Our panel of leading appellate attorneys reviews the 10 Illinois Supreme Court opinions handed down Thursday, April 21.
Dent v. Constellation NewEnergy, Inc., 2022 IL 126795
By Michael T. Reagan, Law Offices of Michael T. Reagan
Richard Dent and his company, RLD Resources, Inc. had terminable at will energy supply and marketing contracts with the respondent companies. Attorneys acting for the respondents advised Dent that allegations had been made against him that he had groped a woman guest at a party at the Shedd Aquarium, that on another occasion he had commented graphically on that woman’s anatomy, and that someone observed Dent to be drunk and disorderly at the golf outing associated with the party at the Shedd. After that meeting, those contracts were terminated by respondents.
Dent and his company filed this action under Supreme Court Rule 224 which provides that “a person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.” The petitioners sought to obtain the identities of the woman involved, the man who related the drunk and disorderly conduct, and a person who was stated to be an investigator of these claims. Respondents had refused to make those disclosures. Dent asserted that he had been defamed. Significantly, the petition attached as an exhibit a letter from respondents’ counsel to petitioners’ counsel, which among other matters stated that respondents had a legal obligation to investigate the allegations and asserted the protected nature of its findings.
Respondents moved to dismiss the petition, asserting that it was insufficient because it sought discovery in support of a putative suit for defamation but that the statements were protected by qualified privilege, without sufficient facts having been pled to overcome the privilege. The circuit court dismissed the petition on different reasoning. The appellate court reversed, holding that the respondents themselves were not potentially liable for defamation or breach of contract, in that they had not made the statements. The appellate court held that defamation had been properly pled against the unknown persons. Respondents unsuccessfully claimed that all of the statements were qualifiedly privileged.
The Illinois Supreme Court, with Justice Michael J. Burke writing for a divided court, reversed the appellate court and dismissed the petition with prejudice. Relying on respondents’ section 2-615 motion to dismiss, the Court stated that an affirmative defense may be raised by such a motion where the defense is established by the facts on the face of the complaint and no other facts alleged in the complaint negate the defense. The Court also said that those facts “apparent from the face of the complaint… include any attached exhibits.” After a detailed examination, the Court found that a qualified privilege exists in the context of claims arising from allegations of sexual harassment, and that the petition itself, in conjunction with the exhibit, raised that defense here. The Court further concluded that there is no set of facts which would show an abuse of the qualified privilege. Accordingly, this Rule 224 petition was not sufficient to withstand dismissal under a section 2-615 motion.
Justice Garman, joined by Justice Neville, dissented at length, cataloging the major points of difference at the outset, asserting: That respondents cannot raise qualified privilege in a 2-615 motion to dismiss; that the court should not have accepted the argument that the privilege protects not only statements but also identities; and that the majority essentially treated the qualified privilege as an absolute privilege, endowing a private company with quasi-judicial status. Noting that the petitioners contend that they do not know the identities of the responsible parties, “I am troubled by the majority’s lack of concern regarding how a party seeking to sue for defamation in this context is realistically expected to allege concrete facts to overcome the qualified privilege.”
Chief Justice Anne M. Burke did not participate.
Robinson v. Village of Sauk Village, 2022 IL 127236
By Joanne R. Driscoll, Forde & O’Meara LLP
In this tort immunity decision, a favorite subject of the Illinois Supreme Court and one of two decisions on that subject issued today, the Court considered the question of when an individual is an “escaped or escaping prisoner” for purposes of section 4-106(b) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-106(b) (West 2016)).
The plaintiff, a pedestrian, was hit by a fleeing vehicle during a police chase. The person being chased (Coffey) was driving a vehicle reported stolen. At one point, Coffey pulled into a church parking lot, left the engine running, kept the door closed, and refused to exit the vehicle while surrounded by police officers who had their weapons drawn. Coffey managed to drive away, and a second chase ensued during which the plaintiff was hit and severely injured.
The circuit court found that Coffey was in custody in the church parking lot and qualified as an escaping prisoner when he left the parking lot. The appellate court reversed, holding that the mere show of authority by police officers did not establish control over Coffey’s freedom of movement and, thus, was not sufficient to establish custody or support immunity.
