Illinois Supreme and Appellate Court Case Summaries

By  Robert Clifford( RJC) ,Timothy J. Joyce(TJJ) and Jean M. Cocozza(JMC),

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People v. Garcia, 2015 IL App (1st) 131180

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2015 IL App (5th) 120401

3 Appellate Cases Posted 9-24-15

1. Criminal Law: Affirmed in part and reversed in part: Numerous convictions for offenses in connection with convicted murderer's escape from Cook County Jail while at Stroger Hospital affirmed, but conviction for aggravated vehicular hijacking reversed where victim's continued presence in jail vehicle prevented conclusion that defendant "took" the vehicle; trial court failure to comply with People v. Boose and Supreme Court Rule 430 regarding shackling of defendant during trial harmless beyond a reasonable doubt; and trial court admonitions in conncection with defendant's waiver of counsel were sufficient despite failure to advise defendant that any sentences would have to be served consecutively to sentence of natural life already extant for murder. McBride, J. (Palmer, J., concurring in part and dissenting in part).

No. 2015 IL App (1st) 120654  People v. Reese  Filed 9-24-15 (TJJ)

Following trial, a jury found defendant, Willis Reese, guilty of aggravated vehicular hijacking, vehicular invasion, attempted armed robbery, and escape. The trial court subsequently sentenced him to concurrent extended-term sentences of, respectively, 50,  30, 30, and 14 years in prison, to be served consecutively to the natural life sentence defendant was serving on a prior murder conviction. vFor the following reasons, we reverse defendant's conviction and sentence for aggravated vehicular hijacking, and  affirm his convictions for vehicular invasion, attempted armed robbery, and escape. We affirm defendant's 30-year sentences for vehicular invasion and attempted armed robbery, and reduce his sentence for escape to 7 years.

2. Criminal Law: Reversed and remanded: Evidecnce sufficient to prove defendant guilty beyond a reasonable doubt that he was guilty of aggravated cruelty to a companion animal in face of condition of horses found on property owned by him, but trial court erred in not instructing the jury on lesser included misdemeanor offense relating to "owner's duties" under the Humane Care for Animals Act. Ellis, J.

No. 2015 IL App (1st) 132059  People v. Lee  Filed 9-24-15 (TJJ)

Defendant appeals his conviction and contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated cruelty to a companion animal because the State failed to connect him to the horses and failed to show that he specifically  intended to cause serious injury or death to the horses. He also argues that the trial court erred by refusing his requested jury instruction on the lesser-included offense of violation of owner's duties. 510 ILCS 70/3 (West 2008). Regarding the trial court's  admission of other-crimes evidence, defendant argues that the trial court erred by: not issuing a limiting instruction; barring evidence that defendant was acquitted of the other crime; and violating the hearsay rules by allowing the jury to view a prejudicial  offense report regarding the other-crimes incident. The State agrees with defendant's final argument that the trial court improperly imposed two fees. We hold that the evidence was sufficient to convict defendant of aggravated cruelty. But we also find that  the trial court erred in refusing to instruct the jury on the lesser-included offense of violation of owner's duties. We reverse defendant's convictions and remand for a new trial.

3. Personal Injury: Affirmed: Trial court grant of summary judgment to defendant in claim for personal injury alegedly resulting from plaintiff having "trotted" into a pothole in parking lot upheld where there was no genuine issue of material fact, and the pothole was "open and obvious." Steigmann, J.

No. 2015 IL App (1st) 142622  Wade v. Wal-Mart Stores, Inc.  Filed 9-24-15 (TJJ)

In November 2011, plaintiff, Leslie Wade, sued defendant, Wal-Mart Stores, Inc., for injuries she sustained in November 2009 after "trotting" into a pothole in Wal-Mart's parking lot. In September 2014, Wal-Mart filed a motion for summary judgment  under section 2-1005 of the Code of Civil Procedure, arguing that (1) it did not owe Wade a duty because the pothole at issue was an open and obvious hazard and (2) the distraction exception to the open and obvious doctrine did not apply. Following a  November 2014 hearing, the trial court granted summary judgment in Wal-Mart's favor. Wade appeals, arguing that the trial court erred by granting summary judgment in Wal-Mart's favor. We disagree and affirm.

6 Appellate Cases Posted 9-23-15

1. Mortgage Foreclosure: Affirmed: Fact that original mortgagee/plaintiff did not substitute name of succeeding mortgagee into foreclosure action as plaintiff prior to judicial sale did not provide a basis upon which to invalidate judicial sale entered in connection with mortgage foreclosure proceedings. Mason, J.

No. 2015 IL App (1st) 140999  Ocwen Loan Servicing v. Leiding  Filed 9-23-15 (TJJ)

Defendant Laura Leiding appeals from an order confirming the judicial sale of residential property located in Chicago, Illinois. The sole issue Leiding raises on appeal is whether GMAC Mortgage, LLC's sale of the loan to Ocwen Loan Servicing, LLC  between the date the judgment of foreclosure was entered and the date the sale was conducted, without substituting Ocwen as the plaintiff until after the date of the sale entitles her to relief from the order confirming the sale. Finding no error, we affirm.

2. Administrative Review/Illinois Human Rights Act: Confirmed: Failure of retail establishment to respond to complaint of racial discrimination justified entry of default judgment against it, and award of $25,000 was not excessive. Mason, J.

No. 2015 IL App (1st) 142999  Windsor Clothing Store v. Castro  Filed 9-23-15 (TJJ)

Respondent Katrina Miles filed a complaint with the Illinois Department of Human Rights against petitioner Windsor Clothing Store, alleging a denial of the full and equal enjoyment of a public accommodation based on race, in violation of section  5-102(A) of the Illinois Human Rights Act. Windsor did not submit a verified response to the charge and the Illinois Human Rights Commission entered a default order against Windsor. Windsor's untimely motion to vacate the default order was denied for  lack of jurisdiction and, following a damages hearing, the administrative law judge entered a recommended order and decision awarding Miles $25,000 in compensation for emotional distress. The Commission adopted the ROD as its final administrative  decision. On appeal, Windsor contends that (1) the entry of the default order was improper because the Department failed to show that Windsor demonstrated a contumacious disregard for the Department's authority, (2) the Commission's finding that Miles  suffered emotional distress is against the manifest weight of the evidence, and (3) the award of $25,000 is excessive and unsubstantiated. Finding no merit to Windsor’s arguments, we confirm the Commission's decision.

3. Criminal Law/Clergy Privilege: Affirmed: Person designated by church elders to act as a "discipler" and who had responsibilities for baptizing church members, properly found by trial court to be a "clergyman" so that admissions or confessions made to him by defendant in stalking case were subject to the clergyman privilege and were not admissible, despite apparent fact that the discipler had told others of defendant's admissions. Hudson, J.

No. 2015 IL App (2d) 140995  People v. Thodos  Filed 9-23-15 (TJJ)

Defendant, Christopher Thodos, was charged with violating an order of protection when he allegedly went to the home of his ex-wife and slashed the tires on a car sitting in the home’s driveway. At defendant’s bench trial, Robert Sutter invoked the clergy- penitent privilege (735 ILCS 5/8-803 (West 2012)), claiming that, as defendant’s “spiritual advisor,” he could not be forced to testify about an incriminating admission defendant made to him. Defendant joined in invoking that privilege. The trial court  found that the privilege applied, and the State filed a certificate of impairment and timely appeals. See Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6, 2013). For the reasons that follow, we affirm.

4. Criminal Law: Affirmed: Fact that defendant had had a firearm owner's identification card revoked previously, rendered him ineligible to apply for one, and thus he was properly found guilty of felony offense of possessing a firearm without one, rather than misdemeanor offense, despite claim that rule of lenity required that he be found guilty only of misdemeanor. Zenoff, J.

No. 2015 IL App (2d) 141154  People v. Larson  Filed 9-23-15 (TJJ)

On April 21, 2011, a Kendall County grand jury indicted defendant, Dale Larson, on a single count of possession of a firearm without a valid firearm owner’s identification (FOID) card, in violation of section 2(a)(1) of the Firearm Owners Identification  Card Act. The offense was charged as a Class 3 felony pursuant to section 14(c)(1) of the Act. Section 14(c)(1) provides, in pertinent part, that a violation of section 2(a)(1) is a  Class 3 felony when the offender’s FOID card is revoked. Following a bench trial, defendant was found guilty and was sentenced to a two-year prison term. Defendant argues on appeal that, under the circumstances of this case, section 14(c)(1) is in conflict  with section 14(b), which provides, in pertinent part, that a violation of section 2(a)(1) is a Class A misdemeanor “when the person does not possess a currently valid [FOID card], but is otherwise eligible under this Act.”  Defendant argues that, although his FOID card was revoked when the offense occurred, he was also eligible at that time to have his card reinstated and thus the offense was only a misdemeanor. We affirm.

5. Inverse Condemnation: Affirmed: Landowner's complaint that municipality improperly "took" his property by installing roof over landowner's garage long under construction that had not been completed and posed a danger to the community properly dismissed by trial court, as action by municipality did not constitute a "taking." Zenoff, J.

No. 2015 IL App (2d) 141183  McIlvaine v. The City of St. Charles  Filed 9-23-15 (TJJ)

Plaintiff, Clifford J. McIlvaine, appeals from an order of the circuit court of Kane County dismissing with prejudice his complaint against defendant, the City of St. Charles (City). The complaint attempted to state causes of action for inverse condemnation,  violation of due process, and property damage. McIlvaine generally alleged that the City physically invaded his property under the guise of making repairs by installing a shingle roof that he did not want or authorize. The suit was consolidated in the trial  court with No. 10-CH-881, an action by the City seeking to repair certain code violations at McIlvaine’s residence. We affirm.

6. Criminal Law: Vacated and remanded: Rule 604(d) certificate filed by attorney in connection with motion to vacate plea of guilty not proper, as it neglected to certify that defense counsel had also consulted with defendant about any "error in the sentence." Birkett, J.

No. 2015 IL App (2d) 141202  People v. Martell  Filed 9-23-15 (TJJ)

On September 29, 2014, defendant, Gordon R. Martell, entered a negotiated plea of guilty to unlawful restraint (720 ILCS 5/10-3(a) (West 2014)) and was sentenced to the agreed term of 12 months in prison. On October 8, 2014, he moved to withdraw his  plea, alleging that he had not been given the time to make a fully informed decision. On October 29, 2014, the trial court denied defendant’s motion. He timely appealed. On appeal, defendant argues that the order denying his motion must be vacated, and  the cause remanded, because the attorney’s Rule 604(d) certificate was deficient. For the following reasons, we agree.

