Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil case Gillespie Community Unit School District No. 7 v. Wight & Co. and the criminal cases People v. Elliott, People v. Hommerson and People v. McChriston.

CIVIL

Gillespie Community Unit School District No. 7 v. Wight & Co.

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

The Illinois Supreme Court applied a five-year statute of limitations to bar a school district’s lawsuit alleging that an architect’s misrepresentations resulted in the district’s decision to build an elementary school that was condemned less than seven years after it was built. A history of coal mining activity in the Benld/Gillespie area of the state prompted the plaintiff, Gillespie Community Unit School District No. 7, to contract with  defendant, Wight & Company, to perform, among other architectural services, a “site mine investigation” before determining to go forward with the project. Based on the analysis provided regarding the risk of mine “subsidence,” that is, collapse, the school district went ahead at the site selected. Unfortunately, in March, 2009, a coal mine subsided beneath the new building, which was severely damaged.

The school district sued Wight in August, 2009, nearly seven years after completion of the building in the fall of 2002. Among other claims, the school district alleged that Wight had withheld documents showing a high risk of subsidence at the site, which, if known, would have led the district to build elsewhere. Wight won summary judgment based on the statutes of limitation applicable to the school district’s professional negligence, breach of implied warranty and fraudulent misrepresentation claims. Before reaching the supreme court, the school district attempted but failed to avoid a provision of the contract establishing the date of “substantial completion” of the project as the accrual date for the limitations clock. The lower courts held the school district to its written agreement to replace the date of discovery of the cause of action with the date of substantial completion of the work as the statutes’ trigger.

In the supreme court the school district only contested the application of the five-year catch-all statute of limitations in 735 ILCS 5/13-205 (West 2010) to its fraudulent concealment claim. It contended that a provision in the construction statute of limitations, 735 ILCS 5/13-214(e) (West 2010), excepted construction based fraudulent misrepresentation claims from any statute of limitations.

The supreme court rejected this argument. It reasoned that the cited provision, which states that the “limitations of this Section shall not apply to causes of action arising out of fraudulent misrepresentation or to fraudulent concealment cause of action” only excluded the time limits of that statute – it did not mean that no limitations applied to fraud claims.

In concluding its analysis, the court hinted that the record suggested a perhaps more provocative issue: the enforceability of the accrual provision of the contract for fraud claims. This issue, the court observed, had not been addressed by the appellate or supreme court. Because the school district abandoned the argument at an early stage of the case in the trial court, however, the supreme court left the question for another day.

CRIMINAL

People v. Elliott

By Jay Wiegman, Office of the State Appellate Defender

Can you be found guilty of driving on a suspended license if the suspension is rescinded after you are stopped and charged with driving on a suspended license? In People v. Elliott, 2014 IL 115308, a unanimous Supreme Court answered in the affirmative.

The defendant in Elliott was given notice of the summary suspension of his driver's license following his arrest for DUI.  He filed a petition to rescind the summary suspension. A few days before the his petition was considered, defendant was stopped and charged with driving on a suspended license. Just a few days later, the Secretary of State entered a notice and order of suspension, and the statutory summary suspension was removed from his driving record.

The Jackson County circuit court denied defendant's motion to dismiss, which argued that the citation for driving while license suspended had no valid legal basis because the court had rescinded the statutory summary suspension upon which the driving while license suspended citation was based. Defendant was found guilty following a bench trial and appealed.

The Fifth District Appellate Court reversed. The Appellate Court determined that the act of rescinding is not simply to terminate but rather treated the suspension as if it had never happened. The Appellate Court therefore reversed the Appellate Court and vacated defendant's conviction. The State's petition for leave to appeal was granted.

Writing for the Court, Justice Thomas stated that the issue was whether the subsequent order of rescission renders that charge invalid.  The Court's goal, as is always the case in matters of statutory construction, is to ascertain the Legislature's intent in using the term "rescind." Unfortunately, "rescind" is not defined separately within the Illinois
Vehicle Code, as many terms are.  Further complicating matters, Justice Thomas observed that the term does not have a singular "commonly understood" meaning. Indeed, the Legislature has been inconsistent with its use of the term "rescind,", sometimes indicating a retroactive meaning and sometimes indicating only a prospective meaning.