Applying rules of statutory construction, the Illinois Supreme Court agreed with the appellate court. It first looked to the meaning of “prisoner” in the Tort Immunity Act, which was “a person held in custody” (745 ILCS 10/4-101 (West 2016)). Because the term “custody” was not defined in the Act, the Court looked to its dictionary definition, which required some manner of control over a person’s freedom of movement for at least a limited period of time. The Court then examined other references to the term “prisoner” in the Tort Immunity Act, which also implied a requirement of physical confinement.
Applying the requirement of control, the Court determined that the officers attempted to restrain or control Coffey’s freedom of movement but failed to do so and, thus, were not entitled to immunity. Acknowledging that this result is contrary to Townsend v. Anderson, 2019 IL App (1st) 180771, the Court overruled Townsend. As in the instant case, the officers in that case attempted to restrain the fleeing person but did not hold him in custody within the meaning of section 4-106(b) before he drove away and collided with another car. As the Court explained, to allow the mere show of authority to establish custody would expand immunity beyond the legislature’s intent.
Schultz v. St. Clair County, 2022 IL 126856
By Amelia Buragas, J.D.
In 2017, Larry Schultz made multiple calls to 911 seeking a police dispatch to prevent his wife from driving while intoxicated. The police were first sent to the wrong location despite Schultz providing them with a street address of his wife’s location. In subsequent calls Schultz could not provide a street address but told the dispatcher his wife had driven to a nearby convenience store. Schultz alleged the 911 dispatcher advised him police would not be dispatched without an exact address. A short time later, his wife left the convenience store, drove her car off the road, and died from her injuries. Schultz filed a wrongful death and survival action against several local government entities alleging that the dispatcher intentionally or recklessly refused to dispatch emergency services.
The circuit court dismissed the claims under section 2-619 of the Code of Civil Procedure by finding that the defendants were immune from plaintiff’s claims as well as that decedent was the sole proximate cause of her death. The appellate court affirmed, and the Illinois Supreme Court granted plaintiff’s petition for leave to appeal.
The Court first considered whether the absolute immunity provided by section 4-102 of the Local Government and Governmental Tort Immunity Act, 745 ILCS 10/4-102, or the limited immunity provided by section 15.1(a) of the Emergency Telephone System Act, 50 ILCS 750/15.1(a), applied to the facts of the case. The Court contrasted the language in section 4-102 regarding provision of police services with the language of the ETS Act regarding employee performance of 911 services and concluded that the “plain language” of the immunity provision in section 15.1(a) of the ETS Act governed—so long as plaintiff’s allegations fell under the “performance or provision of 911 service.” Looking at the “broad scope” of the ETS Act and its purpose to “develop and improve emergency communications procedures,” including providing provisions relating to rules and regulations applicable to 911 dispatchers, the court found that the allegations fell under the ETS Act. Thus, the court held that the limited immunity section of 15.1(a) of the ETS Act governed the claim and that the defendants were not immune from suit. However, that was not the end of the Court’s analysis as it next considered the trial court’s alternative basis for dismissal: lack of proximate cause. Using the condition/cause analysis, the court found that the plaintiff could not establish that the injuries to the decedent would not have occurred without the defendant’s alleged refusal to dispatch the police to the convenience store and that “[a]t most, defendants’ alleged conduct furnished a condition by which her injury was made possible.” Thus, while the Court agreed with plaintiff’s argument on the question of immunity it ultimately affirmed the trial court’s dismissal by finding that defendants’ alleged conduct was not a proximate cause of plaintiff’s injuries.
Justice Garman, joined by Justice Michael J. Burke, wrote specially to concur with the outcome, but not the majority’s immunity analysis stating that it was “not only unnecessary to the resolution of this case but also incorrect on the law.” The concurrence instead argued that the ETS Act is “system-based” and because it is not focused on the role of dispatchers it did not apply to the acts alleged by plaintiff.
People ex. rel. Alvarez v. $59,914 United States Currency, 2022 IL 126927
By Amelia Buragas, J.D.
The result in this case involving civil forfeiture proceedings hinged on whether the circuit court’s entry of a default judgment of forfeiture was void or merely voidable. The majority opinion written by Justice Michael J. Burke concluded that the order was voidable and, as a result, appellant’s section 2-1401 motion was not timely. In a dissenting opinion, Justice Neville contended that appellant’s due process rights were violated when the trial court failed to provide notice before entry of the default judgment and that this rendered the order void.
