Quick takes from Thursday, Oct. 21, Illinois Supreme Court opinions
Our panel of leading appellate attorneys review today's Supreme Court opinions in JP Morgan Chase Bank v. Earth Foods, Ready v. United/Goedecke Services, Wright Development Group v. Walsh, In re Estate of Wilson, People v. Close, People v. Johnson and People v. Thompson.
Civil
JP Morgan Chase Bank v. Earth Foods
By Tim Eaton, Shefsky & Froelich Ltd. In addition to the actual holding of the Supreme Court in JPMorgan Chase Bank, this opinion also is informative on two generic procedural doctrines often used by the Court in reaching a decision – the use of canons of statutory construction in interpreting the legislative meaning of a statute and forfeiture of issues by parties in the lower and reviewing courts. Both of these doctrines contributed to the Court’s ultimate resolution of this case. The actual issue before the Court was whether a “guarantor” of a loan could rely on Section 1 of the Sureties Act which provides protection to sureties who inform creditors that the debtor is likely to become insolvent, triggering the creditor’s obligation to sue and if it does not, releasing the surety from its obligation. Here, one of the “guarantors” of a loan gave notice to the creditor/bank of the precariousness of the debtor and the bank did not take any action until a year later against the debtor and the guarantors on their obligation. The guarantor sought protection under Section 1 of the Sureties Act, arguing that in a general sense there is little difference between sureties and guarantors so both should received the protection of the Act. The trial court entered summary judgment in favor of the bank on this issue. The bank argued to the high Court that you must look to the meaning of the word “surety” as it was understood in 1874 when the Act was enacted. The guarantor contended that the canon of statutory construction advanced by the bank on appeal had been forfeited because it was not raised below. The Court found, however, that the canon of statutory construction was applicable and could not be forfeited because it is a “guide” that the Court uses in reaching its decision, not an argument. Applying the “guide,” and after a thorough review of dictionary definitions, case law and treatises for over the last hundred years, the Court found that there is a clear distinction between sureties and guarantors and the Sureties Act could not be used by a “guarantor” as a shield. But the Court did not find that the guarantor’s argument for the first time before that Court that he really was a “surety” and not a “guarantor” had been forfeited and should be considered by the trial court upon remand because “forfeiture is the failure to comply with procedural requirements in presenting an issue for appeal.” Here, a summary judgment was entered against him before he had an opportunity to make this argument, therefore the court remanded the case to the trial court to make the determination as to his status. Opinion 107682 Case summaryIn re Estate of Wilson
By Michael T. Reagan, Herbolsheimer Lannon Henson Duncan and Reagan PC
In re Estate of Wilson, consisting of 50 pages of opinions, will become the new touchstone for the evaluation of petitions for substitution of a judge for cause under 735 ILCS 5/2-1001(a)(3).
In this guardianship proceeding, deep into a series of hearings, the challenged guardian filed a “Motion for Substitution of Judge.” It was not verified by affidavit or otherwise, and it alleged as grounds that the trial judge had indicated in these proceedings that “she did not believe” the guardian. The trial judge did not refer the motion for substitution to a separate judge for handling, but rather denied the motion and proceeded.
A divided appellate court held that the petition for substitution should have been automatically referred to another judge for consideration. The court further concluded that all actions taken subsequent to the filing of the petition were void. The dissent challenged the majority’s conclusion that automatic referral to another judge is required in every case.
The supreme court reversed the appellate court. The request for substitution contained two fatal defects on its face. The petition was not verified, and it did not adequately allege cause for substitution. A ground sufficient for substitution “must normally stem from an extrajudicial source, i.e. from a source other than from what the judge learned from her participation in the case before her.” Drawing upon United States Supreme Court precedent, the court expressed the opinion that events occurring in the proceedings do not normally constitute a basis for substitution based on bias “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Here, the trial judge’s previous assessment of a party’s credibility is a matter within the purview of the trial court and does not rise to that level.
The court found two additional circumstances which justified denial of the motion. It came too late, because such a motion must be asserted at “the earliest practical moment” after the asserted cause has been discovered. Additionally, consideration of the circumstances surrounding the motion led to the conclusion that the request was not made in good faith but for purposes of delay.
