Quick Takes on Thursday's Illinois Supreme Court Civil opinions
Our panel of leading appellate attorneys review Thursday's top Illinois Supreme Court Civil opinions in In re M.M., Bueker v. Madison County Illinois, Beggs v. The Board of Education of Murphysboro Community Unit School District No. 186, Blanchard v. Berrios, Murphy-Hylton v. Lieberman Management Services, Inc. and Zahn v. North American Power & Gas, LLC.
By Joanne R. Driscoll, Forde Law Offices LLP
This case raises the procedural question of whether, in the adjudication of an abuse and neglect petition, the court has the authority to appoint a guardian for the minor when there has been no finding that a parent is unfit, unable or unwilling to care for the child. Answering the question “no,” the Illinois Supreme Court, in a unanimous opinion, repudiated and overruled several cases that were in conflict.
Section 2-27(1) of the Juvenile Court Act of 1987 (the “Act”) (705 ILCS 405/2-27(1) (West 2012)) empowers the circuit court to place a child outside the parental home only if it determines: (1) that the parent is either unfit, unable, or unwilling to care for the child; and (2) the best interest of the minor would be jeopardized if the minor remains in the custody of his or her parents. Here, the circuit court found that the mother was fit but made the minors wards of the court and appointed the Department of Children & Family Services as guardian.
The appellate court reversed and remanded, holding that the circuit court violated section 2-27(1) of the Act by entering a dispositional order without first finding that the mother was unfit, unable, or unwilling to care for the minors and without providing the basis for its decision. The appellate court also rejected the State’s argument that custody can be awarded to a third party based upon the best interest of the minor even when there has been no finding that the minor’s biological parents are unfit, unwilling, or unable to care for the minor.
Construing the relevant provisions of the Act, the Illinois Supreme Court affirmed the appellate court and rejected the State’s contention that the best interests of the minor standard trumps any prerequisite consideration of parental fitness. The Court found that sections 1-2, 2-23(1)(a) and 2-27(1) of the Act (705 ILCS 405/1-2, 2-23(1)(a), 2-27(1)) evidenced a legislative preference against third-party placement absent consideration of parental fitness. In doing so, the Court repudiated its prior decision in In re Austin W., 214 Ill. 2d 31 (2005), reaffirmed its decision in In re R.L.S., 218 Ill. 2d 428 (2006), and overruled several appellate court decisions to the extent they held that it was not necessary to find parental unfitness before awarding custody to another person if the best interests of the child would be served.
Bueker v. Madison County Illinois
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In the absence of a green light by the General Assembly, private citizens in Illinois cannot sue a surety on a public official bond, the Illinois Supreme Court held today. Plaintiffs, certain Illinois property taxpayers suing on their own behalf and on behalf of a purported class of similarly situated Illinois citizens, alleged a conspiracy by a former Madison County Treasurer and Collector to impose an inflated interest rate on taxpayers delinquent in paying Madison County real estate taxes. The plaintiffs alleged that the former treasurer schemed with purchasers of the taxpayers’ debt to game the system. According to the plaintiffs, in exchange for financial support, the former treasurer helped the purchasers of plaintiffs’ tax debt to recover the maximum allowable interest rate.
In addition to suing the alleged conspirators and the county, plaintiffs filed a direct action against RLI Insurance Company, which had issued a statutorily mandated public official bond. Naming “Madison County Government” as the obligee and the treasurer as the bonded principal, RLI pledged the penal sum of $ 1,000,000. The trial court and the appellate court, however, held that the plaintiffs did not have standing to sue RLI on the bond.
The supreme court agreed. It disposed of the standing issue by construing relevant sections of the Counties Code and the Property Tax Code. First, the court observed that those sections required such bonds to name “the People of the State of Illinois” as the named obligee. Thus, by operation of law, the court read the bond instrument to name the People, and not the Madison County Government, as the obligee. Second, the court ruled that the true obligee referred to the body politic, meaning a group regarded in a political sense, organized under a single government authority. The “body politic” does not encompass private citizens, and the legislature did not include language in the relevant statutes that allowed private citations to sue on public official bonds required for county collectors and treasurers. Thus, under the plain language of the applicable statutes, the court affirmed the lower courts’ judgments.
Beggs v. The Board of Education of Murphysboro Community Unit School District No. 186
By Michael T. Reagan, Law Offices of Michael T. Reagan
This case dealt with a claimed difference between Chicago area and downstate schools concerning what deference is to accorded to the findings and recommendations of a hearing officer, as opposed to the board, in an appeal by a tenured teacher from dismissal for cause. Justice Thomas wrote for the unanimous court in largely aligning that deference question for downstate schools to be much like “upstate” schools and administrative review procedures generally.
The employer board had issued a notice of remedial warning and had engaged in other interactions with the tenured teacher plaintiff before ultimately deciding to dismiss. Thereafter, a hearing officer concluded that the board had failed to establish by a preponderance of the evidence that plaintiff had violated the notice of remedial warning or that she had engaged in irremediable conduct warranting dismissal. The hearing officer recommended reinstatement. The board then reviewed the hearing officer’s recommendation, supplemented certain fact findings, modified others which it found to be against the manifest weight of the evidence, and ultimately decided to dismiss plaintiff despite the hearing officer’s recommendation to the contrary. This case for administrative review of the board’s decision followed in the circuit court.