12 Supreme Court Cases Posted 9-24-15

1. Fees/Foreclosure Prevention Program: Reversed and remanded:  In this decision, the Illinois Supreme Court did not agree with what the circuit court had done.  In resolving this question of law, the supreme court looked at the history of the constitutional provision in question, which goes back further than 1970. A new judicial article, amending the older 1870 Constitution, was adopted in 1962 and became effective in 1964. It stated: “There shall be no masters in chancery or other fee officers in the judicial system.” The 1970 Constitution repeats this prohibition, but without reference to masters in chancery. By 1965, the legislature had repealed the then-existing statutes governing both masters in chancery and referees (which are similar), thereby bringing statutory law into conformity with the new judicial article.  The judicial committee which worked on the 1970 Constitution considered the older reference to masters in chancery to be redundant as included in the more generic term fee officers. Thus the change in the judicial fee officer prohibition was viewed as stylistic rather than substantive.  The supreme court said that, although circuit court clerks are officers of the judicial branch, they are nonjudicial officers, performing no adjudicative or quasi judicial functions, as masters and referees previously did. The 1970 fee officer prohibition is aimed at officers who have a direct role in the adjudication process and who are compensated for their services by fees taxed to the litigants. There was no intent to include lesser administrative assistants who perform ministerial, nonjudicial functions.  Recently, the supreme court considered a “fee officer” provision embodied in the local government article of the 1970 Constitution. That question is not at issue here. The circuit court’s finding of unconstitutionality was reversed. Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2015 IL App (1st) 117138    Walker v. People ex rel. Madigan    Filed 9-24-15 (RJC)

A Foreclosure Prevention Program has been established by the Illinois Housing Development Act. It is funded by a Code of Civil Procedure provision imposing a $50 filing fee in residential mortgage foreclosure cases, 2% of which is retained by the clerk of the circuit court in which the foreclosure action is filed. The plaintiff here, Reuben Walker, filed for such a foreclosure in Will County and paid the fee. In 2012, he filed a putative class action, challenging the validity of these statutes. He claimed that the fee was forbidden by the judicial article of the Illinois Constitution of 1970. The constitutional clause in question states: “There shall be no fee officers in the judicial system.” The circuit court found the statute allowing the circuit clerk to retain the fee for administrative expenses to be unconstitutional on its face, in violation of this prohibition, and this direct appeal followed, with the State intervening in defense of the statute.

2. DUI/Testing: Affirmed: In this decision, the supreme court upheld the circuit court’s ruling that the statute was unconstitutionally applied to this particular driver, who was not asked to take a test until two days after the accident. The legislature has not established a time frame for the making of a testing request, and the supreme court declined to do so here. Should the legislature choose to do so, it would then be the court’s job to determine if the line drawn by the legislature is constitutional. The circuit court was affirmed. Justice Thomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 117170    McElwain v. Office of the Secretary of State    Filed 9-24-15 (RJC)

In 2012, plaintiff motorist attempted to make a U-turn from a left turn lane on northbound Kirk Road in Geneva and collided with an oncoming motor bike which was carrying a passenger. The motorcyclist incurred substantial injuries and the passenger died as a result. Police came to the scene but did not ticket plaintiff or request testing for impaired driving. McElwain did not appear to be under the influence, but further investigation of his vehicle revealed evidence of cannabis. Two days later, plaintiff was asked to appear at the Geneva police station, which he did. He was asked about marijuana use and responded that he had used it two weeks earlier. He was ticketed for failure to yield when turning left and was asked to take a chemical test for impairment, which he refused. His license to drive was then suspended by the Secretary of State. McElwain, as plaintiff, brought this administrative review action against the Secretary of State as defendant, petitioning for rescission of the suspension. Section 11-501.6 of the Illinois Vehicle Code provides that a driver who is arrested for a traffic violation related to a fatality or serious personal injury automatically consents to having his blood, breath or urine tested for the presence of alcohol or drugs. Refusal to submit results in automatic suspension of that person’s driver’s license. In the plaintiff’s action, an Administrative Law Judge upheld the suspension, and the plaintiff sought review in the circuit court of Cook County. That court, noting that the request for impairment testing was not made until two days after the accident, held the statute unconstitutional as applied because the plaintiff’s fourth amendment rights had been violated. This direct appeal to the Illinois Supreme Court followed.

3. Juvenile Court Act/Jurisdiction: Appellate court judgment affirmed. Cause remanded: The supreme court construed the applicable statutes so as to determine the intent of the legislature and rejected the defendant’s argument that he could not be charged with anything. Although juvenile court jurisdiction is exclusive, this does not mean that an offender who ages out of the juvenile system can no longer be charged. Here, there was no delay in bringing charges after the facts came to light, and the charges were brought well within the applicable limitation period. The cause was remanded to the trial court for further proceedings. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 117669    People v. Fiveash    Filed 9-24-15 (RJC)

In 2012, this 23-year-old defendant, who was certified to teach grades 6 through 12, could substitute teach for grades kindergarten through 12, and had been teaching part-time at two schools was indicted in the circuit court of Cook County for criminal acts committed when he was 14 or 15 years old. Mt. Prospect police had questioned him on the basis of information they had recently received, and he gave written and verbal statements. A grand jury heard testimony based on statements from the defendant, the victim, and other witnesses. The charges were two counts of aggravated criminal sexual assault and two counts of criminal sexual assault, occurring between January 1, 2003 and January 1, 2004. The victim was his cousin, who had been six years old at the time of the alleged offenses.
Fiveash was successful in having the indictment dismissed after arguing that, because of his age, he was beyond the jurisdiction of the Juvenile Court Act, and that the Act’s exclusive jurisdiction barred his prosecution in criminal court. The circuit court granted his motion to dismiss the indictment, although it expressed the view that this result was unjust, absurd, and clearly unfair to the victim. It concluded that the applicable statutes did not allow for prosecution in either juvenile or criminal court. The appellate court reversed, and the Illinois Supreme Court agreed with it in this decision.  

4. Foreclose/Reverse mortgage: Reversed and remanded:  In this decision, the supreme court construed the Act, federal regulations, and decisional law and said that credit extended to a land trust is considered, for purposes of the Act, to be credit extended to a natural person. The trustee is a consumer who, under the Act, is entitled to the disclosures for which the Act provides and who, under the Act, has a right to rescind pursuant to its provisions. Here, Standard took the steps for rescission which it needed to take in a timely manner and should be allowed to proceed on its claims for statutory damages based on violations of the Act. The appellate court erred in affirming the dismissal of the counterclaim. Its judgment was reversed.  The cause was remanded to the circuit court for further proceedings. Justice Burke  delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 117950   Financial Freedom Acquisition, LLC v. Standard Bank and Trust Company    Filed 9-24-15 (RJC)

This is an appeal from the dismissal of a counterclaim in an action to foreclose a reverse mortgage. Mary Muraida held title to her condominium unit in Oak Lawn pursuant to a 1991 land trust as to which defendant-appellant Standard Bank and Trust was trustee. On July 9, 2009, she entered into a reverse mortgage on the unit. The mortgage identified the mortgagor and borrower as Standard Bank. The accompanying note, signed by both Ms. Muraida and Standard, was with Marquette National Bank, but was subsequently transferred to Financial Freedom Acquisition, plaintilff-appellee here, and later to OneWest Bank, which was subsequently substituted as plaintiff. Mary received the disclosure documents required by the Truth in Lending Act, but plaintiff never delivered them to Standard. Ms. Muraida died on May 20, 2010, and, on October 14, 2010, plaintiff filed a complaint against Standard in the circuit court of Cook County, seeking to foreclose the mortgage. On June 2, 2011, Standard gave notice that it was exercising its right to rescind the transaction, and on July 19, 2011, filed an answer to plaintiff’s complaint, along with a counterclaim.
Ultimately, the foreclosure action was dismissed with prejudice in 2012 after Standard provided the plaintiff with the full amount due on the mortgage and note, terminated the trust, and deeded its interest in the unit to a third party. Plaintiff filed a motion to voluntarily dismiss the foreclosure action, which was granted by the circuit court. What remains is the counterclaim for damages. Standard’s counterclaim alleged violations of the Act and sought rescission of the transaction, termination of the security interest, statutory damages for violations of the Act, statutory damages for plaintiff’s failure to respond to the rescission notice, and reasonable attorney fees. The circuit court had dismissed the counterclaim with prejudice, and the appellate court affirmed. This is what is complained of by Standard in appealing to the Illinois Supreme Court.

5. Dept. Of Public Health/Sanctions: Foreclose/Reverse mortgage: Reversed and remanded:  In this decision, the Illinois Supreme Court said that the standard for review of the sanctions denial is whether discretion was abused. The appellate court erred by interpreting the rule to call for an explanation when sanctions are denied. The record is not inherently insufficient when the reasons for a sanctions denial are not stated by the circuit court. The appellate court’s remand was reversed.  The cause was remanded to the appellate court so that it could examine the record and determine if the circuit court had an adequate basis for the sanctions denial. The appellate court should focus on whether the record provides an adequate basis for upholding the sanctions denial, not on the circuit court’s specific reasons. If the appellate court finds the record to be insufficient, its remand to the circuit court may then be appropriate.  Chief Justice Garman delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 118110    Lake Environmental, Inc. v. Arnold    Filed 9-24-15 (RJC)

This environmental litigation concerns Scott Air Force Base in St. Clair County. Plaintiff Lake Environmental, Inc., had engaged in asbestos cleanup work at the base. Its dispute with the Department of Public Health and its director, the defendants here, began in 2008, when the Department claimed that its regulations had been violated by plaintiff’s cleanup efforts at the base. An emergency stop work order was issued. However, several months later, the Department found that the violations had been remedied and it dismissed the stop-work order proceedings.  In 2010, the Department took further action on the allegations of 2008, having plaintiff’s license as an asbestos contractor revoked and seeking penalties in a civil lawsuit. As to penalties, it was unsuccessful, with the circuit court finding them barred by  res judicata because they should have been sought in the 2008 proceedings.   Lake Environmental then filed a petition for administrative review, claiming that the license revocation was also barred by res judicata, and the circuit court agreed. Lake Environmental then moved for sanctions under Supreme Court Rule 137, which states that pleadings must be well grounded in fact and warranted by existing law or good-faith argument. The rule requires the court to give an explanation if sanctions are imposed, but not if they are denied. Lake Environmental argued that the Department should have known that its claim would be barred by res judicata and, thus, the Department’s continued defense against the petition for administrative review violated Rule 137 and called for sanctions. The circuit court denied them, but gave no reason. When the cause reached the appellate court, it ruled that it could not review the matter without the circuit court’s explanation, and it remanded, even though no explanation is required by the rule.

