Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil cases Sandholm v. Kuecker and Powell v. Dean Foods Company and criminal cases People v. Adams, People v. Gutierrez, People v. Washington and People v. Rinehart.

CIVIL

Sandholm v. Kuecker

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

Justice Burke's opinion for a unanimous court in Sandholm v. Kuecker constitutes a sweeping and much needed fundamental explanation of the Citizen Participation Act, 735 ILCS 110/1 et seq.  That statute is equally well-known as the anti-SLAPP statute, which provides special procedural and appellate protections designed to protect parties against "strategic lawsuits against public participation."  The opinion provides a useful service in documenting the origin and national history of anti-SLAPP legislation, down to the creation of the acronym by two professors in a law review article in 1992.
 
Plaintiff was the embattled basketball coach and athletic director at Dixon High School.  The defendants, in varying capacities, engaged in allegedly defamatory and tortious acts in seeking to have plaintiff removed from his posts.  The plaintiff filed this action for defamation, false light invasion of privacy, conspiracy to interfere with prospective business advantage, and other theories.  The circuit court dismissed, based upon the Act, awarded certain defense fees, and the appellate court affirmed. The Supreme Court reversed both lower courts.  
 
Justice cannot be done to the full scope of the court's reasoning in this brief note.  The court engaged in statutory construction, while cognizant of the need to balance between protecting citizen participation yet not imposing a counteractive chilling effect on a plaintiff's right to seek redress for injuries suffered.  "SLAPPs are, by definition, meritless."  "It is clear from the express language of the Act that it was not intended to protect those who commit tortious acts and then seek refuge in the immunity conferred by the statute."  The court held that the Act did not impose a qualified privilege on defamation which might take place within the process of petitioning the government.

Powell v. Dean Foods Company

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

This procedurally complicated case resulted in a straight-forward ruling from the Supreme Court.  Co-parties do not have standing to challenge the ruling on another party’s motion for substitution of judge.

In this personal injury case, the plaintiffs sued various defendants, including two “Alco” defendants and defendant Alder Group.  One of the Alco defendants took a substitution of judge as of right, pursuant to section 2-1001 of the Code of Civil Procedure.  The second Alco defendant then took a substitution of judge.  The plaintiffs sought reconsideration, contending that the two Alco defendants were merely alternative names for the same entity and not entitled to separate motions for substitution.  The attorney for the Alco defendants conceded such and agreed that the order of substitution should be vacated, which it was.  Thereafter, the Alder Group defendant filed a motion for substitution of judge before the judge who ruled on the motion to reconsider.  That motion was denied because the court held that it had ruled on a “substantial issue” in the case, thereby precluding a substitution as of right.  

The case proceeded to trial at which multi-million-dollar verdicts were entered for the plaintiffs.  The defendants appealed.  They contended that the order denying Alder Group’s motion for substitution was erroneous because the uncontested ruling on the motion to reconsider was procedural only and did not involve a “substantial issue.”  They further argued that all subsequent orders in the case, including the jury verdicts and judgment, were void as to all defendants.  The Appellate Court agreed and vacated the judgment and remanded.

While the case was pending in the Supreme Court, the plaintiffs moved to dismiss the Alder Group defendant with prejudice.  The Supreme Court first granted that motion.  It then held that the remaining defendants did not have standing to challenge the denial of Alder Group’s motion for substitution.  Accordingly, it vacated the Appellate Court decision.  (However, it remanded to the Appellate Court to address certain other issues that the court had declined to consider given its ruling on the substitution issue.)

CRIMINAL

People v. Adams

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

At his trial for unlawful possession of a controlled substance, Adams defended on the theory that the cocaine at issue was already present on the ground in the parking lot where he was arrested. The police, however, testified that the cocaine had been found in Adams’s front pocket. Adams was convicted.

On appeal, Adams claimed error in the prosecutor’s closing argument comments that the police officers would not risk their credibility, reputations, jobs, and freedom by lying on the witness stand. Adams argued that those remarks were improper speculation because there was no evidence presented at trial of any potential consequences to the officers for giving false testimony.

The Supreme Court resolved a split of authority on the subject of whether such commentary is proper, holding that the remarks were impermissible speculation as there was no evidence from which it could be inferred that the officers would risk their careers by testifying falsely.

