Our panel of leading appellate attorneys reviews the opinions handed down Thursday, May 23, 2024, by the Illinois Supreme Court. 

Shawnee Community Unit School District No. 84 v. Illinois Property Tax Appeal Board2024 IL 128731

By Amelia Buragas, Illinois State University 

The issue before the supreme court in this case was straightforward: Whether a taxpayer must pay disputed property taxes as a condition precedent to pursuing an appeal before the Property Tax Appeal Board (PTAB) under section 16-160 of the Property Tax Code. Of course, straightforward does not always mean simple as demonstrated by the court's detailed opinion and accompanying dissent.

The legal dispute arose after Grand Tower Energy Center, LLC, the owner of a power plant located along the Mississippi River in Jackson County, Illinois, appealed from the assessment of its property tax value to the Jackson County Board of Review. The board of review reduced the assessed value of the property from approximately $33.4 million to $31.5 million. Dissatisfied with this outcome, Grand Tower filed an appeal to the PTAB seeking a further reduction of the final assessment imposed by the board of review. Shawnee Community Unit School District No. 84, which receives funding from property taxes generated in Jackson County, was granted leave to intervene in the appeal.

While the appeal was pending, the property taxes came due and Grand Tower did not pay them. As a result, the county collector applied to the circuit court for a judgment and order of sale for delinquent taxes, which the circuit court granted. The county collector held a tax sale and an unrelated third party purchased Grand Tower’s tax debt. The school district then filed a motion before the PTAB seeking dismissal of Grand Tower’s appeal, arguing that Grand Tower was required to pay the property taxes under protest before it could pursue an appeal and, since it had not done so, its appeal should be dismissed. The school district also argued that once the county collector made the application for judgment and sale, the circuit court acquired jurisdiction over the taxes and all supplemental matters, which divested the PTAB of jurisdiction to consider the appeal. PTAB denied the school district’s motion to dismiss.

Grand Tower subsequently filed additional challenges to the assessed value of the subject property. PTAB consolidated the appeals and issued a lengthy written decision in which it found that Grand Tower had proved the county over-taxed the property and reduced the assessed value of the property by almost 90 percent to $3.3 million. The school district appealed the PTAB decision directly to the appellate court. The appellate court affirmed the decision of the PTAB, finding that the payment of contested taxes was not a condition precedent to pursuing an appeal before the PTAB and that the tax sale proceedings did not divest the PTAB of jurisdiction to review the property tax assessments. The supreme court allowed the school district’s petition for leave to appeal.

The Illinois Supreme Court affirmed in an opinion authored by Justice Cunningham and joined by Justices Theis, Overstreet, Rochford, and O’Brien. The Court noted that the PTAB is a state agency created to review taxpayer challenges to property tax assessments imposed by local boards of review. The statutory provisions governing the administration of the PTAB are set forth in article 16 of the Property Tax Code. The Supreme Court focused its analysis on section 16-160 of the Code and concluded that “[n]othing in section 16-160 states that a taxpayer is required to pay the disputed property taxes in order to pursue an appeal of an assessment before the PTAB.” The Court observed that section 16-160 simply requires that the taxpayer file a petition with the clerk of the PTAB within 30 days of the local review board’s decision on an assessment. The Court explained that this 30-day filing deadline was “significant” because assessment decisions are made well in advance of the extension of the tax. Thus, the 30-day deadline means that “in almost every instance,” the notice of appeal must be filed before an actual tax payment is due. The Court found further support for this conclusion in section 16-185 of the Code, which states if an assessment is altered by the PTAB, taxes must be abated and “if already paid” must be refunded. The Court noted that the inclusion of the phrase “if already paid” in section 16-185 “shows conclusively that payment of the disputed property taxes is not required to pursue an appeal before the PTAB,” reasoning that if payment were required there would be no need to include that language. 