6. Pensions/Disability: Affirmed: The Public Safety Employee Benefits Act operates to continue employer-sponsored health insurance coverage for public safety employees and their families  after such an employee is either killed or catastrophically injured in the line of duty. In 2003, the Illinois Supreme Court held that “catastrophic injury” is synonymous with an injury resulting in a line-of-duty disability pension. That ruling, which has since been followed in other cases, was held in this decision to be applicable here. The courts below were affirmed because an award of a line-of-duty disability pension establishes a catastrophic injury as a matter of law. Justice Freeman  delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 118170    The Village of Vernon Hills v. Heelan    Filed 9-24-15 (RJC)

In 2009, William Heelan had been  a Village of Vernon Hills police officer for approximately 20 years when, in responding to an emergency call, he slipped on ice and fell on his right side,  suffering a hip contusion which aggravated preexisting osteoarthritis in his right hip. He underwent a right hip replacement and briefly worked light duty  before he began to have left hip pain which was diagnosed as preexisting osteoarthritis of the left hip, aggravated by the right hip replacement. A left hip replacement was performed and he did not return to work. In 2011,  the Board of Trustees of the Vernon Hills Police Pension Fund held a hearing which resulted in an award of a line-of-duty disability pension pursuant to the  Pension Code.  The manager of the Village of Vernon Hills and its attorney were present at the hearing, but the Village never objected to the award or petitioned to intervene.  After the making of this award,  Heelan  claimed that the Village should pay health insurance premiums for himself and his dependents.  The Village filed a complaint in the circuit court of Lake County, seeking a declaratory judgment that it did not have to make these payments. It was not successful in the circuit court, which ruled in favor of Heelan.  The appellate court affirmed.

7. Negligence/Tort Immunity Act: Affirmed: In this decision, the Illinois Supreme Court upheld the appellate court’s judgment. Although the statutory term of local public entity can include a not-for-profit corporation, that entity must be conducting public business, which the supreme court found was not applicable here. Less than half of zoo funding comes from taxes levied by the Forest Preserve District, and, pursuant to the agreement, the zoo has responsibility for maintenance and repairs, while the Forest Preserve District does not have direct control over zoo operations. Justice Theis delivered the judgment of the court, with opinion.  Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.

No. 2015 IL App (1st) 118254    O'Toole v. The Chicago Zoological Society    Filed 9-24-15 (RJC)

The Chicago Zoological Society, the defendant here, does business as Brookfield Zoo on land owned by the Forest Preserve District of Cook County, with which it has a written agreement. In 2012, the zoo was sued for negligence by a woman who claimed that she had sustained injuries when she tripped and fell on one of the zoo’s paved pathways nearly two years earlier. The date of her filing brought her within the general two-year limitation period of the Code of Civil Procedure, but it was not within the one-year limitation period of the Tort Immunity Act, which is applicable to local public entities. In the circuit court of Cook County, the zoo won a dismissal for untimeliness, but the appellate court reversed and remanded for further proceedings.  

8. School Property/Zoning Laws: Affirmed: In this decision the supreme court also affirmed, upholding the decree that the Board is subject to the City’s zoning and storm water ordinances.  The supreme court noted that Crystal Lake is a home rule unit and, pursuant to the Illinois Constitution of 1970, is given broad powers to regulate its government and affairs. This has been construed to include regulation of zoning and land use. Although the Constitution also has provisions on education, and a permit was obtained under the Illinois School Code, the matter cannot be resolved on this basis. The legislature has not enacted any provisions exempting schools from the zoning and land use regulations of home rule municipalities. Justice Burke delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 118332    Gurba v. Community High School District No. 155    Filed 9-24-15 (RJC)

In this McHenry County case, the Illinois Supreme Court held that school property is subject to municipal zoning laws. The named plaintiff is one of the private property owners living adjacent to Crystal Lake South High School in the city of Crystal Lake (the City). Their homes are zoned residential single family under the City’s zoning code, while the school campus constitutes a legal, nonconforming use. It is owned by Community High School District No, 155 (the District) and operated by the Board of Education of Community High School District No. 155 (the Board). In 2013, the Board decided to replace existing stadium bleachers with newer ones which were larger, higher and closer to the property line of the abutting residences. A private enforcement action brought by those homeowners remains pending in the circuit court. Pursuant to the Illinois School Code, a building permit was obtained from the McHenry County Regional Superintendent of Schools, but no building permit, zoning approval or storm water management approval was obtained from the City, nor was the City initially notified before construction began.  The Board sought a declaratory judgment as to whether the City had authority over the District to enforce its zoning ordinances, and the circuit court held in favor of the City. In 2014, the appellate court affirmed.

9. Criminal Law/Sentencing/Conditions of Probation: Affirmed: The Illinois Supreme Court did not agree with the defendant and affirmed the appellate court, noting that paying child support is specifically enumerated by statute as one of the conditions as to which a sentencing court is authorized to exercise its discretion. There is no statutory requirement that this enumerated condition must be reasonably related to the offense. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.       

No. 2015 IL App (1st) 118347    People v. Goossens    Filed 9-24-15 (RJC)

A Rock Island jury convicted this Cordova police sergeant of intimidation for threatening to refuse to respond to certain 911 calls. At his 2012 sentencing hearing, the circuit court imposed two years of probation with conditions, including the requirement that he become current in his court-ordered child support, which was then 3½ years in arrears. He challenged the court’s statutory authority to do this, but the appellate court affirmed, as did the supreme court in this decision.  Statute provides that certain conditions of probation are mandatory. Others are within the sentencing court’s discretion, and support of dependants is specifically listed as within that discretionary group. The defendant argued that child support payments do not relate to the offense for which he was convicted and that the imposition of this condition was therefore improper.

10. Bankruptcy/Personal Injury Claims: Reversed and remanded: In this decision, the Illinois Supreme Court did not agree with these results and held that the plaintiffs could proceed with their claims. The court pointed out that summary judgment is a drastic measure which should be allowed only when the movant’s right thereto is clear and free from doubt, while judicial estoppel is an equitable doctrine invoked by a court in its discretion.  The supreme court said that there was no showing that the plaintiffs were aware of any need to disclose their personal injury action. Although they knew that they had to disclose receipt of lump sums over $2,000, the amount at issue in their personal injury action remained unliquidated. A duty on the part of the plaintiffs to disclose their personal injury action to the bankruptcy court, and their failure to do so does not, given the facts of this case, establish an intent to deceive the bankruptcy court and/or manipulate the bankruptcy proceedings for purposes of judicial estoppel. The supreme court said that it does not appear from the record that the circuit court exercised its discretion in its application of the doctrine of judicial estoppel. Rather the circuit court found that the mere failure to make a disclosure mandated dismissal. No discretion was exercised—or, if exercised, was clearly abused by erroneous assessment of the evidence. The supreme court, in an independent consideration of the evidence, found that judicial estoppel was inequitably applied here. The circuit and appellate courts were reversed, and the cause was remanded for further proceedings. Justice Karmeier delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.       

No. 2015 IL App (1st) 118432    Seymour v. Collins    Filed 9-24-15 (RJC)

On June 3, 2010, in Winnebago County, plaintiff Terry Seymour was being transported in an ambulance when he was injured in a collision with a vehicle driven by Bradley Collins, one of the defendants here. Plaintiff and his wife were already involved in Chapter 13 bankruptcy proceedings and had made numerous motions to modify their bankruptcy plan, the last one before the accident having been a February 25, 2010, filing concerning a reduction in Mr. Seymour’s workers’ compensation benefits from a previous accident at work. This suit for damages from the collision was filed by him and his wife on May 20, 2011, and the discharge in bankruptcy was granted on July 17, 2012. The bankruptcy court was never advised about the injury in the ambulance accident or the filing of this suit seeking damages for the injuries allegedly arising from it. On July 18, 2013, the defendants in this suit sought a summary judgment that the plaintiffs should not be allowed to proceed with their personal injury claims because they had not disclosed them in the bankruptcy proceeding. In asserting this, they relied on the doctrine of judicial estoppel. The circuit court granted summary judgment for the defendants, and the appellate court affirmed.       

11. Obstructing Justice/False Information: Reversed:  In this decision the Illinois Supreme Court reversed the appellate court, holding that, even if the juvenile was apprehended for vehicle burglary, he was not, at that time, apprehended on the unrelated juvenile warrant. He provided false information to prevent his apprehension on that warrant. The evidence was sufficient to sustain the charge, and the circuit court did not err in finding him guilty. Justice Kilbride delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 118569    In re Q.P.    Filed 9-24-15 (RJC)

In 2014, Peoria police received a report of a vehicle burglary in progress and a description of a suspect. The officer who responded to the scene observed a person matching that description, handcuffed him, and placed him in a squad car. The suspect gave a name which later turned out to be false after he was confronted by the woman with whom he said he was living as his mother. She identified him by a different name, that of Q.P., the minor respondent here. He then gave his correct name, but it was later determined and that he had misspelled it and that he was a runaway from Quincy. At the police station, he admitted that he had given a false name because he knew that there was a warrant for his arrest and that he had misspelled his name to prevent police from locating the existing juvenile warrant.
In juvenile delinquency proceedings in the circuit court of Peoria County, Q.P. was charged with obstructing justice for knowingly furnishing false information to police with intent to prevent his own apprehension. He was found guilty in bench proceedings and committed to the Department of Juvenile Justice for an indeterminate term not to exceed three years or until his twenty-first birthday. He appealed to the appellate court and it reversed, holding that he was already apprehended when he gave the false information and that a person already apprehended cannot act with intent to prevent his own apprehension.

