Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Hooker v. The Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, American Access Casualty Co. v. Reyes, and The Venture-Newberg-Perini, Stone & Webster v. Illinois Workers’ Compensation Commission and the criminal cases In re Danielle J. and People v. Brown.

CIVIL

Hooker v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

This case resolved the issue of whether annuities paid to the widows of two Chicago firemen who suffered duty-related injuries and later died should have included “duty availability pay,” which had never been received by these decedents, in the calculation of the amounts. The calculation of an annuity is to be based on “the current annual salary attached to the classified position to which the fireman was certified at the time of his death.” The court noted that the amount of the annuity does not depend on the fireman’s actual salary during his career. “Duty availability pay” is paid on a quarterly basis to all firemen, except certain employees assigned to platoon duty.

The words of the statute are controlling, and cannot be fully set out here. In broad terms, one provision states that the “salary of a fireman…shall include any duty availability pay received by the fireman.” The majority opinion by Justice Burke states that “duty availability pay is a form of compensation but it is not salary.”  The court held that “only duty availability pay received by the fireman is included” in the calculation of salary for the purpose of the annuities.

Justice Theis, joined by Justice Kilbride, dissented. The dissent emphasized that the statute provides that duty availability pay is to be part of salary “as calculated for any purpose,” and that the salary at issue for the calculation is not the widow’s husband’s salary, but rather that of a currently employed fireman.

American Access Casualty Company v. Reyes

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

It is against public policy for an automobile liability insurance policy to exclude from coverage the only named insured and owner of the insured vehicle.

American Access issued a policy to Reyes insuring her vehicle.  The policy identified Reyes as both titleholder and driver number one.  But, instead of including Reyes’ driver’s license number, the policy stated “TITLE HOLDER EXCLUDE.”  The policy listed Reyes’ friend as the primary driver.  The declarations sheet identified Reyes as named insured but noted “EXCLUDED” next to her name.  An “ENDORSEMENT EXCLUDING SPECIFIED OPERATORS,” explicitly excluded Reyes from coverage.

Reyes was driving her vehicle when she was involved in an accident.  When Reyes was sued, American Access filed a declaratory judgment action asserting that it had no duty to defend or indemnify.  The circuit court granted summary judgment for American Access.  The appellate court reversed, holding that the blanket exclusion precluding all liability coverage for the only named insured violated public policy.

The Supreme Court agreed, relying on section 7-601(a) of the Illinois Safety and Family Financial Responsibility Law (625 ILCS 5/7-601(a)).  That section requires that a liability policy insure “the person named therein and any other person using or responsible for the use of such motor vehicle…with the…permission of the insured.” The principal purpose of this mandatory insurance requirement is to protect the public by securing payment of their damages. This statute, which exists to protect the public, could not be overridden through private contractual terms. 

Justice Kilbride dissented. Among other points, he was concerned with the effect that this interpretation would have on elderly and disabled vehicle owners who were unable to drive but needed coverage for their vehicles so others could drive them. 

The Venture-New berg Perini Stone and Webster v. Illinois Workers' Compensation CommissionBy Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa In this workers compensation case, plaintiff pipefitter took a temporary job on a site 200 miles from his home.  He had had four other temporary jobs for that employer. Plaintiff was not required by his union contract to take the job. The employer did not require that plaintiff reside near the job site, and plaintiff was not reimbursed for either his travel or occupancy expenses. He and another employee shared a motel room near the jobsite. Plaintiff was injured while he was a passenger being driven to the job from the motel by the fellow employee. The arbitrator found that the employee failed to show that the injury arose out of and in the course of his employment. As the case then worked its way through the review process, the outcome changed back and forth at every level, and at each  level where there were multiple decision makers, the panels were divided, including in the Supreme Court.

The Supreme Court found that plaintiff was not entitled to compensation under either of two exceptions to the general rule that an employee is not regarded to be within the course and scope of employment while going to or coming from work. The court concluded that under these facts, plaintiff was not a traveling employee. The court also concluded that plaintiff’s travel was determined by his personal preference, rather than having been determined by the demands and exigencies of the job. Justice Kilbride dissented.

