Quick Takes on Illinois Supreme Court Opinions Issued Thursday, Sept. 21

Leading appellate attorneys review the Illinois Supreme Court opinions handed down on Thursday, September 21. The cases are People v. Peterson, People v. Gray, People v. Holman, People ex rel. Madigan v. Wildermuth, In re Linda B., Cochran v. Securitas Security Services USA, Inc., Illinois Landowners Alliance, NFP v. Illinois Commerce Commission, Aspen American Insurance Company v. Interstate Warehousing, Inc., and Manago v. County of Cook.

People v. Peterson

By Kerry Bryson, Office of the State Appellate Defender

In 2004, Drew Peterson’s ex-wife, Kathleen, was found dead in her bathtub.

Her death was initially ruled accidental. In 2007, after Peterson’s then-wife Stacy disappeared, Kathleen’s body was exhumed and two additional autopsies were conducted. Both concluded that the manner of death was homicide. Peterson was charged with Kathleen’s murder in 2009, and was convicted in a 2012 jury trial.

In the Illinois Supreme Court, Peterson argued that certain hearsay statements were improperly admitted under the forfeiture by wrongdoing (FBW) doctrine, that he received ineffective assistance of counsel where counsel was acting under a per se conflict of interest, and where counsel presented attorney Harry Smith as a witness, that Smith’s testimony should have been barred by attorney-client privilege (Stacy had consulted Smith about a possible divorce from Peterson), and that evidence of prior bad acts was improperly admitted.  A unanimous court affirmed.

Using the FBW doctrine, the state was able to admit at trial statements made by Kathleen about threats Peterson made to her and statements made by Stacy regarding Peterson’s conduct on the night of Kathleen’s death. The court first considered a separation of powers challenge to the FBW statute and concluded that the statute irreconcilably conflicts with the common law doctrine inasmuch as the statute imposes an additional “reliability” requirement. Because a defendant “forfeits his ability to challenge the reliability of the declarant’s statements by the very act of prevent the declarant from testifying,” such an additional requirement would undermine the considerations at the heart of the doctrine. Thus, the common law doctrine embodied in Illinois Rule of Evidence 804(b)(5) controls.

The court went on to find that the state had met its preponderance-of-the-evidence burden under the FBW doctrine with regard to the statements that were admitted at trial.  Peterson did not challenge the “wrongdoing” factor, but focused on the “intent” factor — i.e., whether the State proved that he murdered Kathleen and Stacy with the intent to make the unavailable as witnesses. Notably, the court held that the “intent” factor does not require proof of the specific testimony that the defendant wished to avoid; though if such testimony can be identified, intent is more easily established. Further, there is no requirement that preventing the decedent from testifying by the defendant’s sole intent. Likewise, there is no requirement that a legal proceeding be pending to establish that the defendant acted with the intent to prevent testimony. A detailed consideration of the evidence that was presented led the court to conclude that the state had satisfied the “intent” factor where Peterson and Kathleen were engaged in ongoing property-settlement proceedings surrounding their separation and where Stacy was considering divorce and had told others that she could implicate Peterson in Kathleen’s death.

Regarding ineffective assistance of counsel for calling Harry Smith as a witness and eliciting testimony that Stacy had called Smith and implicated Peterson in Kathleen’s death, the court concluded it was a strategic decision.  Indeed, at a pretrial hearing, counsel disclosed that calling Smith was strategy to attack Stacy’s credibility and to undermine Stacy’s statements to others by providing a motive for Stacy to fabricate her claim that Peterson was involved in Kathleen’s death (specifically, to gain leverage in divorce proceedings).

On the question of whether Smith’s testimony should have been barred (both at the pretrial FBW hearing and at trial), the court concluded that there was never an attorney-client relationship between Smith and Stacy.  While Stacy called Smith to discuss seeking a divorce against Peterson in the days before her disappearance, Smith told Stacy that he could not represent her because he had represented Kathleen previously. Regardless of whether there was an actual conflict, it is clear that there was no attorney-client relationship where Smith clearly told Stacy he could not represent her. Thus, there was no expectation of privilege in Stacy’s communications to Smith.

Peterson’s conflict of counsel claim was based on Brodsky’s having signed a media contract, along with Peterson, for management of “publicity and promotional services” surrounding the case. Peterson argued that counsel violated rules 1.7 and 1.8 of the Rules of Professional Conduct. The court found that it would be “completely speculative” to agree with Peterson’s argument, and suggested that the proper forum for resolving such a claim is the ARDC. The court declined to expand on the category of per se conflicts that have previously been recognized.

