Quick takes from Friday, Jan. 21, Illinois Supreme Court opinions

Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in in civil cases Illinois Department of Healthcare and Family Services v. Wiszowaty, First American Bank v. Henry, Thompson v. Gordon, Uldrych v. VHS of Illinois, and criminal cases People v. Alsup, People v. Kitch, People v. Gonzalez, People v. Williams, People v. King, People v. Garcia and People v. Lindsay.

CIVIL

Illinois Department of Heathcare and Family Services v. Mark Wiszowaty

By Alyssa M. Reiter, Williams Montgomery & John Ltd. Parents with long overdue child support payments will need to take notice of this case.  It held that delinquent child support payments in Illinois began to bear mandatory interest in 1987 with the passage of Public Act 85-2, effective May 1, 1987. In Public Act 85-2, the General Assembly amended the Marriage Act by adding a provision that child support orders would be deemed to be a series of “judgments.”  The Act further provided that “such judgment shall have the full force, effect and attributes of any other judgment….”  That same Public Act also amended section 12-109 of the Code of Civil Procedure to provide that every judgment arising by operation of law from a child support order “shall bear interest as provided in Section 2-1303….”  Section 2-1303 provides that judgments “shall draw interest” at a rate of 9% per annum. The Supreme Court held that this language plainly mandated interest on unpaid child support beginning in 1987.  The use of the word “shall” indicated a mandatory requirement.  The Marriage Act provided that each unpaid child support installment was an actual judgment.  And, the Code of Civil Procedure provided that each judgment “shall bear interest.”  The Court held that “the plain language” of these statutory amendments thus mandates interest payments on unpaid child support effective May 1, 1987. Case summary

First American Bank Corp. v. Henry

By Michael T. Reagan, The Law Offices of Michael T. Reagan This opinion, one of Justice Theis’ opinions early in her service, is notable for its concision.  The issue, stated in the first sentence, “is whether the Forest Preserve District of DuPage County was required (by the Illinois Pension Code) to enact an appropriation ordinance for its contribution to the Illinois Municipal Retirement Fund before it enacted a levy ordinance to raise revenue that would, in part, cover this contribution.”  The history of the IMRF is laid out in two paragraphs, and the interaction of the Pension Code with the Downstate Forest Preserve Act is then explored. The opinion, in agreement with the action of the appellate court, summarized that the tax objectors’ argument “distills down to a policy argument that municipalities should appropriate first and levy second.” The court noted both the merits of that procedure, and the inherent difficulties.  The court affirmed the appellate court holding that the District had the power to pass a levy ordinance before it passed an appropriation ordinance. The opinion recounts the appellants’ “short grammar lesson” on the significance of past participles. This is the fifth occasion on which participles have been discussed in supreme court opinions, the most recent being Justice Garman’s dissent in Ready v. United/Goedecke Services;  the first discussed a Latin participle, in 1862. Case summary

Thompson v. Gordon

By Michael T. Reagan, The Law Offices of Michael T. Reagan The Supreme Court’s opinion in Thompson v. Gordon, the second occasion this controversy has been in the Supreme Court, might best be savored by first reading the opinions in the Second District.  The interplay between the majority and dissenting opinions in the appellate court sets a dramatic stage for the resolution of this case by the Supreme Court. The defendant engineers entered into a contract to design “improvements” to roads adjoining the Gurnee Mills shopping mall, and to also design a “replacement” of an existing bridge over the interstate.  The contract also provided that “the standard of care applicable to engineer’s services will be the degree of skill and diligence normally employed by professional engineers or consultants performing the same or similar services.”  The bridge, as replaced pursuant to the plans, had a seven-inch high median, which was essentially identical to the median it replaced on the original bridge.  Plaintiff, in an unsuccessful opposition to the entry of summary judgment, offered an expert affidavit expressing the opinion that the engineering standard of care required the design of a barrier on the bridge as opposed to merely “replacing” the raised median. The appellate court, over a dissent, reversed the summary judgment.  The supreme court reversed the appellate court.  The court held that the difference between the terms “replacement” and “improvements” made it clear that the specific terms of the contract did not require the redesign of the bridge deck, and that the standard of care provision of the contract related only to the express engineering services to be provided, as opposed to expanding the scope of services and duty of the engineers to redesign the “replacement” structure to include a barrier. Within the lexicon of key supreme court precedents, the court reasoned that “because this case involves a contractual duty, this case is controlled by Ferentchak rather than Advincula.” The case has some useful statements concerning the interpretation of contracts. Case summary