The point of difference between the majority and concurring opinions was whether the motion had to be referred to a separate judge for hearing. The majority opinion states that “empowering litigants to unilaterally halt pending trial proceedings without first meeting any threshold timing, pleading or procedural requirements would be unprecedented." In the statutory scheme, the second judge is to consider whether the cause for substitution exists. Matters concerning timing, pleading and procedural requirements have no direct bearing on that substantive inquiry.
The lengthy dissent of two justices differed with the majority on the question of whether the motion had to be referred to a second judge for hearing, but concurred in the result because of the fact that the petition did not contain the mandatory affidavit as to the facts purportedly constituting cause. Even a second judge “would have been duty-bound to dismiss the petition for lack of an affidavit.”
Footnote 14 places a likely marker for a future petition for leave to appeal in some other case. The court poses the question of whether orders entered after the erroneous denial of a motion for substitution “should render subsequent orders voidable rather than void.” Because resolution of that question was not necessary to this disposition, the court expressed no view.
Opinion 108487
Case summary
Ready v. United/Goedecke Services
By Michael T. Reagan, Herbolsheimer Lannon Henson Duncan and Reagan PC
The opinion in Ready v. United/Goedecke Services is the second opinion of the court in this important case. As before, the main opinion is by a plurality. However, the two specially concurring opinions do not express disagreement with the plurality opinion’s resolution of the issues, but rather speak to the authors’ views of the impact of prior opinions.
The court’s prior opinion (Ready I) held that Section 2-1117 did not permit apportionment of fault to settling defendants. The case was remanded to the appellate court for consideration of defendant’s sole proximate cause defense. The appellate court decided that the circuit court erred in excluding all evidence of the conduct of the settling defendants but did not reach the issue of defendant’s entitlement to an instruction. In this opinion (Ready II), the court concludes that the circuit court erred both in excluding evidence of the actions of the settled defendants and in refusing to instruct on sole proximate cause by not giving the second paragraph of IPI 12.04.
However, the court concludes that there was sufficient evidence that the defendant was a proximate cause of the accident, thereby precluding a properly instructed jury from concluding that the settled defendants were the sole proximate cause. Therefore, both instances of error were found to be harmless and accordingly judgment on the jury’s verdict is affirmed.
Opinion 108910
Case summary
Wright Development Group v. Walsh
By Jean M. Prendergast, Schuyler, Roche & Crisham, P.C In Wright Development Group, LLC v. Walsh, the Illinois Supreme Court held that the appellate court’s sua sponte dismissal of a defamation defendant’s appeal as moot frustrated the legislative public policy of providing relief for “strategic lawsuits against public participation,” or “SLAPPs” set forth in the Citizen Participation Act (“Act”) (735 ILCS 110/1 et seq. (West 2008)). The defendant, a condominium president, made statements to the press, later published, concerning the plaintiff developer and certain legislation. The developer sued for defamation per se. The trial court denied the defendant’s motion to dismiss under the Act on immunity grounds, but later dismissed the action under the innocent construction rule. This left the defendant without the means to recoup attorney fees. The defendant appealed the denial of his motion to dismiss under the Act. The appellate court dismissed the appeal as moot, sua sponte, and reasoned that the defendant had obtained the relief sought. The supreme court reversed because the appellate court’s failure to consider the merits of the alleged SLAPP directly contradicted legislative public policy, which allows fees. The court also held that the statements were encompassed by the Act, and that the defendant established that the complaint was a SLAPP. The court reasoned that the Act covers exercises of political expression directed at the electorate. The court ordered a determination of attorney fees on remand. Justice Freeman, with Justice Burke, specially concurred to highlight the potential constitutional and appellate procedural issues. Section 20(a) of the Act provides for an immediate right to appeal the denial of a motion to dismiss (735 ILCS 110/20(a) (West 2008)), but no corresponding supreme court rule exists. The Court presently is considering a rule amendment to allow such appeals. The special concurrence suggested that an amendment would be unnecessary because the denial of a motion to dismiss on immunity grounds under section 2-619 of the Code of Civil Procedure would give rise to an immediate appeal under Supreme Court Rule 304(a) given that rights of the parties would be final on the issue of fees. The special concurrence noted that under article VI, section 6 of the Illinois Constitution of 1970, the supreme court alone has the power to make rules governing interlocutory appeals, and thus recommended that the court should clarify the operation of the Act within the bounds of existing law. Opinion 109463 Case summaryCriminal