The court noted a disagreement between the parties as to the proper standard of review, but concluded that it need not resolve that dispute because plaintiff’s argument would not succeed under either standard.

CRIMINAL

In the Interest of Danielle J

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

Danielle J was charged with misdemeanor battery. Prior to trial, she rejected a plea offer of nine months of supervision.  The case proceeded to trial, and she was adjudicated delinquent. The State sought probation, and defense counsel asked the court to consider supervision.  The court stated that he could not consider supervision because of section 5-615(a) of the Juvenile Court Act, particularly the provision requiring approval by the State’s Attorney.

Section 5-615(a) provides that a juvenile may obtain a continuance under supervision “(a) upon an admission or stipulation...of the facts supporting the petition and before proceeding to adjudication, or after hearing the evidence at the trial, and (b) in the absence of objection made in open court by the minor, his or her parent, guardian, or legal custodian, the minor’s attorney or the State’s Attorney.”  The court said the only way around the statute would be to find it unconstitutional.

Defense counsel then filed a motion asking the court to grant supervision, challenging the constitutionality of the statute.  The circuit court held the “approval provision” unconstitutional – facially and as applied.  The court imposed a one-year continuance under supervision, and the State appealed directly to the Supreme Court.

The Supreme Court declined to consider the constitutionality of the statute, finding that the minor had no standing to challenge it because she was not adversely affected by it.  The Court relied on its decision in In re Veronica C., 239 Ill. 2d 134 (2010), where it held that under Section 5-615(a), the possibility of supervision must be raised before proceeding to adjudication.  Here, the minor’s counsel did not raise the question of supervision until after she had been adjudicated delinquent, and thus the minor could not receive supervision regardless of the “approval provision.”

Danielle then argued that she received ineffective assistance of counsel and suffered plain error because her attorney and the court did not understand the statute and thus failed to broach the issue of supervision at the appropriate time.  The Supreme Court agreed, holding that the failure of counsel and the court to raise supervision at an earlier stage (before an adjudication of guilt) was error which affected Danielle’s substantial rights.  The Court also stated that Danielle received ineffective assistance of counsel, that counsel’s deficient performance prejudiced her, and that the court’s error affected the fairness of the proceedings and challenged the integrity of the judicial process.

The Court concluded that the proper remedy was to vacate the disposition and remand for new first-phase proceedings, at which time the issue of supervision could be revisited.

Justice Karmeier authored a partial concurrence and partial dissent. He agreed that the circuit court erred in considering the constitutionality of the “approval provision” and that the supervision order was void and had to be vacated.  Justice Karmeier disagreed, however, with the court’s decision to find plain error and ineffective assistance of counsel and to remand the matter for new first-phase proceedings.

Justice Karmeier was particularly critical of the Court’s finding plain error under the second prong of plain-error analysis without any analysis, stating:

      the majority opinion engages in no meaningful analysis, and discusses
      no pertinent authority, before concluding that the circuit judge’s
      supposed ignorance of the procedural sequence for considering
      supervision qualifies as the rare instance of second-prong plain
      error. It just is. *** In a brief, we would not have found it
      necessary to even consider unsupported contentions such as those that
      comprise the majority’s analysis; they would have failed to comply
      with Rule 341.  Here, they constitute the opinion of the court.

Danielle J., 2013 IL 110810, ¶52 (Karmeier, J., dissenting).  Justice Karmeier also cautioned that the court’s opinion stands for the proposition that the minor was prejudiced solely by the loss of standing to challenge the statute’s constitutionality and that parties may cite this case for that proposition henceforth.

The constitutional issue that was not addressed may present itself when the case returns to the trial court for new first-phase proceedings.  If no plea agreement is reached, and if the State objects to a supervision order requested at the proper time, Danielle could properly raise a challenge to the constitutionality of the “approval provision.”  Thus, juvenile court practitioners will want to keep informed of how this case proceeds on remand.

