Our panel of leading appellate attorneys reviews the six Illinois Supreme Court opinions handed down Thursday, May 19.
By Amelia Buragas, J.D.
At issue in Prate Roofing and Installations, LLC v. Liberty Mutual Insurance Co., was whether the Department of Insurance (DOI) has the authority to resolve a dispute regarding the amount of premiums due on a workers’ compensation policy. The appellate court in a separate case recently had held that the DOI did not have the authority to resolve such disputes and vacated DOI’s final order in Prate. The Illinois Supreme Court, in a unanimous opinion authored by Justice Michael J. Burke, disagreed and reversed the judgment of the appellate court.
Prate Roofing and Installations, LLC is a roofing and construction installations contractor that purchased workers’ compensation coverage through the Illinois Assigned Risk Plan insurance pool administrated by the National Council on Compensation Insurance (NCCI). An audit discovered that a subcontractor used by Prate did not have workers’ compensation insurance and, as a result, Liberty Mutual assessed Prate an additional premium to cover the additional risk. Prate filed an appeal with the Illinois Workers’ Compensation Appeals Board, which provides dispute resolution for the NCCI. The Board concluded that it did not have sufficient information to resolve the dispute and suggested that Prate re-file the dispute with the DOI. Prate then appealed to the DOI under section 462 of the Insurance Code. The DOI issued findings of fact and conclusions of law and sided with Liberty on all issues. Prate pursued administrative review with the circuit court, which affirmed the DOI’s decision. Prate then appealed to the First District.
While Prate was on appeal, the First District issued an opinion in CAT Express Inc. v. Muriel, 2019 IL App (1st) 181851. That case involved a dispute between Liberty and a trucking company, CAT Express, Inc. Following an audit, Liberty discovered that the trucking company had failed to include as employees a large number of owner-operators and determined that CAT Express owed additional premiums. CAT Express took the position that disclosure was not required because the owner-operators were independent contractors. NCCI declined to resolve the dispute on the basis that questions of employment status were outside of its authority. CAT applied to the DOI, which concluded that owner-operators were employees and that CAT owed the additional premium. The matter worked its way through the administrative review process and the appellate court held that nothing in the Insurance Code provided express authority for DOI to resolve employment status disputes between insurers and their insured. CAT Express also observed that while the DOI’s authority under the Insurance Code was broad, a premium dispute between an insurer and insured did not involve the “efficient administration of the insurance laws of this State,” and that the dispute should instead be resolved through a declaratory judgment action. The appellate court subsequently concluded that its opinion in CAT Express was dispositive in his matter and concluded that the underlying dispute between Prate and Liberty Mutual was an employment status dispute that was outside the authority of the DOI to resolve.
The Illinois Supreme Court allowed Liberty’s petition for leave to appeal and focused its analysis on the construction of section 462. The Court concluded that the request for review brought by Prate “would seem to fall squarely within section 462” and that the plain language of section 462 gave the DOI the express authority to resolve the dispute between the roofing company and its insurer where the core issue was the imposition of additional premiums. The Court distinguished CAT Express because there the core question was whether owner-operators were employees or independent contractors. Because the cases involved two separate questions, the Court declined to determine whether CAT Express was correctly decided because Liberty Mutual in Prate had not challenged the appellate court’s conclusion that section 462 did not permit the review of pure employment status disputes. Thus, the Illinois Supreme Court concluded that the DOI had the statutory authority under section 462 to resolve the dispute between Prate and Liberty and remanded the case to the appellate court to address the parties’ remaining arguments.
Dawkins v. Fitness International, LLC, 2022 IL 127561
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Here, the Illinois Supreme Court interpreted two statutes, the Physical Fitness Facility Medical Emergency Preparedness Act (Preparedness Act) and the Automated External Defibrillator Act (AED Act) in the context of a lawsuit arising from a medical emergency that arose at L.A. Fitness Oswego (L.A. Fitness). In a complaint seeking recovery from L.A. Fitness and a related entity, plaintiff, Leo Dawkins, alleged his wife, Dollett Dawkins, collapsed while working out in an open area of defendant’s premises, an incident leading to permanent disability. L.A. Fitness staff members allegedly were aware of the medical emergency, and an employee trained to use an AED, a defibrillator capable of lifesaving first aid, was present, but did not use it to assist Ms. Dawkins. Plaintiff further alleged that staff were aware of other patrons’ attempts to administer CPR and request for assistance. Ms. Dawkins allegedly suffered a cardiac arrest which plaintiff claimed could have been avoided by electrical therapy with the AED on the premises.