Finally, the court considered Peterson’s claim that other bad acts were improperly admitted where a witness testified that Peterson had once offered  him $25,000 to find someone who could have his third wife [Kathleen] “taken care of.” Peterson did not challenge the admissibility of the evidence, itself, but instead argued that the state failed to comply with the notice requirement of Rule 404 and that the trial court erred in excusing that failure. Because Peterson was already aware of the evidence where the state had offered it at the pretrial FBW hearing, there was no abuse of discretion in the court’s having excused the State’s failure to strictly comply with Rule 404.

The Peterson case is unquestionably high-profile, and the court’s opinion is both detailed and thorough.  Notable to other attorneys from today’s decision will be the clarifications about the scope and application of the FBW doctrine. For the most part, though, the decision is fairly fact-specific and does not break new legal ground in the areas that were before the court.

People v. Gray

By Kerry Bryson, Office of the State Appellate Defender

In 2011, Matthew Gray and a former paramour, Tina Carthron, had what the appellate court called an “alcohol-fueled encounter” which resulted in Gray sustaining a bite wound to his chest, and Carthron receiving stab wounds to her chest and back. Gray did not deny inflicting the stab wounds but said he was acting in self-defense. Among other things, Gray was charged with, and convicted of, aggravated domestic battery. Evidence established that Gray and Carthron had ended their romantic relationship 15 years earlier and that they were just friends at the time of the incident; Carthron said she had no desire to rekindle their romance.

On appeal, Gray argued for the first time that the applicable statutory definition of “family or household member” was unconstitutional as applied to the facts of his case. That definition includes those “persons who have or have had a dating or engagement relationship.”

After first considering, and rejecting, Gray’s challenge to the sufficiency of the evidence, the court went on to consider his constitutional challenge. Because there was no claim that the statute deprived Gray of any fundamental constitutional right, rational basis review was appropriate.

First, the court concluded that the purpose of the statute is to curb the serious problem of domestic violence.  The court also concluded that the legislation bears a rational relationship to that purpose, despite the absence of a time limit on former dating relationships. The court reasoned that even former dating relationships may render individuals vulnerable to abuse by former partners despite the passage of time.

In the appellate court’s underlying opinion in this case, it noted that, “[i]n this Tinder age of hook-ups and one-night stands, adults both young and old can readily recognize that sexual intercourse does not itself always relate to a dating relationship or any form of serious romantic attachment.” Gray, 2016 IL App (1st) 134012, ¶ 40. Given that we are squarely in the middle of the “Tinder age,” it seems almost certain that questions about the scope of the “family or household member” definition will present themselves. While this opinion hold that a “dating or engagement relationship,” once established, continues to exist for purposes of the statute, it does not address what qualifies as a “dating or engagement relationship” because that particular question was not at issue on these facts.

People v. Holman

By Kerry Bryson, Office of the State Appellate Defender

Richard Holman was 17-years-old when he committed a murder (he turned 18 just five weeks later). In 1981, Holman was sentenced to natural life in prison. Following the U.S. Supreme Court’s decision in Miller v. Alabama, 132 S Ct 2455 (2012), Holman sought post-conviction relief arguing that his youth was not taken into account at sentencing and that Miller should be expanded to encompass any natural-life sentence imposed for a crime committed by a juvenile, not just mandatory natural-life sentences.

At the time of Holman’s sentencing, the statute provided that a person convicted of more than one murder “may” be sentenced to a term of natural life. Holman had previously been convicted in two unrelated murders and one attempt murder. He also had delinquency adjudications for two burglaries and three counts of criminal damage to property.

The court first concluded that it could consider Holman’s as-applied challenge, despite his not having raised it below, because the record was sufficiently developed for review on the question of whether his original sentencing hearing complied with Miller.

The court went on to hold that Miller applies to discretionary sentences of natural life for juvenile defendants.  The court also determined that to comply with Miller, sentencing courts must consider the characteristics mentioned by the Supreme Court in Miller. This is statutorily required in Illinois now under 730 ILCS 5/5-4.5-105.