Adams was not granted a new trial, however, because the error had not been preserved with a simultaneous objection and inclusion in a post-trial motion and because the Court concluded that Adams had not met either prong of plain error review. The evidence was not closely balanced where Adams’s version of events was “highly improbable,” and the error did not rise to
the level of seriousness necessary to establish that it affected the fairness of defendant’s trial.

Notably, the Court declined to reach the State’s request to abandon the closely-balanced-evidence prong of plain error review in cases alleging prosecutorial misconduct in closing argument because Adams had not satisfied that prong. The viability of the closely-balanced-evidence prong in such cases remains for another day.

This decision demonstrates the importance of thoroughly preserving issues for appellate review.  Further, although denying relief, the Court cautioned that the comments “were improper and are to be avoided in the future.”

People v. Gutierrez

By Jay Weigman, Office of the State Appellate Defender

725 ILCS 5/113-3.1 provides that a trial court may order a defendant, for whom the court has appointed counsel, to pay a reasonable sum to reimburse the county for that representation. Before issuing such an order, the trial court must first, no later than 90 days after imposing sentence, conduct a hearing  to determine an appropriate amount based on the defendant's financial circumstances. In People v. Gutierrez, 2012 IL 111590, the defendant appealed after the Lake County circuit clerk assessed a $250 public defender reimbursement fee. Defendant requested that the fee simply be vacated. The Appellate Court, Second District, vacated the fee because there had been no hearing, but remanded the matter to the trial court for hearing on the matter, in reliance upon People v. Schneider, 403 Ill.App.3d 301 (2010), in which the Second District stated that it was bound by  People v. Love, 177 Ill. 2d 550 (1997), in which the Supreme Court had similarly vacated a fee imposed without hearing and then remanded the matter to the trial court for hearing. People v. Gutierrez, 405 Ill.App.3d 1000 (2d Dist. 2010).

Gutierrez appealed this decision to the Illinois Supreme Court, arguing that a hearing on remand was impermissible because the plain language of 113-3.1 requires that a hearing be held within 90 days of a final order disposing of the case at the trial level. Defendant suggested that after considering whether a section 113-3.1 hearing was mandatory or discretionary, whether the posting of a cash bail bond obviates the need for such a hearing and whether any error in the imposition of a public defender could be waived, the Love Court simply overlooked the fact that the specified time period had elapsed. The Illinois Supreme Court cautioned that, although the appellate court has routinely remanded cases for a hearing when defendant has not been provided -- and has generally cited Love for the proposition that remanding is the proper course -- Love should not be read as deciding the issue either way because the timeliness issue was not raised in that case. Indeed, defendant in Love specifically asked the Supreme Court to affirm the appellate court's judgment, which vacated the fee and remanded for a hearing.

Ultimately, the Supreme Court determined that it need not resolve whether Section 113-3.1(a)'s 90-day time limit was mandatory or, as urged by the State, directory.  Instead, Justice Thomas, writing for a unanimous Court, relied primarily on a concession made by the State during oral argument: that neither the State nor the trial court had sought the fee, as required by the statute. Therefore the clerk's improperly assessed fee should have been vacated outright. In conclusion, the Court admonished the circuit clerks in general, and the Lake County circuit clerk in particular, that they may not impose public defender fees on their own. Thus, the primary lesson to be gleaned from this case is not had by counsel so much as it is by the circuit clerks.

People v. Washington

By Jay Weigman, Office of the State Appellate Defender

More than 30 years ago, the Illinois Supreme Court held that where the evidence in a first degree murder case supports a self-defense instruction, it will also support a voluntary manslaughter instruction. People v. Lockett, 82 Ill.2d 546 (1980).  In reaching this conclusion, the Court in Lockett stated that the judge's duty is to determine if any evidence is presented that the defendant had a subjective belief that the use of force was necessary, while the determination of whether the defendant's subjective belief is reasonable is for the jury to make. The Lockett Court stated that it could "conceive of no circumstance when a judge could determine, as a matter of law, that a jury could find the defendant had a reasonable subjective belief the killing was justified, but that the jury could not find the defendant's subjective belief was unreasonable."  Nonetheless, the trial court in People v. Washington, 2012 IL 110283, despite accepting a self-defense instruction tendered by the defendant, refused an instruction concerning second degree murder. The Appellate Court, First District, found that the trial court abused its discretion, reversed the judgment against defendant and remanded for a new trial. After granting the State's petition for leave to appeal, the Illinois Supreme Court, in a unanimous opinion, affirmed.