The circuit court dismissed plaintiff’s personal injury and loss of society claims for common law and statutory negligence and willful and wanton conduct based on a determination that L.A. Fitness had complied with its statutory duties. The appellate court disagreed. Among other rulings, the appellate court read the Preparedness Act and the AED Act to give rise to a duty not only for willful and wanton misuse of an AED, but also for a failure to use one.
The Illinois Supreme Court approved the appellate court’s statutory analysis. Discerning the legislature’s expression of intent in the statutes touching on the use of AEDs, the Court noted the General Assembly’s desire to encourage training and lifesaving first aid and recognition of the beneficial characteristics of an AED, including that an AED, set in automatic mode, may determine whether defibrillation should be performed. 410 ILCS 4/5, 10 (2)-(4). The Court also examined the requirements of the Preparedness Act, which requires that fitness facilities have a functioning AED on the premises and a staff member who knows how to assess unconscious patrons, can determine whether to use an AED, and is trained to do so in a medical emergency, pursuant to the facility’s written plan for responding to medical emergencies. 210 ILCS 74/10(a), 15(b).
In the Illinois Supreme Court’s view, a physical fitness facility is subject to civil liability pursuant to the Preparedness Act for willful and wanton misuse – or to fail to use – an AED. 210 ILCS 74/75. The Court also cited a companion provision in the AED Act. 410 ILCS 4/30(d). The Court’s reading of the statutory language prompted the Court to reject L.A. Fitness’ argument that the legislature intended merely to encourage the use of AEDs, not to mandate their use, and that, because the defendant facility was in full compliance with the Preparedness Act at the time of Ms. Dawkins’ injuries, no statutory duty arose. The Court also rejected the argument that non-use of an AED does not rise to willful and wanton misconduct. Approving the appellate court’s assessment, the Illinois Supreme Court determined that the facts and circumstances presented in plaintiff’s complaint could not be ruled out in the early pleading stage as constituting willful and wanton misconduct.
O’Connell v. The County of Cook, 2022 IL 127527
By Joanne R. Driscoll, Forde & O’Meara LLP
This statutory construction case answered the question of whether Article 9 of the Illinois Pension Code (40 ILCS 5/9-101 et seq. (West 2018)) (the Pension Code) imposes a duty on the Board of Trustees of the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (Board) to continue making ordinary disability benefits to an employee of the County of Cook (County) after his employment was terminated by the County. A related issue was whether the County could discontinue making contributions to the Benefit Fund on the employee’s behalf after his ordinary disability benefits were terminated by the Board because his employment was terminated by the County.
Plaintiff (O’Connell) worked for the County and participated in the County Employees’ and Officers’ Annuity and Benefit Fund of Cook County (Benefit Fund), managed by the Board. The Board granted O’Connell ordinary (non-job related) disability benefits because he suffered from multiple sclerosis. Thereafter, the County terminated his employment, and the Board terminated his disability benefit. The County then ceased making contributions on his behalf to the Benefit Fund. O’Connell filed a complaint seeking declaratory and mandamus relief, requesting reinstatement of his disability benefit by the Board and contributions to the Benefit Fund by the County.
O’Connell argued that the Pension Code and the pension protection clause of the Illinois Constitution (Ill. Const. 1970, art. XIII, § 5) entitled him to disability benefits for more than two years, namely, until credit for his years of service expired and he became entitled to an early annuity option (40 ILCS 5/9-160) and a credit purchase option (id. § 9-174). The circuit court dismissed O’Connell’s complaint, finding no protectible rights to continued disability benefits or to continued contributions to the Benefit Fund under the Pension Code or the Constitution. The appellate court reversed. In a unanimous decision authored by Justice Anne Burke, the Illinois Supreme Court agreed with the appellate court.
Reading the plain language of section 157 of the Pension Code, the Court held that the time of application is the operative time to determine whether an ordinary disability applicant is an “‘employee’” and “‘contributor to the fund.’” Once allowed, those disability benefits continue unless one of the enumerated triggering events occur. Termination of employment was not one of the enumerated events.
The Court found that because O’Connell became entitled to disability benefits while employed and after becoming a contributor to the Benefit Fund, he had standing to seek relief for reinstatement of his ordinary disability benefit by the Board and of contributions by the County and, thus, stated a sufficient cause of action for declaratory judgment and a valid complaint for mandamus.