The case arose after the State initiated forfeiture proceedings against currency seized during a traffic stop. The State attempted to serve notice on the driver of the vehicle by mail and when that was unsuccessful it served notice by publication. No one filed a claim for the currency, so the circuit court entered a default judgment of forfeiture. More than two years later, the owner of the vehicle, Ameen Salaam, sought to vacate the judgment because he was not served with notice of the proceedings. The circuit court denied the motion finding that the State had complied with notice requirements by serving notice on the driver of the van as an “owner or interest holder” of the money. The appellate court affirmed, and the Supreme Court granted the petition for leave to appeal filed by Salaam.
The Illinois Supreme Court first noted that while the petitioner characterized his motion as a motion to vacate, it was filed more than 30 days after entry of the circuit court’s final judgment so it was, in effect, a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure. A section 2-1401 motion must be filed within two years of the judgment or order unless the order is void. Thus, under the section 2-1401 analysis, the court began by analyzing whether the forfeiture order was void or voidable “because the timeliness of Salaam’s motion turns on the answer to that question.”
Salaam argued that the State’s failure to give him notice of the forfeiture proceeding denied him due process and rendered the forfeiture judgment void for lack of personal jurisdiction. The Illinois Supreme Court disagreed, noting that while jurisdiction generally consists both of subject-matter and personal jurisdiction, in matters involving property the court has in rem jurisdiction rather than personal jurisdiction. Based on this, the Court found that the trial court had subject-matter jurisdiction under the Forfeiture Act as well as in rem jurisdiction over the currency. Thus, “any purportedly erroneous judgment entered with regard to that currency would render the circuit court’s judgment voidable, not void.” As a result, Salaam’s section 2-1401 petition had to be filed within two years and, since it was not, the motion was not timely. The Court affirmed the trial court’s dismissal of Salaam’s motion on that basis and did not address the substance of his claims regarding notice.
By Michael T. Reagan, Law Offices of Michael T. Reagan
This stage is efficiently set by the first two sentences of Justice Garman’s opinion for the court: “In 2016, an amendment shielding transportation funding from other uses was added to the state revenue article of the Illinois Constitution (Ill. Const. 1970, art. IX, sec. 11(a)), commonly known as the transportation taxes and fees lockbox amendment or safe roads amendment (Amendment). The Amendment safeguards proceeds from transportation-related bond proceeds, taxes, fees, excises, and license taxes to ensure that such proceeds are only used for transportation-related purposes.”
Plaintiffs, a coalition of contracting firms in the public transportation construction and design industry, filed this suit, asserting that Cook County was impermissibly diverting revenues generated from specific transportation-related ordinances that should have been used only toward delineated transportation-related purposes. The circuit court dismissed the complaint, on lack of standing and the merits. In moving to dismiss, the county claimed that its actions were in accordance with the legislative history and the ballot summary of the Amendment. The appellate court found that standing existed, but affirmed that determination that no violation of the Amendment had been stated. The appellate court found the Amendment to be ambiguous, and therefore looked to extrinsic aids, including the legislative debates and the Secretary of State’s explanations of the Amendment that were sent to the voters. The court concluded that the Amendment “does not impact a home-rule unit’s spending of revenue pursuant to its constitutional home-rule spending power.”
Plaintiffs’ petition for leave to appeal sought review only of the section 2-615 issue of whether a claim for violation of the Amendment was stated. The county, though, requested cross-relief to examine standing, which implicated the section 2-619 motion.
Plaintiffs asserted that they had associational standing, or alternatively, taxpayer standing. The Illinois Supreme Court agreed with the appellate court that associational standing existed, and therefore neither court reached that alternative ground. “Where plaintiffs have hundreds of millions of dollars’ worth of job opportunities they stand to benefit from, plaintiffs cannot be said to have a mere curiosity or concern for the outcome…” The Court rejected the county’s various arguments that it could manage to spend funds on transportation-related projects that would not involve the services of the plaintiffs, thus eliminating their standing. The Court also noted that “Illinois law ‘tends to vary in the direction of greater liberality’ than federal law on matters of standing.”
