Quick takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil case Bettis v. Marsaglia and the criminal cases People v. Belknap and People v. Stevens.
CIVIL
Bettis v. Marsaglia
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Interpreting a provision of the Election Code and resolving a split among appellate districts, the Illinois Supreme Court found that a petitioner seeking judicial review of an electoral board’s denial of a request to submit a public question for referendum satisfied the statutory service requirement. The Election Code, 10 ILCS 5/10-10.1(a) (West 2012), provides that a candidate or objector seeking judicial review of an electoral board’s decision must serve a copy of the petition upon the electoral board. The petitioner, Carolyn Bettis, wished to challenge a resolution of the Macoupin, Montgomery and Sangamon counties’ school district to issue working cash bonds in the amount of $2,000,000. Bettis petitioned the local election board to place the issue on the ballot for an April 9, 2013 election. When the board sustained the objections of two individuals to Bettis’ request, she sought judicial review and served a petition on all of the members of the electoral board at their homes, but did not serve the board as a separate entity.
Before considering the jurisdictional question, the supreme court found that two of the three issues raised in the appeal could be considered even though the election date had passed and the questions generally would be considered moot. The public interest exception to the doctrine saved the service issue and an issue raised by the objectors in a cross appeal, whether the petition should have been dismissed because Bettis did not name the electoral board as a party to the petition for circuit court review. The court classified a third issue - whether the petition should have been dismissed because it was not numbered or securely bound – as moot, because it presented only a case specific fact question.
On the merits, the court began its analysis by observing that a court has jurisdiction over election cases only when the legislature confers jurisdiction. A party seeking to invoke such special statutory jurisdiction must strictly adhere to the procedure established by the General Assembly. In this instance, the court determined that section 10-10.1(a) did not clearly state how the electoral board had to be served. Ultimately, the court determined that service on the individual board members constituted service on the electoral board; separate service on the entity would be duplicative, in the court’s view. in reaching its decision, the court noted the statutorily-defined membership of the board and importance of providing the public with ballot access.
The supreme court also rejected the objectors’ argument that the dismissal should be affirmed based on Bettis’ failure to name the electoral board or its members and failed to attach to the petition a copy of the electoral board’s decision. The court reasoned that the statute did not contain these requirements.
The court reversed the appellate court’s judgment dismissing the appeal, but did not remand the case to the circuit court for consideration of the petition on the merits, as Bettis requested. The only remaining question had been mooted by the passage of the one and only election Bettis had specified in her petition.
Justice Mary Jane Theis dissented. Finding no lack of clarity in the statute, Justice Theis would have affirmed the dismissal of the appeal for lack of jurisdiction, because Bettis failed to serve the electoral board.
CRIMINAL
People v. Belknap
By Kerry J. Bryson, Office of the State Appellate Defender
Daniel Belknap was charged with murder in the death of his girlfriend’s six-year-old daughter. Belknap was convicted of murder, had his conviction reversed and remanded for a new trial due to the trial court’s failure to comply with Supreme Court Rule 431(b), was again convicted at a second trial, and appealed from that conviction alleging, among other things, that the trial court again failed to comply with Rule 431(b) because the court had not asked jurors whether they “understood” the Rule 431(b) principles.
The appellate court found error under Rule 431(b), and further found that it amounted to first-prong plain error in that the evidence at trial was closely balanced. There had been no objection by defense counsel, and the error was not included in the post-trial motion.
The State conceded the 431(b) error before the Supreme Court. The State challenged the appellate court’s finding that the evidence was closely balanced, however, and the Supreme Court agreed that it was not a close case. In doing so, the Court noted that the parties agreed that “a commonsense, contextual analysis” is required in analyzing the closeness of the evidence.
Here, while there were no eyewitnesses to the crime, the evidence showed that only three people (including Belknap) could have been responsible for the child’s death, Belknap’s behavior and statements after the incident were found to be circumstantial evidence of his guilt, and two jailhouse informants testified that Belknap made incriminating statements to them.
Thus, the Court found the evidence not closely balanced.
Writing a special concurrence which was joined by Justice Freeman, Justice Burke noted her belief that Rule 431(b) issues should be reviewed under second-prong plain error, that is, they should be reviewed to determine whether the unasked question was necessary to ensure a fair jury, a question which is not dependent on the strength of the trial evidence.
Justice Burke noted, however, that her position had been rejected by the court in People v. Thompson, 238 Ill. 2d 598 (2010), and that Thompson is the controlling law on the issue.
Because the evidence was not close, the Supreme Court did not reach the State’s argument that in a closely-balanced plain error analysis, there must be a further showing that the specific error itself likely had some impact on the jury’s verdict. That question remains an open one and is likely to present itself in some future case.
People v. Stevens
By Kerry J. Bryson, Office of the State Appellate Defender
Mark Stevens was charged with aggravated criminal sexual assault against B.P. Prior to trial, the State sought, and was granted, permission to admit evidence of a sexual assault by Stevens against R.G., an incident for which a charge against him was pending but had not yet proceeded to trial. The State sought to admit the evidence both as propensity evidence under Section 115-7.3 and as evidence of motive, intent, identity, common plan or design, modus operandi, or lack of consent.
At trial, both B.P. and R.G. testified about their encounters with Stevens. Stevens also testified, but his testimony on direct examination was limited to the allegations involving B.P., and Stevens claimed their encounter was consensual.
On cross-examination, the State asked Stevens about R.G., and defense counsel objected arguing that the questioning was beyond the scope of the direct examination and violated Stevens’s fifth amendment right against self-incrimination. The trial court overruled the objection and allowed the State’s inquiry. The appellate court affirmed the trial court.
In a unanimous opinion, the Supreme Court found that Stevens’s fifth amendment right was not violated by the State’s cross-examination because Stevens opened himself up to “legitimate cross-examination” when he testified. Legitimate cross-examination includes “all circumstances within the knowledge of the witness which explain, qualify, discredit or destroy his direct testimony.” Because Stevens’s direct testimony put the issue of consent and his credibility in question, cross-examination about the R.G. incident was permissible. While Stevens had not testified about the R.G. allegations on direct examination, it cast doubt on his consent defense and affected his credibility and thus was a proper subject for cross-examination. Under these circumstances, Stevens was “not compelled to give evidence against himself within the meaning of the fifth amendment.”