Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Marks v. Vanderventer, McVey v. M.L.K. Enterprises, LLC, Turcios v. The DeBruler Company and Warren County Soil and Water Conservation Dist. v. Walters and the criminal cases People v. Allen, People v. Gaytan and People v. Kuehner.

CIVIL

Marks v. Vanderventer

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth, LLC

Here the Illinois Supreme Court overturned the trial court’s rulings that held unconstitutional a $10 surcharge collected by a county recorder of deeds as set forth in the original and amended versions of state legislation primarily aimed at funding the Rental Housing Support Program, which the General Assembly created to help local governments address the shortage in the state of affordable, decent rental housing. The circuit court certified a class of plaintiffs required to pay the fee for recording real estate-related documents and a class of defendants consisting of the county recorders of deeds throughout the state.

Reversing the circuit court’s findings that the legislation violated provisions of the Illinois Constitution of 1970, the Illinois Supreme Court found that the legislation, 55 ILCS 5/3-5018, did not create an unconstitutional  “fee office,” meaning a provision that allows a local government unit to “skim off” a portion of taxes collected for another taxing body. To the contrary, the supreme court found that the General Assembly had allocated $9 of the surcharge to the state to fund the program and $1 to the county, with specific directions to the county for spending the sums collected.

In addition, the supreme court held that the class plaintiffs failed to meet their burden to prove a Uniformity Clause violation. The court further found that the legislation bore a rational relationship to the legitimate goals of providing affordable rental housing and supporting property values, and thus, rejected the due process challenge.

McVey v. M.L.K. Enterprises, LLC

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

This case involves a narrow issue but an issue that can have a broad impact on personal injury cases. At issue was whether under section 10 of the Health Care Services Lien Act, attorney fees and costs must be deducted from a verdict, judgment, award or settlement before calculating the amount available to satisfy a health care lien.

The Supreme Court held that under section 10, attorney fees and costs should not be deducted from a plaintiff’s total recovery before calculating the amount to be awarded for payment of a health care lien.

In this case, the plaintiff settled her personal injury suit with defendant for $7,500. A hospital lien was $2,891.64. Plaintiff incurred attorney fees as well as $846.66 in litigation costs to secure the settlement. Under section 10(c) of the Act, the hospital could not receive more than one-third of the verdict, or $2,500. Although the Court’s holding resulted in the plaintiff recovering only $2,750 of the total settlement the Court held that there is no language in section 10 that allows for any deduction.

Turcios v. The DeBruler Company

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth, LLC

In this case the Illinois Supreme Court applied the general rule that suicide is unforeseeable, as a matter of law, to uphold the dismissal on the pleadings of plaintiff’s wrongful death and survival claims. The plaintiff sought damages  against her former landlord on the theory that the landlord’s intentional misconduct drove her husband to suicide.

The plaintiff alleged intentional infliction of emotional distress, among other claims, against the landlord’s agent – that, 10 days into a lease of an apartment in Park City, Illinois, the landlord gave 30-days notice of eviction. Advising that the building was scheduled for demolition, the landlord’s agents allegedly pressured the plaintiff and her husband, who did not speak English, to vacate the premises. The court noted some concessions by the landlord, such as the offer of a payment of $ 2000 to move, and, subsequently, the option of moving to another unit. The plaintiff and her husband contended that management could not unilaterally terminate the lease and that the defendant was discriminating against the couple and misleading them to convince them to leave. The family remained in the unit after demolition of the building began. The plaintiff’s husband allegedly told his wife that he could no longer tolerate the situation and, the next day, committed suicide.

The supreme court recognized the general rule applicable in negligence actions that a voluntary action of suicide is an independent, intervening action that breaks the causal chain. Plaintiff urged the court to adopt a different approach. She argued that, if a defendant intends to harm the plaintiff, the defendant may be liable for all consequences, including suicide, whether or not foreseeable, so long as the defendant’s conduct substantially contributed to cause the harm.

The supreme court rejected the plaintiff’s argument. The court discussed its prior decision in Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33 (1994), a fraud case, in which the court applied the proximate cause concept of foreseeability in an action against an intentional tortfeasor. Finding no basis to limit the Heinold analysis to fraud cases, the court held that a plaintiff seeking to recover damages for wrongful death based on a claim of intentional infliction of emotional distress must demonstrate not only cause in fact, but also legal cause.  Here, plaintiff had to allege facts establishing that the suicide was foreseeable, a likely result of the defendant’s conduct. That standard was not met in this case.

Warren County Soil and Water Conservation District v. Walters

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

This case establishes that the circuit court may consider equity when ruling on a petition for relief from a final judgment under section 2-1401 of the Code of Civil Procedure where a factual challenge is raised.  Specifically at issue here was whether equity could relax the due diligence standards.