The Court framed the primary issue to be the scope of the Amendment — whether it applies without exception to revenues generated from transportation-related taxes even where the taxing body is a home-rule unit. The Court’s treatment of that question is exceedingly thorough, and does not lend itself to even summary here. The Court found no intent within the language of the Amendment to exclude home-rule units, taxes, or expenditures from its scope. “Subsection (a) clearly demonstrates an intent…to encompass the entire swath of proceeds….” The Amendment “takes away the legislature’s essentially unbridled discretion to determine how transportation-related funds are spent.” Home-rule units are always subject to constitutional limits on governmental power.
The Court found no reason to rely on the extrinsic materials advanced by the county, including statements in the legislature. Extrinsic sources do not trump plain meanings. “Furthermore, we do not defer to the legislative branch for its opinion as to whether certain language is plain or ambiguous.”
Justice Theis dissented. In part, she pointed to the ballot summary, which stated that the Amendment did not alter home rule powers. She concluded that the majority’s construction fails to effectuate the citizen’s understanding of the Amendment and the legislature’s intent, “thereby undermining the will of the people.”
McQueen v. Green, 2022 IL 126666
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Holding that an employer who admits respondeat superior liability may be liable for its own acts, independent of its employee’s acts, even if a jury determines that the employee was not negligent, the Illinois Supreme Court affirmed a judgment on a personal injury verdict awarding compensatory and punitive damages. On this issue, the Court analyzed a nationwide split in the law. The Court also addressed a related instructional issue and the sufficiency of the evidence relating to a punitive award.
The lawsuit arose from a vehicular accident on the Eisenhower expressway involving Fletcher McQueen and Lavonta Green, an employee of a Pan-Oceanic Engineering Company, Inc., a Chicago general contractor. Green’s responsibilities included hauling equipment for Pan-Oceanic construction jobs. On the day of the accident, a Pan-Oceanic supervisor instructed Green to pick up a “skid steer”—a piece of equipment weighing around three tons that is used for excavation—from one site to another. Upon arrival at the pick-up site, Green saw that the skid steer had not been loaded properly onto a trailer. The individuals responsible for loading the equipment refused to reload it. Green reported the problem to his supervisor, who nonetheless instructed Green to return to Pan-Oceanic with the skid steer. Driving slowly on the expressway during rush hour traffic, Green approached the I-294 junction. Traffic eased up, and Green increased his speed to 40 miles per hour. When he noticed that the skid steer was bouncing, Green braked, which caused his vehicle to spin and swing into McQueen’s vehicle.
McQueen sued Green and Pan-Oceanic on theories including that Green, in his employment for Pan-Oceanic, negligently operated his vehicle on the highway. In two additional counts of the complaint, plaintiff alleged that, independent of Green’s actions, the company negligently failed to train Green on how to respond to an unsafe load and negligently ordered Green to take the load onto the highway despite knowing that the load was not safe, among other allegations. Plaintiff also included a punitive count against both defendants based on conduct McQueen characterized as demonstrating a reckless disregard for others’ safety. Pan-Oceanic admitted that Green acted within the scope of his employment at the time of the accident in which McQueen was injured. At the conclusion of a bifurcated trial, the jury returned a verdict for plaintiff against Pan-Oceanic but not Green. The jury awarded McQueen compensatory damages of approximately $163,000 and $1 million in punitive damages. Answering two special interrogatories, the jury determined that Green had not acted with reckless disregard for the safety of others, but Pan-Oceanic did.
The trial court denied Pan-Oceanic’s post trial motion. On appeal, with one justice dissenting, the panel reversed. It ruled that the verdict was legally inconsistent, warranting a new trial, because plaintiff could not maintain a claim for direct negligence against an employer who admits responsibility for its employee’s conduct.
Disagreeing with the appellate majority, the Illinois Supreme Court analyzed an Illinois appellate decision the appellate majority cited and at length discussed authority from other jurisdictions addressing whether an employer’s acknowledgment of vicarious liability for an employee’s conduct precludes an action for direct negligence against the employer. The Court reasoned that the jurisdictions favorable to Pan-Oceanic’s position relied on unfounded policy concerns regarding the admission of irrelevant and unfairly prejudicial evidence and the potential for a double recovery. Ultimately, the Court held that the trial court correctly allowed McQueen to proceed on alternative theories against Pan-Oceanic under settled law permitting a plaintiff to assert alternative theories of recovery. The Court also held that the trial court accurately instructed the jury on the law concerning vicarious liability.
The Illinois Supreme Court also found that the evidence adequate supported the punitive award. It saw no reason to reduce it.