Uldrych v. VHS of Illinois

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC Again recognizing the wide reach of the limitations provision in 735 ILCS 5/13-212(a), the supreme court has upheld the dismissal of a hospital’s action for implied indemnity against two surgeons in Uldrych v. VHS of Illinois, Inc. The physicians and the hospital all had been sued for medical negligence, and the hospital did not file its indemnity action until more than five years after the surgery. The court relied on its decision in Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), where it had applied section 13-212 to a contribution claim arising in the medical malpractice setting.  In Hayes, the supreme court had recognized that a contribution claim implicates the same insurance policies covering healthcare providers for direct malpractice actions.  By the General Assembly’s decision to broadly word the statute -- regardless of the legal theory, an “action for damages for injury or death against any physician . . . arising out of patient care” is subject to the two-year limitation and four-year repose periods -- the legislature showed it intended to prevent a physician’s extended exposure to liability, and not just in direct malpractice lawsuits.  The supreme court also found telling the legislature’s 1995 amendment of 735 ILCS 5/13-204, which generally governs contribution and indemnity claims.  After two appellate opinions applying the Hayes reasoning to implied indemnity claims, the legislature amended section 13-204 to exempt contribution and indemnity actions involving medical malpractice -- the very situation presented in this case.  The court reasoned that the legislature did not exempt those claims with the intention of subjecting them to the generic catchall provision contained in section 13-205, a limitation statute having nothing to do with medical malpractice, the basis for the exemption.  Rather, the amendment pointed to section 13-212. Case summary

CRIMINAL

People v. Alsup

By Kerry J. Bryson, Office of the State Appellate Defender The defendant was charged with possession withi intent to deliver heroin and cocaine after police surveillance observed three transactions where the defendant, standing in an alley, was approached by an unknown subject and given currency. The defendant then went to a nearby garbage can, retrieved something, and returned to give the item to the person. An enforcement team was called and direct to arrest defendant and search behind the garbage can. An officer recovered a ziplock bag with 10 smaller bags of suspected cocaine and five tinfoil packets of suspected heroin. The defendant had $15 on him when he was arrested. At trial, the parties stipulated to expert testimony that the items were tested and were positive for 1.05 grams of cocaine and less than .1 grams of heroin. With reference to the heroin, however, the stipulation indicated that there were nine packets, as opposed to the five packets the officer stated he had recovered. The defendant was convicted. The discrepancy in the numbers was noted on review of the record on appeal. The defendant sought a reversal arguing that the State had failed to prove that the packets tested by the expert were the same as those recovered by the police officer. The appellate court rejected the argument, and the defendant filed a petition for rehearing. The State responded by filing a motion to "Make the Record Conform to the Truth" disputing that the word "nine" was properly uttered in court, suggesting that either the State's Attorney misspoke or the court reporter mistranscribed the word. A hearing was held in the trial court, and the court stated that both he and the court reporter had recorded the word "nine." The trial judge further indicated that had he noted the discrepancy at the trial, he would have entered a finding of not guilty. The court rejected the motion to change the record. Subsequently, the appellate court granted rehearing and issued a new order finding that the evidence failed to establish a link between the items seized by the police officer and those tested by the expert. The appellate court concluded that this deficiency meant that the State had failed to introduce sufficient evidence of possession and reversed outright the defendant's conviction of possession of heroin with intent to deliver. The Supreme Court concluded that the defendant's challenge went to the chain of custody and did not, by extension, serve as a challenge to the sufficiency of the evidence to support a conviction. Chain-of-custody establishes a foundation for the admission of evidence, but does not function as proof of an element of the crime. Because the defendant had stipulated to the evidence of the chain-of-custody, he had affirmatively waived the issue. The Court declined to find that plain error review was warranted, noting that there was not a "complete breakdown" of the chain of custody here. The testimony and stipulation established the "probability" that the items were the same -- the appropriate protocol had been followed with regard to collecting and securing the evidence; the evidence bag received by the expert was labeled with the same number as that indicated by the police officer; and there was no dispute as to the chain-of-custody of the cocaine which was in the same sealed evidence bag. It will be a "rare" case where a defendant can obtain plain error review of a chain-of-custody issue which he has chosen to affirmatively waive at trial. Case summary

