Our panel of leading appellate attorneys reviews the nine Illinois Supreme Court opinions handed down Thursday, September 22.
Editor’s note: There will be no summary of People v. Kastman.
Noland v. Mendoza, 2022 IL 127239
By Karen Kies DeGrand of Donohue Brown Mathewson & Smyth LLC
The Illinois Supreme Court found that plaintiffs Michael Noland and James Clayborne, former Illinois state senators who had voted for laws to reduce legislators’ salaries, misled the public; shortly after leaving office, they sued the state comptroller to recover the pay they had agreed should be withheld. The Illinois Supreme Court ruled that plaintiffs were barred from challenging the laws they had endorsed.
In the aftermath of the 2007 recession, Noland cosponsored laws the General Assembly passed which eliminated previously approved cost-of-living adjustments for legislators from 2009 to 2019 and required each of them to take a dozen unpaid furlough days annually, beginning in 2009, through 2014. Voicing his support for these salary reduction laws, Noland publicly stated the least the legislators could do to support Illinois working families affected by the deep recession “is to cut our pay.”
In the lawsuit filed after plaintiffs left office, they initially succeeded in arguing that the salary reduction laws violated Article IV, Section 11 of the Illinois Constitution. Section 11 states: “A [General Assembly] member shall receive a salary and allowances as provided by law, but changes in the salary of a member shall not take effect during the term for which he has been elected.” Finding the salary reduction laws to be unconstitutional, the circuit court ruled that plaintiffs were entitled to the portions of the salaries withheld.
In the direct appeal to the Illinois Supreme Court that followed, the Court reversed the judgment for plaintiffs based on the defense of laches. The record established both elements of this equitable doctrine: (1) plaintiffs failed to diligently to bring their lawsuit, and (2) the delay prejudiced defendant, the comptroller.
On the diligence issue, the Court reasoned that plaintiffs’ private claims involved public funds subject to strict budget rules. In the Court’s view, plaintiffs slept on their rights by endorsing the salary reductions, which may have bolstered their reelection campaigns, and then, eight years after the laws were enacted, sued to repudiate them. The Court also found prejudice resulting from the unreasonable delay. The lawsuit impacted the budget for the fiscal years in question and thus prejudiced the comptroller in the budgeting process. The funds earmarked for legislators’ salaries in past years no longer existed.
The Court reversed the judgment without addressing the constitutional issue.
Strauss v. City of Chicago, 2022 IL 127149
By Amelia Buragas, J.D.
In Strauss v. City of Chicago, 2022 IL 127149, a unanimous Court reiterated that the discretionary immunity provisions of the Local Governmental Employees Tort Immunity Act, 745 ILCS 10/2-201, provide absolute immunity so long as the employee in question is in a position involving the determination of policy or the exercise of discretion and the act or omission giving rise to the injury resulted from the determination of policy and an exercise of discretion—even where the employee is alleged to have engaged in corrupt or tortious activities.
The lawsuit arose out of the re-zoning of a mixed-use property located at 1572 North Milwaukee Avenue in Chicago. For more than 40 years, the property was zoned B3-2, which allowed for commercial use on the street level and residential units on the upper floors. The trouble began, according to the plaintiff, when he sought to terminate the lease and evict one of the building’s commercial tenants, Double Door Liquors, because of persistent issues with high noise levels, illicit drug and alcohol abuse, and property damage. The plaintiff alleged that the local city alderman Proco Joe Moreno, who was opposed to the lease termination and eviction, threatened to re-zone the property, which would reduce the value of the property. While the eviction matter was pending, Moreno began the process of re-zoning the property and after several unsuccessful proposals the property ultimately was down-zoned from B3-2 to B2-2. Plaintiff filed suit against the City of Chicago alleging violations of substantive due process and equal protection as well as the tort claims of intentional infliction of emotional distress, tortious interference with contracts, and tortious interference with prospective economic advantage. The City filed a motion to dismiss under Section 2-619.1 of the Code of Civil Procedure raising several arguments, including that the City was immune from tort claims under the Act. The circuit court granted the City’s motion, the appellate court affirmed, and the Illinois Supreme Court granted the plaintiff’s petition for leave to appeal.