People v. Johnson
By Kerry J. Bryson, Office of the State Appellate Defender As in Thompson, No. 109033, the Court was confronted with another unpreserved error. And, as in Thompson, the Court found error in the trial court's conduct, but declined to exercise plain error review. Here, the issue involved the judge's ex parte communication with the jury during deliberations, telling the jury to "continue deliberating" in response to the jury's indication that it was deadlocked 11-1. The parties were not informed about the jury's note or the court's response until after the verdict was returned. At that time, defense counsel responded "okay," but did not object or include the issue in the post-trial motion. On appeal, the parties agreed that the claim was forfeited. Plain error review was refused because, although the trial court did err in responding ex parte, the evidence was not closely balanced and defendant failed to demonstrate any prejudice from the court's response to "continue deliberating." In reaching that conclusion, the Court noted that defendant had not challenged the substance of that response. Justice Burke dissented, concluding that the error in depriving defendant of his right to be present when considering the jury's note did prejudice him because defendant was denied the opportunity to request the Prim instruction, which goes beyond simply telling jurors to "continue deliberating." Justice Freeman joined the dissent. Opinion 108253 Case summaryPeople v. Close
By Kerry J. Bryson, Office of the State Appellate Defender On a Sunday evening, an officer observed a vehicle being driven by an individual with a revoked license. A registration check revealed that the individual had been issued an RDP, but did not disclose the terms of the RDP. The officer did not observe any traffic violation but initiated a stop based on the knowledge that the defendant's license was revoked. The officer thought it unlikely that the RDP would have permitted driving on a Sunday evening because an RDP is typically for traveling to and from work. The Court found that the existence of an RDP is a statutory exception to the offense of driving while license revoked, not an affirmative element of the offense which the State must negate. Based on that conclusion, the Court held that the officer was not required to have a reasonable articulable suspicion that defendant was not in compliance with the terms of his RDP to effectuate a Terry stop, but rather he need only have a reasonable articulable suspicion that defendant was driving a motor vehicle while his license was revoked. Justice Burke dissented, noting the majority's failure to apply the long-standing "totality of the circumstances" test in favor of a new "elements of the offense" test for reviewing the propriety of Terry stops. Considering the totality of the circumstances, she would have upheld the trial court's order quashing the arrest and suppressing evidence in the absence of more specific facts than were known to the officer here. Opinion 108459 Case summaryPeople v. Thompson
By Kerry J. Bryson, Office of the State Appellate Defender The Court provided much-anticipated guidance on the significance of errors under the recently-amended version of Supreme Court Rule 431(b). In a nutshell, the Court held that 431(b) mandates that there be a question and response process and that the Rule was violated here. That said, Rule 431(b) violations are not structural error and are not subject to a bright-line rule of reversal for any violation. The 431(b) error here was not preserved in the trial court, and the Supreme Court declined to find plain error, noting that defendant had not demonstrated that the 431(b) violation resulted in a biased jury. The Court relied on its recent decision in Glasper, 234 Ill. 2d 173 (2009), which dealt with the pre-amended version of 431(b), concluding that its reasoning there applied equally to the amended version of 431(b). In a vote of confidence, the Court noted its belief that "trial courts will continue to take notice of this important rule and employ all necessary steps to ensure full compliance in every criminal case tried before a jury" and cautioned that trial courts will risk reversal by failing to comply with the rule -- just not in this case. Justice Burke dissented, noting her belief that Zehr, 103 Ill. 2d 472 (1984) required a different result. Justice Freeman joined that dissent. Opinion 109033 Case summaryIn re Ivan H., Minors
Opinion 107002 Case summaryPeople v. Adkins
Opinion 107309 Case summaryFiled under: