Our panel of leading appellate attorneys reviews the one civil and two criminal opinions handed down Friday, February 17, by the Illinois Supreme Court.

Cothron v. White Castle System, Inc., 2023 IL 128004

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

The Seventh Circuit Court of Appeals certified the following question arising under the Biometric Information Privacy Act  to the Illinois Supreme Court, seeking its answer pursuant to Supreme Court Rule 20(a): “Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?” The Supreme Court, in a 4-3 decision, chose the first option, answering the question to say that a claim accrues under the Act with every scan or transmission of biometric identifiers or biometric information without prior informed consent.

That question in this case determined whether the statute of limitations barred the class plaintiff’s claim, initially brought in the Circuit Court of Cook County, but then removed to United States District Court for the Northern District. Plaintiff began working at a White Castle restaurant in 2004. Shortly thereafter, White Castle introduced a system that required its employees to scan their fingerprints to access their pay stubs and computers. The scans were transmitted to a third party vendor which verified the scan to determine whether access would be granted. BIPA was enacted in 2008. Plaintiff asserted that White Castle did not seek her consent to acquire her biometric data until 2018. White Castle moved for judgment on the pleadings, predicated on the statute of limitations, since the scanning and data transmission had taken place for more than a decade before she sued. White Castle argued that the claim accrued in 2008 with that first non-compliant scan. Plaintiff countered that a new claim accrued with each scan and data transmission, making her suit timely with respect to the scans that occurred within the limitations period. The district judge agreed with plaintiff, and denied the motion.

The district judge certified his order for immediate appeal under Section 1292(b); the Seventh Circuit accepted that certification; the Seventh Circuit then certified the identified question of law to the Illinois Supreme Court, and the Court exercised its discretion in agreeing to answer the question. That order of certification, 20 F.4th 1156 (7th Cir. 2021) provides a useful example of how the question of whether to certify to the Illinois Supreme Court is analyzed. The considerations come from both Rule 20 itself and from “additional factors” found in Seventh Circuit precedent. The order stated that this issue of claim accrual under BIPA “is a close, recurring, and hotly disputed question of great legal and practical consequence that requires authoritative guidance.”

Justice Rochford wrote for the majority. Justice Overstreet dissented, joined by Chief Justice Theis and Justice Holder White. In light of that 4-3 split, the Seventh Circuit is seen to have been prescient in stating that “there are reasons to think that the Illinois Supreme Court might side with either Cothron or White Castle.”

The words of the Act controlled the outcome of the case, but the details of the textual analysis would not fit in this summary. The Court agreed with the district court in saying that a party violates section 15(b) when it obtains a person’s biometric information without proper prior consent, and that “this is true the first time an entity…collects biometric information, but it is no less true with each subsequent scan or collection.” Agreeing with Watson v. Legacy Healthcare Financial Services, LLC, 2021 IL App (1st) 210279, the Court stated that the Act applies to each and every capture and use of the biometric information. The analysis under section 15(d) turned in part on the meaning of “disclose” and “redisclose.” The Court disagreed with White Castle’s argument that disclosure could only happen once.

The Court was unmoved by White Castle’s “nontextual argument” that plaintiff’s position would result in “annihilative liability,” estimating that statutory damages for the White Castle employees in Illinois may exceed $17 billion. In the concluding paragraphs of the opinion, the Court stated that a judge presiding in an equitable class action would possess discretion to fashion a damage award in such a way as to not destroy a defendant’s business, pointing to language in the Act which made the damages discretionary rather than mandatory. But that was immediately followed by the statement that “policy-based concerns about potentially excessive damage awards under the Act are best addressed by the legislature.” The Court concluded by suggesting that the legislature review those policy concerns and make clear its intent.

Justice Overstreet’s polite but firm dissent argued in detail that the question should be answered by saying that a claim accrues only upon the first scan or transmission. As with the majority opinion, this summary cannot take up the dissent’s close analysis of the text. On a broader basis, the opinion states that “subsequent scans did not collect any new information from plaintiff, and she suffered no additional loss of control over her biometric information.” “The majority assumes what it seeks to prove. The majority never explains how there is more than one loss of control or privacy with subsequent scans or how subsequent scans are a ‘statutory violation.’” Under both sections of the Act, “the key flaw in the majority’s analysis (is that) it begs—rather than answers—the most important question before the court.”