People v. Smith, 2022 IL 126940
By Jay Wiegman, Assistant Appellate Defender
Where counsel is appointed to represent a petitioner in post-conviction proceedings, Supreme Court Rule 651(c) requires that the circuit court record contain a showing, which may be made by the certificate of petitioner’s attorney, that (1) the attorney has consulted with petitioner by phone, mail, electronic means, or in person to ascertain his or her contentions of deprivation of constitutional rights, (2) has examined the record of the proceedings at the trial, and (3) has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions. SCR 651(c). In People v. Smith, 2022 IL 126940, the Court considered whether the filing of a compliant certificate by appointed counsel is sufficient when that counsel ceases to represent the petitioner, or whether successor counsel must also file a certificate in compliance with Rule 651(c). In a unanimous opinion, the Illinois Supreme Court held that counsel who represents a petitioner after prior counsel has filed a 651(c) certificate is not required to independently demonstrate compliance with Rule 651(c).
Smith filed a post-conviction petition that was advanced to the second stage because the circuit court failed to rule on it within 90 days. Appointed counsel determined that a supplemental petition was not necessary and filed a compliant Rule 651(c) certificate. The State filed a motion to dismiss, and counsel filed a written response. Before the motion to dismiss could be heard, counsel left the Public Defender’s office; new counsel represented the petitioner at the hearing, but did not file a Rule 651(c) certificate. The circuit court granted the motion to dismiss, and petitioner appealed. The appellate court affirmed, in part because Smith had not argued that the second attorney had not provided reasonable assistance.
Writing for the Court, Justice Garman first noted that the Illinois Supreme Court’s review pertained to matters that are unique to the second stage of post-conviction proceedings, where petitioners are entitled to the reasonable assistance of counsel, as set forth by the Post-Conviction Hearing Act, rather than the level of effective assistance of counsel that is required by the Constitution. The Court then examined the plain language of the Act and rejected Smith’s argument that the Rule’s present-tense reference to “petitioner’s attorney” requires proof of compliance from the attorney who “ultimately represents” the petitioner. The Court noted that the plain language of the Rule contemplates that “petitioner’s attorney” will make necessary amendments to petitions filed pro se rather than petitions that are filed pro se and are subsequently amended or not amended by previous counsel.
The Court also considered that, because post-conviction counsel is only required to investigate and properly present the petitioner’s claims, the first counsel’s certificate created a rebuttable presumption that petitioner received reasonable assistance of post-conviction counsel, thus accomplishing the purposes of Rule 651(c). Moreover, the Court determined that because the roles of the first attorney and the second attorney differed, the second attorney was not required to file a certificate.
Finally, the Court distinguished Rule 604(d), which has been held to require that counsel for a defendant who seeks to withdraw his guilty plea may not rely on a Rule 604(d) certificate filed by an attorney who no longer represents the defendant. The Court reiterated that the standard of reasonable assistance of counsel, which was established by the legislature and applies in post-conviction matters, is “significantly lower” than the standard “mandated at trial by our state and federal constitutions.” In concluding that the second attorney was not required to independently demonstrate compliance with Rule 651(c) because all that remained to be done was to assume the role of second-stage post-conviction counsel and orally argue the State’s motion to dismiss, the Court stressed that if post-conviction counsel performs unreasonably – even after a presumption has arisen that there has been compliance with Rule 651(c) – post-conviction petitioners are not foreclosed from pursuing a claim that counsel failed to provide a reasonable level of representation.
People v. Williams, 2022 IL 126918
By Kerry J. Bryson, Office of the State Appellate Defender
Travis Williams was charged with committing various sex offenses against two minors; one was his daughter and the other his stepdaughter. The incidents were alleged to have occurred several years before he was charged. At trial, the State presented testimony from the daughter and stepdaughter, who were both adults by the time of trial, as well as the testimony of an expert witness on the subject of “delayed disclosure.” The defense did not present any evidence.
During closing arguments, defense counsel characterized the testimony from the daughter and stepdaughter as “uncorroborated” and noted that the State failed to call another sibling who was allegedly present during some of the charged incidents. Counsel also argued that the State could have called the daughter’s spouse, since the daughter testified that she told her spouse about the abuse at some point. In response, the prosecutor argued that “the defense has subpoena powers just like the government.” A defense objection was overruled. The prosecutor also argued that he could not have called witnesses to testify to things that the alleged victim had stated since that would be hearsay. Defense counsel did not object to that later argument. Williams was convicted and sentenced to a mandatory life term.
On appeal, Williams argued that the aforementioned arguments were reversible error. The appellate court found no error as to the argument regarding the defense’s ability to subpoena witnesses, but concluded that the prosecutor had misstated the hearsay rule. The court held that this constituted first-prong plain error on the basis that the evidence was closely balanced where the defense challenged the credibility of the two complaining witnesses through cross-examination, both witnesses had previously denied any abuse by Williams, and no physical evidence or other testimony corroborated their allegations. The appellate court reversed and remanded for a new trial.