Before it could address the merits of the appeal, the Illinois Supreme Court first considered two jurisdictional challenges. First, the City argued that the plaintiff was not the correct party because the property was owned by a corporation, not by Strauss in his individual capacity. The Court concluded that while the plaintiff, which was identified as “Brian J. Strauss, individually, and d/b/a 1572 North Milwaukee Avenue Building Corporation,” was not correctly named, this constituted a mere misnomer, which under 735 ILCS 5/2-401(b) may be corrected at any time. The City next argued that the matter was moot because Strauss sold the property while the lawsuit was pending. The Court agreed that the constitutional claims were rendered moot by the sale but found that the plaintiff’s claims for monetary damages pursuant to the tort claims remained a “live controversy” because the Court could grant effectual relief to the plaintiff if he were to prevail.
The Court next considered the merits of the appeal, focusing on Sections 10/2-201 and 2-109 of the Act and whether plaintiff’s claims for money damages were property dismissed under Section 2-619. The Court explained that immunity of public officials under Sections 2-201 and 2-109 of the Act is premised on the notion that officials should be permitted to exercise their discretion in rendering decisions without fear of liability for a good-faith mistake. Further, Section 2-201 extends beyond good-faith mistakes and immunity under Section 2-201 is “absolute” and covers both negligent and willful and wanton conduct as well as corrupt and malicious misuse of power. For immunity to attach under Section 2-201 the defendant must prove, first, that the employee either held a position involving the determination or policy or the exercise of discretion and, second, that the act or omission giving rise to the injury resulted from both a determination of policy and an exercise of discretion. From there, the Court conducted a straightforward analysis, observing that as a city alderman, Moreno held a position involving the determination of policy or the exercise of discretion. With regard to the conduct giving rise to the injury, the Court concluded that Moreno was determining policy because he was required to balance the competing interests of the corporation, the commercial tenant, neighboring businesses, residential tenants, and the public and to “make judgment calls as to what solutions would best serve those interests.” The Court was unpersuaded by the plaintiff’s argument that Moreno’s conduct was beyond the scope of the immunity afforded by Section 2-201 when he tortiously interfered with potential contracts and inflicted emotional distress as part of an alleged “pressure campaign.” The Court explained that while, in some cases, Section 2-201 immunity does not apply to conduct that falls outside statutory or regulatory constraints, that was not the case here, and Moreno’s acts constituted exercises of discretion because they would not have occurred but for his position as alderman. Whether Moreno acted maliciously or corruptly in the process of executing his dues was “of no consequence to the application of immunity under Section 2-201 of the Act.” Because Moreno was not liable for injuries resulting from his conduct due to discretionary immunity under Section 2-201, the City likewise could not be liable (noting the city was also not liable because of enactment immunity under Section 2-103 of the Act, which immunizes the city from damages’ claims for injuries arising from the adoption of the zoning ordinance).
Chief Justice Anne M. Burke and Justice Holder White took no part in the consideration or decision of the case.
Midwest Sanitary Service, Inc. v. Sandberg, Phoenix & Von Gontard, P.C., 2022 IL 127327
By Michael T. Reagan, Law Offices of Michael T. Reagan
The plaintiffs in this legal malpractice action were formerly defendants in a suit for retaliatory discharge. In that underlying jury trial, the now-plaintiffs were found liable for $160,000 in compensatory damages, and the certain now-plaintiff Midwest was found liable for $625,000 in punitive damages. Those unsuccessful defendants, the plaintiffs here, brought this action for legal malpractice against their defense attorneys. This interlocutory appeal pursuant to Illinois Supreme Court Rule 308 presents the certified question of whether 735 ILCS 5/2-1115 and/or Illinois public policy bars recovery of those punitive damages in this legal malpractice case. The circuit court decided that question in the negative, the Fifth District of the appellate court agreed, and both courts were affirmed here by the Illinois Supreme Court. Justice Neville wrote for the Court. Justices Overstreet and Holder White did not participate.