The dissent states that the majority acknowledges that in deciding as it has, “the consequences may be harsh, unjust, absurd, or otherwise unwise,” and then posits the principle of interpretation that a construction which leads to such a result must be avoided. The dissent also observed that under the Court’s decision, plaintiffs will be incentivized to delay bringing their claims as long as possible, if every scan is a separate, actionable violation.

There is much more in both opinions than can be set out here. They should be read.

People v. Brown, 2023 IL 126852

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

Servetus Brown was charged with being an armed habitual criminal and possessing a controlled substance in Cook County. At trial, jury selection consisted of the court questioning the venire in panels of four and then calling the attorneys up for an off-the-record sidebar conference to exercise challenges. Brown was not present during the eight sidebar conferences that were held to select the jury, and neither Brown nor his counsel objected to this procedure. Before opening arguments, the court made a record of which venire members had been stricken by which parties. Ultimately, Brown was convicted of being an armed habitual criminal but acquitted of the drug possession charge.

On appeal, Brown argued that the jury selection process deprived him of his constitutional right to be present at a critical stage of the proceedings and that his trial counsel was ineffective for failing to object to the process. The appellate court affirmed on the basis that Brown had not shown prejudice because he failed to establish that he was not tried by an impartial jury.

Five justices participated in the Illinois Supreme Court’s decision in Brown and all agreed as to the outcome. Chief Justice Theis delivered the judgment of the Court, which was joined by Justice Overstreet.

Both the federal and Illinois constitutions afford criminal defendants the right to be present at all critical stages of the proceedings against them, from arraignment through sentencing. In People v. Bean, 137 Ill. 2d 65 (1990), the court recognized that jury selection is a critical stage at which a defendant has the right to be present. But, the court also held that a defendant’s broad right to be present is not itself a substantial right. Instead, it is a lesser right, the observance of which is meant to ensure a defendant’s substantial rights. Examples of such substantial rights include the right to confront witnesses, the right to an impartial jury, and the right to present a defense. In Bean, the defendant was excluded from the entirety of jury selection, including the questioning of the venire, but the court found no plain error where the defendant did not even allege, let alone establish, that he was tried by an impartial jury.

The lead opinion also noted a split in the appellate court regarding whether there is even a denial of the right to be present where the defendant is not excluded from the jury voir dire and is only excluded from the exercise of. In People v. Spears, 169 Ill. App. 3d 470 (1988), People v. Beacham, 189 Ill. App. 3d 483, and People v. Gentry, 351 Ill. App. 3d 872 (2004), the court held that the defendants were not denied their right to be present under such circumstances. In conflict with those cases, however, is People v. Oliver, 2012 IL App (1st) 102531. In Oliver, the court conducted voir dire in open court with the defendant present, but then the attorneys and the judge retired to chambers for challenges and strikes. The Oliver defendant lost his collateral challenge to that procedure because he had not even alleged prejudice. But, the court’s opinion also noted that “a defendant who has not waived or forfeited his right to be present [from a juror challenge conference] shows that the court has conducted a critical stage of the trial in the defendant’s absence, [thus] the defendant has shown a violation of his constitutional rights.”

The lead opinion in Brown declined to hold that a defendant’s constitutional right to be present during voir dire extends to the process of challenging potential jurors. It is enough that a defendant be present during the questioning of prospective jurors because that is where he may hear their answers, view their demeanor, and offer input to his counsel. To the extent that Oliver is inconsistent with that holding, the lead opinion stated that it is overruled.

The lead opinion also concluded that there was no evidence that counsel performed deficiently where Brown was present during jury questioning and there was no indication that counsel did not adequately represent Brown’s interest during the sidebar conferences.

