Quick Takes on Illinois Supreme Court Opinions Issued Thursday, May 20, 2021
Our panel of leading appellate attorneys reviews the nine Illinois Supreme Court opinions handed down Thursday, May 20. Seven of the cases are civil and two are criminal.
By Kerry J. Bryson, Office of the State Appellate Defender
Dominic Bochenek was convicted of identity theft based on the unauthorized use of another person’s credit card information to purchase cigarettes. The underlying transaction occurred at a gas station in Lake County, but Bochenek was charged in DuPage County under a provision in the venue statute which allows for the charge to be brought in the county where the victim resides. 720 ILCS 5/1-6(t)(3).
Bochenek challenged the constitutionality of section 1-6(t)(3) of the venue statute, arguing that it was in conflict with Article I, section 8 of the Illinois Constitution which provides that an accused has the right to be tried by a jury of the county in which the offense is alleged to have been committed. In a unanimous opinion, the Supreme Court rejected Bochenek’s facial challenge to the venue statute.
First, the court recognized that Article I, section 8 does not limit venue to a single location. The legislature has the authority to define the place where a crime is committed and to enact specific venue statutes when warranted by the nature of the crime.
The offense of identity theft, as charged here, is committed where a person knowingly “uses any person identifying information or personal identification document of another person to fraudulently obtain credit, money, goods, services, or other property.” Identity theft involves the misappropriation of an individual’s personal identifying information. A victim has a possessory interest in that information, and the legislature has deemed that interest to be located where the victim resides. Thus, a part of the offense of identity theft has been committed where the victim lives because the victim’s personal identifying information is located there.
Further, the court rejected Bochenek’s assertion that a crime is committed only where the accused commits a physical act. It is the location of the offense, not the location of the offender, that controls. The court noted that Bochenek’s position would allow an out-of-state individual to escape criminal liability in Illinois for identity theft committed against an Illinois resident.
Based on the nature of the offense of identity theft, Section 1-6(t)(3) does not violate the constitutional mandate that venue be set in the county where the offense is alleged to have been committed. Identity theft is committed both in the county where a defendant’s acts occur, and in the county where the victim resides.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Hatter, the Illinois Supreme Court considered whether a pro se post-conviction petition that alleged petitioner’s trial counsel failed to raise a plausible defense to the charges that were the subject of the guilty plea (though that defense did not apply to the remaining charges that were dismissed as part of the plea agreement), set forth a nonfrivolous constitutional claim that counsel provided ineffective assistance. In his pro se post-conviction petition, Hatter, who was charged with nine Class 1 felony counts of criminal sexual assault involving his live-in girlfriend’s 13-year-old daughter, claimed that if trial counsel had challenged the counts that alleged he was a family member of the complainant, he would not have been convicted of those counts, because he did not meet the statutory definition of family member. In a unanimous opinion, the Illinois Supreme Court determined that the defendant failed to show that he was prejudiced by counsel’s performance where the same defense did not apply to the remaining charges, which all carried the same potential penalty.
As part of a negotiated plea agreement, Hatter, who faced a maximum sentence of 30 years if convicted of two or more of the nine counts, pled guilty to two counts of criminal sexual assault in exchange for the state’s recommendation of consecutive four-year sentences. The trial court accepted the defendant’s guilty plea and sentenced the defendant in accordance with the plea agreement, which included a two-year term of Mandatory Supervised Release. The defendant did not move to withdraw his guilty plea, nor did he file a direct appeal. When he learned that he was actually subject to an MSR term of three years to life, he contacted his trial counsel, who filed a motion in the circuit court. The circuit court gave the defendant an opportunity to vacate his guilty plea. Hatter declined; instead, he agreed to an amended sentence that provided for the correct MSR term.
Hatter then filed a one-paragraph post-conviction petition, in which he alleged that counsel was ineffective because the defendant had not lived in the same household as the complainant for the continuous six-month period required by statute. The Post‑Conviction Hearing Act provides a three‑stage process for an imprisoned person to raise a constitutional challenge to a conviction or sentence. At the first stage, the circuit court reviews the petition independently within 90 days after it is filed and docketed. The circuit court will only summarily dismiss the petition during the first stage if the petition is “frivolous or is patently without merit.” Hatter’s petition was dismissed at the first stage. The Appellate Court, First District, affirmed.
