Illinois Social Media Law, Conservative News, Chicago & National Politics
Vote Trump 2016 !
Trump 2016
Showing posts with label Illinois Supreme Court. Show all posts
Showing posts with label Illinois Supreme Court. Show all posts
Friday, January 02, 2015
Friday, October 03, 2014
Illinois Supreme Court
Summaries for October 3, 2014
| ||||||||||
| ||||||||||
Goldfine v. Barack, Ferrazzano, Kirschbaum & Perlman
Plaintiffs purchased FCH stock through Shearson’s broker, Steinberg, between 1987 and 1990. FCH filed for bankruptcy in 1991. Plaintiffs retained the law firm to represent them in claims under the Illinois Securities Law. At that time, they had a viable claim for rescission. The firm failed to serve the required rescission notice. In 1992, plaintiffs hired new counsel to pursue their claims against Shearson, which were later dismissed as time-barred. In 1994 plaintiffs filed a malpractice action against the law firm. The appellate court affirmed the dismissal of the Illinois Securities Law claim, but reversed as to common law fraud and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. In 2007, plaintiffs settled those claims for $3.2 million. Later, the trial court found the law firm liable and calculated damages: plaintiffs’ $3.2 million settlement would be deducted from the total they paid for their 11 stock purchases, and 10% interest would be calculated on the remaining amount based on the dates of the stock purchases, for a total award of $4,091,752.19 plus attorney fees of $1,636,700.80, and $207,167.28 in costs and expenses. The appellate court affirmed, but remanded for recalculation of damages and attorney fees. The Illinois Supreme Court remanded for calculation of statutory interest damages on the full amount paid for each security from the date of purchase to the 2007 date of settlement, then deducting the $3.2 million recovery.
| ||||||||||
Friday, September 19, 2014
Illinois Supreme Court
Daily Opinion Summaries | ||||||||||
Summaries for September 19, 2014
| ||||||||||
| ||||||||||
Bruns v. City of Centralia
Bruns, age 79, drove to a Centralia eye clinic. She did not use the parking lot, but parked on 2nd Street in front of the clinic, as she had on each of nine previous visits. As she walked toward the clinic, Bruns stubbed her toe on a crack in the sidewalk, causing her to fall and injure her arm, leg and knee. She had been looking “towards the door and the steps” of the clinic. Bruns “definitely” noticed the sidewalk defect every time she went to the clinic. Clinic employees had twice contacted the city about the defect, including after a previous accident, and offered to pay to remove the tree that caused it. The city would not authorize removal because of the 100-year-old tree’s historic significance. Bruns sued, arguing that the city should have reasonably foreseen that a pedestrian could become distracted and fail to protect herself against the dangerous condition. The trial court granted the city summary judgment, finding the defect open and obvious. The appellate court reversed. The Illinois Supreme Court reversed, reinstating the summary judgment. The city has miles of sidewalk to maintain; imposing a duty to protect plaintiffs from open and obvious defects would not be justified.
| ||||||||||
Nationwide Fin., L.P. v. Pobuda
In 2008, Nationwide became the owner of the Barrington Hills property. The Pobudas have owned the adjacent lot since 1986. The northwest corner of the Nationwide property and the adjoining northeast corner of the Pobuda property are 609 feet from Donlea Road. Both would have been landlocked but for a gravel road easement (recorded in 1956) that runs from Donlea Road over other property. The Pobudas allege that access to their property is impossible without crossing the northwest corner of the Nationwide property because utility equipment installed in 1957 and serving both properties and mature trees and shrubs block access on the north line of their property. The Pobudas claim that they, and visitors, have traveled over the northwest corner strip of the Nationwide property during various hours six to seven days each week, for 52 weeks each year, “in an open, visible, notorious, peaceful, uninterrupted adverse manner,” since 1986. They claim that they have regularly plowed snow, mowed grass, filled in low spots, raked leaves, swept debris, picked-up sticks, patched, and seal coated the surface, on that property. The trial court ruled in favor of Nationwide, finding that the claim of prescriptive easement failed because the Pobudas did not establish that their use was “exclusive” to the point of dispossessing the owner. The appellate court affirmed. The Illinois Supreme Court reversed. The Pobudas satisfied the elements of exclusivity and adversity necessary to establish a prescriptive easement.
| ||||||||||
People v. Perez
Perez was convicted of first degree murder. The Appellate Court, Second District, affirmed his conviction and sentence in 2009; the Illinois Supreme Court leave to appeal. Perez filed a pro se petition for post-conviction relief. On February 7, 2011, a circuit court judge signed and dated an order dismissing the petition as frivolous and patently without merit. February 7 was the ninetieth day after the petition was filed, 725 ILCS 5/122-2.1(a). The clerk stamped the order filed on February 8. The appellate court reversed and remanded for second stage proceedings, finding that the dismissal was untimely because it was not entered until it was filed by the clerk, which occurred on the ninety-first day after the petition was filed and docketed. The court stated that, for a judgment to be effective, it must be publicly expressed at the situs of the proceeding; the record did not reflect the presence of any party, counsel, or any other court personnel on February 7, 2011, so that the first public expression of the order was on February 8. The Illinois Supreme Court affirmed. Because section 122-2.1(a) specifically requires “entry” of an order, an order that is signed by the judge during the 90-day period, but not file-stamped until the ninety-first day, is not timely for purposes of section 122-2.1(a).