Litigators should note that the case contains a lengthy discussion of the history of section 2-1401 and the differences between legal and factual challenges to the judgment under that section.

CRIMINAL

People v. Gaytan

By Jay Wiegman, Office of the State Appellate Defender

In People v. Gaytan, 2015 IL 116223, officers saw a purple Lincoln Mark V, which stood out because of its color and large tires.  The officers followed the vehicle but were not able to read the license plate because, the officers maintained, their view of the plate was obstructed by the ball of a trailer hitch, in violation of 625 ILCS 5/3-413(b) (West 2010).  At the time of defendant’s arrest, section 3-413(b) stated: “(b) Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than 5 inches from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained in a condition to be clearly legible, free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers.” 625 ILCS 5/3-413(b) (West 2010).

The officers stopped the car, and when a window was rolled down, the officers detected an odor of cannabis.  A search of the car revealed a bag containing cannabis, which the driver said belonged to the passenger, Gaytan. Gaytan was arrested a charged with unlawful possession of cannabis with the intent to deliver.

The defendant filed a motion to suppress.  He contended that section 3-413(b) of the Vehicle Code did not prohibit the trailer hitch, and that the officers therefore lacked reasonable articulable suspicion to believe that an offense was being committed; as a result, the defendant contended that the stop was an invalid seizure and that the cannabis had to be suppressed. After a hearing, the McClean County circuit court denied the motion to suppress.  The circuit court concluded that, although the defendant presented a picture that showed the view of the plate was not obstructed, the officers' view of at least one of the numbers on the plate may have been obstructed, and thus they had reasonable grounds to stop the car. The defendant was convicted following a stipulated bench trial.

The Appellate Court, Fourth Judicial District reversed. The Appellate Court determined that section 3-413(b) prohibits only objects that obstruct the registration plate's visibility and are connected or attached to the plate itself, such as a license plate cover.  The Illinois Supreme Court granted the State's petition for leave to appeal.

Writing for a unanimous Court, Justice Burke first found that the statute is ambiguous and that the statutory language, itself, does not provide sufficient guidance to clarify whether the purpose of the statute is, as defendant argued, only to regulate how a plate must be attached to a vehicle and how the plate must be maintained, or whether, as the State contended, the purpose of the statute is to ensure complete visibility of the license plate at all times, when viewed from any angle or distance. Because the Court found section 3-431(b) to be ambiguous, it invoked the rule of lenity, and held that section 3-413(b) prohibits only those objects that obstruct the visibility and legibility of the license plate which are physically connected or attached to the plate itself.  The Court also invited the Legislature to revisit the statute.

The Court then addressed the State's argument that the traffic stop was valid even if 3-413(b) does not prohibit trailer hitches, because the officers' understanding of section 3-413(b) was an objectively reasonable mistake.  The Court readily determined that because its own analysis revealed the statute to be ambiguous, it was objectively reasonable for the officers to have believed that the trailer hitch violated section 3-413(b). Under Heien v. North Carolina, 574 U.S. ____ (2014), decided after the Appellate Court issued its opinion in the instant case, the Court held that the officer's objectively reasonable mistake of law provided the reasonable suspicion needed to justify the traffic stop in the instant case.  The Illinois Supreme Court reversed the Appellate Court's judgment and affirmed the circuit court's denial of the defendant's motion to suppress.

Hopefully, the General Assembly will accept the Court's invitation and act to clarify the intent of section 3-413(b).  Even if it does not, today's decision means that a trailer hitch may no longer be considered to violate section 3-413(b).  In the meantime, news reports indicate that today will be the busiest travel day of the last ten years, with much of the travel occurring by car.  In the event that Gaytan has not yet been read by all patrol officers, unless you need a trailer hitch to haul a boat for the weekend, it might be a good idea to remove the ball from your hitch.

People v. Kuehner

By Jay Wiegman, Office of the State Appellate Defender

The Post-Conviction Hearing Act provides a three-stage procedure for adjudications of post-conviction petitions.  725 ILCS 5/122-1, et seq. (West 2010).  At the first stage, the circuit court must review the petition within 90 days. A pro se post-conviction petition may only be summarily dismissed at the first stage if the trial court determines that the petition is frivolous or patently without merit.  If the circuit court does not rule on the petition within 30 days, or if the circuit court finds that the petition is not frivolous or patently without merit, then the petition is advanced to the second stage; it is docketed for further proceedings and counsel is appointed to represent the petitioner.