The Illinois Supreme Court granted petitioner leave to appeal and affirmed the judgments of both the circuit court and the appellate court. Writing for a unanimous Court, Justice Carter first outlined the familiar, three-stage process established in the Post-Conviction Hearing Act. At the first stage, the circuit court reviews the petition independently within 90 days after it is filed and docketed. The threshold for a petition to survive summary dismissal at the first stage of the proceedings is low, given that most post-conviction petitions are drafted by pro se petitioners with little legal knowledge or training. Thus, the circuit court will only summarily dismiss the petition if it is “frivolous or is patently without merit,” meaning that it has no arguable basis either in law or in fact.”
The court also noted that claims of ineffective assistance of counsel are reviewed under the two-prong standard set forth in Strickland v. Washington. At the first stage of post-conviction proceedings, a petition alleging ineffective assistance of counsel may not be summarily dismissed if (1) counsel’s performance arguably fell below an objective standard of reasonableness and (2) the petitioner was arguably prejudiced by the deficient performance. In the context of a claim that trial counsel was ineffective during a guilty plea proceeding, the first prong of the Strickland standard remains the same, but to satisfy the second prong, a petitioner must show that there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial. When, as here, a claim involves a guilty plea, the defendant must show either actual innocence or a plausible defense to establish prejudice.
While the court determined that Hatter alleged a plausible defense to the “family member” counts of criminal sexual assault, the court also found that petitioner did not allege any facts that arguably indicated he was innocent of the other six criminal sexual assault charges or that he had a plausible defense to those charges. In determining that the allegations of the defendant’s petition do not show that Hatter would have been better off rejecting the plea offer and insisting on a trial in the absence of a claim of innocence or plausible defense to the charges, the Supreme Court distinguished the instant case from People v. Hall, 217 Ill. 2d 324, in which it was found to not matter that Hall did not have a defense to the remaining charges because the potential penalties for the other two lesser charges in that case were less severe. In Hatter’s case, there is no arguable advantage to him in withdrawing his guilty plea because there is no allegation that he had a claim of innocence or plausible defense to those charges, given that those charges all carried the same potential penalties.
Tillman v. Pritzker, 2021 IL 126387
By Amelia Buragas
In Tillman v. Pritzker, the Illinois Supreme Court clarified the legal standard under section 11-303 of the Code of Civil Procedure for filing a taxpayer complaint to restrain and enjoin the disbursement of public funds. Section 11-303 requires that the complainant first petition the circuit court for permission to file a taxpayer complaint and the petition will be granted only if the circuit court finds that there is “reasonable ground for filing of such action.” The Supreme Court granted the respondent’s petition for leave to appeal after the circuit court and appellate court differed in their interpretation of the phrase “reasonable ground.”
In July 2019, John Tillman petitioned the circuit court pursuant to section 11-303 for leave to file a taxpayer complaint alleging that certain general obligation bonds issued by the state in 2003 and 2017 violated article IX, section 9(b) of the Illinois constitution because they were not issued for a qualifying “special purpose.” Tillman’s complaint only sought to enjoin future payments. The circuit court denied Tillman’s petition by finding that the legislature stated with reasonable detail the specific purpose for issuance of the bonds and, as a result, that reasonable grounds did not exist for filing the taxpayer complaint. The appellate court, however, applying a narrower construction of the term “reasonable ground,” reversed, explaining that the reasonable ground analysis under section 11-303 was limited solely to whether the complaint was “frivolous, filed for a malicious purpose, or is otherwise unjustified.” Justice Anne M. Burke writing for a unanimous Supreme Court found that the appellate court’s definition of “reasonable grounds” was overly narrow. The court explained the petitioner’s argument that the reasonable ground analysis was limited to the question of whether the complaint was frivolous or filed for a malicious purpose “stems from a misreading of this court’s decision in Strat-O-Seal.” The court noted that the language in Strat-O-Seal pertaining to whether a complaint was frivolous was limited to the facts of that case and that the “long-standing construction” given to the reasonable ground language permitted consideration of a variety of factors, including legal sufficiency.