| ||||||||||
Slepicka v. IL Dep't of Pub. Health
Slepicka, a resident of a Cook County skilled nursing facility, received a notice of involuntary transfer or discharge. A Department of Public Health ALJ held a hearing at the facility. The Department approved the involuntary discharge of Slepicka unless the amount owed was paid in full. The order was mailed from a Sangamon County post office. Slepicka sought judicial review in Sangamon County. The facility moved to dismiss or transfer, arguing that Cook County was the only proper venue. The circuit court ruled that Sangamon County was a proper venue and upheld the order allowing involuntary discharge. The appellate court held that Sangamon County was not a proper venue under Administrative Review Law section 3-104, but rejected a claim that filing the action in an improper venue constituted a jurisdictional defect. The court did not decide the merits, but vacated and remanded with directions to transfer the cause to Cook County. The Illinois Supreme Court affirmed that Sangamon County was not a permissible venue, but held that circumstance did not deprive the circuit court of jurisdiction to review the Department’s decision. Stating that it would be a waste of resources to require the Cook County court to review the decision again, the court vacated the portion of the judgment that vacated the Sangamon County decision and remanded to the appellate court for decision on the merits.
| ||||||||||
Friday, July 04, 2014
Daily Opinion Summaries Illinois Supreme Court
Madigan v. Burge
Burge was a Chicago police officer, 1970 to 1993, and served as supervisor of the violent crimes unit. In 1997, Burge was granted pension benefits by the Policemen’s Annuity and Benefit Fund of Chicago. A 2003 civil rights lawsuit alleged torture and abuse by officers under Burge’s command. Burge denied, under oath, having any knowledge of, or participation in, the torture or abuse of persons in custody. In 2008, Burge was convicted of perjury, 18 U.S.C. 1621(1), and obstruction of justice, 18 U.S.C. 1512(c)(2), and sentenced to four and one-half years’ imprisonment. His convictions were affirmed. Burge has not been indicted for conduct which occurred while he was still serving on the Department. In 2011, the Board held a hearing to consider whether, under the Illinois Pension Code, 40 ILCS 5/5-227, Burge’s pension benefits should be terminated because of his federal felony convictions. Section 5-227 states that “[n]one of the benefits … shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as a policeman.” Burge maintained that his felony convictions related solely to the giving of false testimony in a civil lawsuit filed years after his retirement from the force. The divided Board concluded that “the motion was not passed.” “Burge continued to receive benefits. No administrative review was sought. The Attorney General, on behalf of the state, sued Burge and the Board, under section 1-115 of the Pension Code. The trial court held that deciding whether to terminate Burge’s pension was a “quintessential adjudicative function” that rested exclusively within the original jurisdiction of the Board, subject to review under the Administrative Review Law. The appellate court reversed. The Illinois Supreme Court reversed, reinstating the dismissal.Burke
| ||||||||||
Kanerva v. Weems
Public Act 97-695 (eff. July 1, 2012), amended section 10 of the State Employees Group Insurance Act of 1971, 5 ILCS 375/10, by eliminating the statutory standards for the state’s contributions to health insurance premiums for members of three of the state’s retirement systems. The amendment requires the Director of Central Management Services to determine annually the amount of the health insurance premiums that will be charged to the state and to retired public employees. It is not limited to those who become annuitants or survivors on or after the statute’s effective date. The amendment was challenged by members of the affected entities: State Employees’ Retirement System (SERS), State Universities Retirement System (SURS), and Teachers’ Retirement System (TRS), as violation the pension protection clause, the contracts clause, and the separation of powers clause of the Illinois Constitution. Certain plaintiffs added common-law claims based on contract and promissory estoppel. The Illinois Supreme Court, on direct review, reversed dismissal, stating that health insurance subsidies are constitutionally protected by the pension protection clause and rejecting an argument that only the retirement annuity itself is covered.
