Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Bowman v. Ottney and Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board and the criminal cases People v. Hughes, People v. Burns and In re Michael D.

Note: The authors of the summaries and the staff of Illinois Lawyer Now wish to honor the memory of Hon. Jean Prendergast Rooney, who passed away on December 8, 2015, and was a valuable original member of this team before becoming Circuit Judge. She is greatly missed.

CIVIL

Bowman v. Ottney

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

When a judge has made a ruling on a substantial issue in a case, followed by a voluntary dismissal without prejudice pursuant to 735 ILCS 5/2-1009, a party may not move for substitution of judge when the subsequently refiled case is assigned to the judge who presided in the first case. In Bowman v. Ottney, the judge ruled on substantial issues, such as the scope of discovery. Thereafter, plaintiff voluntarily dismissed her complaint and timely refiled her action. The refiled case was assigned to the original judge, and plaintiff immediately moved for substitution of judge pursuant to 735 ILCS 5/2-1001. Defendant objected, asserting that plaintiff had “tested the waters” during the first case. The circuit court denied the substitution of judge but certified the issue under SCR 308.

A divided appellate court affirmed the circuit court, on the basis of the “test the waters” doctrine, which permits the denial of a substitution before substantial rulings have been made if the movant has been able to form an opinion as to the court’s disposition toward the case. The dissenting appellate justice regarded the “test the waters” doctrine as having been discredited and rejected.

The supreme court affirmed the circuit and appellate courts on the basis of statutory interpretation. The court rejected plaintiff’s argument that the phrase “in the case” in § 2-1001, which provides for substitution as of right, refers only to the new case currently before the court.  Defendant responded that that statute must be construed to allow a court to consider the overall controversy between the parties.  Justice Freeman traced the history of statutes relating to substitution of judge, concluding that the legislative purpose underlying the statutes has always been to prevent forum shopping. The court rejected the relevancy of cases such as Dubina v. Mesirow Realty, 178 Ill.2d 496 (1997) which hold that refiled cases are new and separate actions for other purposes.  Rather, the court focused its interpretive efforts on the specific statutes before the court.  

On a number of occasions in recent years, there has been disagreement between a majority and a dissent as to whether the court should reach particular briefed issues. So too, here, on whether the court should  decide the continued validity of the “test the waters” doctrine, which had been briefed by the parties. The majority held that it need not reach that doctrine, and that it was not explicitly implicated in the certified SCR 308 question.

Justice Kilbride, in dissent, contended both that the “test the waters” issue should be reached and rejected,  and that  “in the case” refers only to the refiled case, thus validating the motion made here.

Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

In this case, the Chicago Board of Education clashed with the Chicago Teacher’s Union over the school board’s implementation of a policy giving certain probationary teachers – those who have been nonrenewed twice or who have received an unsatisfactory performance rating -- a “do not hire” (“DNH”) designation in their personnel files. The union presented four grievances to the school board relating to this policy. Three of the grievances sought relief for individual teachers, either to be restored to their positions or to allow application for a position. The fourth grievance requested changes in the policy, such as ceasing the practice of placing the DNH designation in the files of teachers whose terminations were not for cause and providing notice to the union and to DNH-designated teachers. Contending that the grievances pertained to hiring decisions exclusively within the board’s discretion, not to matters for arbitration, the school board refused the union’s request to arbitrate. The union responded by filing an unfair labor practice charge with the Illinois Educational Labor Relations Board. The union argued that the school board was statutorily bound to arbitrate the disputes. The labor board agreed and ordered the school board to arbitrate the grievances. On review, a divided appellate court reversed the labor board’s decision.

The supreme court first addressed the important question of what standard of review the court should apply to the decision of the labor board. After a lengthy discussion, the court determined that it should assess whether the labor board’s decision was clearly erroneous, meaning whether, upon review, the court had the “definite and firm conviction” that the administrative agency had made a mistake.