The court next considered whether the circuit court abused its discretion in denying the section 11-303 petition. In doing so, the court declined to address the merits of the petitioner’s constitutional claims and instead looked to whether there were non-constitutional grounds for affirming the circuit court’s decision. The court found that the lapse of time between the enactment of the bond authorization statutes and the filing of the petition were the result of a lack of diligence by the party asserting the claim and that this, combined with the “patently obvious” prejudice that the state would suffer if relief were granted, resulted in the petition being barred by the equitable theory of laches. (The court rejected petition’s argument that the State would not suffer any prejudice because the complaint only sought to enjoin future payments.) Thus, the court found that there was no reasonable ground under section 11-303 of the Code of Civil Procedure for filing the petitioner’s proposed complaint and held that the circuit court did not abuse its discretion in denying the petition for leave to file a taxpayer action.
In re Marriage of Crecos, 2021 IL 126192
By Michael T. Reagan, Law Offices of Michael T. Reagan
The court, by both its extensive examination of the copious precedent and the clarity of its holding, here brings resolution to a knotty question of appellate jurisdiction relating to postdissolution awards of attorneys’ fees, as well as to other postdissolution appeals. In the appellate court, the court asked the parties to brief whether appellate jurisdiction existed for this appeal from a fee award entered with respect to two earlier appeals brought subsequent to the final judgment dissolving the marriage and allocating the marital property. Both parties argued that jurisdiction existed. The appellate court disagreed and dismissed the appeal. The appellate court regarded the fee award to be akin to an interim fee award and noted that another issue was still pending in the circuit court regarding property.
The Supreme Court granted the husband's petition for leave to appeal. Both parties again were united in their position and reasoning that appellate jurisdiction existed. The Supreme Court agreed that jurisdiction exists, reversed the appellate court's dismissal of the appeal, and remanded the case to the appellate court for hearing.
The court, in this opinion by Justice Michael J. Burke, forthrightly acknowledged some uncertainties in its prior decisions, and extensively related the conflicts among both appellate districts and panels on how to characterize the nature of post-dissolution proceedings for appellate purposes. The court prefaced that effort by stating that "the districts of our appellate court are split concerning whether postdissolution petitions are best described as new claims or new actions. This court has not directly addressed the issue. Adding to the confusion is the use of the words 'claim' and 'action' interchangeably in both this court and the appellate court." The ensuing exegesis will not be related in this summary.
The court regarded certain language in IRMO Teymour, 2017 IL App(1st) 161091 to be well taken: "Where a party files one postdissolution petition, several more are likely to follow. Allowing or requiring parties to appeal after each...is resolved would put great strain on the appellate court's docket and impose an unnecessary burden on those who would prefer not to appeal until the trial court resolves all pending claims." The court stated its holding crisply: "[W]e now clarify that, for purposes of appellate jurisdiction, unrelated postdissolution matters constitute separate claims, so that a final order disposing of one of several claims may not be appealed without a Rule 304(a) finding." In that such a finding had been entered below, jurisdiction existed.
Palos Community Hospital v. Humana, Inc., 2021 IL 126008
By Joanne R. Driscoll, Forde & O’Meara LLP
In this unanimous decision written by Chief Justice Anne Burke, with Justice Neville taking no part, the court resolved the conflict among appellate court districts as to whether the “test the waters” doctrine applied when considering a party’s request for substitution of judge as a matter of law under section 2-1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2) (West 2016)). The court held that it did not.
In the trial court, the parties engaged in numerous discovery disputes that resulted in the appointment of a discovery master. After the discovery master submitted a report and recommendation, a new judge was assigned to the case. At the status hearing, the plaintiff was granted leave to file objections to the discovery master’s report, including as to the prior judge’s lack of authority to appoint a discovery master. The new judge stated she would “keep an open mind” but saw no “need to deviate from the procedure” established. The plaintiff then filed a motion to strike the discovery master. At the next hearing, the trial court noted precedent for such an appointment but took the matter under advisement. One week later, the plaintiff moved for substitution of judge as a matter of right, noting that the judge had not made any substantial ruling.
