Justice Kilbride’s opinion for the unanimous court, in relating the procedural history and the permutations of the arguments made by the contribution parties, presents an evolving and enticing decision tree as a framework for the arguments of the parties and the possible alternative outcomes is developed.  The opinion also offers a useful historical tour of the resolution of many questions answered by the courts which have been posed by the words of the Contribution Act.

The court also dealt briefly with two additional arguments made by the second corporation in service of its persistent contention that the first corporation was actually negligent, rather than only vicariously liable.  The court rejected the argument that admissions made by counsel at the underlying trial of negligence of both the driver and her “employer” were judicial admissions.  A judicial admission must concern a concrete fact rather than a conclusion of law.  The court also rejected the argument that federal trucking regulations established direct, rather than vicarious, liability upon the first corporation.

First Midwest Bank v. Cobo

By Joanne R. Driscoll, Forde Law Offices LLP

This case involves the trap that can occur with respect to the single refiling rule after voluntary dismissal of a lawsuit.  The issue of first impression for the Illinois Supreme Court was whether the “transactional test” for res judicata should also be applied to the separate doctrine of the single refiling rule to determine whether two or more lawsuits assert the same cause of action. A unanimous court, aligning with multiple districts of the appellate court, held that the “transactional test” should be applied.

Here, the plaintiff, First Midwest Bank (First Midwest), sued the defendants for breach of a promissory note after previously suing them for the same breach, once in a mortgage foreclosure suit in 2011 (brought by First Midwest’s predecessor) and once in a breach of promissory note suit in 2013, both of which had been voluntarily dismissed. The circuit court dismissed the second breach of promissory note action; and the appellate court affirmed the dismissal, both applying the transactional test in the context of the single refiling rule.

The supreme court affirmed the dismissal, rejecting First Midwest’s argument that the foreclosure and breach of promissory note proceedings were not the same cause of action because one was quasi in rem and the other was in personam. The court held that the nature of the proceedings was not determinative; rather, the only inquiry was whether the claims arose from a single group of operative facts. Here the foreclosure complaint not only referenced the mortgage and the promissory note but it sought a personal judgment for deficiency against the defendants. This fact distinguished the instant case from other cases in which res judicata did not bar bank actions first filed (or concurrently filed) under the note and then under the mortgage (Turczak v. First American Bank, 2013 IL App (1st) 121964; Farmer City State Bank v. Champaign National Bank, 138 Ill. App. 3d 847 (4th Dist. 1985)). Here, as the court explained, First Midwest’s predecessor sought relief under the mortgage and note concurrently by seeking a foreclosure and a deficiency judgment and then it asserted a claim under the note consecutively twice more. 

In response to First Midwest’s prediction of harmful consequences to the loan industry and matters involving other legal instruments, such as multiple mortgages and guaranties, the court noted that the “operative facts” would be the rights of the parties being adjudicated under the financial instruments.

A&R Janitorial v. Pepper Construction Co.

By Joanne R. Driscoll, Forde Law Offices LLP

In a second case decided in the November term implicating res judicata principles, the Illinois Supreme Court held that an injured worker was barred from intervening in her employer’s subrogation action brought pursuant to section 5(b) of the Workers’ Compensation Act (820 ILCS 305/5(b) (West 2014)) against third-party tortfeasors after the worker’s separate lawsuit against those tortfeasors had been dismissed as untimely and no appeal was taken from that dismissal. The court did not reach the issue of whether the injured worker had a right to intervene in the employer’s subrogation action if res judicata were inapplicable.

Applying the straightforward elements of res judicata, the supreme court reversed the appellate court finding that there was no identity of parties for purposes of res judicata because the employer was the party in the subrogation action. According to the court, there was an identity of parties because the injured worker was the party in the petition to intervene and in the prior personal injury action that had been dismissed.  

The supreme court also rejected the appellate court’s attempt to distinguish Sankey Brothers, Inc. v. Guilliams, 152 Ill. App. 3d 393 (3d Dist. 1987), a case on point, on the basis that the employer in that case only sought indemnification for the benefits it paid the injured worker, whereas in the instant case the employer was seeking additional damages for the worker’s pain and suffering, thus, giving the worker an interest in the subrogation action. The court held this fact was irrelevant to res judicata analysis.

Lastly, the court rejected the worker’s argument that it would be inequitable to apply res judicata here. According to the court, the inequity would be in allowing the worker to proceed on time-barred claims. The worker’s remedy, if any, would be in a legal malpractice action, which was being pursued in a separate action. 

Carmichael v. Laborers & Retirement Board Employees’ Annuity & Benefit Fund of Chicago

By Michael T. Reagan, Law Offices of Michael T. Reagan

This case presented challenges to the interpretation and constitutionality of Public Act 97-651, which altered articles of the Illinois Pension Code, effective January, 2012. The plaintiffs are retired and current employees, and one surviving spouse of a deceased former employee, of either the City of Chicago or the Chicago Board of Education. The plaintiffs, or a representative, were or are participants in one of three public pension funds. The defendants are the three involved public funds, along with their governing boards. Three local labor organizations intervened as union plaintiffs. 