The Court thus considered which of the two meanings -- retroactive or prospective -- best comported with the public policy that informs the summary suspension statute. The Court determined that a prospective-only reading of "rescind" best comports with the public policy behind the summary suspension statute, best fits with other provisions of the Code,
preserves the long-standing presumption that the Legislature did not intend an absurd result, and is consistent with the Court's characterization of the statutory summary suspension scheme in prior decisions. As a result, the judgment of the Appellate Court was reversed and the judgment of the circuit court was affirmed.

People v. Hommerson

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

In a unanimous decision, the Court settled the question of whether a post-conviction petition is subject to summary dismissal at the first stage of proceedings solely on the basis that the petitioner has not included a verification affidavit with the filing.  It is not.

Section 122-1(b) of the Post-Conviction Hearing Act provides that a the "proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit."  Section 122-2.1(a) of the Act allows for summary dismissal of a petition only if it is deemed "frivolous and patently without merit."  The Court concluded that allowing summary dismissal for the lack of a verification affidavit -- a matter of procedural compliance -- would conflict with the Court's prior holdings that courts should consider a petition's "substantive virtue" at the first stage. Ultimately, the State may object to the lack of a verification affidavit in a motion to dismiss if the petition survives to the second stage of proceedings.

The Court also noted that its decision is consistent with the legislature's intent to provide incarcerated individuals with a means of asserting that their convictions resulted from a substantial denial of their constitutional rights.

In reality, the vast majority of post-conviction petitions are filed pro se by incarcerated individuals. Those individuals may not know of the affidavit requirement of the Act or may find themselves unable to obtain notary service at the institution.  This decision insures that those procedural barriers will not lead to summary dismissal of a non-frivolous petition.  If a petition survives first-stage review, thereby entitling a petitioner to appointed counsel, then appointed counsel should be sure to check whether a proper verification affidavit was filed with the petition. If it was not, counsel can take steps to obtain such an affidavit and file it with an amended petition in order to avoid dismissal on that basis on the State's motion.

People v. McChriston

By Jay Wiegman, Office of the State Appellate Defender

In 2004, the Code of Corrections stated that "every sentence shall include as though written therein a term in addition to the term of imprisonment." 730 ILCS 5/5-8-1(d)(West 2004). When Billy McChriston was sentenced in 2004, mandatory supervised release was not discussed, and the sentencing order did not refer to it. The Department of Corrections added a three-year term of MSR to McChriston's sentence, however. In 2011, McChriston filed a pro se petition for relief from judgment pursuant to Section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West 2010). In his petition, he alleged that the addition of the MSR term by the DOC violated his constitutional rights to due process and the separation of powers clause of the Illinois Constitution. The Circuit Court of Champaign County dismissed McChriston's petition. The Appellate Court, Fourth District, affirmed in a Rule 23 Order, and the Supreme Court granted defendant's petition for leave to appeal.

A unanimous Illinois Supreme Court affirmed. People v. McChriston, 2014 IL 115310. Considering the plain language of the statute in effect at the time McChriston was sentenced, Chief Justice Garman, writing for the Court, stated that "the sentencing order entered by the trial court included a term of MSR even if the court did not mention the MSR term at the sentencing hearing or in the sentencing order." McChriston, 2014 IL 115310, par. 17. And although Section 5-8-1(d)(1) was amended in 2011 and now states that "the parole or mandatory supervised release term shall be written as part of the sentencing order," the Court concluded that this was of no benefit to McChriston because the plain language of the statute in effect at his sentencing provided that MSR was included automatically in the sentence, even if it were not specifically included. Therefore, the separation of powers doctrine was not violated as the DOC did not add anything to defendant's sentence.

The Court also rejected defendant's Due Process claims. In doing so, the Court distinguished cases in which the trial court had discretionary power, and an administrator (such as the clerk or the DOC) amended the judgment, because MSR is not subject to the trial court's discretion.