The trial court denied the motion under the “testing the waters” doctrine, noting that the plaintiff filed its motion after the court had held two hearings in which the court had shown reluctance to strike the discovery master and his report. The matter proceeded to trial and a jury verdict was entered in favor of the defendant. The plaintiff appealed, raising as one of its issues the denial of the motion for substitution of judge. The appellate court affirmed.
Applying the cardinal principle of ascertaining the legislature’s intent and giving the statute its plain and ordinary meaning, the Supreme Court held that section 2-1001(a)(2) unambiguously provides that the motion for substitution “shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case.” The statute does not prohibit a party from seeking substitution after having been able to form an opinion as to the court’s disposition toward his or her case. The right to substitution is absolute and not subject to discretion.
In reaching this conclusion, the court distinguished its decision in Bowman v. Ottney, 2015 IL 119000, ¶ 27, because in that case the trial court had ruled on a substantial issue before the defendant moved for substitution as of right and, thus, the “test the waters” doctrine was inapplicable and did not need to be addressed. The court also rejected the defendant’s reliance on cases decided before the legislature’s 1993 amendment that made the right to substitution absolute. As to the defendant’s concerns of gamesmanship, which were the basis for the “test the waters” doctrine, the court opined that trial courts retain their inherent authority to prevent abuse or manipulation.
Because the trial court was required the grant the motion for substitution as of right, every order entered thereafter was a nullity. The matter was remanded with directions to vacate all of those orders.
Medponics Illinois, LLC v. The Department of Agriculture, 2021 IL 125443
By Joanne R. Driscoll, Forde & O’Meara LLP
This case involved the Compassionate Use of Medical Cannabis Pilot Program Act (Act) (410 ILCS 130/1 et seq. (West 2014)) and the correlating rules adopted by the Illinois Department of Agriculture (Administrative Rules) (see 8 Ill. Adm. Code 1000; 410 ILCS 130/15(b) (West 2014)). It provides instruction on the standard of review in administrative review appeals and the deference given the administrative agency’s interpretation of the governing statute and corresponding administrative rules.
Plaintiff, Medponics Illinois, LLC (Medponics), petitioned for administrative review of the decision of the Department of Agriculture defendants (collectively, DOA) to award a permit to Curative Health Cultivation, LLC (Curative) to operate a medical cannabis cultivation center in Aurora, Illinois. The circuit court reversed the DOA’s decision, but the appellate court reversed the circuit court and reinstated the DOA’s decision. Likewise giving deference to the DOA, the Supreme Court unanimously (with Justice Michael Burke taking no part) affirmed the judgment of the appellate court and the DOA’s decision.
The Act defines a “cultivation center” as “a facility operated by an organization or business that is registered by the [DOA] to perform necessary activities to provide only registered medical cannabis dispensing organizations with usable medical cannabis.” 410 ILCS 130/110(e). Section 105(c) provides that cultivation centers “may not be located within 2,500 feet of *** an area zoned for residential use.” Id. § 105(c). The Act does not provide a definition for “area zoned for residential use,” but the Administrative Rules define it as an “area zoned exclusively for residential use.” (Emphasis added.) 8 Ill. Adm. Code 1000.10 (2014).
The DOA found that the location of Curative’s proposed cultivation center was not within 2,500 feet of any area zoned exclusively for residential use and awarded the cultivation center permit to Curative. In its complaint for administrative review, Medponics argued that the location of Curative’s cultivation center within 2,500 feet of R-1 and R-5 districts, which were zoned exclusively residential, disqualified Curative. The circuit court agreed, but the appellate court reversed.
Applying de novo review on the question of law as to the interpretation of the location requirements in the DOA’s Administrative Rules but giving substantial deference to the DOA’s interpretation of its own regulations, the supreme court began its analysis by applying rules of statutory construction to the Administrative Rules and Aurora’s Zoning Ordinance. The court found that Aurora’s Zoning Ordinance differentiates between residential districts and residential areas and allows for nonresidential uses within R-1 and R-5 districts, some requiring special use permits and others not. This showed that R-1 and R-5 residential districts were not zoned exclusively for residential use. The court also found that the plain language of the Administrative Rules did not prohibit the location of a proposed cultivation center within 2500 feet of any area zoned as a residential district. To hold otherwise would make the exception in those Rules prohibiting that location in municipalities of over two million people superfluous.