12. Legal Malpractice: Appellate court affirmed in part and reversed in part; circuit court is affirmed: The supreme court said that the appellate court should not have remanded because, having divested themselves of their interest in the corporation, plaintiffs can seek recovery only in their individual capacities. The circuit court was correct that they had no individual standing to sue. The nature of derivative claims  is that they benefit only the corporation. Plaintiffs could not possibly prove that they could recover in their individual capacities by asserting derivative claims. This result is consistent with case law and statute. The supreme court responded to plaintiffs’ arguments of unfairness by pointing out that Beeland corporation itself still has claims, as do its remaining stockholders. It was plaintiffs who chose to divest themselves of corporate ownership, thus giving up their right to assert claims in the corporation’s behalf, such as McGuireWoods’ failure to timely sue Sidley Austin. McGuireWoods remains liable for any negligence it may have committed with respect to derivative claims against Sidley Austin. For purposes of standing, when the present action was filed, plaintiffs had no ownership stake in the corporation giving them a right to initiate litigation against McGuireWoods. The appellate court was affirmed in part and reversed in part, and the circuit court was affirmed. Justice Tomas delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

No. 2015 IL App (1st) 118652    Stevens v. McGuireWoods L.L.P.    Filed 9-24-15 (RJC)

A circuit court’s summary judgment in favor of a Cook County law firm which was sued for legal malpractice was upheld in this decision.
James R. Stevens is the first named plaintiff of a group of former minority shareholders of a corporation known as Beeland Management LLC. They claimed that Beeland’s owner and majority shareholder, as well as Beeland’s two managers, misappropriated Beeland’s trademarks and other intellectual property to the detriment of that corporation. In 2005, plaintiffs hired the law firm of McGuireWoods to seek recovery on their claims, which they asserted both individually and derivatively. In 2008, the circuit court dismissed all of the claims without prejudice. When a new complaint was filed, plaintiffs were no longer represented by McGuireWoods, but by new counsel. An amended complaint was filed reasserting the original claims and adding new ones against Beeland’s corporation counsel, Sidley Austin. The circuit court found, however, that by this time the claims against Sidley Austin had been filed too late, and they were dismissed as untimely. The circuit court also found that the plaintiffs lacked standing to sue Sidley Austin in their individual capacities because that law firm’s duties ran solely to the corporation and not to the individual shareholders. This underlying case was dismissed in 2011. Shortly thereafter, the plaintiffs settled with the individual owner and divested themselves of all their ownership interest in the corporation. Believing that McGuireWoods’ failure to sue Sidley Austin in time had forced them to settle for too little, plaintiffs brought the instant legal malpractice action against McGuireWoods as defendant, seeking to recover legal fees and ten million dollars in damages. However, the circuit court agreed with the defendant’s argument that plaintiffs had no standing to sue Sidley Austin in the first place and, thus could not possibly have been injured by McGuireWoods’ failure to sue Sidley Austin in a timely manner. Summary judgment was entered in favor of the defendant. That is the judgment which is upheld here.
On direct review, the appellate court affirmed as to plaintiffs’ individual claims, noting that the circuit court’s original lack-of-standing ruling had a collateral estoppel effect which barred the plaintiffs from later asserting that they would have prevailed on those claims if they had been asserted sooner by McGuireWoods. However, the trial court had never specifically ruled on the merits of plaintiffs’ derivative claims against Sidley Austin. On this point, the appellate court remanded for a determination as to whether the plaintiffs would have been successful in a derivative suit against Sidley Austin if it had been timely filed.


4 Appellate Case Posted 9-22-15

1. Chicago Municipal Code/Tax/short term car rentals: Reversed; permanent injunction vacated: Plaintiffs have not overcome their burden to show that Ruling 11 impermissibly exceeds the scope of the ordinance. Ruling 11 is not an unauthorized extraterritorial exercise of the City's taxing authority and plaintiffs have not overcome the presumed constitutionality of the ordinance and Ruling 11. The City has an interest in capturing revenue that would otherwise escape the city if residents could go to nearby suburban locations to avoid the 8% use tax while using the rental car primarily in Chicago. Pierce, J.

No. 2015 IL App (1st) 123210    The Hertz Corporation v. City of Chicago    Filed 9-22-15 (RJC)

Since early 1990, the City of Chicago (City) has imposed a tax on the use of all leased personal property within city limits. Chicago Municipal Code § 3-32-030(A) (added Dec. 15, 1992). In 2011, the City's department of revenue adopted a ruling intended to serve as a guide for the application of the tax on the use of vehicles leased by City residents from rental agencies located within three miles of the city's border. Personal Property Lease Transaction Tax Second Amended Ruling No. 11 (eff. May 1, 2011). Plaintiffs, Enterprise Leasing Company of Chicago (Enterprise) and the Hertz Corporation (Hertz), filed separate actions against defendants, the City of Chicago and the City Comptroller, seeking declaratory and injunctive relief against the City's imposition of a tax on "car-rental transactions" that occur within three miles of the city's border. The cases proceeded in tandem before the circuit court. On cross-motions for summary judgment, the circuit court granted summary judgment in favor of Enterprise. The circuit court declared Ruling 11 facially unconstitutional and permanently enjoined the City from enforcing the ordinance and the ruling "against plaintiff[s] with respect to *** short-term vehicle rental transactions occurring outside the City of Chicago." For the reasons that follow, we reverse the judgment of the circuit court, vacate the permanent injunction and enter summary judgment in favor of defendants.

2. Criminal Law/MQA&SE/GPS devices: Affirmed:  The prosecutor did not present evidence which could form the basis for an informed assessment of the reliability of the information on which the agents acted. The prosecutor did not present any evidence that would excuse the use of the GPS device for a month. The trial court's findings were not against the manifest weight of the evidence and the findings do not require a reversal of the trial court's order suppressing the evidence. Neville, J. with Liu, J. specially concurring.

No. 2015 IL App (1st) 130145    People v. Bravo    Filed 9-22-15 (RJC)

The State appeals from an order granting Juan Bravo's motion to quash his arrest and suppress the evidence collected at the time of the arrest. The trial court found that the State failed to meet its burden of showing that police acted in good faith when they installed a GPS device on Bravo's car without judicial authorization. We affirm.

3. Insurance/Duty/Uninsured Motorist Claims: Reversed and remanded: Fry was a permissive user entitled to protection from economic loss related to her personal injury due to an at fault hit-and-run motorist. To allow Safe Auto, or any other insurer, to directly or indirectly avoid the mandate of the General Assembly, and the decisions of our courts, by denying UM coverage to permissive passengers by extension of a driver reasonable belief exclusion is unenforceable as against public policy. Pierce, J. with Neville, J. dissenting. 

No. 2015 IL App (1st) 141713   Safe Auto Insurance Company v. Fry    Filed 9-22-15 (RJC)

Plaintiff Safe Auto Insurance Company ("Safe Auto") issued an automobile liability insurance policy to Kenneth Reed ("Reed"). Defendant Marie Fry ("Fry") was a passenger in Reed's vehicle when Reed was involved in a hit-and-run accident. Fry was injured and subsequently filed an uninsured motorist claim with Safe Auto seeking arbitration. Safe Auto thereafter filed a declaratory judgment complaint in the circuit court alleging that it did not have a duty to indemnify Fry because she was excluded from coverage by the "reasonable belief exclusion" in its policy. Later, Safe Auto filed a motion for summary judgment that was granted by the circuit court. Fry now appeals and argues that, where a driver reasonable belief exclusion contained in the Safe Auto contract for automobile liability insurance excludes uninsured motorist coverage for a permissive passenger, the exclusion as applied to the permissive passenger is unenforceable because it violates Illinois public policy. We agree. For the following reasons, we reverse the ruling of the circuit court granting summary judgment in favor of Safe Auto and remand for further proceedings.

4. Eminent-domain/Injunctions: Affirmed: In balancing the hardships to the parties and considering the appropriate factors in making the decision to grant IEPC access to Landowners' tracts, as well as requiring the posting of sufficient funds and security to ensure just compensation will be paid, the trial court did not abuse its discretion by issuing an injunction to allow IEPC access without impediment by Landowners. Pope, J.  

No. 2015 IL App (4th) 150334    Enbridge Pipelines, LLC v. Troyer    Filed 9-22-15 (RJC)

Plaintiff, Enbridge Pipelines (Illinois), L.L.C., now known as Illinois Expansion Pipeline Company, L.L.C. (IEPC), obtained eminent-domain authority from the Illinois Commerce Commission (ICC) over certain real property upon which it is constructing a liquid petroleum pipeline. Multiple landowners have been subject to IEPC's eminent-domain authority. Defendants (Landowners) in this matter are landowners in McLean County who have been unable to reach an agreement with IEPC on the amount of just compensation to be paid and are scheduled for jury trials later this year on that issue. In April 2015, IEPC sought and received an injunction granting it the right to access the permanent and temporary easements it obtained in condemnation proceedings so it can begin construction of the pipeline on Landowners' tracts. Landowners filed the instant interlocutory appeal asking this court to dissolve the injunction until the juries have determined the just compensation due and said compensation has been paid by IEPC. We affirm the trial court's order granting IEPC access to the real estate so it can construct the pipeline.

1 Appellate Case Posted 9-21-15

1. Insurance/Duty to defend: Reversed and remanded with directions: Here, the additional insured endorsement is clear and unambiguous. The language is susceptible to only one meaning—that CSR is entitled to coverage under the CGL policy if, at the time of the accident, Zamastil's acts or omissions occurred (1) as an agent of CSR and (2) within the scope of its authority as CSR's agent. the circuit court did not err in declining to consider the MSA in interpreting the clear and unambiguous language of the CGL policy.  Also, Pekin owed CSR a duty to defend under the additional insured endorsement of the CGL policy. Liu, J.

No. 2015 IL App (1st) 142473    Pekin Insurance Company v. CSR Roofing Contractors, Inc.    Filed 9-21-15 (RJC)

This dispute presents a question of whether an insurer has a duty to defend an additional insured under the terms of a commercial general liability policy that was issued to a third party. Plaintiff, Pekin Insurance Company (Pekin), filed suit against defendant, CSR Roofing Contractors, Inc. (CSR), seeking a declaration that it had no duty to defend CSR in a personal injury action brought by an employee of CSR's subcontractor, Zamastil Exteriors (Zamastil). CSR filed a counterclaim for declaratory judgment, claiming that Pekin owed a duty to defend CSR, as an additional insured, under a commercial general liability policy (CGL policy) issued to Zamastil. The parties filed cross-motions for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (Code) (735 ILCS 5/2-615(e) (West 2012)). On July 16, 2014, the circuit court granted judgment to Pekin, finding that: (1) the additional insured endorsement of the CGL policy was unambiguous and only covered bodily injury for which the additional insured was vicariously liable; and (2) Pekin owed no duty to defend CSR in the personal injury action.