Ultimately, the court determined that Holman’s sentence passed constitutional muster. The court specifically stated that defendant’s good or bad conduct since his original sentencing could not be considered; reviewing courts must consider only “the cold record” to determine whether the original sentencing hearing was adequate under Miller. Here, the sentencing court considered the trial evidence and PSI, as well as arguments at the sentencing hearing where both attorneys had highlighted Holman’s age.  The psychological reports did not depict Holman as immature or impetuous, and the PSI alerted the court to Holman’s susceptibility to peer pressure and his low intelligence. Included in the PSI was a statement from Holman’s probation officer that Holman had “no predilection for rehabilitation” given his history of violent criminal acts and lack of remorse.

The trial court found no mitigating factors, and the Supreme Court noted that there was no evidence at trial or sentencing to support any of the statutory mitigating factors, Holman declined to present any mitigatingevidence, and Holman’s mother declined to testify on his behalf. This, coupled with the fact that the PSI provided the sentencing court with information on the Miller factors, led the court to uphold the sentence. The court concluded that the facts supported the conclusion that defendant’s conduct placed him “beyond rehabilitation,” and the life sentence was upheld.

Finally, the court declined to adopt a categorical ban on natural life sentences for juvenile offenders, stating that discretionary life sentences are constitutional for juveniles; it is up to legislators to determine whether such sentences are advisable. Thus, if there is to be such a ban, it will have to come from the legislature.

People ex rel. Madigan v. Wildermuth

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

This opinion provides a significant construction of the Illinois Human Rights Act (775 ILCS 5/3-102); constitutes an example of how a reviewing court in appropriate circumstances may operate outside of the strict confines of a Supreme Court Rule 308 certified question; and is an illustration of how the words of a statute are read in context with their companions. Justice Thomas wrote for a unanimous court. 

The attorney general brought this action alleging unlawful discrimination in connection with “real estate transactions” against the defendant law firm under § 3-102 of the Illinois Human Rights Act. The attorney general alleged that defendants engaged in “real estate transactions” as defined in the Act by offering to negotiate loan modifications and short sales on behalf of their clients.  Defendants filed a motion to dismiss that count, which was brought among other theories. One of defendants’ primary points was that defendants were not engaging in real estate transactions within the meaning of the Act. The attorney general responded that the negotiation of loan modifications and short sales fulfilled that requirement. The complaint did not allege specific acts of discrimination, but rather relied on the “reverse redlining” theory to substitute for that required element under the Act.

The circuit court denied the motion to dismiss, but pursuant to SCR 308 formulated and certified the question of “whether the State may claim a violation of the [Act] pursuant to a reverse redlining theory where it did not allege that the defendant acted as a mortgage lender.” The appellate court answered that question in the affirmative, and went on to hold that reverse redlining is not strictly limited to situations involving mortgage lending, but rather can include the loan modification services that defendant offered.

The supreme court succinctly stated that because the “full scope of the issues presented in this case goes beyond the narrow question certified,” that the supreme court’s review is not limited solely to consideration of the certified question and that the court “may delve further to resolve the related issues of law that ultimately control the propriety of the order that gave rise to the appeal.” The supreme court, in company with the appellate court, looked for guidance on the statutory terms to the analogous federal Fair Housing Act, the court noting “substantial similarity to the pertinent provisions.” The supreme court’s analysis is tightly tied to the words of the statute, with significant weight applied to the words surrounding the provisions at issue, and is further informed by case law interpreting the FHA. The court held that the services offered by the defendant attorneys do not constitute “other financial assistance,” nor were their services rendered for the purpose of “maintaining a dwelling.” Further, the defendant attorneys are not to be regarded as “real estate brokers,” despite the assertion that they were,  upon the allegations that they held themselves out as negotiating short sales.  But there was no allegation that defendants brokered short sales, only that defendants recommended, or claimed to be able to negotiate, them.

The court affirmed the appellate court’s answer to the very narrow certified question, but more fundamentally held that defendants’ motion to dismiss should have been granted.

In re Linda B.

By Joanne R. Driscoll, Forde Law Offices LLP

When is a person “admitted” to a “mental health facility” for purposes of triggering the 24-hour filing period to petition for involuntary admission under section 3-611 of the Mental Health Code (405 ILCS 5/3-611 (West 2012))?

In this case, the respondent was admitted to the medical floor of a private hospital on April 22, 2013, where she was provided medical and psychiatric care. The mental health facility director at the hospital filed a petition for involuntary admission on May 9, 2013. The respondent moved to dismiss that petition as untimely.  The circuit court denied the motion and entered a written order finding the respondent subject to involuntary admission. The appellate court affirmed.