The school district had argued that the Illinois Supreme Court should reach a different conclusion by looking to section 23-5 of the code, which governs the filing of tax complaints in the circuit court. The filing of a complaint under section 23-5 of the code requires that the taxpayer pay the disputed taxes “under protest” as a condition precedent to filing the complaint. The Illinois Supreme Court rejected the argument that the provisions of section 23-5 also applied to appeals brought before the PTAB. The Court noted that looking at the organizational structure of the code, it creates two methods for challenging an assessment, each with its own set of procedures and, in the absence of contrary language, “there is no reason to presume the legislature intended that a statutory provision governing one should apply to the other.” The Supreme Court similarly rejected the school district’s argument that the tax sale proceedings divested the PTAB of jurisdiction over the matter, noting that the argument found no support in the language of the code and that the “legislature knows how to divest the PTAB of jurisdiction.”

The dissenting opinion, authored by Justice Neville and joined by Justice Holder White, approached the matter from a different direction and, consequently, would have come to a different outcome. The dissent explained that when the circuit court entered a default judgment adopting the Jackson County board of review’s finding regarding the amount of property taxes due that default judgment became a final judgment after 30 days and that res judicata barred a second assessment by the PTAB of the amount of taxes due. The dissent argued that by misconstruing the effect of the circuit court’s default judgment “the majority’s decision permits an administrative agency to contradict the circuit court’s order.” The dissent asserted that by reaching a contrary result, the majority misconstrued the Property Tax Code, ignored or misinterpreted relevant precedent, and “destabilizes funding for Illinois Counties.”

Kuhn v. Owners Insurance Co.2024 IL 129895

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

This opinion deals with the extant stack of cases interpreting anti-stacking clauses and declaration pages relating to policy limits in insurance policies. Justice Rochford’s opinion for a unanimous court comprehensively discusses the numerous opinions of the Supreme and appellate courts extending over many years, to at least Bruder v Country Mutual Insurance Co., 156 Ill. 2d 179 (1993). That effort was arduous, involving as it does variations in the language of each anti-stacking clause, the layout of the multiple declaration pages in a number of the cases, the specific type of coverage at issue, and evaluation of whether statements in the opinions were holdings or dicta.

Here, one of the plaintiffs in this declaratory judgment action was the driver of a school bus conveying a high school girls basketball team. An oncoming semitruck crossed the median of the roadway, striking the school bus head on. The plaintiffs, and other potential claimants who had been joined in the suit, sought a declaration that the $1 million liability limits in the policy covering the semitruck, which also covered six other vehicles, could be stacked, such that $7 million in liability coverage would be afforded, rather than $1 million. The circuit court, in a 73 page order, found the policy to be ambiguous and that therefore stacking should be allowed. The appellate court reversed, holding that the  anti-stacking clause was unambiguous, and that when read together with the declarations and other policy provisions, was to be enforced as written. The Illinois Supreme Court affirmed the appellate court. “[I]t is clear that the limits may not be aggregated. In other words, the insurance policy as a whole is subject to only one reasonable interpretation, which unambiguously provides a $1 million per accident liability limit and prohibits stacking...”

The language of the anti-stacking clause and of the other policy provisions, as well as the layout of the declaration pages, cannot be meaningfully described in this summary. Suffice it to say that this opinion is now a primary resource for handling this type of case. This opinion discusses the treatment of what has been termed the “Bruder dicta” in various prior opinions. The Court stated that it has “repeatedly emphasized there is no ‘per se rule that an insurance policy will be deemed ambiguous as to the limits of liability anytime the limits are noted more than once on the declarations.’” The Court noted, but did not have reason to decide, the insurer’s argument that “unlike uninsured- and underinsured-motorist coverage, liability insurance by its nature cannot be stacked.”

Colorfully, the Court quoted from Hobbs v Hartford Ins. Co., 214 Ill.2d 11 (2005), which had in turn borrowed from the Seventh Circuit, that “We will not...torture ordinary words until they confess to ambiguity.”