The Supreme Court first dealt with the jurisdictional claim by the board that jurisdiction was lacking because summons was issued to a prior address of the board, rather than the correct current address, and that the affidavit of addresses of the defendants, while properly identifying the school district, failed to correctly name the president of the board nor the current address of the board. Despite the misdirection of service, the summons and complaint were correctly routed to and received by the board in timely fashion. The circuit, appellate, and supreme courts all rejected that jurisdictional challenge.
Both the appellate court and the supreme court addressed the appropriate standard of review. The appellate court concluded that for cases arising downstate, a certain level of deference was still to be attached to the recommendation of the hearing officer. The appellate court then examined the evidence “through a lens that deferred to the hearing officer’s findings.” The appellate court ruled in favor of reinstatement.
A significant portion of the supreme court opinion is devoted to the standard of review. The court first delineated the standards to be applied, depending upon whether the question under review is one of fact, one of law, or a mixed question of fact and law. Turning to the question of deference to be accorded, the court laid out the competing contentions of the parties. The board argued that the appellate court erred when it gave deference to the recommendation of the hearing officer rather than to the board’s decision, even though the board is now considered by statute as the entity that makes the final decision for purposes of administrative review. The plaintiff, on the other hand, advocated for the appellate court’s analysis, and, in reliance upon differences between upstate and downstate procedures in the School Code, suggested that it was the hearing officer’s fact finding which “plays the pivotal role upon administrative review,” and that it is the hearing officer’s recommendation which should be deferred to and analyzed to determine whether those findings of fact are against the manifest weight of the evidence. The supreme court agreed with the board on this point. The court held that the decision of the school board is the final decision for purposes of administrative review.
While the reviewing court is to “give consideration” to both the school board’s decision and supplemental findings of fact and to the hearing officer’s findings of fact or recommendation,” that requirement fits within the general principle that on administrative review, the court is to consider the entire record. Even though the board is required to consider the findings of its hearing officer as must the court on review, “on administrative review the court still only reviews the agency’s findings of fact under the manifest weight of the evidence standard, not the hearing officer’s recommendation and factual findings.” The supreme court carefully analyzed the arguments advanced as to why the hearing officer should be granted greater deference, including the appellate court’s assertion that the board is a partisan entity, while the hearing officer is an impartial and disinterested entity. Disagreeing, the supreme court drew upon its earlier decisions for the proposition that “board members comprising the agency decision makers are assumed to be people ‘of conscience and intellectual discipline,’ capable of judging a particular controversy fairly on the basis of its own circumstances.’”
Having established both the various levels of review and the deference to be applied, the supreme court ultimately concluded that the single incident which survived that scrutiny was not a clear and material breach of the warning notice. Accordingly, the court concluded that the decision to discharge was clearly erroneous, and the appellate court’s order of reinstatement was affirmed. The circuit court’s order of reinstatement was thus affirmed as well.
By Joanne R. Driscoll, Forde Law Offices LLP
This case involves the constitutionality of a county’s home rule ordinance (the “IG Ordinance”) that empowered the Office of the Independent Inspector General (OIIG) to issue subpoenas directed at elected county officials (here, the assessor of Cook County (the “Assessor”) and requiring those officials to cooperate with the OIIG. Cook County Code of Ordinances §§ 2-285(a), 2-286 (approved July 31, 2007). The OIIG was established by the Cook County board of commissioners (the “Board”) to investigate corruption, fraud and other misconduct in the operations of county government. Id. §§ 2-283.
The OIIG issued a subpoena to the Assessor for documents relating to homeowners exemptions granted to two properties for the years 2005 to 2012. The Assessor objected and refused to produce any documents. The OIIG filed a lawsuit seeking a declaration that the Assessor must comply with the subpoena; and the circuit court found in favor of the OIIG on cross-motions for summary judgment. The appellate court affirmed.
Affirming the appellate and circuit courts, the Illinois Supreme Court, in a unanimous opinion, rejected all of the constitutional arguments raised by the Assessor. First, it found that section 4(d) of article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, § 4(d)) authorized the County to enact the IG Ordinance and to impose duties upon elected county officers to cooperate with OIIG investigations. Second, the Court found that the IG Ordinance did not exceed the county’s home rule authority granted under section 6(a) of article VII. Ill. Const. 1970, art. VII, § 6(a). The Court reiterated that section 6(a) gave home rule units the broadest of powers “to perform any function pertaining to its government and affairs,” excluding only those subjects where the State had a vital interest and traditionally exclusive role. It then rejected the Assessor’s argument that the IG Ordinance did not pertain to the County’s “government and affairs” and interfered with the State’s authority relating to the taxation of real estate throughout the State. According to the Court, the IG Ordinance was an exercise of the County’s police powers to prevent corruption, fraud and mismanagement, permissible under section 6(a) of article VII and of most vital concern to the County, and did not relate to property taxation governed by the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2014)).