| ||||||||||
Friday, June 20, 2014
Daily Opinion Summaries Illinois Supreme Court
In re Marriage of Turk
Iris and Steven have two sons, Nathaniel, born in 1997, and Jacob, born in 1999. Iris filed a divorce petition. The court entered an agreed judgment dissolving the marriage, providing for unallocated maintenance and child support, joint custody, and that Steven would provide the medical insurance for the children and cover 50% of their out-of-pocket medical and dental costs. Steven and Iris frequently returned to court and in 2010 the court granted temporary physical custody to Steven, limited Iris to supervised visitation, and made a one-time reduction in the amount Steven was paying for child support. Steven filed a petition under 750 ILCS 5/510, asking that his obligation to pay child support to Iris be terminated. Steven was required to pay $700 per month “based upon the current parenting schedule.” Steven subsequently asked the court to order Iris to pay child support to him or to temporarily terminate the obligation on the grounds that the boys’ schedules eliminated any expenses Iris might have. The trial court entered an agreed order which specified that Steven was to have “the sole care, custody, control and education” of the boys. Iris was granted visitation with Nathan for dinner on Wednesdays. With Jacob, she had weekly visits from Monday to Wednesdaymornings, plus alternating weekends. Steven earned $150,000 per year while Iris earned than $10,000 per year. The court ordered Steven to pay Iris child support of $600 per month and made him “solely responsible for all uncovered medical, dental, orthodontia, psychological and optical expenses for the children.” The appellate court rejected Steven’s contention that section 505 does not authorize orders to pay child support to noncustodial parents and held that the trial court did not abuse its discretion in ordering Steven to pay child support, but that the award $600 per month, was not justified by the record. The Illinois Supreme Court affirmed the authority of the circuit court to order Steven to pay child support and remanded for a hearing regarding the amount. The court reversed modification of the support order requiring Steven to pay the full amount of any of the children’s medical and dental expenses not covered by insurance.
| ||||||||||
In re N.C., a Minor
The day after N’s birth, the baby’s mother, Nichole, and her boyfriend, Alfred, executed a voluntary acknowledgement of paternity (VAP), expressly imposing responsibility on Alfred to provide financial support. The VAP did not grant Alfred a right to custody or visitation, but it did provide him the right to seek custody or visitation. Alfred was also entitled to notices of adoption proceedings. Both Nichole and Alfred had the right to rescind the VAP within 60 days. The VAP explicitly waived Alfred’s right to genetic testing. Three days later, the Department of Children and Family Services (DCFS) took N into protective custody. DCFS filed a petition alleging juvenile neglect, identifying Nichole as N’s mother and Alfred as N’s father. The circuit court entered an order for temporary shelter care, placed N in the custody of DCFS, appointed a guardian ad litem (GAL), entered an order identifying Alfred as the “legal” father based on the VAP, and appointed separate counsel for Nichole and Alfred. Following genetic testing, the court granted the state’s motion and dismissed Alfred, based on evidence that he is not N’s biological father. The appellate court reversed, holding that the state did not have standing in a juvenile neglect proceeding (705 ILCS 405/1-1) to challenge the paternity of a man who signed a VAP under the Illinois Parentage Act of 1984 (750 ILCS 45/1). The Illinois Supreme Court affirmed.
| ||||||||||
Image coha.org
In re the Estate of Powell
Powell was adjudicated a disabled adult due to severe mental disabilities in 1997. His parents, Perry and Leona, were appointed as co-guardians of Powell’s person, but were not appointed as guardians of his estate. In 1999, Perry died following surgery. Leona engaged the Wunsch law firm to bring a claim against the doctors and hospital, Leona was appointed special administratrix of Perry’s estate. Wunsch filed a complaint under the Wrongful Death Act on behalf of Leona individually and as administratrix estate. The estate’s only asset was the lawsuit. A 2005 settlement, after attorney fees and costs, amounted to $15,000, which was distributed equally between Leona, Emma (the couple’s daughter) and Powell. The settlement order provided that Powell’s share was to be paid to Leona on Powell’s behalf. Leona placed both shares into a joint account. The probate court was not notified. Wunsch had referred the action to attorney Webb, for continued litigation. Emma waived her rights under a second settlement, Leona and Powell each received $118,000. A check was deposited into the joint account. The order did not provide that Powell’s was to be administered under supervision of the probate court and Powell did not have a guardian of his estate. Wunsch purportedly advised that it was “too much trouble” to go through the probate court for funds every time Leona needed money for Powell. In 2008, Emma petitioned to remove Leona as guardian of Powell’s person. The probate court appointed Emma as guardian of Powell’s person and the public guardian as guardian of his estate. Leona had withdrawn all but $26,000 and provided no accounting. The public guardian sued the attorneys and Leona. The trial court dismissed as to the attorneys, finding that the complaint failed to sufficiently allege defendants owed Powell a duty and to allege proximate cause. The appellate court determined that an attorney retained by a special administrator of an estate to bring a wrongful death action for the benefit of the surviving spouse and next of kin owed a fiduciary duty to those beneficiaries and remanded, with respect to the second settlement. The Illinois Supreme Court affirmed.
| ||||||||||
Friday, May 23, 2014
Daily Opinion Summaries Illinois Supreme Court
Bridgeview Health Care Ctr., Ltd. v. State Farm Fire & Cas. Co.
Bridgeview Health Care Center filed a class action complaint against Clark, an Illinois resident who operates Affordable Digital Hearing, a sole proprietorship out of Terre Haute, Indiana. Bridgeview alleged that Clark sent Bridgeview and others unsolicited faxes and claimed violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227; common law conversion of its fax paper and toner; and violation of the Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. Clark had a comprehensive general liability policy issued by State Farm, an Illinois corporation. The policy was purchased through an Indiana agent and issued to Clark’s Indiana business address. State Farm sought declaratory judgment that it had no duty to defend in Indiana state court. The action was dismissed for lack of personal jurisdiction over Bridgeview. Bridgeview sought a declaration, in Illinois state court that State Farm had a duty to defend and indemnify Clark under the advertising injury and property damage provisions of the policy. State Farm argued that Illinois law conflicts with Indiana law on coverage issues and that Indiana law should apply. The circuit court found that there was no conflict and no need to conduct a choice-of-law analysis. The appellate court reversed, finding that decisions cited by State Farm were sufficient to raise the possibility of a conflict, requiring a choice-of-law analysis The Illinois Supreme Court reversed, finding that State Farm failed to meet its burden of demonstrating that an actual conflict exists between Illinois and Indiana law.
| ||||||||||
In re Brandon P.