People v. Kitch

By Jay Wiegman, Office of the State Appellate Defender In People v. Kitch, defendant was accused of sexually abusing his stepchildren when the stepdaughter was between the ages of nine and twelve, and the stepson was between the ages of six and eight. Pursuant to 725 ILCS 5/115–10, the State filed a pretrial notice of intent to introduce hearsay statements of the minor stepchildren, who were ages 14 and 10 at the time of the Section 115-10 hearing. The circuit court found the hearsay statements admissible under the statute, on the condition that the children testified. The children did testify at trial. Their mother testified to contact she had witnessed between the defendant and her children that she considered inappropriate, and to their reports to her of sexual abuse by the defendant. Two police officers and a physician also testified as to reports made by the children, and the doctor testified that the physical exam suggested that the defendant's stepdaughter had been sexually abused. The jury convicted defendant on all 10 counts. The appellate court affirmed defendant’s convictions but modified his natural life prison sentences from consecutive to concurrent terms. The appellate court also granted the State its statutory assessment of $50 against defendant as costs of the appeal. Relying on People v. Learn, 396 Ill.App.3d 891 (2009), the defendant alleged that his step-children did not testify in enough detail to have “appeared” for cross-examination within the meaning of the confrontation clause. In the instant case, the Illinois Supreme Court quickly distinguished Learn, in that the 4-year-old victim in Learn , after testifying to some preliminary matters at trial, became too emotionally distraught to continue, and therefore did not testify on direct examination to any of the alleged incidents of sexual abuse. Learn's niece thus did not give "accusatory testimony." As a result, Learn was not confronted by his accuser nor given the right to rigorously test the accusation against him through cross-examination. In Kitch, by contrast, the minor complainants accused defendant of multiple acts of sexual abuse through their direct testimony. Kitch next argued that section 115-10 is unconstitutional on its face because it violates the rule established in Crawford v. Washington, 541 U.S. 36 (2004). Crawford held that the confrontation clause requires the reliability of testimony to be tested through cross-examination, and that no judicial assessment of reliability may be substituted for this form of credibility testing. Now, under Crawford, testimonial statements of an unavailable witness may be admitted regardless of their perceived reliability only if the defendant had a prior opportunity to cross-examine the declarant. In this case, Kitch argued that, under Crawford , section 115-10 violates the Confrontation Clause of both the United States Constitution and the Illinois Constitution, because it: (1) it improperly incorporates the now-defunct reliability standard for determining whether admission of hearsay testimony comported with the confrontation clause, and (2) it does not incorporate the limitations on admissibility imposed by Crawford. The Illinois rejected this claim, and determined that, under Crawford, the confrontation clause poses no restrictions on the admission of hearsay testimony if, as here, the declarant testifies at trial and is present to defend or explain that testimony. The Court concluded that the additional reliability requirement of 155-10 provides defendants with additional protection and thus does not affect the constitutionality of section 115–10 because hearsay testimony still must satisfy Crawford’s constitutional requirements, in addition to the statutory requirement of reliability. Finally, the Supreme Court rejected Defendant's claim that the appellate court erred in ordering him to pay a $50 fee, authorized by Section 4–2002 of the Counties Code -- which provides that a State’s Attorney is entitled to a fee of $50 “[f]or each case of appeal taken from his county . . . to the Supreme or Appellate Court when prosecuted . . . by him" -- because the appeal in this case was prosecuted by the State’s Attorneys Appellate Prosecutor (SAAP), and not the County State’s Attorney herself. Case summary

People v. Gonzalez

By Kerry J. Bryson, Office of the State Appellate Defender The defendant, who already had four children and had undergone a tubal ligation, wanted another child. She went to the waiting room of a medical facility, pretending to be seven-to-eight months pregnant. While there, she saw a couple she knew from the neighborhood. The couple had their three-week-old baby with them. When the mother left the waiting room to talk on her cell phone, the defendant offered to hold the baby so that the father could complete some paperwork in the reception area. When the father returned to the waiting room, the defendant and baby were gone. When the parents could not locate the defendant and the baby, the mother flagged down a police officer and reported that someone had taken her baby. The defendant was apprehended 15 minutes later, at a hospital about two blocks away. On this evidence, the defendant was convicted of a count of aggravated kidnapping based on "secret confinement." On appeal, the defendant argued that secret confinement requires that the victim be confined within a physical structure, such as a house or a vehicle, and not in a public place like the hospital here. The Court rejected that argument, and upheld the conviction. Along the way, the Court noted that the baby was "unable to escape, cry out, or call attention to her plight" and that the baby was taken without the parents' permission or knowledge. In trying to pass off the baby as her own, the defendant "isolated the baby from the public even though [she] kept the baby in public view." Case summary