The Court also rejected the Assessor’s other constitutional challenges to the IG Ordinance. It found that the Board had home rule authority to grant the OIIG subpoena power even though the Inspector General is not a law enforcement officer because the County has the same sovereign power as the State to grant such power. Lastly, the Court rejected the Assessor’s argument that, as an elected official, his office is separate from Cook County and, thus, not subject to its home rule powers. The Court found no support for that argument and noted, instead, that under the governmental categories set forth in section 1 of article VII of the Illinois Constitution (Ill. Const. 1970, art. VII, § 1), the Assessor’s office could only be part of Cook County and, thus, subject to its authority.
Murphy-Hylton v. Lieberman Management Services, Inc.
By Michael T. Reagan, Law Offices of Michael T. Reagan
Justice Theis’ opinion for the unanimous court not only resolves a conflict as to the scope of the immunity provided under the Snow and Ice Removal Act (745 ILCS 75/0.01 et seq.), but also provides a useful precis of the fundamental underpinnings of the law concerning unnatural accumulations of ice and snow.
Plaintiff was injured when she slipped and fell on ice on a sidewalk of her residential condominium complex. Following a large snowstorm, a snow removal service hired by the defendant condominium association cleared the sidewalks. Plaintiff’s fall occurred eleven days later. The ice was allegedly caused by the drainage of water and melted snow being directed to the sidewalk because of various claimed defects in design and maintenance, including the placement of downspouts, the relative topography of the sidewalk and adjoining grass, and the slopes of the structures. Plaintiff’s theory of the case was not that defendants negligently undertook efforts to remove a natural accumulation of snow or ice, but rather that the ice formed on the sidewalk in an unnatural way due to defective conditions of the property which had not been eliminated even after reasonable notice of the condition.
Defendant successfully moved for summary judgment based upon the Snow and Ice Removal Act, which provides, in part, that a person “who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” The appellate court reversed, which added to a split among the appellate districts as to whether the immunity provided by the Act was limited to the consequences of snow removal efforts, or whether the immunity extended more broadly to negligence arising from a defective condition on the property.
The Supreme Court adopted the narrower view of the immunity, hewing closely to the words of the statute. The Act provides immunity to residential property owners from claims of liability caused by icy sidewalks which result from negligent snow and ice removal efforts, “but it does not extend to immunize them from claims of liability from injuries allegedly caused by icy sidewalks which result from an otherwise negligent failure to maintain the premises.”
Zahn v. North American Power & Gas, LLC
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In an appeal lateraled by the Seventh Circuit under Supreme Court Rule 20 to the Illinois Supreme Court, the court ruled that the Illinois Commerce Commission does not have exclusive jurisdiction over a reparations claim a residential consumer brings against an alternative retail electrical supplier (“ARES”). The plaintiff, a residential consumer of electricity, opted to purchase electric power for her home from the defendant, North American Power & Gas, LLC (“NAPG”), based on its promise of a lower rate. After making the switch from ComEd, plaintiff alleged that she actually paid consistently higher rates, nearly triple the ComEd rate at times. Alleging statutory consumer fraud and other claims, plaintiff filed a class action lawsuit against NAPG in federal court. The district court granted a motion to dismiss based on a lack of subject matter jurisdiction and failure to state a claim.
On appeal, the Seventh Circuit concluded that a dispositive threshold issue, whether the Illinois Commerce Commission (“ICC”) had exclusive jurisdiction, should be decided by the Illinois Supreme Court. In certifying the issue for the supreme court, the Seventh Circuit reasoned that, if a state circuit court would lack subject matter jurisdiction over the action, so too would a federal court exercising diversity jurisdiction over a state law claim. The Seventh Circuit noted a relevant supreme court decision, Sheffler v. Commonwealth Edison Co., 2011 IL 110166, which had addressed the question of the ICC’s exclusive jurisdiction in the context of a complaint concerning rates against a public utility. Recognizing the crucial difference between a conventional public utility and an ARES, and finding no definitive guidance in the case law, the legislative information and other sources, the Seventh Circuit opted to certify the issue for decision by the supreme court rather than estimate how the state judiciary would decide the question.
The supreme court began its analysis with the Illinois Constitution, which vests the circuit courts with original jurisdiction of all justiciable matters except those falling within the supreme court’s original and exclusive jurisdiction. Determining that the matter was indisputably justiciable and that the exception did not apply, the court considered whether the legislature had expressed its intent to set exclusive jurisdiction in the ICC. The supreme court examined the relevant provisions of the Public Utilities Act and found no such intent expressed in the plain language or the overall statutory framework. The court distinguished between a public utility and an ARES, an entity introduced as part of a legislative effort to partially deregulate the state’s electricity market. In particular, the court observed that the ICC does not weigh in on an ARES’ rates, which are strictly a matter of contract between an ARES and its customers.
Accordingly, the supreme court answered “no” to the Seventh Circuit’s question. The ICC does not have exclusive jurisdiction over a residential consumer’s beef over rates with an alternative retail electric supplier.