Brandon, then 14 years old, was charged by petition for adjudication of wardship with aggravated criminal sexual abuse of his cousin M.J., then three years old, 720 ILCS 5/12-16(c)(2)(i).” M.J. was unable to testify. The state gave notice and offered statements that M.J. made to her mother and to Detective Hogren, of the Danville police department that “Brandon put that stuff in his mouth on her vagina which made her vagina hurt and Brandon put his finger in her vagina” and that “Brandon put his finger in her vagina which made her feel bad and Brandon spit on her vagina and put his penis on her at Uncle Mike’s.” Following an adjudicatory hearing, the circuit court found him guilty and sentenced him to the Illinois Department of Juvenile Justice for an indeterminate period not to exceed the period for which an adult could be committed for the same act, or the date of his twenty-first birthday, whichever came first. The appellate court affirmed. The Illinois Supreme Court affirmed, holding that error in admitting Detective Hogren’s hearsay testimony was cumulative of "overwhelming' properly admitted testimonial evidence and did not contribute to the adjudication of guilt.
| ||||||||||
In re Commitment of Fields
In 2005 Fields pleaded guilty to aggravated criminal sexual abuse and kidnaping. Shortly before he was to begin mandatory supervised release, the state petitioned for his involuntary commitment under the Sexually Violent Persons (SVP) Commitment Act, 725 ILCS 207/1. The circuit court found probable cause. At trial, the state presented the testimony of two psychologists that Fields suffers from pedophilia and antisocial personality disorder and is dangerous because it is probable that he will commit acts of sexual violence in the future. In addition to the 2005 incident, the experts considered an offense involving another nine-year-old boy, when Fields was 15 years old. They also referred to several incidents while Fields was in custody and his failure to participate in sex offender treatment. A jury found Fields to be a SVP. After the circuit court entered judgment, Fields requested a date for a dispositional hearing and a pre-hearing evaluation. In denying those requests, the court determined it already had sufficient information to make its dispositional ruling, and ordered him committed to a secure treatment and detention facility. The appellate court affirmed the SVP finding, but vacated the commitment order and remanded for a dispositional hearing. The Illinois Supreme Court affirmed. The state proved beyond a reasonable doubt that Fields was an SVP as defined by the Act, which requires a dispositional hearing.
| ||||||||||
In re Marriage of Donald B.
The Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/607(e), prohibits a non-custodial parent who has been convicted of a sexual offense perpetrated on a victim less than 18 years of age from obtaining court-ordered visitation with his children while serving his sentence and until successfully completing “a treatment program approved by the court.” A child abuse report was made to a hot line, alleging that Donald had sexually abused an unrelated minor. Donald pled guilty and was sentenced to two years’ probation. Donald was required to register as a sex offender, to provide a DNA sample, and to be tested for sexually transmitted diseases, but not required to obtain sex offender treatment. A court subsequently granted Donald’s ex-wife sole custody of their children suspended Donald’s visitation pursuant to section 607(e) Donald argued that a parent’s right to visitation with his child is a fundamental right, which the state may not abridge unless there is a compelling state interest and a finding that denying visitation is in the child’s best interest. The court agreed and found the law unconstitutional. The Illinois Supreme Court vacated, finding the matter moot. Donald successfully completed his probation. His cooperative participation in the sex offender evaluation, plus the evaluator’s assessment and recommendation that no further treatment was necessary, were sufficient to show compliance with section 607(e)’s requirement that he “successfully complete a treatment program approved by the court.” The court declined to apply the “public interest" exception.
| ||||||||||
In re Rita P.
A psychiatrist at Chicago-Read Mental Health Center sought a court order authorizing involuntary treatment of Rita. Stating that Rita met the criteria for a diagnosis of “schizophrenia paranoid type,” the doctor requested authorization to administer specific medications, including Risperidone, for up to 90 days. At a hearing, there was testimony about Rita’s behavior before her hospitalization, about police response to a call about Rita’s behavior, and about Rita’s own descriptions of her delusions and trying to choke herself to kill the people inside her. Rita had not threatened anyone at Chicago-Read, and no cause existed to place her in restraints or administer emergency medication. Although generally cooperative, Rita refused to attend group therapy, and would not take medication. The circuit court authorized involuntary treatment. The appellate court reversed, finding that the trial court failed to comply with the Mental Health and Developmental Disabilities Code, 405 ILCS 5/3-816(a), requirement that final orders “shall be accompanied by a statement on the record of the court’s findings of fact and conclusions of law.” The Illinois Supreme Court reinstated the trial court order, reasoning that reading the code as “directory,” so that noncompliance can be excused, does not impair the safeguards the law is intended to protect.