Tri-Plex Technical Services, Ltd. v. Jon-Don, LLC2024 IL 129183

By Joanne R. Driscoll, Forde & O’Meara LLP

This appeal answers questions of whether a party has standing to bring a consumer fraud action against a business competitor for false advertising to non-party customers and whether a private party can bring claims of deceptive trade practices and consumer fraud for the selling of a product that fails to comply with Illinois environmental regulations.
 
The plaintiff develops, manufactures, distributes, and sells commercial-grade carpet cleaning products to carpet cleaning companies. The defendants either develop, manufacture, distribute, and/or sell the same products. Plaintiff’s complaint, brought pursuant to the Illinois Uniform Deceptive Trade Practices Act (Deceptive Trade Practices Act) (815 ILCS 510/1 et seq. (West 2020)) and the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2020)), alleged that defendants’ labeling failed to disclose (a) excessive amounts of phosphorous, in violation of the Regulation of Phosphorus in Detergents Act (Detergents Act) (415 ILCS 92/5 (West 2020)) and (b) excessive amounts of volatile organic material, in violation of an environmental regulation promulgated by the Pollution Control Board (35 Ill. Adm. Code 223.205(a)(17)(B) (2012)), both of which rendered the sale of defendants’ products illegal. Plaintiff brought a separate count against certain defendants alleging that they conspired to develop and sell carpet cleaning products that violated Illinois environmental laws.
 
Plaintiff’s consumer fraud count specifically alleged that defendants willfully omitted material to create “ ‘a likelihood of confusion or misunderstanding’ ” among carpet cleaning companies. This conduct caused an inability of plaintiff to compete because those companies “ ‘prefer and purchase [the defendants’] products because they contain [phosphorus] and clean better, albeit illegally.’ ” Plaintiff sought (a) to enjoin the defendants from distributing or selling their products in Illinois; (b) an award of actual damages, reasonable attorney fees, and costs; (c) an assessment of punitive damages against the defendants for their willful violations of Illinois law; and (d) for any other appropriate relief.
 
Defendants moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2020)) and pursuant to section 2-619 of the Code (id. § 2-619) for lack of standing. The circuit court granted dismissal under section 2-615, holding that plaintiff could not use the Deceptive Trade Practices Act and the Consumer Fraud Act as a “ ‘back door method’ ” to bring an otherwise impermissible private cause of action against the defendants for violation of the State’s environmental laws. The circuit court also found that plaintiff lacked standing to bring its Consumer Fraud Act claims because, under the consumer nexus test, plaintiff was not a purchaser or consumer of defendants’ products and the defendants’ conduct was directed toward commercial carpet cleaning companies and not consumers. The civil conspiracy count was dismissed because it was based on the same conduct. 
 
The appellate court reversed, holding that violations of environmental laws could be used to support consumer fraud and deceptive practices claims of unfair competition and unfair practices. As to standing, that court held that the Consumer Fraud Act was not limited to consumers and the plaintiff satisfied the consumer nexus test because it alleged that the defendants directed deceptive practices toward consumers and created an anticompetitive effect on the market. 
 
In a unanimous decision authored by Justice Cunningham, the Court reversed the appellate court and affirmed the circuit court’s dismissals but on other grounds. Section 45(b) of the Detergents Act allows for private parties adversely affected by violations of the Act or its regulations to sue for injunctive relief in the circuit court but only after seeking an administrative remedy before the Pollution Control Board. Here, plaintiffs did not seek that remedy first.
 
The Court also affirmed the circuit court’s dismissal of plaintiff’s consumer fraud claims, again on different grounds, namely that plaintiff failed to satisfy the proximate causation requirement. Plaintiff did not allege that it saw or heard the deceptive statements and relied on them. Rather, plaintiff alleged that the defendants intended for the carpet cleaning companies to rely on the alleged deceptive statements, and plaintiff conceded that it was not the purchaser or consumer of defendants’ products. 
 