People v. Williams

By Kerry J. Bryson, Office of the State Appellate Defender The Court was presented with the narrow question of whether the day of a defendant's commitment to the Department of Corrections should be counted in the calculation of presentence credit by the county or as the first day of the defendant's DOC sentence. Noting that the issuance of the mittimus transfers legal custody of the defendant to the DOC, the Court held that the date of sentencing is counted as the first date of the defendant's DOC sentence. As a practical matter, the Court recognized that "defendant will ultimately receive the same credit" regardless of whether the day is credited as presentence custody or as the first day of sentencing. The Court declined to consider whether the date of sentencing would count toward the $5 per diem credit against fines because that issue was not before the Court in this case. Thus, the $5 issue is reserved for another day. Case summary

People v. King

By Kerry J. Bryson, Office of the State Appellate Defender The defendant was 15 years old at the time of the beating death of Robert Nash in August 2002. The defendant was charged with five counts of first degree murder in connection with Nash's death. In June 2003, the State filed an additional count of attempt first degree murder, and the defendant entered a negotiated plea to that charge in exchange for the dismissal of the murder counts and a sentence of 15 years in the Deparmtent of Corrections. In October 2008, the defendant filed a pro se post-conviction petition arguing that he was not properly admonished about mandatory supervised release at the time of his plea. That petition was summarily dismissed as frivolous and patently without merit. On appeal from the dismissal, the defendant argued for the first time that his sentence was void because the State had not sought a hearing under 705 ILCS 405/5-130(1)(c)(ii) to determine whether he should be sentenced as an adult. That section provides that where the defendant is convicted of an offense "not covered by paragraph (a)," the court must proceed under the provisions of the Juvenile Court Act unless the State requests a hearing for purposes of sentencing the minor under the Code of Corrections. While first degree murder is an offense listed in paragraph (a), attempt first degree murder is not. The appellate court agreed, reversed the judgment of the circuit court, and remanded with directions to vacate the defendant's criminal conviction, enter an adjudicatino of delinquency, and enter an order sentencing him to time served as of his twenty-first birthday. The State sought review on the bases that the defendant should be estopped from challenging the sentencing provision of the negotiated plea agreement because he enjoyed the benefits of that agreement, and that if the sentencing provision was void, the plea should be vacated in its entirety (including reinstatement of the murder charges). The Supreme Court, on its own motion, granted the parties leave to brief questions of statutory construction regarding specific language used in the statute: (1) whether an offense "covered by " paragraph (a) of the statute included only those "specified in" that provision or also included those "arising out of the same incident" (See paragraph (b) of the statute) and (2) if it includes both, whether the defendant was properly sentenced as an adult without the need for the State to request a hearing. The Court concluded that first degree murder was an offense "specified in" paragraph (a) and thus was properly prosecuted in criminal court. Paragraph (a)'s reference to "other charges arising out of the same incident" meant that charges brought in the same indictment, here the amended attempt first degree murder charge, were to be likewise prosecuted in criminal court because that charged arose out of the same incident. With regard to paragraph (c), the Court noted that the "covered by" language was intended to encompass both charges "specified in" paragraph (a) and those "arising out of the same incident." Thus, the adult sentence was appropriate without the State having requested a hearing. Case summary