| ||||||||||
Nelson v. County of Kendall
Nelson, on behalf of media companies, submitted a request to Kendall County under the Freedom of Information Act (FOIA), 5 ILCS 140/1, to copy all emails sent and received by two assistant states’ attorneys in January 2010, via county email. The county advised him to submit his request to the state’s attorney’s office. Nelson demanded that the county comply within 5 days of the original request. The county asserted a need for consultation that precluded meeting the deadline. Nelson requested review by the Public Access Counselor, Office of the Attorney General, under 5 ILCS 140/9.5. That office declined to act because the state’s attorney’s office had responded; although some information was denied as exempt, the state’s attorney had received approval for that decision and Nelson had not asked for review. Nelson filed suit and filed another FOIA request, excluding emails that were limited to discussions: with law enforcement personnel concerning pending cases; with defense counsel in pending cases; or with county board members or elected county officials. The circuit court dismissed, holding that the judicial branch is beyond the reach of the FOIA. The appellate court affirmed. The Illinois Supreme Court reversed. Case law consistently recognizes that the state’s attorney’s office is part of the executive branch, which is subject to FOIA.
| ||||||||||
People v. Bingham
Bingham, then in her late teens, committed aggressive acts toward adults and children, including grabbing and kissing. She was declared a sexually dangerous person under the Sexually Dangerous Persons Act, 725 ILCS 205/1.01. The Director of the Illinois Department of Corrections was appointed as her guardian. She was to remain committed “until or unless [she] is recovered and released.” The appellate court reversed. The Illinois Supreme Court affirmed. The limited evidence was insufficient to establish that it was substantially probable that Bingham would commit future sex offenses. A single incident, in which she attempted to grab a woman’s breast area through her shirt, was insufficient to establish that substantial probability. Another incident, involving Bingham touching the buttocks of 17-year-old Katie C, was not clearly intentional; Katie C. acknowledged that Bingham only touched her one time and stopped as soon as Katie C. asked her to do so. There was no evidence that the incident was done as a result of “arousal or gratification of sexual needs or desires.” Without evidence of either an act of sexual assault or acts of child molestation, the state failed to prove propensities toward acts of sexual assault or sexual molestation of children.
| ||||||||||
People v. Stahl
Due to brain damage from a self-inflicted gunshot wound, defendant cannot remember the events leading to home invasion (720 ILCS 5/12-11(a)(4)) and aggravated unlawful restraint (720 ILCS 5/10-3.1(a)) charges against him. Defendant had entered the home of his former wife and child, despite an order of protection, and threatened the occupants with a gun before shooting himself.The trial court found defendant unfit to stand trial. Later, after a discharge hearing, he was found “not not guilty.” The court remanded him to the Department of Human Services (DHS) for extended terms of treatment of 24 months for home invasion and 15 months for unlawful restraint. After DHS determined that defendant had been restored to fitness, the trial court held a hearing and found that defendant remained unfit to stand trial and that it was not reasonably probable that he would be fit within one year. The appellate court and Illinois Supreme Court affirmed. All three psychiatric experts concluded that defendant had no recollection of the events leading to the charges against him, or of what occurred up to 48 hours prior to those events. Two of the psychiatrists concluded that defendant’s short-term memory was substantially impaired and would affect his ability to assist in his own defense. The third acknowledged that defendant ranked in the lowest one percentile with regard to short-term memory retention after 20 to 30 minutes.
| ||||||||||
People v. Stoecker
In 1996, 15-year-old Humble left a Peoria children’s home and accepted a ride from a man who drove her to a remote area, sexually assaulted her, cut her throat, and left her in a field. At the hospital, Humble described her assailant as a white, stocky man, 20 to 30 years old, with blond hair, driving a red car. Humble died one month later. Defendant had previously lived near the crime scene. On the evening of the attack, defendant attended a class for domestic abusers and was seen wearing a knife in his belt and leaving in a red car. The next day, defendant left the country. Wiretap recordings of conversations with his family indicated that defendant was hiding from authorities. A police officer observed defendant’s brothers burning the interior of a red car. Defendant was extradited 18 months later and charged with first degree murder and aggravated criminal sexual assault. One expert testified that the DNA profile identified in the male fraction of a stain on Humble’s clothing and in defendant’s blood would be expected to occur in approximately 1 in 1.1 trillion Caucasians. The appellate court affirmed his conviction and life sentence. In 2008 the appellate court affirmed dismissal of defendant’s fifth post-conviction petition. In 2009, defendant requested that the stain evidence be subjected to testing allegedly unavailable at the time of his trial: mitochondrial (mtDNA) testing, and Y-chromosome (Y-STR) testing. He alleged that mixed samples of male and female DNA, like in his case, “can lead to misidentification,” and that Y-STR testing “allows resolution of a mixed sample,” but did not claim that the requested testing provided a reasonable likelihood of more probative results. The circuit court denied the motion. The appellate court reversed. The supreme court reinstated the denial, noting that defendant never raised these claims and offered no alternative DNA evidence or expert opinion at trial; he never challenged admission of the DNA test results as inaccurate or improperly performed. The court noted the strength of the matches between the stain and defendant’s DNA profile, plus the compelling circumstantial evidence of his guilt.