This unanimous opinion authored by Justice Thomas for the court is lengthy and sets out in exquisite detail the statutory changes and their impacts upon affected employees. All of those details, and their individual effects on the procedures in this case, are beyond the scope of this summary. The general tenor of the changes is that they modified the calculations of annuities in situations where public employees, members of the defendant pension funds, took leaves of absence from their public positions in order to be employed by the relevant private unions. For decades, such employees had the right to contribute to the funds to receive credit for service time with respect to the funds even while they were employed with the private unions, and they were able to apply their higher private union salary to the public annuity calculation. 

The opinion states that following negative press coverage, the General Assembly made a number of changes to these union service credit benefits. Two are at issue in this appeal. First, such an employee lost the right to receive credit for union service after the effective date of the act. Second, only a salary paid by the public employer could be used to calculate the highest average annual salary upon which the pensions were based. With respect to this second change, the act stated that the new statutory language “is a declaration of existing law and shall not be construed as a new enactment.” 

The issues were framed by plaintiffs’ contentions that the changes diminished and impaired their retirement system benefits in violation of both the Illinois and United States Constitutions. In addition, the complaints contained a request for declaration that the pension code which barred union service credit when credit was received “in any pension plan” established by a labor organization does not apply to define contribution plans, as opposed to conventionally understood pensions. Because of the constitutional challenges, the attorney general intervened. Both the attorney general and the defendant funds moved to dismiss plaintiffs’ Constitutional claims.

This appeal was taken directly from the circuit court by the supreme court.  As a foundational matter, the opinion states that the protections afforded by the constitution to pension benefits “attach once an individual begins employment in a position covered by a public retirement system, not when the employee ultimately retires.” Therefore, once a person commences work and becomes a member of a public retirement system, any subsequent changes to the pension code that would diminish the benefits from the retirement system cannot be applied to that person.

With respect to the first issue of whether employment with a union can be used as credit during a leave of absence, the court stated that the only real question presented by the state’s appeal was whether that right was a “benefit” within the meaning of the pension protection clause. The court held that that was clearly so. Therefore, that aspect of the legislation was unconstitutional to the extent that it barred current participants from earning union service credit.

Turning to the second issue, the calculation of the “highest average annual salary,” the court had to take up the provision of the act which said that the new provision “is a declaration of existing law.” To answer that question, the court, after full examination, determined that the relevant pension code provision prior to that amendment was ambiguous on whether the union salary during a leave of absence could be used as a basis for salary calculation. Upon finding that the prior provision was ambiguous, and noting that ambiguities are to be “liberally construed in favor of the rights of the pensioner,” the court held that the amendment, despite its declaration to the contrary, changed the law because it deprived the plaintiffs of the right to rely upon the alternative interpretation of the act, and thereby diminished retirement system benefits in violation of the constitution.

Finally, with respect to the pure statutory interpretation question presented by the term “pension plan,” the court again relied upon the rule of liberal construction in these instances, holding that the term “receive credit in any pension plan” does not include defined contribution plans.  “[W]hile the purpose of (the section) is to prohibit a member from receiving credit toward a pension for the same period of time he is receiving credit in a pension of the local labor organization [,] absent from (the section) is any obvious intent to prohibit an employee from accumulating retirement savings in some other way, such as a defined contribution plan account.”

Gonzalez v. Union Health Service, Inc.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In this medical malpractice action, the Illinois Supreme Court devoted most of its attention to discussing the supreme court’s jurisdiction, the court’s supervisory authority, and the framework for a circuit court to address the constitutionality of an Illinois statute.  The defendant, Union Health Service Inc., a “health services plan corporation” organized under the Voluntary Health Services Plan Act, moved to dismiss plaintiff’s negligence claims based on the act’s provision immunizing certain types of health services plans from civil liability.  215 ILCS 165/26 (West 2016). Plaintiff opposed Union Health’s motion based, in part, on a claim that the 1988 version of the act’s statutory immunity provision violated special legislation and equal protection principles and, accordingly, was unconstitutional. Plaintiff argued, and the trial court agreed, that the 1988 amendment stripped immunity from all other similarly situated entities while leaving Union Health’s immunity intact. Although Union Health argued that two additional entities still qualified for immunity, the trial court determined, without an evidentiary hearing, that the 1988 amendment irrationally protected a “class of one” and, accordingly, constituted special legislation. Based on its declaration that the immunity provision was unconstitutional, the trial court denied Union Health’s motion to dismiss the claims against it. 

Addressing the threshold question of jurisdiction, the supreme court declined Union Health’s request that the court review the ruling under Supreme Court Rule 302(a)(1). The court explained that it has reviewed an interlocutory order under Rule 302(a)(1), which applies to appeals from final judgments holding invalid a United States or Illinois statute, under two circumstances not presented here: first, where the order falls within another supreme court rule authorizing appeals from orders other than final judgments, such as Supreme Court Rule 307; and second, where the constitutionality issue arises from an order granting summary judgment in a declaratory action challenging the validity of a statute. The supreme court, however, elected to exercise its supervisory authority to address the circuit court’s ruling. Explaining that a lower court’s declaration that a statute is unconstitutional does not alone provide “exceptional circumstances” justifying the court’s exercise of its supervisory authority, it found that the ruling at issue demonstrated a need for guidance on the procedures and standards applicable to a circuit court’s declaration that a statute fails to pass constitutional muster. 

The supreme court next addressed the formal requirements enumerated in Supreme Court Rule 18 that a circuit court must meet before pronouncing a law unconstitutional. The circuit court’s order lacked findings that the statute cannot reasonably be construed in a manner to preserve its validity and that the unconstitutionality finding was necessary to the trial court’s decision. The supreme court also noted that the circuit court’s declaration that the 1988 amendment violated several state and federal provisions, but substantively addressed only the question of special legislation. The supreme court deemed premature the circuit court’s finding that the 1988 amendment was unconstitutional “as applied” to Union Health without holding an evidentiary hearing. 

In the supreme court’s view, the circuit court need not have addressed the 1988 amendment to the immunity provision, because the effect of a finding that the amendment was unconstitutional would not abolish the statutory immunity conferred on Union Health by the original version of the statute. Rather, even if the amendment were unconstitutional, the provision would simply revert back to its original version, which has been upheld by the appellate court against a constitutional challenge. Based on that immunity, the supreme court observed that Union Health still would be entitled to seek dismissal; therefore, the circuit court’s consideration of the amendment’s constitutionality was not necessary for resolution of the case.

The supreme court, accordingly, vacated the order denying Union Health’s motion to dismiss on the grounds that the 1988 amendment to section 26 of the act is unconstitutional, and remanded the case for further proceedings in the circuit court. The supreme court dismissed the appeal and entered a supervisory order. 

Gregg v. Rauner

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Judicial review of executive power provided the backdrop for the supreme court’s interpretation of the intent of the framers of the 1970 Illinois Constitution in this dispute between Governor Bruce Rauner and Eric Gregg, whom the Governor terminated from his position on the Illinois Prison Review Board. The court addressed whether the governor’s constitutional authority to remove Mr. Gregg, an appointee of the prior governor, Patrick Quinn, was subject to judicial review. Usually, the answer is no, and that was the answer in this instance. 

The Gregg-Rauner dispute arose from two financial issues. First, when then-Governor Quinn nominated Gregg for board membership, he disclosed in May 2012 that he had not received any gifts while employed by a unit of government. During an 11-month gap between filing his economic disclosure statement and receiving the appointment in April 2013, Mr. Gregg, while mayor of Harrisburg, received a medical lift chair as a gift. Second, during his tenure on the board, Gregg filed a Chapter 13 bankruptcy petition, in which he disclosed receiving income from operating a business, which indicated a violation of state law prohibiting a board member from engaging in other “business, employment or vocation.” 730 ILCS 5/3-3-1(b) (West 2014). Mr. Gregg’s bankruptcy lawyer later filed an amended statement that attributed the monthly income to Mr. Gregg’s wife. After Governor Rauner took office in January of 2015, his office investigated a newspaper’s report of Gregg’s alleged improprieties. Terminating Gregg pursuant to the Governor’s constitutional authority to remove any gubernatorial appointee for “incompetence, neglect of duty or malfeasance,” the governor’s office took the position that Gregg had sworn to false statements in his original bankruptcy filing and his statement of economic interests.

Gregg challenged Gov. Rauner’s action with a lawsuit seeking damages and equitable relief. Central to the lawsuit was whether the governor’s decision to remove Gregg from the board, action taken under section 10 of article V of the Illinois Constitution, was subject to judicial review, and if so, what level of deference a court should accord the decision, as well as whether the evidence presented in a circuit court hearing supported the lower court’s decision to grant Gregg injunctive relief.

The supreme court found dispositive the initial question of judicial review. The court’s analysis rested largely on two prior decisions of the court. Wilcox v. People ex rel Lipe, 90 Ill. 186 (1878), cited the doctrine of separation of powers as prohibiting the courts from addressing a governor’s determination of cause for removal. Nearly a century later, in Lunding v. Walker, 65 Ill. 2d 516 (1976), the court recognized a “significant, but narrow” exception to the Wilcox rule of nonreview. After explaining that the 1970 Constitutional Convention retained the Wilcox rule and providing a detailed discussion of the federal underpinnings of the Lunding exception, the supreme court articulated the applicable legal standard. When presented with a challenge in court to a governor’s removal of an appointee for cause, the court must determine whether the legislature intended the public entity involved to be so politically independent that the governor’s removal should be subject to judicial review.

The facts dictate the answer to that question. In Lunding, the court found that the agency involved, the State Board of Elections, is “one of those rare agencies whose functions require complete independence from gubernatorial influence.” By contrast, Gregg’s agency, the Illinois Department of Corrections, does not rely on political independence for its functions, which include making recommendations to the governor on executive clemency petitions and  rendering final decisions regarding parole matters.