Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case City of Chicago v. StubHub and criminal case People v. Taylor.

CIVIL

City of Chicago v. StubHub

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Citing the state’s long history of protecting consumers, including the regulation of ticket resellers and “internet auctioneers,” the Illinois Supreme Court found that the City of Chicago overstepped its home rule authority in trying to collect “amusement taxes” on StubHub resales.  StubHub, a state-registered “internet auction listing service,” describes itself as “the world’s largest online ticket marketplace”; there, for a service fee, a user can buy and sell tickets to events throughout the country.  

The city notified StubHub that it might be a “reseller’s agent” subject to a local tax, and asked StubHub for information regarding its sales for Chicago events.  When StubHub refused, the city sued to obtain that information and for back taxes and penalties.  A federal district judge dismissed the case, and the city appealed.  Under Supreme Court Rule 20, the Illinois Supreme Court agreed to answer a question posed by the Seventh Circuit:  “[W]hether municipalities may require electronic intermediators to collect and remit amusement taxes on resold tickets.”  The answer is no.

The supreme court began its analysis with the 1970 Illinois Constitution, which expresses a “preference for local solutions to local problems.”  The supreme court considered the nature of the problem, which government unit had the greater interest in its solution, and whether local or statewide authorities traditionally had addressed the matter.  The court reviewed the statutory scheme reflected in the Auction License Act, 720 ILCS 375/1.5 and the Act’s legislative history.  The state’s protection of consumers and apparent preference for a uniform approach prevailed over the city’s claim that the case involved a local revenue matter.  The supreme court concluded by noting the legislature’s policy decision to allow internet auction listing services to opt out of local tax collection obligations.

Opinion 111127.pdf

Case summary

CRIMINAL

People v. Taylor

By Kerry J. Bryson, Office of the State Appellate Defender

After receiving a report of several thefts of cash from a school administrator's office, a police detective set up a motion-activated surveillance camera in the office. On a recording, defendant was observed crouching behind the desk, opening a drawer, and removing a bank pouch. After a 29-second delay on the video, defendant was seen rising and turning to exit. Confronted with the video, defendant admitted to taking money from the office.

At defendant's trial, defense counsel sought to exclude the tape because of the 29-second lapse in recording and arguing that there was no showing that the camera was working properly at the time of the recording. The detective who set up the system testified that the recording gap was due to a lack of movement during that time, which caused the camera to stop recording. He also testified that the camera had been working properly both before and after the time defendant was recorded taking the money. The tape was admitted. A post-trial motion challenging the admission was
also denied.

The appellate court reversed, finding that the State had not established (1) a proper chain of custody, (2) that the camera was working properly, or (3) that the original DVR recording had been preserved.  The appellate court also noted that the STate had failed to give an explanation of the process for transferring the recording from the DVR to the VHS tape that was introduced at trial.

The Supreme Court began its analysis by finding that the "abuse-of-discretion" standard of review applied to the question of whether the videotape was properly admitted under the "silent witness" theory (where a witness need not testify tot he accuracy of the image on the recording if it can be established that the process that produced the
recording was accurate).  The Court then noted that defendant had not objected on several of the aforementioned grounds in the trial court and thus they were forfeited.  In deciding whether plain error review was warranted, the Court first looked to whether there was any error.

The Court concluded that the State had laid a sufficient foundation for the tape where there was evidence that the detective had been instructed on how to use the recording equipment and had read the instructions, and where the detective had taken steps to ensure a viewable recording by adjusting the lighting in the office.  With regard to the 29-second gap, the Court concluded that it was explained by the detective and that "while the camera may not have worked perfectly, it clearly worked."

Concerning the process of tranferring the recording from the DVR to the VHS tape, the Court found that the appellate court erred in refusing to consider a police report that was not "in evidence" because, on the issue of preliminary questions such as admissibility, courts are not constrained by the usual rules of evidence.  The Court went on to find a sufficient chain of custody where the VHS tape was in the detective's desk and later
in an evidence locker.  The Court rejected the argument that the State erred in failing to preserve the original DVR recording, concluding that by definition the VHS tape actually constituted and "original."  Finally, the Court concluded that it was not necessary to show that there had been no alterations (particularly because editing is often necessary to render a recording admissible), but rather the relevant consideration was whether
there had been any tampering or fabrication.  There was not.  Because there was no error in admission of the tape, there was no plain error.  The appellate court's decision was reversed.

As technology continues to improve and become more accessible to the masses, issues such as this will continue to present themselves.  This case provides some guidance as to admission of video recordings under the "silent witness" rule, although the Court also made clear that the determination must ultimately be made on a case-by-case basis.

Opinion 110067.pdf

Case summary