| ||||||||||
WISAM 1, Inc. v. IL Liquor Control Comm'n
Sheridan Liquors operated with a City of Peoria liquor license. Adnan owned the store; his brothers, Mike and Jalal managed the business, which included a check-cashing service. Mike and Jalal were indicted under the Money Laundering Control Act, 31 U.S.C. 5324(a)(3). To support the check-cashing operation, they withdrew large amounts of cash from Sheridan Liquors’ bank account and, knowing of federal reporting requirements, structured the withdrawal of more than $4 million to evade the requirements. Mike was convicted. Jalal fled the country. The city charged violation of a code section that prohibits any liquor licensee or its agent from engaging in activity in or about the licensed premises that is prohibited by federal law, claiming that the brothers conspired to unlawfully structure financial transactions. Sheridan Liquors maintained that Mike’s federal conviction should not have preclusive effect against it because Adnan was never permitted to present a defense in the federal proceeding. Sheridan argued that its insurance coverage had limits of $10,000 for cash on the premises and that structuring the transactions below $10,000 was not done to evade reporting requirements. The city presented testimony regarding loitering, litter, and potential drug use around the store. The Illinois Liquor Control Commission and the trial, appellate, and supreme courts affirmed revocation of the license, finding that Adnan’s due process rights were not violated. The court noted the 148-page transcript of the two-and-one-half-hour local hearing and that Sheridan had an opportunity to present evidence and defenses. Procedural due process does not guarantee an outcome, but only a meaningful opportunity to be heard.
| ||||||||||
Friday, March 21, 2014
Daily Opinion Summaries Illinois Supreme Court
Home Star Bank & Fin. Servs. v. Emergency Care & Health Org., Ltd.
Plaintiffs sued Dr. Murphy and his employer, ECHO, alleging that Murphy was negligent in treating Anderson, who suffered a severe and permanent brain injury following emergency room treatment. ECHO billed Anderson for services physicians provided him during a previous emergency room visit, but did not bill for Murphy’s services during the Code Blue that resulted in his injury. The hospital billed Anderson for supplies used during the Code Blue. The circuit court concluded that Murphy was immune from liability under the Good Samaritan Act, 745 ILCS 49/25. The appellate court reversed, holding that the Act was meant to apply to volunteers, not to those who treat patients within the scope of their employment and are compensated for doing so. The Illinois Supreme Court affirmed. The Act provides “Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.” Murphy was fully compensated for his time that day. He responded to the emergency not because he was volunteering to help but because it was his job to do so. The agreement that ECHO had with the hospital and the agreement that ECHO had with Murphy require that ECHO physicians to comply with hospital policies, and the hospital’s written policy was that emergency room physicians were to respond to Code Blues. The legislature never intended that Good Samaritan immunity would be available in this situation.
| ||||||||||
BAC Home Loans Servicing, LP v. Mitchell
Mitchell executed a promissory note, secured by a mortgage on her Chicago home. Four years later, the lender filed a complaint to foreclose the mortgage. The special process server’s affidavit described substituted service: process was left at Mitchell’s residence with her daughter, Foreman, who lived at the residence. Mitchell did not answer. The lender mailed notice of intent to move for judgment of foreclosure and sale on June 9, 2010. On June 3, the lender moved for an order of default. On June 9, the court granted the motions. A notice of sale was mailed to Mitchell’s address and a judicial sale was held on September 13. On August 2, 2011, the lender sought an order of confirmation. Notice of the motion was mailed to Mitchell. The circuit court confirmed the sale on September 14. On October 12, Mitchell filed an appearance and a motion to vacate the order, asserting that “to the best of her knowledge” she was never served, had not received notice of the motion for default judgment, had been informed that a loan modification was approved, and did not receive notice of the September 14 order. She later withdrew her motion and moved to quash the order or, in the alternative, for relief from judgment under the Code of Civil Procedure, 735 ILCS 5/2-1401, and the Illinois Mortgage Foreclosure Law, 735 ILCS 5/15-15083. Mitchell asserted her only child is a son and she does not know anyone named Foreman. The circuit court denied the motion. The lender subsequently argued that Mitchell waived objections to jurisdiction by filing a post-judgment motion to vacate. The appellate court noted that failure to comply with statutory requirements results in waiver of “all objections to the court’s jurisdiction over the party’s person” and that Mitchell’s waiver “worked prospectively and retroactively.” The Illinois Supreme Court reversed, holding that waiver of personal jurisdiction is prospective only and does not serve to validate retroactively orders entered without personal jurisdiction.