Addressing the lower courts’ application of the consumer-nexus test, the Court noted that the test effectively excused a plaintiff from satisfying the proximate cause element. The Court noted that the consumer nexus test, first espoused in Brody v. Finch University of Health Sciences/The Chicago Medical School, 298 Ill. App. 3d 146 (1998), is only applicable to consumer fraud claims involving breach of contract or other commercial transactions between the parties. The Court then overruled those cases that applied the consumer nexus test outside of that context, such as Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 190 Ill. App. 3d 524, 534 (1989). Citing Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 149 (2002), the Court held that Section 10a(a) of the Consumer Fraud Act (815 ILCS 505/10a(a) (West 2020)) imposes a proximate causation requirement upon all plaintiffs, including businesses. 
 
Plaintiff’s inability to plead that it was the intended recipient of the defendants’ alleged deceptions doomed its Consumer Fraud Act claim; and plaintiff’s failure to state an independent cause of action underlying its conspiracy claim domed that claim as well. 

Rice v. Marathon Petroleum Corp.2024 IL 129628

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC 

The Illinois Supreme Court here addressed whether an Illinois environmental statute regulating underground storage tanks provided a private right of action for a woman injured when a gas station’s underground tank leaked gasoline that allegedly ignited an explosion at the woman’s condominium. The plaintiff contended that an interconnected Illinois statutory scheme, including the core provisions enacted consistent with federal requirements, either expressly or impliedly authorizes a private right of action for injured parties. The Supreme Court disagreed and upheld the lower court’s decisions to limit the plaintiff to common law negligence theories.
 
According to the amended complaint, the owners, operators and a manager of a Speedway gas station stored gasoline in a leaking underground storage tank. Plaintiff Laura Rice, proceeding with the litigation after the death of the injured woman, Margaret Rice, asserted that the Speedway station was connected to DuPage County storm sewer and sanitary sewer systems identified as pathways that could be adversely affected by a petroleum release from the gas station’s underground tank system, which included six underground storage tanks and ancillary equipment. Beginning on October 5, 2017, highwater warnings were triggered, prompting monitoring and maintenance that included pumping thousands of gallons of water from the problematic tank. Recordings of the tank gauge system showed a dramatic increase of the tank’s water level between October 9 and October 15 of that year, which indicated release or displacement of gasoline into the surrounding area, including the through the soil to the sanitary sewer system. The gasoline and its vapors migrated in the direction of Ms. Rice’s Willowbrook condominium, about 1.5 miles from the Speedway station. On October 19, a “lower explosive limit” of vapors was detected in basement apartments of an apartment building near Ms. Rice’s condominium. Doing laundry that day, Ms. Rice activated her clothes dryer. A spark from the dryer ignited gasoline vapors causing an explosion that threw Ms. Rice into the hallway. She sustained serious burns and other injuries. Before the explosion, the Village of Willowbrook attributed the vapors to gasoline released from the Speedway station and reported the finding to the fire department.
 
Three of the counts of the amended complaint sought recovery in strict liability under Title XVI of the state’s Environmental Protection Act (the Act), called “Petroleum Underground Storage Tanks,” 415 ILCS 5/57 to 57.19 (West 2018), which includes provisions for punitive damages. The defendants argued those counts duplicated the Attorney General’s action against one of the defendants, Speedway LLC, for air and water pollution. The action resulted in a consent order requiring the company to pay a civil penalty and perform correction/compliance activities. The trial court dismissed the Rice plaintiff’s counts for claims under the Act on the basis that she lacked standing to assert a private right of action, a ruling that the appellate court ultimately affirmed.
 