In 2004, the Illinois Supreme Court, the Illinois Supreme Court held that appointed counsel may withdraw if he or she determines that a defendant's petition is frivolous or patently without merit and that the attorney's ethical obligations therefore prohibit him or her from continuing representation.  People v. Greer, 212 Ill.2d 192 (2004).  Since Greer, there has been a split among the Appellate Court.  Some panels interpret Greer to require that appointed counsel address each of the defendant's claims and provide at least some explanation as to why each of those claims is frivolous or patently without merit, while other panels have concluded that an appointed counsel's motion to withdraw is properly granted whenever the record affirmatively shows both that counsel in fact complied with Rule 651(c) and that the defendant's claims are in fact frivolous or without merit.  Notably, the petition in Greerwas advanced to the second stage by default; the trial court failed to rule on the pro se petition within 90 days of its filing.

Today, the Supreme Court considered what is required of appointed counsel who seeks to withdraw where the matter was advanced to the second stage because the circuit court ruled that the petition was not frivolous or patently without merit.  People v. Kuehner, 2015 IL 117695.  Writing for a unanimous Court, Justice Thomas noted that where a post-conviction petition advances to the second stage for reasons other than procedural default, appointed counsel faces decidedly greater burdens and obligations than those faced by Greer's counsel.  This is because the trial court had already decided that the petition was not frivolous or patently without merit.  As a result, appointed counsel who seeks to withdraw, must demonstrate why the trial court's initial assessment was incorrect with regard to each of the defendant's pro se claims.  As stated by the Court:
"if we were willing to say in Greer that a motion to withdraw should include such explanations when the petition advances to stage two by default, we are now prepared to say that such a motion must include such explanations when the petition advances to the second stage by affirmative judicial action."  Kuehner, 2015 IL 117695 ¶21.  Because appointed counsel failed to meet this standard, the Supreme Court reversed the judgments of the appellate court and the circuit below and remanded for further proceedings.

While today's opinion leaves unsettled the split among the Appellate Court regarding withdrawal of counsel from petitions that were advance to the second stage by default, today's opinion provides straightforward guidance for those seeking to withdraw where the petition advances to the second stage on the basis of an affirmative judicial determination by the circuit court.

People v. Allen

By Jay Wiegman, Office of the State Appellate Defender

The Post-Conviction Hearing Act provides defendants with a procedure to collaterally attack constitutional errors regarding their conviction or sentence.  725 ILCS 5/122-1 et seq. At the first stage, the judge must liberally construe the allegations in favor of the petitioner and take all facts stated in the petition as true unless positively rebutted by the record.  A petitioner need only provide a limited amount of detail, and, during first-stage proceedings, does not need to include a claim in its entirety.  Under this deferential review, a petition is sufficient to proceed to the second stage of post-conviction proceedings if any allegation constitutes a gist of a constitutional claim.  A petitioner demonstrates the gist of a constitutional claim so long as he includes enough facts to demonstrate an arguable claim of constitutional error that is not frivolous or patently without merit.  A claim is frivolous or patently without merit if it is based on an indisputably meritless legal theory or fanciful or delusional factual allegations. This low standard reflects the reality that pro se petitioners may be unable to state their claims with legal precision. On review from a summary dismissal, the issue is merely whether any of the allegations in the petition are sufficient to state the gist of a constitutional claim. If so, the entire petition must proceed to the second stage.

A petitioner must attach affidavits, records or other evidence supporting the petition's allegations or explain why such evidence is not attached.  In People v. Allen, 2015 IL 113135, the Supreme Court considered whether lack of notarization of a petition's supporting evidence, identified as an affidavit, renders the petition frivolous or patently without merit, and thus requires dismissal at the first stage.  In Allen, the defendant filed a pro se post-conviction petition, to which he attached an unnotarized "affidavit."  The statement was purportedly written by a person who said that he - not the defendant - had committed the murder of which the defendant had been convicted, and said that the defendant had not been involved in the murder.  The State argued that the lack of notarization rendered the affidavit a nullity.

Writing for a five-person majority, Chief Justice Garman determined that the lack of notarization did not interfere with the circuit court's ability to determine if the petition, taken as true at the first stage, set forth a constitutional claim for relief or destroy the ability to show that the petition's allegations are capable of independent corroboration, or leave the petition without an arguable basis in law or fact.  The Court thus held that the circuit court may not dismiss at the first stage solely for failure to notarize a statement styled an evidentiary affidavit.

Justice Thomas dissented, and was joined by Justice Karmeier.  The dissent concluded that the petition failed to comply with the Post-conviction Hearing Act requirement  that affidavits or other evidence be attached to a petition.  The dissent also expressed concern that today's decision would open the floodgates and overwhelm circuit courts with frivolous second-stage proceedings.