The Illinois Supreme Court disagreed and reversed the appellate court’s decision. With regard to the prosecutor’s argument concerning subpoena powers, the Court held there was no error. It is true that a criminal defendant has no duty to produce evidence at trial, and the State may not shift the burden of proof to the defense. But, the prosecutor may comment on matters argued by defense counsel. Here, the prosecutor’s argument that the defense also could have presented the testimony of the witnesses in question was not improper but rather was an accurate and reasonable response to defense argument.
Further, while the State’s explanation of the hearsay rule was “incomplete,” it was not improper. The State’s description of hearsay as “something that’s said outside of court” was generally accurate, although truncated. The State was not required to fully explain the rule and its exceptions when discussing it briefly in closing argument in response to a defense argument.
And, even if the prosecutor’s hearsay comment was improper, it was not prejudicial. Under the first prong of plain error, an unpreserved error is reversible where the evidence was so closely balanced that the defendant’s conviction may have resulted from the error, not the evidence. Here, there were not two competing versions of the charged incidents, but only the victim’s accounts. And, while there were minor discrepancies in the testimony, the evidence against Williams was largely consistent, and the absence of corroborating evidence did not render the case closely balanced. Accordingly, Williams’s convictions were affirmed.
People v. Sroga, 2022 IL 126978
By Kerry J. Bryson, Office of the State Appellate Defender
Chicago police officers noticed an improperly parked vehicle and ran a license plate check, which revealed that the license plates on the vehicle, a Crown Victoria, actually belonged to a Saturn. The owner of both vehicles, Kevin Sroga, approached the officers, and when they told him that the plates on the Crown Victoria were registered to a different vehicle, Sroga responded, “You got me on the plates.” He was subsequently convicted of a violation of 625 ILCS 5/4-104(a)(4), displaying a license plate registered to one vehicle on a different vehicle, which was a Class A misdemeanor.
In a motion for new trial, Sroga argued that he should have been charged instead under 625 ILCS 5/3-703, a Class C misdemeanor. Sroga’s motion was denied. Sroga did not file a direct appeal, but did later file a 2-1401 petition arguing that sections 4-104(a)(4) and 3-703 defined identical conduct but provided different penalties, in violation of the proportionate penalties clause of the Illinois constitution. The trial court dismissed his petition, and Sroga appealed.
The appellate court agreed that the penalties for the two offenses were different, but concluded that their elements were not identical and thus there was no proportionate penalties problem. Specifically, the appellate court held that section 4-104(a)(4) incorporated an implied mental state of knowledge while section 3-703 created an absolute liability offense. The different mental states supported different penalty classifications. The Illinois Supreme Court granted leave to appeal and affirmed the appellate court.
Section 3-703 prohibits, among other things, the display upon a vehicle of any registration plate not issued for such vehicle. Section 4-104(a)(4) provides that it is a violation for a person to display or affix to a vehicle any license plate not authorized by law for use on such vehicle. Thus, the Court concluded that the statutes prohibit identical conduct.
But, the Court went on to find that while neither statute incorporates a specific mental state in its plain language, section 4-104(a)(4) incorporates the implied mental state of knowledge. To reach this conclusion, the Court looked to 720 ILCS 5/4-9, which provides two standards for determining whether a statute imposes absolute liability: (1) the offense is a misdemeanor and is not punishable by incarceration or a fine exceeding $1,000, or (2) the statute defining the offense clearly indicates a legislative purpose to impose absolute liability.
Here, section 4-104(a)(4) is a misdemeanor, punishable by up to 364 days in jail and a fine of up to $2,500, so the first standard did not apply. And, the Court found that the legislature did not intend to impose absolute liability, given its decision to classify the offense as a Class A misdemeanor which carries the highest possible penalty for any misdemeanor. Thus, a mental state must be inferred, and section 4-104(a)(4) is violated where a person displays or affixes a license plate for one vehicle on a different vehicle “while knowing that the law does not authorize its use on that vehicle.”
Section 3-703, on the other hand, is an absolute liability offense. It is a Class C misdemeanor, carrying a potential penalty of 30 days in jail and a fine up to $1,500, so the first standard of section 4-9 does not apply. But, the plain language of section 3-703 provides that no person “shall” display an improper license plate on a vehicle, and the use of the word “shall” has been construed in other contexts to create absolute liability. Further, the penalty for violation of section 3-703 is relatively low. And, section 3-703 includes various other prohibitions, including one which specifically contains a knowing mental state. The express inclusion of a mental state for a related provision but not the instant provision signals the legislature’s intent to create absolute liability where no mental state was included.
Accordingly, because section 4-104(a)(4) includes a knowing mental state, while section 3-703 is an absolute liability offense, there is no proportionate penalties violation from punishing a violation of section 4-104(a)(4) more severely even though the conduct outlined in each statute is the same.