Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil cases Bartlow v. Costigan and Evanston Insurance Company v. Riseborough and the criminal cases People v. Cregan and People v. Tousignant.

CIVIL

Bartlow v. Costigan

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

The Employee Classification Act (820 ILCS 185/1) was enacted to “address the practice of misclassifying employees as independent contractors” in the construction industry.  The Act broadly defines “performing services” for a construction contractor, and then states that an individual performing such services is “deemed to be an employee of the employer.” 

The Illinois Department of Labor investigated whether the plaintiff roofing and siding contractor had misclassified a number of individuals as independent contractors, and issued a preliminary determination  finding misclassification.  The contractor and individuals who had done work for him filed this case, seeking injunctive relief and a declaratory judgment.  The plaintiffs claimed numerous constitutional defects on facial challenges, including due process, bills of attainder because of the absence of a trial, equal protection, and special legislation.  During the pendency of the appeal, the Act was amended to require the Department of Labor to provide notice and to conduct formal administrative hearings subject to the Administrative Review Law.  Following oral argument in the supreme court, the court directed the parties to file supplemental briefs on whether the amended statute should be applied to this case, and if so, whether the constitutional challenges had been rendered moot.

The court agreed with the Department’s position that because this case had never advanced beyond the investigatory stage, that any enforcement against these plaintiffs must proceed in accordance with the amended statute,  which thereby rendered a number of the challenges moot. 

The court specifically found that the challenges to the enforcement procedures were moot.  The court also rejected all  the other constitutional challenges, with the greatest attention being paid to the vagueness argument.  The court found that the Act provides a person of ordinary intelligence a reasonable opportunity to understand what conduct the Act prohibits.

Evanston Insurance Company v. Riseborough

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

Attorneys may rely on the six-year statute of repose (section 13-214.3) for claims against an attorney irrespective of whether the action is brought by a nonclient or is for a claim other than legal malpractice.  Section 13-214.3 of the Code of Civil Procedure provides a six-year statute of repose for “action[s] for damages based on tort, contract, or otherwise…against an attorney arising out of an act or omission in the performance of professional services….”

This suit arose out of an underlying personal injury action filed against Kiferbaum Construction Corporation.  Riseborough represented Kiferbaum in that suit.  Kiferbaum was insured by Statewide Insurance Company and listed as an additional insured on various subcontractors’ insurance policies, including a policy issued by Evanston Insurance Company.

Because of coverage issues, when the personal injury action was settled, the various parties and insurers entered into a “Fund and Fight Agreement,” whereby they agreed to contribute their respective policy limits to fund the settlement but later litigate coverage issues. George Riseborough signed the Agreement on behalf of Kiferbaum.

Evanston later sought reimbursement from Kiferbaum under the Fund and Fight Agreement but lost when Kiferbaum convinced the court that Riseborough had lacked authority to enter into the Agreement on its behalf.  Evanston sued the attorney defendants alleging breach of implied warranty of authority and fraudulent and negligent misrepresentation based on their execution of the Fund and Fight Agreement on Kiferbaum’s behalf without its authority.

The circuit court dismissed the Evanston suit, finding that the statute of repose had expired.  The appellate court reversed and the Supreme Court reversed that judgment, affirming the circuit court’s dismissal.

The Supreme Court held that the conclusion that section 13-214.3 applies only to a claim asserted by a client is contrary to the statute’s plain language.  It is the nature of the act, not the identity of the plaintiff, that determines whether the statute of repose applies.

The Court further held that the statute neither states nor implies that it is restricted to claims for legal malpractice.  Instead, the statute broadly includes claims based on tort, contract, “or otherwise.”  

Finally, the Court rejected Evanston’s alternative theories, most of which were forfeited.  And, Evanston could not avoid the statute of repose by filing a premature complaint before its claims had accrued.

Justice Kilbride, joined by Justice Theis, dissented, finding that the statute of repose should be restricted to legal malpractice claims or to actions brought by a client of the attorney.

CRIMINAL

People v. Cregan

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

Carlos Cregan took the train to Normal, Illinois, where he was immediately arrested at the train station on an outstanding warrant for failure to pay child support. The arresting officers were members of a multijurisdictional unit focused on gangs and drug activity.  They had received a tip that defendant would be arriving by train that day.

Cregan had a “laundry bag” and a “wheeled luggage bag” in hand at the time of his arrest.  Cregan asked if his bags could be turned over to his friend who had met him at the station. That request was denied, and the bags were searched. Cregan was already in handcuffs by that time. A jar of hair gel was found in one of the bags. The police opened the jar, and inside it found a bag of cocaine.