The court then addressed whether the school board was within its rights to refuse to arbitrate. Observing that not all union-school board disagreements must be arbitrated, the court observed that, under the Illinois Educational Labor Relations Act, a school district may refuse to arbitrate a grievance if the collective bargaining agreement does not encompass the substance of the dispute, or if the subject matter of the dispute conflicts with Illinois law. In this instance, the court found that the agreement, while broadly defining arbitrable grievances, did not encompass the grievances here, which the court categorized as the union’s attempt to force the school board to hire probationary teachers. The agreement did require the school board to arbitrate disputes relating to the board’s ability to initiate employment. In any event, the court found, such a provision in a collective bargaining agreement would violate Illinois law; the General Assembly has prohibited parties to a collective bargaining process to require bargaining over “matters of inherent managerial policy.”  115 ILCS 5/4.  Based on this reasoning, the supreme court ruled that the labor board clearly had erred in ordering the school board to arbitrate.

Justice Kilbride dissented. Characterizing the grievance as seeking basic protection for teachers with respect to placement of DNH information in their files, the dissenting justice found language in the agreement that encompassed the grievances. In Justice Kilbride’s view, the grievances pertained to procedural requirements; thus, the demand for arbitration did not interfere with hiring decisions within the  school board’s exclusive managerial province.  

CRIMINAL

People v. Hughes

By Jay Wiegman, Office of the State Appellate Defender

Elijah Coleman was shot to death in the doorway of his home during a home invasion robbery attempt in 2005. One of the alleged assailants was shot to the death the next day.  Cavinaugh Hughes was arrested in Michigan nearly one year later. Chicago police detectives drove to Michigan in a rented car and returned the defendant to Chicago in the early afternoon. By 5 a.m. the next morning, the defendant gave a statement in which he admitted to shooting both men.

Hughes filed a motion to suppress all statements he made to police following his arrest. Although the defendant's motion was rather broad and general, his arguments in support of the motion were that the police questioned him without the benefit of an electronic recording, that the officers failed to read the defendant his Miranda warnings, and that the 300-pound defendant was uncomfortably handcuffed behind his back during the trip from Michigan. The motion was denied after a hearing. At trial, the defendant did not renew his claim that the statement was involuntary; rather he argued that it was unreliable. He was convicted and sentenced to a term of life imprisonment.

On direct appeal, the defendant argued that his statements had been involuntary. A majority of the Appellate Court, First District, agreed. Over dissent, the Appellate Court reversed the defendant's convictions and remanded for a new trial on both murders, with the confession suppressed. The State was granted leave to appeal.

Before the Illinois Supreme Court, the defendant argued that the grounds argued during the hearing on the motion to suppress were additional grounds such that all of the original written grounds were never withdrawn. The State contended on appeal that the defendant was making arguments which had not been presented to the trial court and which thus should not be made on review.

The Supreme Court reversed.  Writing for the majority, Chief Justice Garman believed that the State has the better view on the threshold question of preservation, a question closely related to the doctrines of forfeiture and waiver. The majority determined that the defendant's "reasons for suppression in the trial court and appellate courts, while not factually hostile to one another, are almost wholly distinct from one another." People v. Hughes, 2015 IL 117242, ¶40. The majority stated that this drastic shift in factual theories deprived the State of an opportunity to present evidence at trial.  As a result, a court of review could not be confident in the adequacy of the record in this case to address the arguments raised by the defendant on appeal.  The Supreme Court affirmed that portion of the Appellate Court's decision that determined the mittimus should be corrected to give the defendant credit for time served.

Justice Burke wrote a special concurrence, in which Justices Thomas and Kilbride joined. Though agreeing with the majority, the concurring justices would have addressed the jurisdictional issue which the Court had ordered the parties to brief (and would have found that the notice of appeal, which did not initially include both case numbers, was sufficient to vest the Appellate Court with jurisdiction over the judgments of conviction of both cases). Additionally, the concurring justices would have addressed the defendant's alternative argument, that plain error had occurred, as the appellate court's judgment could only be reversed if defendant's plain error argument was incorrect (which the concurrence determined it was).

This decision re-emphasizes the need for counsel to go beyond the use of boilerplate motions to suppress to include specific allegations where appropriate, and to take care in preserving those issues when filing motions for new trials.