In re Estate of McDonald, 2022 IL 126956
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Here the Illinois Supreme Court addressed an heirship dispute: whether Ellizzette McDonald presented a prima facie case in a bench trial regarding the validity of her allegation of marriage to John McDonald III five months before his death. A finding of marriage would have established Ellizzette as the sole heir of John’s estate. The majority and dissent construed three Illinois statutes to reach their conclusions: the Probate Act, the Marriage and Dissolution of Marriage Act, and the Dead Man’s Act. An opinion authored by Chief Justice Anne Burke, joined by Justice Garman, Justice Neville, and Justice Michael Burke, focused on provisions of the Probate Act concerning John’s capacity to enter into a marriage. The majority concluded that an erroneous order barring Ellizzette’s testimony was harmless and affirmed the circuit court’s judgment rejecting Ellizzette’s assertion of sole heirship. Justice Theis, joined by Justice Overstreet and Justice Carter, concurred that the circuit court erred in its evidentiary ruling, but otherwise disagreed with the majority’s analysis and holding.
The lawsuit arose from a challenge by John’s parents and siblings to Ellizzette’s claim of heirship after John died without a will. The lengthy account of John’s history leading to an adjudication of disability and need for a guardianship, and the appointment of one of his siblings, Shawn, as John’s guardian, will not be repeated here. Nor does this summary include a recitation of the mystery concerning Ellizzette’s identity.
In a bench trial, during which Ellizzette proceeded pro se, the judge held that the Dead Man’s Act barred Ellizzette from testifying to the circumstances of her purported marriage to John. After hearing testimony of Ellizzette’s three witnesses, the judge 1) found that Ellizzette failed to show the marriage was properly witnessed or licensed and 2) in the absence of a “best-interest” determination under the Probate Act giving John permission to marry, Shawn was entitled to a directed finding in his favor. While upholding some of the circuit court’s rulings on the several issues Ellizzette raised on appeal, the appellate court found prejudicial error in the Dead Man’s Act ruling and reversed the order granting Shawn a directed finding.
The majority began its analysis by quoting several provisions of the Probate Act, including the rules and requirements governing the appointment of guardians for disabled adults, the duties of a guardian, and a guardian’s decision making. The Illinois Supreme Court held that, giving the various provisions “consistent, harmonious, and sensible effect” required the conclusion that a ward may not marry without the consent of his guardian, which requires a petition to the court and a finding, by clear and convincing evidence, that the marriage is in the ward’s best interest. The majority rejected Ellizzette’s argument that the Marriage Act governed the issue.
Next, as to the order barring Ellizzette’s testimony based on the Dead Man’s Act, the majority easily reached the conclusion that the circuit court erred: it relied on case law interpreting the wrong version of the Act. The governing version, enacted in 1973, provides that “”[n]o person shall be barred from testifying as to any fact relating to the heirship of a decedent.” 735 ILCS 5/8-201 (d) (West 2016). But, despite the error, the majority found that no remand was necessary, because Ellizzette failed to provide an offer of proof regarding the circumstances of the marriage. Also, the record made clear that no “best interest” finding was made, so Ellizzette could not have proved the validity of the marriage and thus was not prejudiced by the Dead Man’s Act ruling.
Justice Theis agreed that the circuit court missed the boat with its Dead Man’s Act ruling but found that the majority ignored what should have been an obvious conclusion: that the Marriage Act governed the issue before the court. Justice Theis wrote that none of the provisions of the Probate Act cited by the majority support the conclusion that a ward must have his guardian’s consent after a court hearing on the issue of best interest to enter into a marriage valid in Illinois. Quoting portions of sections 301 and 302 of the Marriage Act, Justice Theis cited the statutory language that any challenge by a guardian to her or his ward’s competency to consent to marriage based on mental incapacity must occur no later than 90 days after the guardian learns of the marriage and “[i]n no event” after the death of either party to the marriage. Because, in Justice Theis’ view, the Marriage Act and not the Probate Act governed the appeal, the Dead Man’s Act ruling that prevented Ellizzette’s testimony was prejudicial error. And no offer of proof was necessary to preserve the issue on appeal given the that the circuit court had taken judicial notice of documents pertaining to the marriage, and the record was clear that Ellizzette would testify on the core issue: the circumstances surrounding her purported marriage.