| ||||||||||
In re Marriage of Tiballi
The circuit court dissolved the Tiballi marriage in 2005, awarding joint legal custody of daughter Francesca, but placing residential custody with Sheila. In 2010, Robert sought to modify custody. The court appointed a psychologist to advise it pursuant to the Marriage and Dissolution of Marriage Act, 750 ILCS 5/604(b), dismissed the petition, and ordered Robert to pay the fees of that psychologist. The appellate court affirmed, rejecting Robert’s argument that the psychologist’s fees were not “costs” under the Code of Civil Procedure, 735 ILCS 5/2-1009(a). The Illinois Supreme Court affirmed. Requiring a party who has his custody petition dismissed without prejudice, for non-abusive reasons, to automatically bear the full cost of a section 604(b) evaluator is beyond the scope of the Code and the Marriage Act. The Marriage Act is the specific statute that controls the matter and evaluator fees are not “court costs” within the meaning of the Code or Civil Procedure. When the circuit court appointed the section 604(b) evaluator, it ordered the parties to share equally in his fees without prejudice to ultimate allocation. The court never made that ultimate allocation because of its mistaken belief that section 2-1009 mandated the fees be taxed entirely to Robert as costs.
| ||||||||||
People v. Clark
Clark was indicted under 720 ILCS 5/14-2(a)(1)(A) for having used an eavesdropping device to record a conversation between himself and attorney Thomas without her consent and having used a device to record a conversation between himself, Judge Janes, and Thomas while Janes was acting in the performance of official duties, without the consent of either. Defendant stated that he was in court and attorney Thomas was representing the opposing party; there was no court reporter nor was there any recording device, so he made recordings to preserve the record. He claimed he had a first amendment right to gather information by recording officials performing their public duties. The circuit court dismissed, holding that the statute is unconstitutional on substantive due process and first amendment grounds. The Illinois Supreme Court affirmed, reasoning that if another person overhears what we say, that person may write it down and publish it, but if that same person records our words with a recording device, even if it is not published in any way, a criminal act has been committed. The statute goes too far in its effort to protect individuals’ interest in the privacy of their communications and burdens substantially more speech than necessary to serve interests it may legitimately serve. It does not meet the requirements necessary to satisfy intermediate scrutiny.
| ||||||||||
People v. Cummings
Defendant was driving a van owned by Chattic when a marked police squad car pulled alongside at a stop sign. The police officer followed defendant for several minutes before activating the squad car’s lights. The defendant had not violated any traffic laws. The citations he received were unrelated to the movement or condition of the van. The officer testified that “It appeared that the registration on the vehicle had expired.” He checked its registration and learned that the registration was valid, but that the owner, Chattic, was wanted on a warrant. He was unable to determine whether the driver was a woman. After he determined that the driver was a man, the officer asked the defendant for a driver’s license and proof of insurance and explained why he stopped the van. The defendant had no license and received a citation for driving while license suspended, 625 ILCS 5/6-303(d), a Class 4 felony. According to the officer, asking for a license and proof of insurance is “standard operating procedure. The trial court granted a motion to suppress. The appellate court affirmed, stating “Except where there is articulable and reasonable suspicion that a motorist is unlicensed or the vehicle is unregistered, or that either the motorist or vehicle is in violation of the law, stopping and detaining a motorist in order to check his credentials is unreasonable under the fourth amendment.” The Illinois Supreme Court affirmed. Unless a request for identification is related to the reason for the stop, it impermissibly extends the stop and violates the Constitution.
| ||||||||||
People v. Davis
In 1990, defendant, then 14 years old, was arrested for two fatal shootings. Following a discretionary hearing under the Juvenile Court Act, the court allowed defendant to be prosecuted under the criminal laws. He was convicted of two first degree murders, attempted first degree murders of two others, and home invasion. Because defendant was convicted of murdering more than one victim, the Unified Code of Corrections, 730 ILCS 5/5-8-1(a)(1)(c), required a term of natural life imprisonment, with parole not available. He was also sentenced to 30 years for each attempted murder and home invasion, all to run concurrently. The appellate court affirmed. In 1996-1998 defendant filed three post-conviction petitions. All were dismissed; the appellate court affirmed the dismissals. In 2002, defendant filed another petition, arguing that the natural life sentence was unconstitutional because defendant did not actually participate in the act of killing; that the sentence violated the Eighth Amendment; and that the statute requiring a mandatory life sentence violated the Illinois Constitution as applied to a 14-year-old. The circuit court dismissed, noting that defendant carried a weapon and actually entered the abode where the murders occurred. The appellate court affirmed. Defendant another petition in 2011, arguing violation of the Eighth Amendment in light of the Supreme Court’s 2010 decision, Graham v. Florida, and ineffective assistance because counsel failed to interview an eyewitness before the juvenile hearing. The court denied the petition. While appeal was pending, the Supreme Court decided in Miller v. Alabama (2012), that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ” The appellate court concluded that Miller applies retroactively on post-conviction review and remanded for a new sentencing hearing, but upheld denial of the ineffective assistance claim. The Illinois Supreme Court affirmed.