One interesting sidenote: the Court found the detectives' use of a rental car to pick up an out-of-state murder suspect to be "questionable -- given that officer safety will then require handcuffing the suspect for the duration of the ride home" but did not find that alone to be sufficient to render the defendant's confession involuntary.

People v. Burns

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

Defendant was convicted of aggravated unlawful use of a weapon (AUUW) based on the possession of an uncased, loaded and readily accessible firearm in a vehicle. At sentencing, the State presented proof of defendant’s prior felony conviction to enhance the classification of the offense from a Class 4 felony to a Class 2 felony.

The Court confirmed that Section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is facially unconstitutional “without limitation,” pursuant to People v. Aguilar, 2013 IL 112116. AUUW is enhanced to a Class 2 felony if the person found guilty is a convicted felon, pursuant to Section 24-1.6 (d). In Aguilar, the Court specifically dealt only with what it labeled the “Class 4 form” of the offense.  Aguilar, 2013 IL 112116, ¶ 21.

Here, the Court clarified that there is only one offense of AUUW, and a prior felony conviction is not an element of that offense, but rather a sentencing factor which elevates the penalty from a Class 4 to a Class 2 felony. In doing so, the Court stated that its reference to the “Class 4 form” of AUUW in Aguilar was in error.  Section 24-1.6(a)(1), (a)(3)(A) is not enforceable against anyone.

The Court confirmed that the legislature can, and has in Illinois, constitutionally prohibit felons from carrying readily accessible guns outside the home, but that was not what the legislature proscribed in Section 24-1.6(a)(1), (a)(3)(A) because the prior felony conviction is not an element of the offense.

In a special concurrence, Chief Justice Garman explained she would have reached the same result but for a different reason.  Specifically, she would hold Section 24-1.6(a)(1), (a)(3)(A) facially unconstitutional because it does not require the State to plead and prove an essential element of the offense (notably, that the defendant lacks second amendment rights) and therefore violates due process. Chief Justice Garman was critical of the majority for expanding the overbreadth doctrine to find the statute facially unconstitutional because overbreadth previously has not been applied outside the context of a first amendment challenge.  She cautioned that applying the overbreadth doctrine here opens the door for any defendant to challenge a law as facially unconstitutional, even where the law is constitutional as applied to him.  The special concurrence was joined by Justice Thomas.

In re Michael D.

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

The juvenile was found guilty of theft, and the trial court entered an order continuing the case under supervision for one year.  On the sentencing order, the judge checked the box next to “No finding or judgment of guilty entered.”  The juvenile was not adjudged a ward of the court.

The juvenile appealed the guilty finding, and the appellate court dismissed for lack of jurisdiction. The court noted that pre-guilt supervision orders were not appealable, and that recent statutory changes allowing for post-guilt supervision did not make such orders appealable, either.

Reviewing both the statute and supreme court rules, the Supreme Court agreed with the appellate court. A post-guilt order continuing the case under supervision is not a final order.  The final order in a delinquency case is the dispositional order, and no dispositional order was entered here.

The Court distinguished juvenile supervision from adult supervision orders.

In the adult criminal context, supervision orders are specifically appealable under Supreme Court Rule 604(b).  Supreme Court Rule 660(a) incorporates criminal appeals rules for use in juvenile delinquency cases, but only as to “final” judgments.  The continuation under supervision in a juvenile case is not a final judgment.  The Court also rejected various constitutional challenges to the denial of the right to appeal to a juvenile who has his case continued under supervision.

Finally, the Court declined the juvenile’s request to modify its rules to make post-delinquency juvenile supervision orders appealable. The Court did, however, find the question “worthy of review by this court’s rules committee.”

Justice Burke filed a dissent, joined by Justice Freeman, agreeing that current statutes and rules do not permit an appeal in this situation, but stating that the Court should have granted the juvenile’s request to amend its rules. The dissent noted that there was no factual dispute at issue and the question of whether to amend was fully briefed by the parties.  The dissent was particularly concerned that denial of the right to appeal meant that a juvenile could be subject to conditions of supervision (such as payment of restitution) without a means of challenging any aspect of the proceedings such as pretrial suppression rulings, or even the sufficiency of the State’s evidence, through the appellate process.