Section 2-1115 provides that “in all cases…in which the plaintiff seeks damages by reason of legal…malpractice, no punitive…damages shall be allowed.” Illinois also places some limitations on recovery of punitive damages as a matter of public policy. Although this opinion proceeds in a carefully reasoned fashion through the arguments, the gist of the Court’s reasoning was encapsulated at the outset: “We find that the punitive damages Midwest paid in the underlying retaliatory discharge action are an element of compensatory damages in a legal malpractice action because they do not punish the attorneys’ alleged misfeasance or nonfeasance.” The damages sought would make Midwest whole by compensating it for the entirety of its pecuniary loss, which consisted of both compensatory and punitive damages. The Court found no Illinois cases on point with the recovery sought in this action, but the Court did find cases from other jurisdictions which permitted recovery of paid punitive damages to be instructive.
The Court distinguished its opinion in Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill.2d 218 (2006), where the Court held that a lost opportunity to recover punitive damages could not be recovered in legal malpractice actions.
In re Craig H., 2022 IL 126256
By Joanne R. Driscoll, Forde & O’Meara LLP
This case dealt with the interplay between Section 2-107.1 of the Mental Health and Developmental Disabilities Code (the Mental Health Code), governing the involuntary administration of psychotropic medication (405 ILCS 5/2-107.1 (West 2018)), and an individual’s right to make health care decisions through his appointed agent under the Powers of Attorney for Health Care Law (Powers of Attorney Law) (755 ILCS 45/4-1 et seq. (West 2018)). In a unanimous opinion authored by Justice Carter (with Justice Holder White taking no part), the Illinois Supreme Court held that the health care power of attorney does not control over Section 2-107.1 of the Mental Health Code.
Preliminarily, the Court addressed the issue of mootness, finding the appeal subject to the mootness exception for issues capable of repetition yet evading review. The first element for that exception was met because the challenged action, the 90-day duration for involuntary treatment, was too short in duration to be fully litigated before its end. The second element was met because there was a reasonable expectation that the same action would occur again given the respondent’s history of mental illness for 29 years, his failure to take prescribed medications, and his agent’s consistent refusal of treatment with psychotropic medications.
Addressing the merits of the appeal and applying rules of statutory construction, the Court began its analysis by reading the plain language of Section 2-102 of the Mental Health Code, which establishes two alternatives for administration of psychotropic medications to a respondent: (1) involuntarily under Section 2-107.1 or (2) with the consent of respondent’s health care agent appointed under the Powers of Attorney Law. Highlighting the term “or” separating these two options, the Court found a legislative intent to establish “independent alternatives.” Next, the Court concluded that the plain language of Section 2-102 allows for the filing of a petition for involuntary administration of medications when a health care power of attorney exists. Section 2-107.1 requires that a copy of the instrument be attached to the petition and that the health care agent be notified of the hearing. Nowhere is there a requirement for the health care agent’s consent or dismissal of the petition if a health care power of attorney exists.
Addressing the requirement in Section 2-107.1 that the respondent lack mental capacity, the Court rejected the respondent’s argument that his health care agent’s mental capacity to make a reasoned decision inured to his benefit. According to the Court, the plain language of Section 2-107.1 only required the petitioner to allege and prove that the recipient lack that capacity. Further buttressing this construction, the Court noted that Section 2-107’s requirement for the filing of a petition under Section 2-107.1 would be meaningless if the trial court could not grant the petition over a substitute decision maker’s refusal of psychotropic medications.
The Court also rejected the respondent’s argument that expansive language in the Powers of Attorney Law that gave the health care agent broad authority precluded any order allowing for involuntary treatment. Applying the rule of statutory construction to read both statutes in harmony, the Court reasoned that the legislature carved out an exception to the agent’s broad powers in the Mental Health Code. But even if those two laws were viewed to be inconsistent, the rule of statutory construction to give effect to the more specific of the two statutes meant that the Mental Health Code applied. As to the broadly worded “supremacy clause” in the Powers of Attorney Act (755 ILCS 45/4-11), the Court noted that it expressly superseded only statutes in existence on its effective date. The Mental Health Code provisions were enacted after that date.