6 Appellate Cases Posted 9-18-15

1. Criminal Law: Affirmed: In the present case, the purpose of the State's comments was to address concerns about the case management process raised when defendant cross-examined the State's expert witnesses about the process. Defendant opened the door to the State's
response, and error cannot be claimed. The State did not create a "theme" of disparaging defense counsel. The State instead made "a few solitary" remarks concerning defense counsel's motives. Additionally, the purpose of these questions was not to "inflame the
passions and prejudices" of the jury.  While such remarks push the envelope and are " 'better left unsaid, they are hardly of sufficient magnitude to justify a reversal.' " Also, the trial court not only expressly considered mitigating factors in defendant's favor, but gave defendant a sentence 25 years less than the maximum. The trial court did not abuse its sentencing discretion by sentencing defendant to 35 years. Gordon, J. 

No. 2015 IL App (1st) 132782    People v. Kelley    Filed 9-18-15 (RJC)

Defendant Aaron Kelley was convicted by a jury of the first-degree murder of Edna Marie Smith and sentenced to 35 years with the Illinois Department of Corrections (IDOC). On this direct appeal, defendant claims: (1) that the State impermissibly shifted the burden of proof to defendant by eliciting testimony from its expert witnesses that defendant could have requested evidence to be tested; (2) that the State committed misconduct by attacking defense counsel's integrity during its closing and rebuttal arguments; and (3) that defendant's sentence of 35 years was excessive.

2. Criminal Law/Murder/Self-defense: Affirmed: The sole issue on appeal is whether the trial court should have reduced the murder charge to second-degree murder based on defendant's claim of imperfect self-defense.  Based on defendant's own testimony alone, a
rational trier of fact could have concluded that defendant failed to show by a preponderance of the evidence that he was not the agressor.  We cannot conclude that no rational trier of fact could have found as the trial court did with respect to the second degree murder charge. Gordon, J. 

No. 2015 IL App (1st) 133874    People v. Castellano   Filed 9-18-15 (RJC)

Defendant Ignacio Castellano, age 34 and mentally retarded, was convicted after a bench trial of first-degree murder and two counts of aggravated battery, and sentenced on November 21, 2013, to a total of 32 years with the Illinois Department of Corrections. On this direct appeal, defendant asks this court to reduce his murder conviction to second-degree murder, arguing that he proved by a preponderance of the evidence a mitigating factor, namely, that he had an actual, although unreasonable, belief in the need to act with deadly force to defend himself and another.

3. Negligence/Duty/Retained Control/Voluntary Undertaking: Affirmed: In the case at bar, the parties agree that neither ESI nor Milhouse entrusted any work to Era Valdivia. Thus, we cannot find that ESI or Milhouse entrusted work to Era Valdivia and yet “retained control” over Era Valdivia’s work such that they would owe a duty to plaintiff under section 414.  In the case at bar, neither ESI nor Milhouse agreed to supervise Era Valdivia in the manner in which its workers accomplished their work; both Williams and McIntosh testified that their supervisory duties included inspecting the completion of work at various segments. There is no evidence that ESI or Milhouse undertook any duty to ensure the safety of Era Valdivia workers. The trial court was correct to grant summary judgment in favor of ESI and Milhouse because there was no genuine issue of material facts regarding ESI and Milhouse voluntarily undertaking a duty to plaintiff. Gordon, J.

No. 2015 IL App (1st) 140933    Cabrera v. ESI Consultants, Ltd.   Filed 9-18-15 (RJC)

Plaintiff Jorge Cabrera was injured while working on a construction project on the Washington Street Bridge in Chicago (the project). His employer, Era Valdivia Contractors, Inc. (Era Valdivia), had contracted with the City of Chicago (the City) to perform certain work associated with the project, including sandblasting and painting the bridge. The City had also contracted with ESI Consultants, Ltd. (ESI),1 to serve as an engineering consultant on the project. ESI, in turn, subcontracted with Milhouse Engineering and Construction, Inc. (Milhouse), to serve as subconsultant. On August 30, 2011, plaintiff filed a negligence lawsuit against the City and later amended the complaint to include negligence counts against Milhouse and ESI. The trial court granted summary judgment in favor of the City, ESI, and Milhouse and plaintiff appeals. We affirm.

4. Criminal Law/Post-Conviction Petition: Reversed and remanded: The representation of postconviction counsel was not reasonable. Because postconviction counsel failed to present any evidence of Ross’s claim, we consider the proper remedy is to remand this cause for further evidentiary hearings.  O'Brien, J. and Schmidt J. concurred in part and dissented in part, with opinion.

No. 2015 IL App (3d) 130077    People v. Ross   Filed 9-18-15 (RJC)

Defendant Demetrius Ross pleaded guilty to one count of felony murder and was sentenced to an agreed 60-year term of imprisonment. He sought postconviction relief, alleging he was induced to enter into the plea agreement by his counsel’s erroneous advice regarding truth-in-sentencing legislation and its effect on the length of his term of imprisonment. After an evidentiary hearing, the trial court denied Ross’s postconviction petition. He appealed. We reverse and remand, finding that he was denied reasonable assistance of postconviction counsel and is entitled to additional credit for time spent in presentence custody in Wisconsin.

5. Criminal Law: Affirmed in part and reversed in part; cause remanded: The State presented inadmissible hearsay and opinion testimony. Because the only evidence supporting one of defendant's convictions for aggravated criminal sexual assault (involving anal penetration) was inadmissible hearsay, wereverse that conviction and remand for further proceedings on that count. However, because (1) the properly admitted evidence overwhelmingly proved defendant guilty of the remaining counts and (2) no reasonable probability exists that the jury would have acquitted defendant if theimproper hearsay and opinion testimony had been excluded, we affirm defendant's remaining convictions. Steigmann, J.

No. 2015 IL App (4th) 130644    People v. Brothers   Filed 9-18-15 (RJC)

In January 2013, a jury in McLean County case No. 12-CF-891 convicted defendant, Eddie Brothers, of home invasion (720 ILCS 5/12-11(a)(1) (West 2010)), three counts of aggravated criminal sexual assault (two involving vaginal penetration and one involving anal penetration) (720 ILCS 5/11-1.30(a)(1) (West 2010)), three counts of domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2010)), and aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2010)). That same month, defendant pleaded guilty to harassment by telephone (720 ILCS 135/1-1 (West 2010)) and violation of a bail bond (720 ILCS 5/32-10(b) (West 2010)) in McLean County case No. 12-CF-1020.  Defendant's convictions in case No. 12-CF-891 stemmed from a September 2012 incident in which defendant entered the trailer of his estranged lover, A.W., and physically and sexually attacked her over the course of several hours. Defendant's convictions for harassment by telephone and violation of a bail bond in case No. 12-CF-1020 resulted from numerous jailhouse phone calls defendant made to A.W. while he was in pretrial custody in case No. 12-CF-891. In those calls, defendant persuaded A.W. not to cooperate with the prosecution in case No. 12-CF-891. In March 2013, the trial court sentenced defendant to aggregate prison terms of 95 years in case No. 12-CF-891 and 6 years in case No. 12-CF-1020, with the 6-year sentences to be served consecutively to those imposed in case No. 12-CF-891. Defendant appeals, arguing that he was denied a fair trial in case No. 12-CF-891 because (1) the trial court improperly admitted, as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2012)), A.W.'s hearsay statements to a detective; (2) the State presented improper opinion testimony from police officers regarding defendant's and A.W.'s credibility; and (3) the State failed to present sufficient evidence to sustain defendant's conviction for home invasion.

6. School Code/Community Service: Affirmed: The State Board, in section 1.440 of Title 23 of the Illinois Administrative Code, did not adopt a regulation altering the intent of any state law. A local board of education may adopt a reasonable service learning program as a requirement for graduation.  Defendant's requirement students complete a modest six hours of service learning for each year they are a student in Decatur public schools, for a total of up to 24 hours over four years, is not unreasonable, onerous, or unduly burdensome making it akin to involuntary servitude. Knecht, J.

No. 2015 IL App (3d) 141111    Earl v. Decatur Public Schools Board of Education   Filed 9-18-15 (RJC)

Plaintiff, Shari L. Earl, is the parent and guardian of a high school student, A.B., at MacArthur High School in Decatur, Illinois. She sought to enjoin defendant, Decatur Public Schools Board of Education, from enforcing a policy requiring her child to complete six hours of community service for each year of attendance in a Decatur public high school as a prerequisite to graduation. Cross-motions for summary judgment (735 ILCS 5/2-1005 (West 2014)) were filed and the trial court granted the motion for summary judgment filed by defendant. Plaintiff appeals, arguing the School Code (Code) (105 ILCS 5/1-1 et seq. (West 2014)) specifically provides the requirements which must be met for obtaining a high school diploma and it does not include a community service requirement. Further, the legislature has determined Illinois public schools may only offer community service as an elective course, specifically stating schools may offer a course involving "voluntary" community service.

4 Appellate Cases Posted 9-17-15

1. Criminal Law: Reversed: Trial court finding of guilty of lesser offense of robbery reversed where video evidence "called into serious question" accounts of complaining witness regarding offense, and where neither proceeds nor alleged weapon were recovered despite apprehension of defendant by police within minutes. Hyman, J.

No. 2015 IL App (1st) 123157  People v. Shaw  Filed 9-17-15 (TJJ)

Defendant Anthony Shaw asserts the State failed to prove beyond a reasonable doubt that he committed robbery because (i) when the police searched him and the area shortly after the alleged offense, no money or gun was found and (ii) a Chicago Transit  Authority surveillance video directly contradicts the most incriminating aspects of the complainant's initial account to authorities. We reverse, finding the evidence presented at trial insufficient to convict where numerous aspects of the victim's testimony  contained material inconsistencies, including accounts contrary to evidence from a surveillance camera and testimony from police officers.

2. Tort Immunity Act/Statute of Limitations: Reversed: In initial class action seeking damages from municipality for damages stemming from flooding, filing of initial action tolled the statute of limitations as to all members of the putative class until the point at which class certification was denied or abandoned, and trial court ruling finding that claims of other plaintiffs seeking to intervene were time-barred was error. Cunningham, J.

No. 2014 IL App (1st) 140356  Mabry v. Village of Glenwood Filed 9-14-15 (TJJ)

This appeal arises from the December 17, 2013 order of the circuit court of Cook County which dismissed as time-barred the claims filed by 32 individual plaintiffs who intervened (intervening plaintiffs) into a negligence action filed against the defendant,  Village of Glenwood (Glenwood). On appeal, the intervening plaintiffs argue that their claims were timely because they were tolled by the application of: (1) the relation back doctrine; (2) the equitable tolling doctrine; or (3) the class action tolling rule. For  the following reasons, we reverse the judgment of the circuit court of Cook County.

