Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases In re Marrige of Mueller and Hadley v. Subscriber Doe and the criminal case People v. Downs.

CIVIL

In re Marriage of Mueller

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

This case addresses the intersection of the Social Security Act and the Illinois Marriage and Dissolution of Marriage Act in the context of arriving at a fair division of marital property. Section 503 of the Dissolution Act broadly defines martial property to include pension benefits from contributions made during the marriage. 750 ILCS 5/503(a) (West 2012). Section  407 of the Social Security Act makes Social Security benefits untouchable in a state court’s division of marital property.  42 U.S.C. Sec. 407(a) (2000).

An issue arises where, as here, one of two divorcing spouses expects to receive Social Security benefits  (Shelley) and the other spouse, who contributes to a municipal pension fund,  neither pays Social Security tax nor will receive such benefits (Christopher). Acknowledging a nationwide split of authority, the court held that, unlike pension benefits, a spouse’s Social Security benefits may not be used to offset an award under the state dissolution statute, as the court had held in a 2004 decision, but also may not be factored into a circuit court’s division of marital property. The court found that Christopher proposed a valuation method that, while not “strictly speaking” an offset, considered the existence of Shelley’s expected Social Security benefits in a way that would increase his share. Thus the benefits affected Christopher’s proposed marital property division.

In addition to violating the central holding of In re Crook, 211 Ill. 2d 437, 452 (2004), the court found other grounds to invalidate Christopher’s proposed valuation. The Dissolution Act classifies pension benefits as marital property to the extent of contributions made during the marriage, but Social Security benefits do not fall within the statutory definition.  Moreover, the court found that attributing a dollar value to social security benefits, and even the receipt of them, would involve speculation. A participant might die before reaching the age of collecting the benefits, and the amount cannot be calculated until the spouse actually collects the payments.  

Observing the presumption against preemption in the area of domestic relations law, given that dissolution proceedings are traditionally in the purview of the state, Justice Burke, joined by Justice Karmeier, dissented. In Justice Burke’s view, the federal prohibition against dividing Shelley’s Social Security benefits was not affected by Christopher’s proposal. Consistent with federal law, only the pension, and not the Social Security benefits, actually would be divided. Justice Burke concluded that taking into account a spouse’s eligibility for such benefits merely permits a court to reach an equitable property division, as state law requires.

Hadley v. Subscriber Doe aka Fuboy

By Michael T. Reagan, Law Office of Michael T. Reagan

In a case as topical as today, in Hadley v. Subscriber Doe, a/k/a Fuboy, Whose Legal Name Is Unknown, the court took up an issue of internet anonymity which has been percolating through various districts of the appellate court for several years.  In affirming the appellate opinion written by Justice Jorgensen for a divided appellate court, the court decided questions arising from this defamation plaintiff’s effort to discover the identity of an anonymous internet poster.  The court held that Supreme Court Rule 224’s requirement of “necessity” of discovery to obtain the real identity of an internet poster is satisfied if the defamation complaint is sufficient to withstand a § 2-615 motion to dismiss. 

In the words of the appellate opinion, the controversy arises because a court must balance the potential plaintiff’s right to redress for unprotected defamatory language against the danger of setting a standard for disclosure that is so low that it effectively chills the right to speak anonymously in public discourse.  The holding of the court is that requiring the plaintiff’s claim to be pled sufficiently to withstand a § 2-615 motion to dismiss strikes that appropriate balance.  A competing rule would have required that the plaintiff be able to satisfy the standard for summary judgment.

The court decided a number of entwined issues.  The factual setting here is that the anonymous poster Fuboy posted a comment stating that “Hadley is a Sandusky waiting to be exposed.  Check out the view he has of Empire (Elementary School) from his front door.”  The case, after a preliminary excursion through federal court against the newspaper, was filed in the circuit court against Subscriber Doe, a/k/a Fuboy.  By subpoena issued to Comcast, and a subsequent order, Comcast was ordered to notify its subscriber of the subpoena, and the subscriber was then given 21 days to contest.  An attorney for the subscriber then entered the case.

The circuit court advised the parties that using SCR 224 would be a more appropriate procedure to follow.  The parties complied, although the vehicle chosen by plaintiff was a two-count complaint alleging the substantive cause of action for defamation in Count I and naming Comcast as a respondent pursuant to SCR 224 in Count II.  The court held that even though SCR 224 contemplates a stand-alone action, the conjoined filing  here did not render that request for relief invalid.

The naming of Fuboy as a defendant was held to be sufficient to escape the rule that suit against a fictitious name is generally regarded to be a nullity for purposes of the statute of limitations.  This complaint was filed against a real person, “using a validly adopted alias chosen by the defendant.”

In concluding that the defamation claim was sufficient to withstand a motion to dismiss, the court rejected the argument that it is not a crime to have the last name Sandusky.  As the appellate court did, the supreme court took judicial notice of the well-known facts concerning the Sandusky abuse scandal at Penn State in finding that criminal activity had been alleged.  The statement was not protected by the innocent construction rule.

The appellate opinion contains an interesting exchange between the majority and the dissent concerning the source of appellate jurisdiction from a SCR 224 order.

CRIMINAL

People v. Downs

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

During deliberations at Mark Downs’s jury trial for first degree murder, the jury sent out a question asking the court: “What is your definition of reasonable doubt, 80%, 70%, 60%?”  The parties agreed that no definition could be given, and the court responded to the jury, “We cannot give you a definition[;] it is your duty to define.”

On appeal, defendant argued that the court’s response was error.  The appellate court agreed, but the Supreme Court did not.

The Court cited the long-standing principle in Illinois that “neither the trial court nor counsel should define reasonable doubt for the jury.”  The Court concluded that the judge’s response to the jurors (“it is your duty to define”) was consistent with that principle, resolving a split in recent appellate court case law over whether similar statements were proper.

The Court rejected the defense argument that the propriety of the judge’s response was impacted by nature of the jury’s question as to the percentage equivalent for the reasonable doubt standard.  The Supreme Court re-affirmed that it is best to refrain from defining reasonable doubt, which is what the trial court did here.  The Court expressly stated, “The circuit court’s response to the jury’s question in this case was correct.”

One side note is that the defense had to argue plain error because the issue had not been fully preserved below.  The Supreme Court agreed that consideration of this sort of issue was appropriate under Supreme Court Rule 451(c) which provides that “substantial defects” in criminal jury instructions are not waived by failure to make a timely objection if the interests of justice require.  Rule 451(c) is construed identically to plain error under Supreme Court Rule 615(a).