People v. Salamon, 2022 IL 125722
By Kerry J. Bryson, Office of the State Appellate Defender
At a jury trial, Andrew Salamon was convicted of first degree murder, armed robbery, and burglary. Prior to trial, Salamon sought to suppress his confession. Evidence presented at the hearing on the motion to suppress established that Salamon was first questioned by the police about a year after the incident in question. At that time, Salamon was given Miranda warnings, and he invoked his right to counsel when he learned that the police wanted to question him about a murder. Salamon was allowed to leave the station at that time.
Nearly a year later, Salamon was pulled over and taken into custody while driving home from work. When he was placed in a squad car, Salamon told the police that he wanted to speak to a lawyer. At the police station, Salamon was given Miranda warnings and again invoked his right to counsel. The police stopped questioning him. Salamon was handcuffed to a wall in the interrogation room and held there overnight. He was permitted to use the restroom, and was provided with food, water, and contact lens solution. Salamon testified that he repeatedly asked for a telephone call to contact an attorney, but was not permitted use of a phone. After spending approximately 24 hours handcuffed to the wall, alone in the interrogation room, Salamon said he wanted to speak to the detectives. When the detectives reentered the room, they told Salamon he would have to wait for a phone call. Salamon then agreed to speak with the detectives. One of the detectives confirmed Salamon’s version of events and explained that it was “procedure” that an arrestee not be provided telephone access until after booking.
The circuit court denied Salamon’s motion to suppress, concluding that the totality of the circumstances supported the finding that his statement was voluntary. The court noted that, while the police were “slow in providing a phone call,” Salamon had been advised of his rights and had waived those rights when he reinitiated contact with the police. The appellate court agreed, noting that while the length of detention and denial of a phone call were relevant factors to consider, other factors weighed in favor of a finding of voluntariness.
The Illinois Supreme Court agreed with Salamon that his statement was involuntary under the totality of the circumstances. Lengthy incommunicado detention is a form of coercion, and here Salamon was held for 24 hours, handcuffed to a wall, without access to a phone to contact a lawyer or his family. Further, Illinois provides a statutory right to a phone call in 725 ILCS 5/103-3(a). At the time of Salamon’s arrest, that statute required that an arrestee be provided “a reasonable number of telephone calls “within a reasonable time.” While “reasonable time” is not defined in the statute, the Court concluded that it means something “relatively brief,” noting that providing a phone call is only a slight burden on the State. (The statute has since been amended to provide three phone calls, no later than three hours after arrival at the first place of custody.)
People v. Grant, 2022 IL 126824
By Kerry J. Bryson, Office of the State Appellate Defender
In 2004, Andrew Grant was convicted of criminal sexual assault and aggravated criminal sexual assault and sentenced to 14 years in prison. The complainant, Z.G., was Grant’s niece. She testified that Grant had forced sex with her. Z.G.’s brother, Jeremy, testified that he walked into the room after the fact and found Grant and Z.G. in a state of undress. Grant, on the other hand, testified that Z.G. actually told him that she had sex with Jeremy. When Grant confronted Jeremy about Z.G.’s claim, Jeremy told his parents that Grant had sex with Z.G. A nurse testified that a rape kit had been collected from Z.G., no semen was found on the swabs, and a hair recovered from Z.G.’s vagina was not tested.
In 2013, Grant filed a petition for forensic testing of the hair pursuant to 725 ILCS 5/116-3. The trial court denied the petition, but the appellate court reversed and remanded, noting that while a non-match would not completely exonerate Grant, it would support his actual innocence claim.
On remand, however, it was discovered that the physical evidence in Grant’s case had been destroyed by the Peoria Police Department in 2007. Grant moved for a new trial, arguing that the police had violated 725 ILCS 5/116-4 by destroying the evidence, thereby denying him due process. Section 116-4 requires preservation of forensic evidence until a defendant had completed his sentence. The trial court rejected Grant’s request for new trial. In a two-to-one decision, the appellate court reversed, with the majority noting that the jury could be instructed on retrial that the State failed to preserve potentially exculpatory evidence as required by statute and that the jury could construed that fact against the State. The dissent concluded that the consequence for non-compliance with Section 116-4 was not a new trial, but rather was found in 720 ILCS 5/33-5. Section 33-5 provides for felony criminal liability for intentional non-compliance with Section 116-4’s evidence-preservation requirement.