In a unanimous opinion written by Justice Karmeier, the Illinois Supreme Court overruled the appellate court to the extent it held that the medical floor of a private hospital is not a mental health facility. Noting that the legislature broadly defined “mental health facility” to provide adequate safeguard against unreasonable commitment and deprivation of personal liberty, the court held that any facility that treats a person for mental illness qualifies as a mental health facility under the Mental Health Code no matter where in the facility the patient is treated. The court nevertheless affirmed the denial of the motion to dismiss, holding that the respondent did not meet her burden of establishing when she was involuntarily “admitted” to the hospital, noting that her legal status could have been voluntary on April 22 but changed to involuntary at some unknown point.

The opinion also contains a short analysis of the public interest exception to the mootness doctrine, which applied here.

Cochran v. Securitas Security Services USA, Inc.

By Joanne R. Driscoll, Forde Law Offices LLP

Should Illinois recognize a cause of action for negligent interference with possession of a decedent’s corpse and abandon the requirement for willful and wanton misconduct?  In a unanimous opinion written by Justice Thomas, the Illinois Supreme Court examined the case law that has applied the enhanced proof requirement since Mensinger v. O’Hara, 189 Ill App. 48, 55 (1914).  The court characterized that case law as nothing other than “unexamined assumption and mere repetition,” noting that  Mensinger expressly declined to adopt the standard of willful and wanton misconduct.

The Court opined that to the extent Mensinger discussed the question at all, it did so in the context of the law governing actions for negligent infliction of emotion distress (“NIED”). Tracing the refinement and clarification of that law, the court noted that in 2011, in Clark v. Children’s Memorial Hospital, 2011 IL 108656, it abandoned the NIED zone-of-danger analysis for tort cases in which emotional distress is simply an element of plaintiff’s damages. In light of Clark, the count found no principled reason to disallow recovery of emotional distress damages upon proof of ordinary negligence, including with respect to the tort of negligent interference with the right to possess a corpse. This, according to the court, brings Illinois in line with the blackletter standard and the majority rule in this country.

Illinois Landowners Alliance, NFP v. Illinois Commerce Commission

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

In this unusual utility case, the court affirmed  the Third District by a definitive interpretation of a requirement to be found to be a public utility under the Public Utilities Act (220 ILCS 5/1-101 et seq.). The unanimous opinion, written for the court by Justice Karmeier,  was buttressed by an aspect of economic theory underlying the Act. The opinion also discusses the extent to which deference is due to an agency in its fact finding and in its interpretation of its enabling statute.

Rock Island Clean Line, LLC, planned to construct and manage a direct current electric transmission line running from Iowa across Illinois to Grundy County, Illinois, where the D.C. current was to be converted to AC.  The purpose of the line was to connect yet-to-be-built wind generators in northwest Iowa to an electrical grid operated by a regional transmission organization which coordinates the movement of wholesale electricity to markets in states in both the Midwest and Northeast. Rock Island proposed to construct its line outside of the normal regional transmission organization procedure. Instead, it intended to proceed as a merchant transmission project in which its return would not come through regulated payment from electricity customers but rather exclusively from power-generating customers who purchased transmission capacity on the line.  Rock Island does not own or control any plants, equipment or property of any kind in Illinois for any purpose related to transmission or operation as a utility.  It does have an option on land which could be used for a converter station.

The Illinois Commerce Commission granted Rock Island a certificate of public convenience and necessity.  Numerous intervenors emerged on both sides. Commonwealth Edison Company, the Illinois Agricultural Association (the Farm Bureau), and the Illinois Landowners Alliance (objecting farmers) appealed. The Third District reversed the grant of that CPCN, finding that Rock Island does not qualify as a public utility.

The supreme court affirmed.  After analyzing a significant change in the statute, the court held that the current version of the statute “plainly and unambiguously require(s) present ownership, management, or control of defined utility property or equipment in order to qualify as a public utility.”

With respect to the eminent domain aspects of the case, the supreme court made specific note that “the company has not sought, is not seeking, and represents that it may never ask for eminent domain power.”

The court reviewed the history of public utility regulation, including that the Act adopted the principle of regulated monopoly in light of the deleterious effects of unrestrained competition in the provision of capital-intensive utility service.

The court reviewed the ground rules for its exercise of special statutory jurisdiction in reviewing final decisions of the ICC. Courts are not bound by the Commission’s rulings on questions of law. While deference may be owed to an agency’s construction of its law where the meaning of the terms in a statute is doubtful or uncertain, where statutory language is unambiguous, as here, the agency’s role as an interpreter of “doubtful law” does not come into play upon judicial review.