Next, the court rejected Medponics’ argument that the appellate court improperly considered two documents outside the administrative record. The court noted that it was reviewing the agency’s decision, not that of the lower courts; and it found ample evidence to support the DOA’s decision even without the two documents.
Lastly, the court rejected argument that the DOA impermissibly limited the scope of the Act to those municipalities that do not allow special use permits for non-residential uses in areas zoned exclusively residential. The location requirement, as interpreted by the DOA, applied equally to all municipalities. The DOA approved Curative’s proposed location after determining that under Aurora’s Zoning Ordinance, R-1 and R-5 districts are not zoned exclusively residential due to the multitude of nonresidential uses authorized in those districts. The location requirement criteria were met because Curative’s proposed cultivation center was not located within 2500 feet of an area zoned exclusively for residential use.
West Bend Mutual Insurance Company v. Krishna Schaumburg Tan, Inc., 2021 IL 125978
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
This appeal addressed an insurer’s duty to defend under two businessowners’ liability insurance policies. The Supreme Court construed the policy language “personal injury or advertising injury,” “publication,” and “right of privacy” and held that the insurer owed a duty to defend a proposed class action. In the underlying lawsuit, Klaudia Sekura sued Krishna Schaumburg Tan, Inc. for violating her rights to privacy in allegedly providing Sekura’s fingerprint data to a third party vendor, SunLync. Sekura asserted claims under the Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”). West Bend unsuccessfully challenged its coverage obligations in the circuit court, where Krishna Tan prevailed on cross motions for summary judgment, as well as in the appellate court.
After first ruling that Sekura’s allegations of emotional upset and mental anguish fell within the policy language “personal injury other than a bodily injury,” the Supreme Court considered whether Krishna Tan’s alleged sharing of Sekura’s biometric information was a “publication.” The court consulted dictionaries, treatises and the Restatement (Second) of Torts to reach the conclusion that communication with a single entity constituted “publication,” an ambiguous term not defined in the policy and, accordingly, strictly construed against the insurer. The Supreme Court rejected West Bend’s argument that a publication under the policies necessarily involves communication to the world rather than to a single recipient.
The court next reasoned that the policies’ reference to a “right to privacy” encompassed the allegation that a disclosure of personal identifying information constitutes a potential violation of plaintiff’s right to privacy, placing the lawsuit within the purview of West Bend’s policy language.
Krishna Tan also defeated West Bend’s assertion of a “violation of statutes” exclusion. The policies exclude coverage for “Violation of Statutes that Govern E-Mails, Fax, Phone Calls or Other Methods of Sending Material or Information” and cite two specific statutes regulating methods of communication – telephone calls, faxes and e-mails. Applying the doctrine of ejusdem generis to construing the “other than” language in the exclusion, the Supreme Court determined that BIPA does not regulate methods of communication and thus is not a statute of the same kind as the two statutes specifically listed in the exclusion. Accordingly, the exclusion did not apply, and the court concluded that West Bend has a duty to defend Krishna Tan in Sekura’s lawsuit.
Cooke v. The Illinois State Board of Elections, 2021 IL 125386
By Michael T. Reagan, Law Offices of Michael T. Reagan
On January 1, 2016, Frank Mautino was appointed as Illinois Auditor General, after having served as an Illinois state representative for 24 years. Prior to Mautino assuming his new role, the Committee for Frank Mautino, his candidate political committee, was dissolved. The committee filed its final report with the State Board of Elections on December 30, 2015, and destroyed its records dated prior to 2014.
David Cooke, the appellee, had filed a complaint with the Board which alleged violations of Article 9 of the Election Code, which regulates campaign financing. Cooke, referring to investigations by newspapers, focused on Committee spending. He noted that a majority of the expenses were in “whole dollar amounts,” “which (as alleged) strains reason to believe these expenses are for actual services rendered.” In addition, over $200,000 was expended at Happy’s Super Service in Spring Valley on vehicles in an approximately 10-year period. He also complained that the Committee inappropriately listed expenditures made directly to Spring Valley City Bank, rather than to any ultimate recipient.