3. Criminal Law: Reversed: Defendant's conviction for first degree murder reversed, in case where "the evidence against defendant was so lacking and improbable that it is simply unreasonable to sustain the finding of guilty beyond a reasonable doubt." Zenoff, J.

No. 2015 IL App (2d) 131291  People v. Casciaro  Filed 9-17-15 (TJJ)

Following a jury trial in 2013, defendant, Mario Casciaro, was convicted of felony murder in the death of Brian Carrick. He appeals. This was defendant’s second jury trial. The first resulted in a mistrial after the jury was unable to reach a verdict. Because  the State failed to prove defendant’s guilt beyond a reasonable doubt, we reverse.

4. Criminal Law: Reversed: Defendant's conviction for cannabis trafficking reversed where trial court erred in denying defendant's motion to suppress, where evidence showed that police unreasonably prolonged the initial traffic stop, and where other evidence called into question the credibility of one of the testifying officers. McDade, J. (Carter, J., dissenting).

No. 2015 IL App (3d) 140429  People v. Litwin  Filed 9-17-15 (TJJ)

The defendant, Eric Litwin, was convicted of unlawful cannabis trafficking and was sentenced to 12 years of imprisonment. On appeal, the defendant argues, inter alia, that the circuit court erred when it denied his motion to quash arrest and suppress  evidence on the basis that the duration of the traffic stop had not been unreasonably prolonged. We reverse.

4 Appellate Cases Posted 9-16-15

1. Criminal Law: Affirmed in part and vacated in part: Trial court properly denied defendant's motion to suppress evidence found in car after traffic stop, both because defendant consented to search, and additionally because defendant had reduced expectation of privacy by virtue of fact that he was on mandatory supervised release at time, a fact known to the arresting oficers prior to the search; Habitual Criminal Act requiring sentence of natural life for defendant's third successive Class X conviction- - all for narcotics offenses- - did not violate the Constitution. Lavin, J. (Hyman, J., dissenting).

No. 2015 IL App (1st) 131145  People v. Collins  Filed 9-16-15

Following a jury trial, defendant Charles Collins was found guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver, and was sentenced as a habitual criminal to natural life in prison. On appeal, he asserts  that the trial court erred in denying his motion to quash arrest and suppress evidence procured as a result of a warrantless search because he did not consent to the search and his mandatory supervised release status (MSR) did not otherwise justify the  search. Defendant also asserts that the Habitual Criminal Act is unconstitutional. In addition, both parties agree that defendant's conviction for possession of a controlled substance must be vacated as a lesser-included offense. We vacate that conviction and  affirm the judgment in all other respects.

2. Guardianship: Vacated: In case of first impression in this State, trial court ruling denying petition of non-relative cusodian guardians for ruling that illegal immigrant child was neglected and/or abandoned by her birth parents vacated where trial court did not make requisite findings under federal Immigration and Nationality Act, where such ruling was a necessary predicate to permit juvenile to petition for relief as a Special Immigrant Juvenile to remain in the United States. Mason, J.

No. 2015 IL App (1st) 152223  In re Estate of Nina L.  Filed 9-16-15 (TJJ)

Petitioners, Terry Howerton and Richard Aleong, were appointed by the circuit court of Cook County to act as coguardians of Nina L., a nonrelative minor who was born in Taiwan and came to this country with her mother when she was six years old. At  the time the petition was filed, Nina was 17 years old; she will turn 18 on September 23, 2015. Following their appointment, petitioners filed a motion requesting the trial court to make certain findings that would enable Nina to apply for Special Immigrant  Juvenile (SIJ) status, an application that, if granted, could lead to permanent resident status and, ultimately, citizenship. The court denied the motion and declined to make any findings, a ruling from which petitioners appealed. On August 25, 2015, we  entered an order vacating the trial court's order and, based on our de novo review of petitioner's brief and supporting record, made findings that (i) Nina's reunification with one or both of her parents is not viable due to abuse, neglect or abandonment and (ii) return to Taiwan is not in Nina's best interest. We now set forth the basis for our ruling.

3. Criminal Law: Reversed and remanded: Defendant convicted of armed robbery and theft entitled to new trial where defendant's trial counsel operated under per se conflict of interest by virtue of simultaneous representation of defendant's girlfriend, called as a hostile witness against defendant by the prosecution, and required a new trial notwithstanding waiver of any conflict previously signed by defendant and witness. Pope, J.

No. 2015 IL App (4th) 130847  People v. Poole  Filed 9-16-15 (TJJ)

In August 2013, a jury convicted defendant, Demarco Poole, of armed robbery, aggravated battery, and theft. In September 2013, the trial court sentenced defendant to concurrent prison terms of 28 years for armed robbery, 5 years for aggravated battery,  and 5 years for theft. Defendant appeals, arguing a per se conflict of interest existed during trial where his attorney contemporaneously represented defendant and his girlfriend, Amber Graves, who was called by the State to testify as a hostile witness. We  reverse defendant's conviction and remand with directions for a new trial.

4. Firearm Owner Identification Card: Reversed: Trial court erred in granting petitioner, previously convicted of battery in connection with a "domestic" incident, a state firearm owner's identification card, as statutory amendments to FOID Card Act prohibited issuance of such. N.B. Case involves amendments to Act subsequent to Coram v. State of Illinois, 2013 IL 113867. Turner, J.

No. 2015 IL App (4th) 141055  Walton v. The Illinois State Police  Filed 9-16-15 (TJJ)

Pursuant to section 10 of the Firearm Owners Identification Card Act, petitioner, Lane Walton, filed a petition against respondents, the Illinois State Police and its director Hiram Grau, seeking a hearing on the revocation of his firearm owner's identification  (FOID) card. After an evidentiary hearing, the Sangamon County circuit court reversed the Illinois State Police's revocation of petitioner's FOID card and found petitioner was eligible for a FOID card. Respondents appeal, asserting (1) federal  law prohibits petitioner from possessing a firearm and thus he is ineligible to receive a FOID card under Illinois law and (2) the circuit court lacked statutory authority to remove a federal firearm disability and order respondents to issue petitioner a  FOID card. We reverse.

4 Appellate Cases Posted 9-15-15

1. Criminal Law: Affirmed: Defendant plea of guilty to first degree murder and sentence of 53 years IDOC upheld over claim that defendant should have been permitted to withdraw plea where record was devoid of reference to prosecutor's agreement to plea and reduced charge against defendant's brother who was charged as a co-defendant. Pierce, J.

No. 2015 IL App (1st) 132264  People v. Colin  Filed 9-15-15 (TJJ)

Defendant Alberto Colin pleaded guilty to first degree murder and was sentenced to 53 years' imprisonment. On appeal, defendant contends that because the prosecutor and defense counsel failed to fully inform the trial court of all the material terms of the  plea agreement, in violation of Illinois Supreme Court Rule 402(b) (eff. July 1, 1997), the trial court could not confirm the terms of the agreement, determine the voluntariness of the plea, and properly exercise its discretion in deciding whether to accept the  plea. For the reasons that follow, we affirm.

2. Sale of Business/Specific Performance: Affirmed in part and reversed in part: In circumstances relating to sale of veterinary business and building, plaintiff purchaser properly invoked option clause in parties' contract, and was thus entitled to specific perfomance of the contract and to purchase the property at price set by neutral appraiser under the terms of the contract, but plaintiff was not absolved from rent payments while transaction was pending, notwithstanding claim that defendant was the cause of delay to close on contract. Simon, J.

No. 2015 IL App (1st) 140969  Ruffolo v. Jordan  Filed 9-15-15 (TJJ)

This case concerns a real estate transaction following the purchase of a veterinary practice. The purchase agreement contained a lease for the clinic that housed the practice. The agreement also contained an option for the purchaser-lessee to buy the property  six years later, which plaintiff tried to exercise. As the parties' lawyers attempted to consummate the deal, the transaction became tangled and protracted. The parties could not agree on an appraiser, an appraised value, a closing date, plaintiff's rent  obligations, the list goes on. Ultimately, plaintiff filed this case for specific performance asking the court to order defendant1 to complete the sale. The trial court found for plaintiff and ordered defendant to sell the property. The court held that the  purchase price was to be $525,000, consistent with the appraised value put forth by a third-party appraiser. The trial court also held that defendant was not entitled to any credit towards the purchase price for a period in which plaintiff stopped paying rent.  Defendant appeals those rulings. We affirm in part and reverse in part.

3. Legal Malpractice/Intentional Interference with Contract: Affirmed: Statute of limitations barred claim against one lawyer by claiming that lawyer's actions in connection with bankruptcy of plaintiffs' corporations and real estate constituted intentional interference with contractual rights; and claim against second attorney for legal malpractice for failing to add parties in connection with appeal relating to first dispute properly denied by summary judgment where facts showed that plaintiff would not have been entitled to relief in any event. Neville, J.

No. 2015 IL App (1st) 142787  Rodi v. Horstman  Filed 9-15-15 (TJJ)

This lawsuit involves allegations that two attorneys separately acted improperly in providing legal services. Ann Rodi and related parties sued Ronald Roeser, alleging that his work for his client, Chrysler Financial Services, involved misconduct that  injured Ann. The circuit court dismissed the lawsuit against Roeser. Ann hired James Horstman to help with the appeal. The appellate court dismissed the appeal. Ann and some related parties then filed this lawsuit for legal malpractice against Horstman.  Horstman moved to dismiss the lawsuit, arguing that Ann would have lost the appeal against Roeser no matter what he did. The circuit court entered a judgment in favor of Horstman. Ann now appeals. We find that the applicable statute of limitations  barred Ann from obtaining any recovery from Roeser, regardless of Horstman's actions. Because Ann and the other plaintiffs cannot show that Horstman's actions proximately caused them any damages, we affirm the judgment entered in favor of Horstman.

4. Tax Increment Financing: Affirmed: Trial court properly granted summary judgment to municipality in suit by taxpayer claiming that municpality improperly levied and spent governmental taxes under the Tax Increment Allocation Redevelopment Act. Holder White, J.

No. 2015 IL App (4th) 140819  Devyn Corporation v. The City of Bloomington, Illinois  Filed 9-15-15 (TJJ)

In October 2011, plaintiff, Devyn Corporation, filed a three-count amended complaint against defendant, the City of Bloomington, Illinois, alleging defendant had failed to comply with various provisions of the Tax Increment Allocation Redevelopment  Act. Therein, plaintiff sought a writ of mandamus (count I), an equitable accounting (count II), and a declaratory judgment (count III). In March 2012, the trial court, by agreement of the parties, dismissed count I of plaintiff's amended complaint.  Thereafter, in December 2013, the court granted summary judgment in favor of defendant as to count III of plaintiff's amended complaint. Later, in April 2014, the court granted defendant's motion for summary judgment as to count II of plaintiff's complaint. In September 2014, the court denied plaintiff's motion for leave to further amend its complaint. Plaintiff appeals, arguing the trial court erred in (1) entering summary judgment in favor of defendant as to count III of its amended complaint, (2)  entering summary judgment in favor of defendant as to count II of its amended complaint, and (3) denying plaintiff's request for further leave to amend its complaint. We affirm.