Based on its construction of the relevant statutory provisions, the Court concluded that the trial court did not err in ordering the involuntary administration of psychotropic medications in this case.
Green v. Chicago Police Department, 2022 IL 127229
By Joanne R. Driscoll, Forde & O’Meara LLP
Construing Section 3(d) and (e) of the Freedom of Information Act (FOIA) (5 ILCS 140/3(d), (e) (West 2018)), the Illinois Supreme Court was asked to determine whether the circuit court is authorized to account for changed circumstances when determining whether the withholding of public information is proper. Here, an injunction was entered in another case that prohibited the release of records requested in this case. After the injunction was vacated in the other case, the public body continued to assert that the information was withheld properly. The circuit court held the public body in contempt for refusing to release the requested documents; the appellate court reversed.
In a unanimous opinion authored by Justice Michael Burke (with Justice Holder White taking no part), the Court affirmed the appellate court and held that, unless the FOIA exemption states otherwise, the circuit court should consider the circumstances as they existed when the public body made its decision to deny the request. If the circumstances change so that the information becomes releasable later, a requester must refile his request, giving the public body five business days to respond unless the time for response is properly extended.
The Court began its statutory construction analysis by reviewing the text of Section 11 of the FOIA, which prescribes the circuit court’s authority when records are withheld. The Court noted a lack of language as to whether the circuit court’s review of the public body’s decision should consider the circumstances when the decision was made or at some later stage. According to the Court, Section 11 was ambiguous on this issue and that extrinsic aids of construction were necessary to determine the legislative intent.
Here, the Court looked to state and federal decisions that interpreted similar FOIA statutes. In one case, the Michigan Supreme Court held that the appropriate time to measure a FOIA exemption is the time when the public body asserts the exemption. Federal decisions reached the same conclusion. The Court distinguished two federal decisions cited by the plaintiff, noting that the courts in those cases deviated from the general rule and did so because of unusual circumstances and differing facts.
Examining and rejecting the plaintiff’s interpretation of Section 11, the Court found that it would delay judicial review for five years (pursuant the general statute of limitations provision in 735 ILCS 5/13-205 (West 2018)) while “maintain[ing] a requester’s place in the FOIA queue for five years.” That, according to the Court, would undermine the goal of producing public information expediently and efficiently and lead to the absurd result of burdening the public body with constant review obligations over the five-year period. In contrast, the time-of-request approach would free up the public body to respond quickly to each request and move on to the next request in the FOIA queue, imposing on the requester an obligation to refile the request if circumstances changed.
Applying the time-of-request approach to the facts, the Court reversed the judgment entered against the Chicago Police Department, finding that when it constructively denied plaintiff’s request, the injunction barring the release of responsive files was in force. The subsequent invalidation of the injunction was immaterial to whether the information had been withheld improperly.
Quiroz v. Chicago Transit Authority, 2022 IL 127603
By Michael T. Reagan, Law Offices of Michael T. Reagan
Plaintiff’s decedent was a trespasser in the tunnel connecting the Grand and Chicago rail stations on the CTA’s Red Line. He fell from a recessed catwalk authorized for CTA personnel to the ground near the tracks, injuring himself. At least two trains passed him without incident. Plaintiff alleged that decedent would have been visible to the operators of those trains, and that there were security cameras in the area on which the decedent would have been visible. Subsequently, another train struck decedent, causing fatal injuries.
The complaint was based on the theory that the CTA discovered the decedent in a position of peril and therefore owed a duty of care. It was further alleged that the CTA violated that duty by failing to stop train service so that the decedent could be rescued. The complaint pled alternative willful and wanton counts on the theory that neither the train operators nor security personnel saw the decedent, despite the fact that he was plainly visible and that their failure to keep a sufficient lookout and to monitor the security cameras “in real time,” was willful and wanton.
The circuit court granted the CTA’s Section 2-615 motion to dismiss. The CTA argued that because the decedent was a trespasser, it owed no duty to protect him from the open and obvious danger of a moving train. Plaintiff’s response was that a duty arose because the decedent was a discovered trespasser in a position of peril.