Justice Neville authored a special concurrence, specifically disagreeing with the conclusion that a defendant does not have a constitutional right to be present during the portion of jury selection where the parties exercise their challenges. Justice Neville would have held that juror challenges are a critical stage and exclusion of a defendant from those proceedings violates his constitutional right to appear and defend in person. He would have overruled Spears, Gentry, and Beachem to the extent they hold otherwise. But, Justice Neville also concluded that exclusion from the exercise of jury challenges is not a structural error, and thus a defendant who fails to preserve the error must demonstrate prejudice from it. Brown could not meet that burden here.

Additionally, Justice O’Brien authored a special concurrence, joined by Justice Holder White, disagreeing with the lead opinion’s holding that a defendant does not have a right to be present during juror challenges. Further, Justice O’Brien explained that she would have found deficient performance where Brown’s counsel agreed to a procedure which deprived Brown of his right to be present, but she would have affirmed on the basis that Brown was unable to establish prejudice.

Justices Cunningham and Rochford took no part in the decision.

People v. Tompkins, 2023 IL 127805

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

Trumane Tompkins was convicted of unlawful use or possession of a weapon by a felon. The evidence at trial consisted of the testimony of multiple police officers. That testimony tended to establish that Tompkins was the back-seat passenger in a vehicle that fled from a traffic stop and subsequently crashed. Tompkins and the other occupants fled on foot, and the police gave chase. One officer, Martinez, testified that Tompkins held his waistband as he ran and that Tompkins retrieved a black and red object from his waistband and tossed it away. Another officer, Opacian, recovered a black and red Glock 22 near where Tompkins was apprehended. Recovery of the gun was captured by Opacian’s body-warn camera, but there was no video of Tompkins holding his waistband or discarding anything. Martinez had failed to activate his body-worn camera during the incident, explaining that his failure was due to the “spontaneous nature of the event” and that he was “more worried about the safety of [his] partners.”

On appeal, Tompkins argued that the trial court erred when it refused to instruct the jury that it could draw a negative inference from the fact that Officer Martinez failed to activate his body-worn camera, pursuant to Section 10-30 of the Body Worn Camera Act [50 ILCS 706/10-30].

Section 10-30 provides:

The recordings may be used as evidence in any administrative, judicial, legislative, or disciplinary proceeding. If a court or other finder of fact finds by a preponderance of the evidence that a recording was intentionally not captured, destroyed, altered, or intermittently captured in violation of this Act, then the court or other finder of fact shall consider or be instructed to consider that violation in weighing the evidence, unless the State provides a reasonable justification.

The Illinois Supreme Court agreed that Section 10-30 requires that the jury be instructed where there is some evidence that a testifying officer failed to activate his camera in violation of the Act. The Court also agreed that such evidence was present here. But, the Court disagreed that Tompkins’s proposed instruction accurately stated the law where it did not include that the jury should consider the reasonableness of the justification given by Officer Martinez. Accordingly, the Court found no abuse of discretion in the trial court’s refusal of the tendered instruction. The Court then “encourage[d] the development of a pattern instruction by the Committee on Jury Instructions in Criminal Cases.”

Tompkins also challenged the trial court’s denial of his request to exclude video evidence from Officer Opacian’s body-worn camera which showed marijuana that was recovered from a co-arrestee. The appellate court found error in admission of that evidence, but deemed it harmless, and the Illinois Supreme Court agreed. The evidence against Tompkins was “overwhelming,” and Officer Opacian testified that the marijuana did not belong to Tompkins, minimizing any prejudicial impact it may have had.

Justice Neville dissented. He would have found reversible error from the court’s refusal to give a Section 10-30 instruction. Justice Neville noted the use of the word “shall” in the statute as a clear expression of the legislature’s intent that such an instruction be mandatory. Accordingly, the trial court should have amended Tompkins’s proposed instruction to include reference to the “reasonable justification” language, and should have instructed the jury accordingly. And, because the State’s case against Tompkins rested on the credibility of the police officers, Justice Neville would have found that the failure to give the instruction was reversible error.

Justices Rochford and O’Brien took no part in the decision of the case.