People v. Garcia

By Jay Wiegman, Office of the State Appellate Defender When a defendant has been previously convicted of a felony within the last ten years and is then convicted of the same or greater class felony for a separate act, the trial court imposing the latter sentence may impose an extended term sentence, pursuant to 730 ILCS 5/5-5-3.2(b)(1).  The plain language of the statute allows the ten-year period to be extended by the length of time the offender has spent in custody (or else an offender who served a twenty year sentence, for example, and then committed another felony offense the day after his release, would not be subject to an extended term). In 1999, Abraham Garcia, who had been convicted of a Class 2 offense six years earlier (but did not serve any time in custody), was arrested and charged with aggravated battery, a Class 3 felony.  In 2000, an arrest warrant was issued after he failed to appear in court.  He was not re-arrested until 2006 (more than 10 years after the Class 2 conviction), and did not stand trial until 2008.  The trial court imposed an extended term sentence, determining that the ten-year period was tolled between the time of the issuance of the warrant for defendant's failure to appear and his re-arrest, because defendant had caused the delay.  The appellate court agreed with defendant's challenge to his extended-term sentence. The appellate court recognized that section 5-5-3.2(b)(1) was intended to impose harsher sentences on offenders who had demonstrated their resistance to correction through repeated convictions but also noted that, as a penal statute, it must be strictly construed in favor of the defendant. Observing that the statute contained no express tolling language, the court declined to toll the 10-year time limit when a defendant wrongfully delayed the criminal proceedings. The Supreme Court reversed. While noting that the fundamental objective of statutory construction -- to ascertain and give effect to the legislature’s intent -- is best achieved by the following the plain and ordinary meaning of the statutory language, the Supreme Court determined that it could also consider the underlying purpose of the statute’s enactment, the evils sought to be remedied, and the consequences of construing the statute in one manner versus another. The Court readily determined that the goal of section 5-5-3.2(b)(1) is to impose harsher sentences on repeat offenders. Mindful of this, the Court concluded that the Legislature's intent could be honored only by construing the statute to exclude, or toll, time lapsed during a defendant’s wrongful delay of criminal proceedings when that defendant otherwise qualifies for an extended-term sentence. The Court stated that construing the statute to toll the 10-year limit when a defendant violates bond and becomes a fugitive comports with well-established Illinois public policy prohibiting a defendant from benefitting from his own wrongdoing and allowing forfeiture of a defendant’s otherwise valid claims based on his fugitive status. The Court also stated that the Legislature probably did not address situations such as the instant case because it did not contemplate the exclusion of an extended-term sentence when a defendant wrongfully delayed criminal proceedings by violating bond and fleeing the jurisdiction. The Court in this case seems to abandon the well-established rule of statutory construction that, where the language is clear and unambiguous, the Court will apply the statute without resort to further aids of statutory construction. There was no allegation here that the language was vague or unambiguous, and thus there was seemingly no reason to look beyond that language. Rather than resolving ambiguities by resorting to an analysis of legislative intent, the Court seems to be filling in blanks where the statute is merely silent. Moreover, the Court's justification for adding an unwritten exception -- that a defendant who delays criminal proceedings by violating bond and fleeing should not be rewarded for his misconduct -- overlooks the fact that the State could have prosecuted the defendant in absentia. Unfortunately, the Court may have inadvertently created a new question of ambiguity: will a defendant who is arrested within the ten-year period but is not convicted until after the expiration of that period, due to continuances requested by defendant, be accused of misconduct by requesting those continuances and thus face an extended term? Case summary

People v. Lindsay

By Jay Wiegman, Office of the State Appellate Defender In People v. Lindsay, defendant pled guilty to delivery of a controlled substance and was sentenced to 14 years in prison.  He moved to reconsider his sentence, but his attorney failed to file the  certificate required by Supreme Court Rule 604(d).  On appeal of the denial of his motion to reconsider, the Appellate Court reversed and remanded for compliance with Rule 604(d).  On remand, trial counsel filed the Rule 604(d) certificate, but did not file a new post-plea motion.  The trial court declined to reconsider defendant's sentence.  On appeal, the appellate court again reversed the denial of the motion because the proceedings on remand did not comply with Rule 604(d) and People v. Janes, which held that the remedy for failure to strictly comply with each of the provisions of Rule 604(d) is a remand to the circuit court for the filing of a new motion to withdraw guilty plea or to reconsider sentence and a new hearing on the motion. People v. Janes, 158 Ill.2d 27 (1994).  The State appealed. The Illinois Supreme Court held that, in such circumstances, if counsel concludes that the original motion was sufficient, a new motion need not be filed. In reaching this holding the Court compared and contrasted the first two cases to construe Janes, People v. Oliver, 276 Ill. App. 3d 929 (1995), and People v. Kerkering, 283 Ill. App. 3d 867 (1996). In Oliver, defense counsel, on remand, filed a 604(d) certificate, and stood on the original post-plea motion. The Appellate Court held that the “[t]he failure to file a new motion alone would be sufficient to render the second hearing nugatory, and that the hearing on remand was "a sham," in that no effort was made to restate for the court’s benefit the evidence from the previous hearing." A similar situation occurred in Kerkering, but the Appellate Curt there reviewed the appellate court cases that informed the decision in Janes, and held that, when a case is remanded for the filing of a Rule 604(d) certificate, the attorney need only file a new motion to reconsider sentence or to withdraw guilty plea if he or she determines that such action is necessary for the adequate presentation of any defects in the guilty plea or sentencing proceedings. In Lindsay, the Supreme Court determined that Kerkering represents the better reading Janes. The Supreme Court stated that 604(d) procedures are not meant to mandate or require the filing of a new post-plea motion, but that defendant's rights are preserved as long as he is allowed the opportunity to file a new motion on remand. Case summary