2 Appellate Cases Posted 9-14-15 

1. Criminal Law: Reversed: Trial court ruling finding defendant guilty of criminal sexual abuse reversed, where evidence showed that complaining witness drank a substantial amount of alcohol and claimed not to know whether she had had sex with defendant; notwithstanding trial court conclusion that complainant was too intoxicated to consent knowingly, record was devoid of evidence that defendant knew or should have known that complainant was unable to consent. Cunningham, J.

No. 2015 IL App (1st) 131962  People v. Roldan  Filed 9-14-15 (TJJ)

Following a joint bench trial with codefendant Abraham Ramos, who is not a party to this appeal, defendant Luis Roldan was found guilty of two counts of criminal sexual assault, and sentenced to consecutive terms of four years' imprisonment. On appeal,  defendant contends that the evidence was insufficient to prove him guilty of this offense beyond a reasonable doubt. Reversed.

2. Domestic Relations: Reversed and remanded: "Inherited retirement plan" received by husband upon the death of another was not exempt under Section 12-1006 of the Code of Civil Procedure to satisfy award to wife of over $200,000 for attorney's fees and contributions toward child's college tuition and expenses. Liu, J.

No. 2015 IL App (1st) 141297  In re Marriage of Branit  Filed 9-14-15 (TJJ)

Petitioner initiated supplementary proceedings to recover an award of contribution and attorney's fees that the court entered against respondent, her ex-husband. As part of her collection efforts, petitioner directed three citations to discover assets to the  custodian and trustee of a beneficiary individual retirement account (IRA) that respondent inherited from his deceased mother, the original owner of the account. Respondent moved to discharge the citations, asserting that the funds in his beneficiary IRA  are exempt from collection pursuant to section 12- 1006 of the Code of Civil Procedure. The circuit court agreed and discharged the citations. On appeal, petitioner contends that the court erred in concluding that funds in an inherited, non-spousal  beneficiary IRA are exempt from collection under section 12-1006. She also contends that the money in respondent's inherited IRA is subject to collection under section 15(d) of the Income Withholding for Support Act. For the following reasons, we reverse and remand.

4 Appellate Cases Posted 9-11-15

1. Criminal Law: Affirmed in part, reversed in part, and remanded for resentencing: Defendant could not succeed on claim that the trial court's guilty plea admonishments resulted in an involuntary guilty plea to first degree murder and attempt first degree murder, where defendant's total sentence of 100 years was within parameters expressed in the court's admonition, but expression by trial court of "its personal views and experience" constituted a showing that the judge considered more than the facts of the case, and the aggravating and mitigating facts presented, and a new sentencing hearing was ordered. Delort, J.

No. 2015 IL App (1st) 110415  People v. Pace  Filed 9-11-15 (TJJ)

Defendant Michael Pace appeals the trial court’s denial of his motions to vacate his guilty plea and reconsider sentence. On appeal, he contends that the trial court committed reversible error by (1) considering its personal beliefs and private investigations  during the sentencing hearing; (2) exhibiting bias against him; (3) improperly considering his declination to speak in allocution; (4) considering improper evidence; (5) failing to consider mitigating evidence; (6) improperly questioning a defense witness  during a hearing on his motion to vacate his plea; and (7) failing to properly admonish him pursuant to Illinois Supreme Court Rule 402(a). In addition, he contends that the automatic transfer provision of the Juvenile Court Act of 1987 and the application of the 25 years-to-life mandatory firearm enhancement and consecutive sentencing statute violate the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of the Illinois Constitution (Ill.  Const. 1970, art. I, § 11). We affirm in part, reverse in part, vacate defendant’s sentence and remand with instructions.

2. Criminal Law: Affirmed in part and reversed in part and remanded: Trial court properly dismissed several aspects of defendant's post-conviction petition relating to claims of ineffective assistance of counsel at second stage, but defendant entitled to third stage hearing as to whether his confession was coerced. Gordon, J.

No. 2015 IL App (1st) 123470  People v. Tyler  Filed 9-11-15 (TJJ)

Defendant Sean Tyler, an 18-year-old1 with no prior criminal record, was convicted of first-degree murder following a jury trial on October 27, 1995. The only evidence at trial implicating defendant in the murder was the testimony of a witness who testified that she observed defendant run through an alley carrying a gun shortly after the shooting and defendant's confession that he acted as a lookout for the shooter; however, defendant testified at trial that a detective physically beat him into giving a false confession. After considering factors in aggravation and mitigation, the trial court sentenced defendant to 58 years in the Illinois Department of Corrections (IDOC). On direct appeal, we affirmed defendant's conviction but remanded for resentencing , and on remand, the trial court resentenced defendant to 50 years in the IDOC, which we then affirmed in a second appeal. For the following reasons, we reverse and remand for the limited purpose of requiring the trial court to conduct a third-stage  evidentiary hearing on defendant's coerced confession claim, and we affirm the dismissal of all of defendant's other claims.

3. Forum Non Conveniens: Affirmed: Trial court decision granting defendants' motion to transfer case to Boone or Winnebago County from Cook County on basis of forum non conveniens affirmed where decedent and defendant truck driver both lived in Boone County or Winnebago County, and accident giving rise to decedent's death took place in Boone County, and decedent's beneficiary and administrator of his estate lived in Winnebago County. Gordon, J.

No. 2015 IL App (1st) 142972  Ruch v. Padgett  Filed 9-11-15 (TJJ)

Plaintiff Melinda Ruch brought this lawsuit as the administrator for the estate of Kenneth L. Kazort. Ruch alleged that Kazort died as the result of a motor vehicle collision on October 24, 2013, between his vehicle and a garbage truck driven by defendant  John Padgett, who was employed by defendant Advanced Disposal Services Solid Waste Midwest. Defendants then moved the trial court, pursuant to the doctrine of forum non conveniens, to transfer the case from Cook County, which is not plaintiff's home forum, to Boone County, where the motor vehicle accident occurred. The trial court granted defendants' motion but permitted plaintiff to choose whether the case would be transferred to Boone County or Winnebago County, where a number of the  witnesses live and where plaintiff both lives and works. On this interlocutory appeal, plaintiff Ruch appeals the trial court's grant of defendants' forum non conveniens motion, and defendants ask that we affirm. For the following reasons, we cannot find that the trial court abused its discretion and we must affirm.

4. Criminal Law: Affirmed: Trial court properly granted post-conviction petition in which defendant alleged that he was entitled to a new sentencing hearing under Miller v. Alabama, over claims by the State that the petition was not timely filed and that Miller ought not to be applied retroactively. Goldenhersh, J.

No. 2015 IL App (5th) 140468  People v. Craighead  Filed 9-11-15 (TJJ)

The State appeals from an order of the circuit court of St. Clair County granting the postconviction request of defendant, Brandon Craighead, for a new sentencing hearing. The issues raised in this appeal are: (1) whether defendant's postconviction petition  was timely filed and (2) whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), retroactively applies to cases on collateral review. We affirm.

1 Appellate Case Posted 9/10/15

1. Civil Law/FELA/Statute of Limitations/Equitable Estoppel/Affirmed: After voluntarily dismissing his first complain against defendant, pursuant to the Federal Employer’s Liability Act (FELA), plaintiff filed a second complaint based on the same injury. The trial court granted defendant’s motion to dismiss based on statute of limitations. Howse, J.


2015 IL App (1st) 143437 Klancir v. BNSF Railway Company Filed 9/10/15 (JMC)

HELD: Plaintiff failed to meet his burden to prove that defendant misrepresented or concealed material facts with regard to whether defendant waived its statute of limitations defense for up to one year. Plaintiff did not prove by clear and convincing evidence that plaintiff was justifiably misled into a good-faith belief he could file his complaint almost one year after the voluntary dismissal.



4 Appellate Cases Posted 9/9/15

1. Civil Law/Probate/Property Transfer: Affirmed in part; reversed in part: In a probate action commenced by the decedent’s estate, the circuit court determined that the decedent’s four sons had equal interests in the decedent’s home. The trial court also rejected one son’s claim for compensation for the care that he provided to the decedent prior to her death. Shostock, J.


2015 IL App (2d) 150084  Estate of Mendelson v. Mendelson   Filed 9/9/15  (JMC)

HELD: The trial court properly rejected the son’s claim for compensation but erred in not awarding him a 100% interest in the decedent’s home.



2. Civil Law/ Takings Clause: Affirmed: Plaintiffs sued the County, alleging that, as a result of the County’s construction project, a property development owned by plaintiffs for residential and commercial use no longer had frontage on or direct access from a main road in the village and thus incurred damages. Plaintiffs appealed from the trial court’s order granting summary judgment for the County, arguing that the court erred in concluding that their property did not suffer a material impairment. Hutchinson. J.


2015 IL App (2d) 131251  DWG Corporation v. The County of Lake   Filed 9/9/15 (JMC)


HELD: the trial court correctly concluded as a matter of law that the construction project’s relocation of the access, 400 feet to the southeast, and the new construction of a connector road, did not result in a material impairment to plaintiff’s property.



3. Criminal Law/Unlawful Use of Weapons/Constitutionality/Violent Juvenile Offender: Constitutionality/One-act-One Crime: Affirmed in part, vacated in part: Respondent was adjudicated delinquent of two counts of aggravated unlawful use of a weapon based on his lack of a valid FOID card and his youth and was sentenced to a mandatory term of confinement until age 21. On appeal, respondent contended: (1) the subsections of the AUUW statute under which he was convicted are not severable from the section of the AUUW statute that was found unconstitutional in People v. Aguilar and are, therefore, themselves unconstitutional; (2) the violent juvenile offender provision of the Juvenile Court Act under which respondent was sentenced is unconstitutional; (3) the admission of a certification alleging respondent's lack of a valid FOID card, prepared by a non-testifying witness, violated his right to confrontation; and (4) respondent's adjudications of delinquency for AUUW based on the lack of a valid FOID card and possessing a firearm while under age 21 violated the one-act, one-crime doctrine. Fitzgerald Smith, J.