Cooke’s complaint was filed in early 2016. In the early stages, issues concerning the Committee’s reporting and the propriety of expenditures were effectively bifurcated for hearing. In addition, timing considerations were impacted by the possibility of a pending parallel federal criminal investigation. Mautino also declared that if he were subpoenaed for a deposition, he would assert his fifth amendment privilege.
The Committee was ordered to file amended reports, which it did not do. That set the stage for hearings before the board and a prior appeal to the appellate court, which will not be related here. The Board was closely, and at times evenly, divided on many matters. One major issue of statutory interpretation was whether expenditures could be made for gas and repairs of vehicles of campaign volunteers such as relatives, or rather for only vehicles owned or leased by the Committee. Another issue related to the interpretation of Section 9-8.10(a)(2) of the Election Code which prohibits expenditures “clearly in excess of the fair market value of the services….or other things of value received in exchange.” Does that regulate only the amount of an expenditure, or does it also reach the purpose for which the expenditure was used?
The appellate court, as relevant to this appeal, found adversely to Mautino on some of the complaints, and remanded to the Board to address whether the violations were knowingly committed. The Committee appealed.
The Supreme Court reviewed the Board’s decision, and not that of the appellate court. The court noted that on matters of statutory interpretation it is not bound by an agency’s interpretation. The court disagreed with the extent of the Committee’s payment of vehicle expenses, finding that the statute was clearly to the contrary, prohibiting a committee from “concoct(ing) its own compensation system.” As to the “fair market value” issue, the court held that that term does not encompass the purpose for which the service or other thing of value was ultimately used. The subsequent conduct of an individual would present a separate issue.
The matter was remanded to the Board to address whether certain of the violations were knowingly made in violation of the Code and thus whether a fine should be levied.
Valerio v. Moore Landscapes, LLC, 2021 IL 126139
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The Illinois Supreme Court addressed whether Section 11 of the Prevailing Wage Act provided a group of landscape laborers with a right of action against a landscaping contractor for failing to pay them the prevailing hourly wage, $41.20, rather than $18, for their work on a Chicago Park District project. Proceeding under Section 11 of the Act, plaintiffs sought backpay, penalties, statutory punitive damages, costs, and attorneys’ fees.
The Act states that “laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works” shall receive “a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed.” 820 ILCS 130/1 (West 2018). The Act imposes on the public body—in this case, the Park District —and the Illinois Department of Labor the responsibility to ascertain prevailing wage rates, and the public body must provide proper written notice to the contractor of the prevailing wage.
Here, the parties disputed whether the contract between Moore Landscapes and the Park District, which contained a “Prevailing Wage Rates” clause, encompassed “stipulated rates for work done under such contract” as required under Section 11 of the statute, the section plaintiffs cited as the basis for their actions. Reviewing the circuit court’s dismissal of the complaint and the appellate court’s judgment reversing the lower court’s ruling, the Supreme Court reinstated the dismissal order. The court held that conditional language in the contract between Moore Landscapes and the Park District requiring the contractor to pay all persons it or its subcontractors employed “prevailing wages where applicable” was insufficient to constitute a “stipulated rate for work done under the contract” so as to trigger the plaintiffs’ right to recover damages under Section 11.
Among other statutory provisions the court cited as supporting its conclusion, the court observed that the Park District failed to provide the landscaping company with proper written notice of the Act’s prevailing wage rate requirements. Section 11, which permits punitive penalties, is limited to situations in which the underlying contract includes the public body’s statutorily required notice; the Act provides that the public body becomes the wrongdoer where notice is insufficient. The court also noted that, in situations where a public body fails to provide written notice to a contractor, a laborer may assert a right to the prevailing rate of wages, but is limited to a remedy of the difference between the amount paid and the prevailing wage rate.
In addition to ensuring that laborers, mechanics and workers receive the statutory wage rates for work encompassed by the statute, the legislature intended to ensure that public bodies provide sufficient notice of the Act’s application and prevailing wage rates to contractors entering into public contracts. The Supreme Court upheld the circuit court’s dismissal of plaintiffs’ complaint seeking damages under Section 11 of the statute.