The Illinois Supreme Court reversed the appellate court, agreeing with the dissent that the legislature intended Section 33-5 to be the remedy for a violation of Section 116-4. In reaching this conclusion, the Court agreed with the parties that Section 116-4 is mandatory, as evidenced by the legislature’s imposition of a specific consequence for its violation. But, the Court rejected Grant’s argument that an additional consequence was required here – vacating his conviction – to relieve the injurious effect of the statutory violation. The plain language of Section 116-4 does not indicate that the legislature intended such a consequence. Further, the statutory violation does not implicate a constitutional right, nor is it a procedural requirement for procuring a valid conviction. Thus, Grant’s conviction was not rendered infirm by the statute’s violation.
Justice Neville dissented, noting that Section 116-4 imposes a statutory duty as part of protecting the rights of criminal defendants to seek post-trial relief. While Section 33-5 provides a criminal consequence, any such prosecution would be a separate and distinct proceeding unrelated to a defendant’s case. Section 116-4 does not provide any remedy within its plain language. In light of the liberty interests at stake, however, the dissent would construe Section 116-4 as a mandatory statute, and would hold that a violation should result in vacatur of defendant’s conviction. The dissent urged the legislature to take the necessary steps to incorporate such a remedy into the statute, itself.
People v. Hartfield, 2022 IL 126729
By Kerry J. Bryson, Office of the State Appellate Defender
Defendant was convicted of four counts of aggravated discharge of a firearm based upon his firing a gun one time in the direction of four peace officers. The primary issue in the Illinois Supreme Court was whether a single shot could support multiple convictions of aggravated discharge.
The Illinois Supreme Court noted that to resolve this issue it had to determine the “unit of prosecution” for aggravated discharge, that is whether the offense allows one conviction per discharge or per person. This is a question of statutory interpretation, and the fundamental rule is to ascertain and give effect to the intent of the legislature. It is well-established that the best indication of legislative intent is the plain language of the statute.
The unit of prosecution analysis is controlled by “what the statute seeks to prohibit.” For instance, the unit of prosecution in burglary is the number of “unlawful entries,” not the number of crimes the offender intends to commit in the premises, because the primary concern of the statute is the unlawful entry (People v. Scott, 43 Ill. 2d 135 (1969)). Similarly, for aggravated DUI based on causing great bodily harm, the unit of prosecution is the act of driving under the influence, and thus only a single conviction can be had even where more than one victim is injured (People v. Lavallier, 187 Ill. 2d 464 (1999)).
The offense of aggravated discharge of a firearm at issue here is found at 720 ILCS 5/24-1.2(a)(3), which provides that the offense is committed when a person knowingly or intentionally “discharges a firearm in the direction of a person he or she knows to be a peace officer…engaged in the execution of any of his or her official duties…”. The Court concluded that the legislature has not clearly defined the unit of prosecution in this statute. It is the “discharge” “in the direction of” a specified person that is prohibited, thus both the discharge and the direction are necessary for criminal punishment. Accordingly, the statute is ambiguous and subject to the doctrine of lenity. Applying the rule of lenity, the Court held that “a single discharge in the direction of multiple peace officers constitutes a single offense.”
Notably, before reaching this issue, the Court considered several issues that Hartfield raised on cross-appeal and granted a new trial on one of those issues. Hartfield challenged a mid-deliberation instruction given in response to a jury question. Specifically, the jury asked whether Hartfield needed to know there were four officers on the scene to be guilty of all four counts of aggravated discharge, pointing to the line in the proposition instruction which stated, “that the defendant knew that [officer name] was a peace officer.” The Court responded “no, you must determine based on the evidence which officer or officers, if any, may have been in the line of fire when the firearm was discharged.” This instruction was wrong for two reasons. First, the statute prohibits firing “in the direction” of an officer; it does not require that the officer be “in the line of fire.” Second, the instruction told the jury to determine whether the officer(s) “may have been” in the line of fire, but the State is required to prove that an officer “was in the direction of discharge.” This erroneous instruction was plain error, despite the fact that the jury was also properly instructed when the original instructions were given. The Court could not know which of the instructions were followed by the jury, and the mid-deliberation instruction clearly misstated the State’s burden of proof. Accordingly, remand for retrial was required.