2014 IL App (1st) 143316  In re Deshawn G.  Filed 9/9/15 (JMC)


HELD: Respondent's constitutional argument, based entirely on Aguilar and its progeny, was fails as Aguilar does not apply to the crime at issue. The violent juvenile offender provision of the Act does is not violative of due process, equal protection, the eighth amendment, and the proportionate penalties clause of the Illinois Constitution. The State conceded that the same physical act --  respondent's possession of the handgun -- formed the basis for the two  adjudications of delinquency. Under the one-act, one-crime rule, respondent should be adjudicated delinquent under a single count of the AUUW statute. Respondent’s adjudication for AUUW (lack of FOID) vacated, but the AUUW adjudication (age) was valid, and sentence remains.


4. Civil Law/School Code/Termination: Affirmed: Defendants terminated plaintiff’s employment, and plaintiff sued, maintaining that her termination violated provisions of the Illinois School Code. The circuit court dismissed her suit. On appeal, she the dismissal of her claim for declaratory judgment  and breach of contract because (1) her actions were authorized by section 13A-4 of the Code to administratively transfer students to alternative schools without Board hearings (2) defendants’ affirmative matter did not negate her due process and breach of contract claims. Lavin, J.


2015 IL App (1st) 1143202 Leak v. Board of Education of Rich Township High School District 227     Filed 9/9/15 (JMC)


HELD: Plaintiff acted outside the scope of her authority prescribed in the School Code and the trial court did not err in finding cause for her termination. It is undisputed that plaintiff received notice and a meaningful opportunity to be heard. There is no evidence in the record to suggest plaintiff did not receive an impartial hearing. Plaintiff’s mere allegation that the Board was biased is not sufficient to establish an unfair ruling upon the evidence.



2 Appellate Cases Posted 9/8/15

1. Criminal Law/Evidence: Ballistic Testing: Affirmed: Defendant appealed from the circuit court’s order that denied his pro se "motion for ballistic testing" under section 116-3 of the Code of Criminal Procedure of 1963, arguing that the trial court erred in denying the request it had the potential to reveal materially relevant evidence of his innocence. Hyman, J.


2015 IL App (1st) 131550    People v. Navarro  Filed 9/8/15 (JMC)

HELD: Trial court did not err because Integrated Ballistic Identification System (IBIS) testing of the bullet shells would not materially advance Navarro's claim of actual innocence due to the State's strong evidence identifying Navarro as the shooter.




2. Criminal Law/Appellate Jurisdiction: Post-Conviction/Retrospective Fitness Hearing: Affirmed: Defendant appealed from the circuit court’s third stage dismissal of his petition for  relief under the Post-Conviction Hearing Act, arguing that (1) the court erred when it found, after a retrospective fitness hearing, that he was fit in 2001 to be tried and sentenced for first-degree murder and to plead guilty to unlawful use of a weapon by a felon, and  (2) the court erred in failing to advance his ineffective assistance of counsel claim past second stage proceedings by rejecting his argument that his trial counsel was ineffective for stipulating to the State's factual basis and allowing him to plead guilty to the unproven felony weapons offense. Hyman, J.


 2015 IL App (1st) 131180   People v. Garcia  Filed 9/8/15 (JMC)


HELD:  The trial court's dismissal of Garcia's postconviction petition following a third stage evidentiary hearing was not manifestly erroneous because the State offered credible evidence in the form of both defense counsels' testimony and a psychiatrist's report finding Garcia fit to stand trial in the murder case; and that his guilty plea was made knowingly and intelligently. Defendant’s second claim regarding the second stage dismissal of his ineffective assistance of counsel claim, was dismissed because the appellate court lacked jurisdiction over it because because the notice of appeal failed to mention it.

1 Appellate Case Posted 9/4/15

Civil Law: Rule 224/Sufficiency of allegations/Clergy-Penitent Privilege: Affirmed: Respondents appeal from the circuit court’s order, granting the petition pursuant to Illinois Supreme Court Rule 224 of petitioner which sought the identity of the writer of an allegedly defamatory letter concerning her son. Respondents argue that petitioner’s Rule 224 petition was insufficiently pleaded and that, even if the petition were sufficient, disclosure is prohibited under the clergy-penitent privilege, codified at section 8-803 of the Code of Civil Procedure. Birkett, J.

2015 IL App (2d) 140618  Doe v. Catholic Diocese   Filed 9/4/15 (JMC)

Rule 224 is intended to assist a petitioner in identifying a currently unidentified party who might be liable; however, to employ the rule, the petitioner must demonstrate that the proposed identification is necessary. The petitioner must demonstrate that a potential defamation claim against the unidentified individual or entity would survive a section 2-615 motion to dismiss, The allegations are sufficiently precise and particular to survive a section 2-615 analysis of the defamation claim. Petitioner alleged defamatory per se statements under the fornication-or-adultery category and adequately pleaded that the writer’s allegedly defamatory statements imputed the commission of a crime. The clergy-penitent privilege is simply inapplicable.

1 Appellate Case Posted 9/2/15

Civil Law: Insurance/Duty to Defend: Reversed and remanded. Defendant appealed from a circuit court order granting the plaintiff-insurer’s summary judgment and denying defendant’s cross-motion for summary judgment, and finding that the insured owed no duty to defend defendant as an additional insured in a personal injury construction accident lawsuit. O’Brien, J.


2015 IL App (3d) 140290  Pekin Insurance Company v. Martin Cememt Company  Filed 9/2/15 (JMC)

HELD: The underlying complaint, along with the contracts at issue contained sufficient allegations that actions or omissions of defendant’s subcontractor caused the injuries at issue, making summary judgment in favor of the insured on the duty to defend in error.


4 Appellate Cases Posted 9/1/15

1. Criminal Law: Predatory Criminal Sexual Assault/Fines: Vacated in part, modified in party and remanded. Defendant pled guilty to two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) in exchange for consecutive sentences of 12 years' imprisonment on each of the charges. On appeal, defendant argues that the court erred in imposing a $500 sex crimes fine where the cited statute did not authorize the assessment and the only authority for the assessment did not take effect until after the date of defendant's offenses.. O’Brien, J., with Wright, J., dissenting.


2015 IL App (3d) 130720     People v. Scalise     Filed 9/1/15 (JMC)

HELD: At the time of sentencing, section 5-4-3(j) of the Unified Code of Corrections (Code) did not authorize the imposition of a $500 sex crimes assessment. Instead, this section authorized the imposition of a $200 DNA analysis fee, which the court properly imposed in a different section of the costs order. Therefore, defendant's $500 sex crimes assessment is void because the trial court could not assess costs that were not authorized by statute. In addition to defendant's challenge to the sex crimes assessment, defendant's sentence is also void because he was not subject to the mandatory $100 sexual assault fine. Although the parties do not raise this issue, reviewing courts have an independent duty to vacate void orders and may sua sponte declare an order void, because a sentence which does not conform to a statutory requirement is void.


2. Criminal Law: Aggravated battery (public property)/Judicial Notice/Jury Instructions: Affirmed. Defendant was convicted of aggravated battery and sentenced to 10 years in prison. The sole overarching issue on appeal is whether defendant was properly convicted of aggravated battery on the theory that the area inside the Whiteside  County jail—where defendant committed the battery at issue—was “public property” within the meaning of section 12-3.05(c) of the Criminal Code of 2012. Defendant maintains that: (1) the State failed to prove him guilty of aggravated battery; (2) the trial court erred by taking judicial notice that a cell block in a county jail is public property; and (3) the trial court erred when it instructed the jury. Schmidt, J.


2015 IL App (3d) 130581 People v. Messenger  Filed 9/1/15 (JMC)

 HELD: The county jail where the incident occurred was owned by the government and therefore considered public property. The State presented evidence that defendant battered someone in a jail owned by a government entity. Therefore, as a matter of statutory interpretation, the battery clearly falls within the aggravated battery statute. defendant also implies on appeal that taking judicial notice of an element of an offense is erroneous. The Illinois courts, however, have regularly sanctioned the use of judicial notice to establish an element of the offense. Although, the jury was improperly instructed, the error was harmless beyond a reasonable doubt.


3. Civil Law/Counties Code/Notice of Demolition: Affirmed: Plaintiff, the County of McHenry, filed a verified petition under section 5-1121 of the Counties Code seeking to demolish a building. The trial court denied the petition. The court found that plaintiff did not notify all of the property’s owners and that plaintiff failed to prove that it would not be economically feasible to repair the property. On appeal, plaintiff contests both findings. Jorgenson, J. We affirm.


2015 IL App (2d) 141165 The County of McHenry v. Smith  Filed 9/1/15 (JMC)


HELD: The statute requires a “diligent search” for the property owners before a county may dispense with mailed notice and resort to alternative notice methods. Plaintiff failed to establish   what steps it took to ascertain the property’s owners, thus, the trial court correct concluded that it was unable to find diligence in attempting to locate them.  Moreover, plaintiff did not comply with the alternative-notice provision of section 5-1121, which requires that notice be posted at the property, but instead provided notice by publication. Although notice was improper in this case, the appellate court also noted that to order the demolition of a building pursuant to the analogous section 11-31-1 of the Illinois Municipal Code, a court must find that the building is dangerous and unsafe and that it is beyond reasonable repair. The trial court’s ultimate conclusion that plaintiff failed to prove that repairing the building would not be cost-effective was not against the manifest weight of the evidence.


4. Criminal Law: Conduct of Trial Judge: Reversed and remanded. Defendants (Wiggins and Swift) were convicted of attempting to murder Robert Barnes by shooting him. Barnes admitted at trial that he signed a statement in which he identified Wiggins as the shooter and Swift as the person who ordered the shooting, but he testified that he lied when he signed that statement. On appeal, Wiggins and Swift argued that the trial judge acted as a prosecutor when the judge asked Barnes questions designed to impeach Barnes's testimony at trial. Wiggins additionally contended that the judge's other actions further signaled to the jury the judge's  preference for the prosecution. Neville, J., with Liu, J., dissenting.


2015 IL App (1st) 133033 People v. Wiggins  Filed 9/1/15 (JMC)

HELD: Because the evidence was closely balanced against both defendants, the trial judge committed reversible error by permitting the prosecution to read to the jury the prior consistent parts of the statement Clark signed; by interposing and sustaining his own objections to defense questions; by saying to defense counsel, in front of the jury, "watch yourself, man"; by signaling to the jury the judge's identification with the prosecution; and by questioning a witness in a manner that conveyed his disbelief in the witness's testimony in court.