The Illinois Supreme Court began its analysis by recounting the origins of the Act and related environmental and statutory regulations. The Court traced Title XVI of the Act to federal legislation, the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6901 et seq. (2018). The Court explained that Title XVI implements what is called the LUST Program (the Leaking Underground Storage Tank Program), designed to adopt and oversee procedures for remediating underground storage tanks, to establish requirements for owners and operator of tanks, including imposing financial responsibility for remediation required for leaking underground tanks, and to audit and approve corrective action. The Court also noted that certain provisions of the Gasoline Storage Act, 430 ILCS 15/0.01 et seq. (West 2018), regulate underground petroleum storage tanks by outlawing conduct that jeopardizes life or property in the storage of petroleum or gasoline, imposing requirements for financial responsibility, and compensating third parties for bodily injury and property damage.
 
Plaintiff argued that the LUST Program, the Gasoline Storage Act, and the RCRA combined to establish an integrated regulatory scheme governing underground storage tanks in Illinois. Pointing to the RCRA’s express provision for a private right of action, plaintiff urged the Supreme Court to recognize that a private right of action similarly is included under the LUST Program of the Act. The Supreme Court rejected plaintiff’s argument as to the existence of an express private right of action under the Act. Quoting Black Law Dictionary’s definition of “express,” the Court held that the absence of clear and unmistakable language in the LUST Program provisions conferring on parties injured by leaking understand storage tanks the right to seek the remedies there articulated dispensed with plaintiff’s argument. 
 
The Supreme Court also declined to take the “extraordinary step” of concluding that the LUST Program implies a private right of action for third parties like Ms. Rice. Applying the multifactorial test for determining that a private right of action is needed to further the purpose of the statute, and that, as a practical matter, it would be ineffective in the absence of permitting private lawsuits under the LUST Program, the Court reviewed the Lust Program and its regulations. The Court found that the legislature intended the Act as a whole and the LUST Program in particular not to provide a cause of action for personal injuries but instead to protect resources. While acknowledging that plaintiff, as a member of the general public, benefits from the protections afforded by the legislation, the Court found that individuals with personal injury claims are not the class the General Assembly primarily intended to benefit. The Court was not convinced by plaintiff’s argument that the legislature’s inclusion in the LUST Program provisions a strict liability standard and an indemnification provision did not require private action to effectuate the statutory provisions. The Court concluded that plaintiff’s common-law negligence claims, encompassing the same actions and omissions allegedly violating the LUST Program of the Act, provide her with a sufficient remedy; thus, in the Court’s view, plaintiff did not establish a “clear need” for a private statutory action. 

People v. Shunick2024 IL 129244

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

The question before the Illinois Supreme Court in Shunick arose in the context of post-conviction proceedings, but the ultimate holding will have broader application. Char Shunick filed a post-conviction petition which was summarily dismissed on the bases of frivolousness and waiver. Shunick then filed an unsuccessful motion to reconsider the dismissal, followed by a notice of appeal. 

Ultimately, the appellate court concluded that it lacked jurisdiction and declined to consider the merits of the case. The appellate court’s decision was based on the fact that Shunick’s motion to reconsider was file-stamped by the clerk’s office more than 30 days after the date of the order dismissing the post-conviction petition. Accordingly, it did not toll the time for filing a notice of appeal, and thus the notice was also untimely. 

The issue then was whether Shunick’s motion to reconsider was timely-filed under the mailbox rule. Pursuant to Illinois Supreme Court Rule 373, the mailbox rule provides that where a filing is received after the due date, “the time of mailing by an incarcerated, self-represented litigant shall be deemed the time of filing.” The rule goes on to provide that “[p]roof of mailing shall be as provided in Rule 12.” Rule 12(b)(6) governs proof of mailing by an incarcerated, pro se litigant, and provides that such proof shall be “by certification under section 1-109 of the Code of Civil Procedure [735 ILCS 5/1-109] of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” And section 1-109 requires a pro se litigant to swear under penalty of perjury “that the statements set forth in this instrument are true and correct.”