| ||||||||||
People v. Easley
Chicago Officers testified that: Officer Watson was working undercover narcotics surveillance, seated in a covert vehicle, and saw defendant exit a Nissan and walk in front of his car. Watson observed defendant pull a weapon from his coat pocket, start to shoot, running toward a pedestrian. The individual turned and ran, grabbing his side. Defendant fired six shots, then returned to the Nissan. Watson radioed his team with a description of defendant and the vehicle and followed the vehicle. Officer Humpich also followed the Nissan for five blocks. The Nissan stopped. Jackson exited and began to run. Officer Utreras also pursued the vehicle and saw defendant exit the Nissan and start to run. Utreras exited his vehicle and identified himself. Defendant stopped running and said, “I didn’t shoot nobody. I just picked up the gun.” Utreras had not asked about the shooting. Utreras recovered a handgun from defendant’s coat pocket and six spent shell casings. Defendant had a prior conviction for unlawful use of a weapon by a felon. Defendant testified that he was a passenger in the Nissan, driven by Williams, and that Williams fired the shots. Defendant stated that he did not have a gun, that he never touched the gun, and that “[he] did not have nothing to say to the police.” Defendant was convicted of unlawful use of a weapon by a felon and sentenced to nine years in prison. The appellate court agreed with defendant’s argument, raised for the first time, that the state charged him with the offense of unlawful use of a weapon as a felon without providing notice that it intended to charge him with an “enhanced” Class 2 offense, so that his sentence violated section 111-3(c) of the Code of Criminal Procedure. The Illinois Supreme Court reversed that holding, but affirmed the appellate court’s holding that defendant’s sentence did not constitute improper double enhancement.
| ||||||||||
People v. Melongo
Defendant was charged with computer tampering in an unrelated case. The docket sheet, the judge’s half sheet, and the court call sheet for the arraignment date indicate that defendant was not in court and that the arraignment did not take place. Defendant’s efforts to have a court reporter change the transcript were unsuccessful. The court reporter referred defendant to her supervisor, Taylor. In a telephone conversation, Taylor explained that any dispute over the accuracy of a transcript should be presented to the judge. Defendant surreptitiously recorded three telephone conversations with Taylor and posted recordings and transcripts of the conversations on her website. Defendant eventually obtained a fraudulent court transcript. Defendant was charged with eavesdropping, (720 ILCS 5/14-2(a)(1), and using or divulging information obtained through the use of an eavesdropping device, 720 ILCS 5/14-2(a)(3). Defendant claimed am exception for “reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person … and there is reason to believe that evidence of the criminal offense may be obtained.” The state argued that the exception did not apply because the reporter accused of creating a forged transcript was not a party to the recorded conversations. After a mistrial, the court found the statute facially unconstitutional and unconstitutional as applied to defendant. The Illinois Supreme Court affirmed, applying intermediate scrutiny and finding the statutes overbroad as criminalizing a range of innocent conduct. The eavesdropping statute does not distinguish between open and surreptitious recording and burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy. The language of the recording statute criminalizes the publication of any recording made on a cellphone or other such device, regardless of consent.
| ||||||||||
People v. Fernandez
Officer Salgado attempted to stop a man (Gonzalez) he saw breaking into a car. Gonzalez fired several shots at Salgado, who returned fire. Gonzalez jumped into the car driven by Fernandez. The two escaped the scene. Salgado later identified Fernandez and Gonzalez from a photo lineup. Fernandez returned home, bleeding from a gunshot to his hand. The vehicle he was driving, which belonged to his sister, was found and had bullet holes in several places. Gonzalez also had a gunshot wound. Fernandez was found guilty by accountability of one count of burglary, 720 ILCS 5/19-1(a), and two counts of aggravated discharge of a firearm in the direction of a peace officer, 720 ILCS 5/24-1.2(a)(3)). The trial court merged the convictions into a single count of aggravated discharge of a firearm in the direction of a peace officer and sentenced him to 12 years in prison. The appellate court affirmed. The Illinois Supreme Court held that the evidence supported the aggravated discharge of a firearm conviction.
| ||||||||||
Spanish Court Two Condo. Ass'n v. Carlson
Spanish Court Condominium Association filed a complaint under the Forcible Entry and Detainer Act, 735 ILCS 5/9-101, against Carlson, a unit owners, who allegedly had failed to pay monthly assessments for six months. Carlson admitted that she had not paid her assessments, but denied that she owed those assessments, alleging that she incurred water damage to her unit because Spanish Court failed to properly maintain the roof directly above her unit. She asserted “Breach of Covenants” and “Set-Off” for failure to maintain the roof and that Spanish Court failed to repair or replace her toilet, which was rendered inoperable during the investigation of a water leak in an adjoining unit. The trial court granted Spanish Court’s motion to strike the affirmative defenses and entered an agreed order awarding possession of Carlson’s unit to Spanish Court, and a money judgment for unpaid assessments. The appellate court vacated and remanded for reinstatement of Carlson’s affirmative defenses relating to the roof. The appellate court analogized to a landlord/tenant situation, viewing the obligation to pay assessments, and the obligation to repair and maintain the common elements, as mutually exchanged promises. The Illinois Supreme Court reversed, holding that the failure to repair is not germane to the forcible proceeding.
| ||||||||||
Subscribe to:
Posts (Atom)