Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the Civil case Harris v. Thompson and the Criminal case People v. Hollins.

CIVIL

Harris v. Thompson

By Alyssa M. Reiter, Williams Montgomery & John Ltd.

The interplay between the Illinois Vehicle Code and the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) divided the Court in Harris v. Thompson.

The plaintiff was injured in an automobile accident with a Massac County ambulance. He sued the County defendants for negligence. The defendants moved to dismiss and, following an adverse jury verdict, moved for judgment non obstante veredicto, asserting that they were immune from liability based on negligence pursuant to the Tort Immunity Act. That Act provides that a public employee acting within the scope of his employment is not liable for an injury caused by the negligent operation of a motor vehicle when responding to an emergency call. The trial court denied the motions and the Appellate Court (Fifth District) affirmed. Those courts found that the Illinois Vehicle Code, which imposes a duty to refrain from negligence, is the more specific statute and supersedes the Tort Immunity Act.   

The Supreme Court disagreed. It reasoned that the Vehicle Code governs both public and private employees but the Tort Immunity Act applies only to public employees absent willful and wanton conduct. The Court agreed with Appellate Court opinions that have found that each Act “stands ‘in its own sphere’” and that the statutes address different actors under different circumstances. The Court therefore concluded that the statutes are not in conflict. It applied the Tort Immunity Act and reversed the judgment in favor of the plaintiff.

Justice Kilbride dissented. He agreed with the Appellate Court’s conclusion that the Vehicle Code is the more specific statute and should supersede the more general Tort Immunity Act.

The opinion also has a helpful discussion on the standard for applying an opinion prospectively only.

CRIMINAL

People v. Hollins

By Jay Wiegman, Office of the State Appellate Defender

At first, the issue raised in People v. Hollins, 2012 IL 112754 -- whether defendant could be guilty of child pornography for taking pictures of his girlfriend who, at age 17 was old enough to consent to having sexual relations but too young to consent to having pictures taken of her while having sex (the age of consent for such pictures being 18 in Illinois) — seemed intriguing simply because it raises interesting philosophical questions that could not have been anticipated before the advent of the internet. Even a cursory reading of the Opinion issued today, however, reveals a more fascinating debate about the First Amendment and rational basis analysis.

The 32-year-old defendant in Hollins dated a 17-year-old fellow student at a local community college. They had sexual relations, and during one occasion, defendant took pictures, in which neither party's face can be seen, nor can any identifying characteristics be seen. At his girlfriend's request, defendant emailed these 3 pictures to her. This email was discovered by her mother, who turned them over to the police. Defendant admitted having sexual relations and taking the pictures. He knew his girlfriend was 17, and thus old enough to consent to sex. He was unaware that, though he could have sex with her, she was not old enough for him to take her picture while engaged in this otherwise lawful act. Defendant was charged in a three-count information with violating Illinois’ child pornography statute, and, following a stipulated bench trial, defendant was convicted on all three counts and sentenced to concurrent terms of eight years’ imprisonment on each count. The Second District Appellate Court affirmed. No. 2-10-0051 (unpublished order under Supreme Court Rule 23).

On appeal to the Illinois Supreme Court, Defendant contended that the child pornography statute, as applied, violated the due process clause of both the United States and Illinois constitutions. Defendant conceded that because the case does not implicate a fundamental right, the test for determining whether the statute complies with substantive due process is the rational basis test.

Justice Garman, writing for the majority, first considered defendant's 3 main contentions in relation to the Due Process argument: (1) that application of the statute to defendant does not bear a reasonable relationship to the public interest to be protected because it denies consenting adults the right to engage in private sexual activities of their choice; (2) that the statute violates the Illinois Constitution’s privacy clause, which provides greater privacy protections than does the United States Constitution; and (3) that when viewed in the context of the Illinois sex offense statutes, the statute failed to give defendant fair notice his conduct was criminal.

In affirming the Second District Appellate Court, the majority of the Illinois Supreme Court relied primarily upon State v. Senters, 699 N.W.2d 810 (Neb. 2005), a Nebraska Supreme Court decision, and United States v. Bach, 400 F.3d 622 (8th Cir. 2005).  The majority determined that, under the rational basis analysis, the statute at issue bears a rational relationship to a legitimate legislative purpose (protecting children from sexual abuse and exploitation), and it is neither arbitrary nor unreasonable.  "Raising the age to 18, even though the age of consent for sexual activity is 17, is a reasonable means of accomplishing this legitimate government purpose as it aids the State in enforcing child pornography laws." Hollins, at par. 24. The Court also stated that "there are rational, reasonable arguments in support of having a higher age threshold for appearance in pornography than for consent to sexual activity. The consequences of sexual activity are concrete, and for the most part, readily apparent to teenagers: possible pregnancy, sexually transmitted diseases, and emotional issues. Many, if not most, teenagers who are 16 and 17 will have been apprised of these consequences by parents or sexual education classes in school. The dangers of appearing in pornographic photographs or videos are not as readily apparent and can be much more subtle."

In dissent, Justice Burke, joined by Justice Freeman, traced the history of First Amendment law related to restricting child pornography, and ultimately rejected the application of the rational basis test. Justice Burke started with New York v. Ferber, 458 U.S. 747 (1982), in which the United States Supreme Court considered a first amendment challenge to a statute which prohibited persons from “knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances."  The Court upheld the statute and, in so doing, recognized a “category of child pornography which. . . is unprotected by the First Amendment.” Justice Burke noted Ferber was read by courts, including the majority in the instant case, as having defined a broad category of unprotected expressive content — visual depictions of sexual conduct, “suitably” defined by statute, of children under “a specified age,” and that Ferber  appeared to hold that the scope of the child pornography category was “not limited to materials whose production would generate the harms that the categorical exclusion was based on.” Hollins, par. 59, (Burke, J., dissenting), quoting John A. Humbach, ‘Sexting’ and the First Amendment, 37 Hastings Const. L.Q. 433, 458 (2010).  Under this broad view, the category of child pornography exempted from first amendment protection is presumed by the majority to include any sexually explicit pictures of persons under a specified age, and so it does not matter that sexual conduct in this case was legal and consensual. All that matters is that the person who was photographed engaged in sexual conduct is under a specified age, in this case 18.

Justice Burke then declared that this broad view is no longer valid after United States v. Stevens, 559 U.S. __, 130 S. Ct. 1577 (2010), a case involving depictions of animal cruelty. In Stevens, the Court declined to create another category of speech that is not afforded First Amendment protection. Justice Burke, reviewing the Stevens' Court's discussion of Ferber, and noting subsequent commentary, stated that "[f]ollowing Stevens it is clear that there is no first amendment exception for child pornography, per se. Rather, child pornography is simply one example of an historical category of speech that is exempted from first amendment protection: speech that is an “integral part of conduct in violation of a valid criminal statute.” Or, to put it another way, for a photograph to be child pornography in the federal constitutional sense, and thus be exempted from first amendment protection, the photograph must be “an integral part of conduct in violation of a valid criminal statute.” Hollins, par. 66, (Burke, J., dissenting).

On this basis, Justice Burke determined that rational basis review of the child pornography statute is not appropriate. Noting that defense counsel had not relied upon Stevens, Justice Burke concluded that she would reject defense counsel’s concession as to the application of the rational basis test and order the parties to brief the effect of Stevens’ holding — that child pornography, for purposes of the first amendment, exists only if it is “an integral part of conduct in violation of a valid criminal statute” — on our disposition of this case.

I sense a petition for rehearing.