People v. Brown

By Jay Wiegman, Office of the State Appellate Defender

Section 17-3 of the Criminal Code of 1961 incorporates and codifies all forms of forgery into a single criminal statute.  One portion of the statute defines forgery as occurring when one knowingly, with intent to defraud, "makes or alters any document apparently capable of defrauding another . . . "  720 ILCS 5/17-3(a)(1)(West 2006).  In People v. Brown, 2013 IL 114196, the Illinois Supreme Court considered whether one "makes" or alters a fraudulent document by endorsing a check, and determined that an endorsement of a counterfeit check does not, by itself, render the check capable of defrauding.

In Brown, the defendant, then a Chicago police officer, presented a check in the amount of $1 million dollars to her credit union, along with a letter -- purportedly signed by lawyers, a judge's clerk and the CEO of a corporation -- that was intended to explain that defendant was a beneficiary of the settlement of a lawsuit in which defendant's sister had been a plaintiff.  Defendant endorsed the check in her own name.  The check was counterfeit and did not make it through the clearing system. Defendant was charged with forgery by making the check, forgery by delivering the check, attempted theft by delivering the counterfeit check, three counts of
official misconduct predicated on the attempted theft and forgery charges and one count of official misconduct for violating a department rule prohibiting conduct that brings discredit upon the police department. At her Cook County bench trial, defendant testified that her mother had given her the check and had told her that it was the result of the defendant’s sister’s settlement of a lawsuit which was being passed on, in part, to the defendant. The sister already had a forgery conviction.  A police officer
testified that he was unable to find any evidence that defendant actually created either the settlement letter or check or had affixed any signatures to them, other than her endorsement.

The trial court found defendant guilty of all counts, but ultimately acquitted her of the charge of official misconduct based upon violating a department rule after the State confessed error during the hearing on the motion for new trial. Defendant was sentenced to two years' probation and ordered to serve 50 hours of community service.

The Appellate Court, First District, reversed the remaining convictions of official misconduct.  The Appellate Court also vacated defendant's conviction of forgery on one-act/one-crime principles, given that she had also been convicted of the more serious offense of attempted theft.

On appeal to the Supreme Court, defendant did not challenge her conviction of attempted theft by delivering the counterfeit check.  Her sole contention on appeal was that the evidence failed to establish that she committed the offense of forgery by making the check.

Writing for the Court, Justice Freeman first rejected the State's claim that defendant's argument was moot because the offense she challenged was a lesser offense than the one she did not challenge, and she had received a single sentence of probation.  The Court concluded that defendant had clearly been convicted of separate offenses, and that even though she had likely already served her sentence, the nullification of a conviction would have important consequences to defendant.

The Court next considered whether the endorsement of the check constituted the making of the check.  Considering its prior decisions in People v. Christion, 396 Ill. 549 (1947)[in which the Court held that a counterfeit check is capable of defrauding without being endorsed], and People v. Epping, 17 Ill.2d 557 (1959)[in which it held that a false endorsement can render an otherwise valid check capable of defrauding] together, the Brown Court held that because the instant check was counterfeit, it was capable of defrauding without defendant's endorsement; as a result, defendant's endorsement of the check, by itself, did not render the check capable of
defrauding.

The Court then quickly determined that while the State had proved that defendant delivered the check, any evidence that she made the check was "wholly absent" from the record.  Defendant's conviction for forgery by making the check was reversed, and her sentencing order was modified to reflect her sole remaining conviction of attempted theft.

Justice Thomas, wrote a special concurrence, in which he was joined by Justice Kilbride.  Justice Thomas agreed with the conclusions that defendant's challenge was not moot and that a conviction for forgery by making a check cannot rest solely on the fact that a defendant endorses a forged check.  Justice Thomas also agreed with the ultimate conclusion that defendant was not proved guilty beyond a reasonable doubt, but did so for different reasons.