In denying the motion to dismiss, the circuit court relied in part upon Restatement (Second) of Torts, Section 337, which deals with artificial conditions that are highly dangerous to known trespassers. Because the danger of a moving train was open and obvious, plaintiff could not satisfy the second prong of Section 337, which requires that the landowner have reason to believe that the trespasser would not discover the risk involved. The appellate court reversed, coming to a different view of that second prong of Section 337, and also relying upon that court’s understanding of Lee v. Chicago Transit Authority, 152 Ill.2d 432 (1992).
Here, the Illinois Supreme Court reversed the appellate court and affirmed the circuit court’s order of dismissal.
In addition to its analysis of Sections 336 and 337 of the Restatement, the Court also drew upon long-standing law concerning the open and obvious risks associated with trains, extending back into the first decades of the prior century. And, as recently as 2012, the Illinois Supreme Court has stated that a moving train is an obvious danger.
Section 337 of the Restatement is entitled “Artificial Conditions Highly Dangerous to Known Trespassers.” In Lee v. CTA, the court found that the electrified third rail was of such a nature that the CTA had reason to believe that a trespasser would not discover it. Here, in contrast, the dangerous condition of a moving train was open and obvious, and a trespasser is reasonably expected to appreciate that risk and avoid it. Plaintiff attempted to go beyond that conclusion by arguing that a duty of ordinary care may arise where a trespasser has been discovered in a place of danger. Plaintiff relied in part upon Section 336 of the Restatement, which deals with possessors of land who have reason to know of the presence of a trespasser, and states that the possessor must carry on his activities with reasonable care for the trespasser’s safety. The Court noted that it has never adopted that section, that only 12 jurisdictions have, and that the section does not address places of danger that are open and obvious.
While the Court’s analysis will not be recounted here in full, the Court explained that the train operator that struck the decedent had no legal duty to keep a lookout for a trespasser on the track. Further, there is no duty to aid an injured stranger placed upon a person who did not cause the injury unless a special relationship exists. The Court commented at some length upon the magnitude of the burden which would be placed upon the CTA to monitor its 32,000 cameras in real time and to stop its trains to protect trespassers from the open and obvious dangers presented. Trespassers are in the best position to avoid injury.
People v. Jackson, 2022 IL 127256
By Kerry J. Bryson, Office of the State Appellate Defender
Brandon Jackson was tried before a jury on charges of first-degree murder and attempted armed robbery. After the jury returned signed verdicts of guilt of each offense, defense counsel asked the trial judge to poll the jury. The judge did so, but the polling was incomplete in that the judge asked only 11 of the 12 jurors to confirm their verdict. The appellate court agreed with Jackson’s argument that the circuit court erred in dismissing the jury without polling the 12th juror. Jackson had forfeited that error, however, by failing to object at the time and failing to include the issue in his post-trial motion.
Acknowledging Jackson’s forfeiture, the appellate court majority concluded that the polling error amounted to structural error and excused Jackson’s forfeiture under the second prong of Illinois’ plain error test. Today, the Illinois Supreme Court reversed that decision.
Illinois’ plain error rule is a narrow exception to forfeiture principles, allowing review of errors either where the evidence in a case is so closely balanced that the jury’s verdict may have resulted from the error and not the evidence (first prong), or where the error is so serious that it affected the fairness of defendant’s trial and challenged the integrity of the judicial process (second prong). In conducting a plain error analysis, a court first determines whether a clear or obvious error occurred and then moves on to consider whether the error is reviewable under either prong of the plain error test.
Here, Jackson made no argument as to the closeness of the evidence but instead argued that the error in failing to poll all 12 jurors was so serious that it affected the fairness of his trial. The Illinois Supreme Court noted that it has previously equated the second prong plain error with what the United States Supreme Court has deemed “structural error.”
The U.S. Supreme Court has identified the following structural errors: the complete denial of counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial, racial discrimination in the selection of a grand jury, and the giving of a defective reasonable doubt instruction. These errors are all such that they “affect the framework within which the trial proceeds.” They are more than mere errors in the trial process itself. Illinois reviewing courts look to these identified structural errors when applying second-prong plain error to determine whether the error being considered is similar, though the Illinois Supreme Court has not limited second-prong plain error to only those errors identified as structural by the U.S. Supreme Court.