With regard to Shunick’s certificate of service here, the appellate court found it defective in two ways. First, it contained no language resembling that prescribed by section 1-109 where it was not sworn under penalty of perjury. Second, it failed to provide the address to which the motion was to be delivered, stating only that it was being sent to the “Clerk of the Circuit Court of Knox County.” The Illinois Supreme Court agreed that these deficiencies were fatal.

Tracking through the applicable rules, the Court noted that the plain language of Rule 373 requires compliance with Rule 12, and the portion of Rule 12 which applies here – subsection (b)(6) – requires certification under section 1-109 which in turn expressly requires a verification under penalty of perjury. While a proof of service need only substantially comply with the applicable rules, Shunick’s certificate fell short of even substantial compliance based on the defects noted by the appellate court. 

Given that the purpose of section 1-109 is to provide a certification equivalent to one sworn under oath, “a certificate lacking language that the statements set forth in the document are ‘true and correct’ and ‘under penalty of perjury’ or ‘[u]nder penalties as provided by law pursuant to Section 1-109'” will not suffice. And, the Court declined to look beyond the four corners of the certificate to determine the address to which the motion was mailed where Shunick failed to include any address in the certificate itself. Finally, Shunick’s status as a pro se litigant did not excuse his failure to comply as he is presumed to have knowledge of the applicable rules and procedures, and the Court declined to remand for Shunick to cure the jurisdictional defect by supplying a compliant certificate, overruling People v. Cooper, 2021 IL App (1st) 190022, in the process.    

As noted at the outset, this case arose in the context of a post-conviction petition, but the analysis and holding here is not limited to that context. Rather, it will have application in all sorts of cases where compliance with the mailbox rule is at issue.

People v. Joiner2024 IL 129784

By Jay Wiegman, Assistant Appellate Defender

The Post-Conviction Hearing Act provides a three stage procedure for defendants to collaterally challenge their convictions as unconstitutional. 720 ILCS 5/122-1, et seq. Once a defendant’s post-conviction petition is filed and docketed, the circuit court must examine the petition and either advance it to the second stage or dismiss it as frivolous or patently without merit within 90 days, or the petition advances by default to second-stage proceedings. In part because the Act does not define the term “docketing,” the Illinois Supreme Court in People v. Joiner, 2024 IL 129784 considered whether the term means more than the simple act of receiving a petition or whether the word “docket” refers to the date that the cause was entered on the circuit court’s docket for further proceedings. In Joiner, the defendant, through counsel, initially submitted a post-conviction petition but did not then pay the filing fee for approximately one more month. The circuit court dismissed the petition as frivolous or patently without merit 117 days after the first “filing,” but less than 90 days after the second filing. The trial court also found that defendant forfeited any claims that trial counsel provided ineffective assistance by failing to raise those claims on appeal, and that his actual innocence claim failed because it was not newly discovered, material, or of such conclusive character it would lead to a different result on retrial. The appellate court, with one justice dissenting, affirmed.

Writing for a unanimous Illinois Supreme Court, Chief Justice Theis determined that the instant petition was docketed on the second date, at which time counsel filed the petition and paid the required fee, in part because local circuit court rules tied the filing of petitions to the payment of the fee and because holding to the contrary would “produce the absurd and unintended result of encouraging postconviction petitioners to neither pay the required filing fee nor seek a fee waiver when appropriate. The fee requirement would be rendered meaningless if a petitioner could ignore it and still compel the circuit court to either adjudicate his or her petition within 90 days or be required to advance it to the second stage.” The Court noted that defendant’s retained counsel paid the fee, and that indigent defendants could seek a fee waiver.

The Illinois Supreme Court also found that Joiner was not arguably prejudiced by counsel’s failure to call two particular, potential witnesses, because one was only able to provide a partial alibi for defendant on the day of the offense, and the other did not witness the offense. Based on the strength of the victims’ identification of defendant as the offender, the Court could not say that the proposed testimony would arguably have changed the outcome of the trial.