Aspen American Insurance Company v. Interstate Warehousing, Inc

By Karen Kies DeGrand, Donohue Brown, Mathewson & Smyth LLC

In this case the Illinois Supreme Court applied the standards for establishing personal jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), to assess an insurance company’s attempt to establish jurisdiction in Cook County over an Indiana company for a subrogation action. Daimler precluded the plaintiff from succeeding, under either subsection (c) or subsection (b)(4) of the “long-arm” statute, 735 ILCS 5/2-209 (West 2012).

The subrogation action arose from a contractual relationship between plaintiff’s insured, Eastern Fish Company, a New Jersey-based corporation that contracted with the defendant to store fish products in a refrigerated fish warehouse near Grand Rapids, Michigan. When the roof of the warehouse collapsed, Eastern’s fish products were contaminated, and plaintiff paid Eastern for its losses. The insurance company then sued the defendant, Interstate Warehousing, to recoup the sums paid to Eastern, and Interstate contested personal jurisdiction. Plaintiff contended that Interstate, an Indiana corporation with its principal place of business in Fort Wayne, was subject to general personal jurisdiction in Illinois based on activities unrelated to the lease of the Michigan warehouse. Registered to do business in Illinois, Interstate operated a warehouse in Joliet, one of its eight warehouses scattered throughout the United States.

Guided by Daimler, the supreme court ruled that plaintiff could not assert personal jurisdiction over Interstate under either subsection (c) — which permits Illinois courts to exercise jurisdiction on any basis permitted by the Illinois and United States constitutions — or subsection (b)(4), which authorizes the exercise of jurisdiction against any defendant “doing business within this State,”  regardless of where the action arose. Plaintiff could not satisfy the due process standard the Supreme Court articulated in Daimler, which refined the concept of “continuous and systematic” forum contacts of a foreign corporation to encompass contacts that render the defendant “essentially at home in the forum state.” Generally, those locations would include the defendant’s place of incorporation and principal place of business. In “exceptional cases,” other locations could be included, but the exceptional case standard is “incredibly difficult to meet” and is limited to locations where the selected forum amounts to a “surrogate principal place of business.” As an example, the court cited a case where a corporation was forced to relocate due to World War II. Plaintiff, relying on the Joliet warehouse operation, fell far short of meeting the “exceptional case” standard.

Citing the Business Corporation Act of 1983, plaintiff also contended that the defendant, which was registered to do business in Illinois and has a registered agent here, has subjected itself to the jurisdiction of this State. That argument did not convince the court, which observed that none of the provisions of the BCA that plaintiff cited require corporations to consent to general jurisdiction as a condition of doing business in Illinois. The Act does not even mention personal jurisdiction.

Manago v. County of Cook

By Karen Kies DeGrand, Donohue Brown, Mathewson & Smyth LLC

Plain statutory language prevailed over a plea that considerations of fairness and public policy protect a minor’s tort recovery from enforcement of the lien rights of Stroger Hospital. Here the Illinois Supreme Court addressed the public hospital’s assertion of a lien on a damage recovery for the minor plaintiff, who, at age 12, was treated at Stroger Hospital after sustaining injuries while “elevator surfing” on the roof of a Chicago Housing Authority elevator. The child’s mother brought an action against the CHA, a management company and an elevator services company; in a bench trial, she recovered for her son’s non economic damages, including pain and suffering, disfigurement, and loss of a normal life, but nothing for medical expenses based on a failure to prove an obligation to pay the hospital bill. The circuit court granted plaintiff’s motion to extinguish the hospital lien, a ruling the appellate court ultimately upheld, based on the absence of any award for medical expenses. The appellate court examined and attempted to harmonize the relevant provisions of the Health Care Services Lien Act, 770 ILCS 23/10, 20 (West 2012), and the Family Expense Act, 750 ILCS 65/15 (West 2012).

In an opinion written by Justice Thomas Kilbride, the supreme court found that the plain language of the Lien Act, which provides no exceptions for judgments awarded to minors, establishes an unambiguous property interest in the entirety of a “judgment secured by or on behalf of the injured person.”  In the absence of any statutory language referring to deductions or limitations on the resources subject to attachment, the supreme court found that the Lien Act refuted all of plaintiff’s arguments, which sought to write conditions and exceptions into the statute that the legislature did not include. The court found no conflict between the Family Expense Act and the Lien Act, both of which provide creditors with remedies. Accordingly, the supreme court reversed the appellate and circuit court rulings.