In Washington, a crowd gathered at the scene of a car accident. Several members of the drivers' extended families, including defendant, were present. Eventually, a verbal altercation ensued and defendant fired several shots, wounding one relative of the other driver and killing  another. The State tried defendant on two counts of first degree murder and one count of aggravated battery with a firearm. Defendant presented the testimony of several witness, including his own testimony, in support of his claim of self-defense. At the jury instructions conference, the trial court granted defendant's request that a self-defense instruction be given, but his request for second degree murder was denied. The trial court reasoned that a self-defense instruction was proper because defendant testified that he saw one of the victims with a weapon and, rather than be shot, shot him. With respect to the denied instruction, the trial court relied upon People v. Anderson, 266 Ill.App.3d 947 (1st Dist. 1994), for the proposition that a question must exist as to whether a defendant's subjective belief is reasonable in order for an instruction regarding second degree murder to be given. The trial court continued, stating that there was not even a scintilla of evidence that there was an unreasonable belief or serious provocation.

Defendant appealed, and the Appellate Court, First District, reversed. The Appellate Court held that, under Lockett, if there is any evidence supporting a self-defense instruction, an instruction on the lesser offense of second degree murder must also be given.  As a result, the Appellate Court held the trial court abused its discretion when it refused defendant's tendered instruction on second degree murder.  The Appellate Court termed Anderson an "aberration" from the established line of cases that followed Lockett. The Appellate Court disagreed with Anderson that Lockett should be limited to where the defendant's subjective belief is actively in question. Rather, the trier of fact could conclude that defendant: 1) was justified and therefore not guilty; (2) had an unreasonable belief in the need to act and guilty of second degree murder; or (3) acted without justification and was guilty of first degree murder.

In a comprehensive review of Lockett and its progeny, Justice Garman, writing for the Court, agreed.  The Court rejected the State's argument that Lockett was not intended to set forth a mandatory requirement and noted that the Supreme Court has consistently followed the holding of Lockett, citing People v. O'Neal, 104 Ill. 2d 399 (1984), and People v. Jeffries, 164 Ill.2d 104 (1995).  The Court concluded that Jeffries "supports the holding of Lockett that if there is evidence in the record to support the giving of an instruction on self-defense, that same evidence will also support the giving of a second degree murder instruction and such an instruction should be given."  Indeed, the court noted that "when the trial court gives an instruction on the justifiable use of force, the court has determined that the record contains evidence of the defendant's subjective belief that the use of force was necessary to defend himself." Importantly, this is true even if inconsistencies exist in the defendant's testimony, as the determination of whether the defendant had a subjective, albeit unreasonable, belief in the necessity for the use of force in self-defense is a question of fact for the jury to determine.

Finally, the Court determined that the error was not a structural one which would automatically call for reversal. But, because the testimony was conflicting, neither was it harmless in the sense that the Supreme Court could not say that trial result would not have been different if the jury had been properly instructed.

People v. Rinehart

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

Rinehart was convicted of criminal sexual assault.  The Court granted the State’s petition for leave to appeal to address the question of whether section 5-8-1(d)(4) of the Unified Code of Corrections requires the trial court to set a determinate MSR term in the 3-years-to-life range or whether the statute sets an indeterminate term for certain offenses. On cross-appeal, Rinehart raised an issue concerning certain questions posed by the State during jury voir dire.

Noting that the voir dire issue could result in a new trial if successful, the Court addressed it first. Rinehart complained that the State’s questions to certain jurors asked them to prejudge the complainant’s credibility and predisposed them to believe her testimony. The questions at issue concerned whether prospective jurors could think of a reason why a victim might delay in reporting a sexual assault or might not immediately come forward. The Supreme Court concluded that the questions were not improper, although “the subject could have been raised more artfully.”

As for the MSR term, the Court looked to the statutory scheme as a whole and determined that the legislature intended that an indeterminate MSR term of 3-years-to-life apply for the specified convictions. The Court specifically cited the provision for individuals serving an extended MSR term under section 5-8-1(d)(4) to request discharge from MSR by petitioning the Prisoner Review Board [730 ILCS 5/3-14-2.5].

Section 3-14-2.5 requires specialized training for officers supervising individuals on extended terms of MSR for sex offenses, mandatory progress repots evern 180 days, and the recommendation of a supervising officer before an individual may petition for release from MSR. Application and interpretation of those provisions is almost certain to come before the court in future cases.