Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case Michael v. Precision Alliance Group, LLC and the criminal cases People v. Jolly and People v. Simth.

CIVIL

Michael v. Precision Alliance Group, LLC

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Reversing an appellate decision entering judgment for plaintiffs in a retaliatory discharge case, the Illinois Supreme Court reinstated a judgment entered for an employer after a bench trial. The case turned on the legal standard that governs an employee’s burden of proving causation in a retaliatory discharge lawsuit. Illinois recognizes such a claim as a narrow exception to the general rule that an employer may terminate an “at-will” employee at any time, for any reason. The plaintiff in such cases must prove that the employer discharged the employee in retaliation for the employee’s activities and that the discharge violates public policy, such as when an employer fires an employee for asserting a workers’ compensation claim or for “whistleblowing,” reporting illegal or proper conduct. 

In this case, the employees contended that they were fired for whistle blowing  concerning weight labeling violations investigated by the Department of Agriculture. The employer, an agricultural supply company selling soybean seeds, convinced the trier of fact that the company fired the plaintiffs for nonpretextual reasons; one was discharged for engaging in horseplay with a forklift and two others were terminated in connection with a reduction in force. 

The supreme court found error in the appellate court’s causation analysis. The appellate court reversed the judgment for the employer based upon the finding of the trial court that a “causal nexus” existed between the fired employees’ “protected activity” – reporting underweight bags – and the termination of employment. The supreme court explained that the concept of a causal nexus, which applies in federal discrimination cases, does not establish causation in retaliation claims brought under Illinois law. If an employer presents a nonpretexual reason for firing an employee that the trier of fact believes, a plaintiff cannot meet his burden of proof for establishing causation. The supreme court also rejected the argument that more than one proximate cause may exist. That causation concept does not apply in the context of narrowly-defined claims for retaliatory discharge.

CRIMINAL

People v. Smith

By Jay Wiegman, Office of the State Appellate Defender

The Post-Conviction Hearing Act (725 ILCS 5-122-1, et seq.) provides a collateral means for a defendant to attack his judgment of conviction. Section 122-1(f) of the Act  allows for the filing of only one petition, unless leave of court is granted.   To obtain leave of court, a petitioner must demonstrate cause for his failure to bring the claim in his initial post-conviction pleadings, and resulting prejudice.  Section 122-2(f) states that a prisoner show cause by identifying an objective factor that impeded his ability to raise a specific claim earlier, and shows prejudice by demonstrating that the claim so infected the trail that the resulting conviction or sentence violated due process.

How does a successive post-conviction petitioner satisfy these provisions? Is cause and prejudice evaluated prior to the first stage of post-conviction proceedings, or in conjunction with the first stage? Does a petitioner  demonstrate cause and prejudice by pleading it or by proving it? These and other questions were raised just last year in People v. Evans, 2013 IL 113471, but the Court deferred to the Legislature for answers.

The Legislature has yet to accept the invitation issued in Evans to answer those questions, but the Court in People v. Smith, 2014 IL 115946, today shed some light on these concerns. Writing for a unanimous Court, Justice Kilbride discussed the legal requirements for demonstrating cause and prejudice, and rejected the defendant's argument that a successive petition occurs in conjunction with first-stage proceedings.  Rather, the Court concluded that this demonstration must take place prior to the first stage of the proceeding, i.e., on the pleadings. The Court further rejected the defendant's claim that leave should be granted where the pleadings make an arguable showing of cause and prejudice. Because the standard is higher here than at the first stage of an original post-conviction hearing, the Court held that the petitioner must submit enough in the way of documentation to allow a circuit court to make a determination.

Here, there was no prejudice shown, and so the issue of cause was not reached. While this defendant did not benefit from today's decision, future petitioners and counsel will benefit from the guidance provided by this Opinion.

People v. Jolly

By Jay Wiegman, Office of the State Appellate Defender

When a defendant raises post-trial claims that his attorney was ineffective, he is not automatically accorded new counsel; rather, a common law procedure has developed following People v. Krankel, 102 Ill.2d 181 (1984).  Krankel  and its progeny have established that a trial court should hold a preliminary inquiry into the factual basis of the defendant's claim that counsel was ineffective.  If the claims lack merit or pertain only to merits of trial strategy, then new counsel need not be appointed. If the allegations show possible neglect of the case, however, then new counsel should be appointed.  People v. Moore, 207 Ill.2d 68, 77-78 (2003).

The goal of a Krankel proceeding is to facilitate the trial court's full consideration of a defendant's pro se claims of ineffectiveness, thus potentially limiting issues on appeal.  People v. Patrick, 2011 IL 111666, ¶41.  At these hearings, there is generally some interchange between the trial court and trial counsel, as well as between the court and the defendant.

In People v. Jolly, 2014 IL 117142, the Supreme Court addressed whether reversible error occurs where the trial court erroneously transforms the proceeding into an adversarial evidentiary proceeding, effectively pitting the pro se defendant against both the State and his trial counsel.  In Jolly, the trial court (in a hearing following an initial remand for a Krankel hearing), the trial court allowed the defendant to explain each of his claims but prohibited him from making any argument.  The trial court permitted the State to call defense counsel as a witness, but prohibited the defendant from cross-examining him.  The State was allowed to present argument as to whether a full evidentiary hearing was necessary, as was the pro se defendant.  The State conceded that this procedure was improper, but argued that the error was harmless because a sufficient record was created for appellate review.

Justice Kilbride, writing for a unanimous Supreme Court, stated that a preliminary Krankel hearing should be neutral and nonadversarial: "Because a defendant is not appointed new counsel at the preliminary Krankel inquiry, it is critical that the State's participation at that proceeding, if any, be de minimis.  Certainly, the State should never be permitted to take an adversarial role against a pro se defendant at the preliminary Krankel  inquiry."  Jolly, 2014 IL 117142, ¶38.  The Court remanded the matter for a new preliminary Krankel inquiry without the State's adversarial participation.  Because it did so on this issue, the Court did not address the defendant's second claim, that the trial court erred by relying on matters outside the record, namely the trial judge's experience with the defendant's trial counsel in other criminal cases.

One aside from the court that will be of some note to appellate counsel regards the State's concern that the Court's determination -- that the adversarial hearing at issue in the instant case constituted reversible error -- will constitute a new type of reversible structural error.  The Court stated that the State's concern was "unfounded."  Jolly, 2014 IL 117142, ¶45.  However, the Court did not engage in any analysis of this concern, as the defendant had not raised this argument.