The right to poll the jury is designed to protect a defendant’s right to conviction only by a unanimous jury. It is a practice that is “rooted deep in our common law.” But, while it is designed to protect a fundamental right, polling is not itself a fundamental right. It is a procedure available to those defendants who request it. And, there are additional procedures in place to ensure juror unanimity, including instructing the jury that its verdict must be unanimous, the requirement that each juror individually sign the verdict form, and the requirement that the signed verdict form be returned and announced in open court in front of the jury. Thus, an error in jury polling is subject to harmless error analysis. It does not automatically require reversal of a conviction because it does not necessarily deprive defendant of his right to unanimity. Accordingly, a jury polling error is not an error of the sort that has been deemed structural and is not subject to second-prong plain error review.
The Court also distinguished its recent decision in People v. Moon, 2022 IL 125959, where it held that the failure to swear in the jury with the trial oath constituted structural error and forfeiture of the error was therefore excused as second-prong plain error. While both errors touch upon a fundamental right – jury unanimity here and jury impartiality in Moon – the failure to swear in the jury with the trial oath affects the framework within which the trial proceeds. The oath requirement has a well-established history in the common law as an essential element of a criminal jury trial. While the jury polling process also has a basis in common law, it is only used at a defendant’s request and is not, therefore, an essential element of a fair trial.
Forfeiture of a jury polling error may be excused under the first prong of the plain error test, but Jackson made no such argument here. Accordingly, the Court reversed the decision of the appellate court and affirmed Jackson’s convictions. The Court’s decision was authored by Justice Overstreet and was unanimous. Justice Holder White took no part in the consideration or decision of the case.
People v. Blalock, 2022 IL 126682
By Kerry J. Bryson, Office of the State Appellate Defender
In 2016, defendant Harold Blalock filed in the circuit court of Cook County a motion for leave to file a second successive post-conviction petition. Blalock alleged that newly discovered evidence demonstrated that the police officers who had interrogated in him 1999 had since been found to have engaged in a pattern and practice of brutality and that his confession was the product of police coercion. The circuit court denied leave to file, finding that Blalock had failed to meet the cause-and-prejudice standard for obtaining leave to file a successive petition under 725 ILCS 5/122-1(f).
Specifically, the appellate court found that Blalock had not established cause because the factual basis for the claim that his confession was coerced was not the evidence of police misconduct but rather was his own knowledge that he had been mistreated by the police. Accordingly, the appellate court concluded that there was no objective factor that impeded Blalock’s ability to raise this claim in his original post-conviction petition because he necessarily would have known that the police had abused him at that time.
The Illinois Supreme Court disagreed with the appellate court’s conclusion that the pattern and practice evidence that Blalock submitted could not establish cause for filing a successive petition, noting that the appellate court’s decision was “an outlier.” The majority of appellate court panels who had considered similar claims had held that newly discovered evidence of police coercion could, depending on the circumstances, provide cause for filing a successive petition. The Court agreed that those decisions were correct, citing People v. Brandon, 2021 IL App (1st) 172411, as a representative example.
Unfortunately for Blalock, however, the Court went on to find that Blalock could not satisfy the prejudice prong of the cause-and-prejudice test. Specifically, the record positively rebutted Blalock’s claim of coercion, even in light of the new pattern-and-practice evidence. Blalock alleged acts of physical abuse in his successive petition, but the record included Blalock’s trial testimony that nobody had threatened him to make his statement and that he had the opportunity to speak with an assistant state’s attorney alone while he was at the police station and told the ASA that he had been treated well when asked. The Court concluded that Blalock’s trial testimony was clear that he had fabricated his statement, but that he had done so in an effort to appease the police and prosecutor, not because he had been abused.
So, while the Court rejected the appellate court’s reasoning, it affirmed the denial of leave to file. The decision in this case was authored by Chief Justice Burke and was unanimous. Justices Neville and Holder White did not participate in the consideration or decision of the case.