Cregan challenged the search, and the State argued that it was a valid search incident to arrest.

At the outset, the Court disposed of the State’s forfeiture argument. Cregan had not raised the suppression issue in a post-trial motion after his stipulated bench trial. The Court reaffirmed the validity of the constitutional-issue exception to the forfeiture rule. That is, where a constitutional issue is properly raised at trial and could later be raised in a post-conviction petition, the interest of judicial economy favor addressing it on direct appeal.

The Court went on to conclude that the search of Cregan’s luggage and hair gel container was a valid search incident to arrest. The Court  acknowledged two types of searches incident – searches of the person (justified simply by virtue of the custodial arrest) and searches of the area (requiring the possibility the arrestee might gain access to a weapon
or destroy evidence to be justified). The Court concluded that the instant case involved a search of the person because Cregan’s luggage was “immediately associated” with his person, relying on People v. Hoskins, 101 Ill. 2d 209 (1984) (allowing a search of the defendant’s purse as a search of the person incident to arrest).

The meaning of “immediately associated” was considered. The Court held that items “immediately associated” with an arrestee are those items in his or her actual physical possession at the time of arrest.

The Court rejected Cregan’s argument that Hoskins was no longer good law in
light of Arizona v. Gant, 556 U.S. 332 (2009). Instead, the Court concluded that the Hoskins holding was based on United States v. Robinson, 414 U.S. 218 (1973), and was undisturbed by Gant.

Justice Burke dissented, joined by Justice Freeman. The dissent criticized the majority’s possession rule, noting it had been expressly rejected by the United States Supreme Court in U.S. v. Chadwick, 433 U.S. 1 (1977) and is actually at odds with Hoskins.  The dissent noted that no court has adopted the possession rule announced by the majority.  Finally, the rule was criticized as vague and unworkable. The dissent would have suppressed
the evidence under Gant because the State failed to show that the luggage was within reaching distance at the time it was searched.

Cregan is notable in that it creates a new “possession rule” for determining whether items may be searched incident to arrest under the search-of-the-person category where those items  are not actually on an arrestee’s person (i.e., in a pocket).  Given the criticisms launched by the dissent, future litigation of this question seems likely.

People v. Tousignant

By Jay Wiegman, Office of the State Appellate Defender

Supreme Court Rule 604(d), which governs appeals by a defendant from
a judgment entered upon a plea of guilty, requires that defendant’s
attorney file a certificate with the trial court in which counsel states,
among other things, that he has consulted with defendant and “ascertain[ed]
defendant’s contentions of error in the sentence or the entry of the plea
of guilty.”  In People v. Tousignant, 2014 IL 115329, counsel filed a
certificate in which he addressed the sentencing issue only.  In an
unpublished decision, the 4th District Appellate Court reversed.  On
appeal, the State argued that the language is disjunctive, and that because
defendant filed only a motion to reconsider his sentence, counsel need not
certify that he consulted with defendant about any contentions regarding
the entry of the plea of guilty.
    Writing for the majority, Justice Freeman rejected the State’s
argument.  Justice Freeman first noted that the word “or” is not always
disjunctive.  The majority further noted that the purpose of Rule 604(d) is
to allow the trial court to address any alleged improprieties in the guilty
plea proceedings before an appeal is taken, and that where a certification
relates only to one issue (for instance, the sentence), there is a
possibility that the defendant had contentions of error about the guilty
plea that he did not discuss with counsel.  Interpreting the word “or” as
disjunctive would frustrate the goal of ensuring that the trial court is
given an opportunity to immediately correct, before an appeal is taken, any
improprieties which might have produced the guilty plea or improperly
impacted the sentence.
    Justice Thomas concurred and suggested that the Rule should be
amended to more accurately reflect the court’s intent.
    In dissent, Justice Karmeier, joined by Justices Kilbride and Theis,
first stated that reading “or” as disjunctive squares with the plain
language of the Rule.  This interpretation is informed by the dissent’s
view that counsel’s certification obligation depends upon the type of
motion defendant files.  In other words, as stated by Justice Thomas, the
dissent argues that the scope of the consultation is determined by the
motion, whereas the majority opinion and the special concurrence indicate
that it is the consultation that determines which motion or motions should
be filed.
    Unless and until the Rule is amended, practitioners should strictly
follow Rule 604(d) by consulting with defendant regarding all possible
contentions of error defendant may have regarding both the guilty plea and
the sentence, even if defendant seeks only to challenge the sentence and
filing a certification which indicates that both subject areas were the
subject of the consultation.