Our panel of leading appellate attorneys reviews the one civil and three criminal opinions handed down Thursday, June 15, 2023, by the Illinois Supreme Court.

PML Development LLC v. Village of Hawthorn Woods, 2023 IL 128770

By Amelia Buragas, Illinois State University

In PML Development, LLC v. Village of Hawthorn Woods, the Illinois Supreme Court considered whether the parties to a contract retained any claims for breach of contract in a scenario where both parties breached the agreement but elected to keep the contract in force. The Court discussed the “fork in the road” created when a party breaches a contract and concluded that under a scenario where the parties continue to perform after a mutual breach, they both retain viable claims for breach of contract under the “partial breach doctrine.”

The plaintiff, PML Development, LLC, entered into an agreement with the Village of Hawthorn Woods, under which PML would perform grading work on a 62-acre property it owned within the city limits. The parties agreed that when the grading project was completed, PML would donate the parcel to the Village for a sum of one dollar. PML agreed to continue to pay property taxes during the pendency of the agreement and to establish a drawdown account to provide funds to pay for inspections related to the work. PML presented its plans to begin the project; however, the Village refused to issue the appropriate permits and attempted to “transform the agreement by placing additional requirements on PML. . . to accommodate the Village’s ever-changing concept plans.”

PML ultimately filed a three-count complaint against the Village alleging that the Village interfered with its work on the property and sought both monetary damages and declaratory relief so that PML could complete its work in substantial compliance with the agreement. The Village denied that it breached the agreement and filed a counterclaim alleging that PML materially breached the agreement by failing to pay property taxes and failing to fund the drawdown account. The matter ultimately went to bench trial and the circuit court entered judgment in favor of PML, finding that PML was entitled to damages because the Village breached the agreement first when it refused to issue the appropriate permits. The Village appealed and PML cross-appealed. The appellate court reversed the trial court, finding that neither party could recover damages because both parties had breached the agreement. The Illinois Supreme Court granted leave to appeal.

The Illinois Supreme Court opinion, authored by Justice O’Brien, explained that generally, a party can only recover on a breach of contract claim if it performed its part of the contract. However, under the first-to-breach rule, a party will be excused from its duty to perform if the other party materially breached the agreement first. The Court then explained that the analysis could not end here, as it did in the circuit court, as there is an exception to the first-to-breach rule. Under the “partial breach doctrine,” a non-breaching party may lose its right to assert the first-to-breach rule if it accepts the benefits of the contract despite the other party’s material breach. The Court explained that a material breach creates a “fork in the road” and the non-breaching party must decide whether to continue the contract to retain its benefits and sue for damages or whether it will repudiate the agreement, cease performing, and sue for damages. The Court noted that while the partial breach doctrine had not been explicitly adopted by Illinois courts, it is a concept that is “well rooted in Illinois law.” The Court explained that the appellate court reached a contrary conclusion by relying on a factually distinguishable case. The Court then concluded that under the partial breach doctrine, the circuit court correctly entered judgment in favor of PML, but erred when it ruled against the Village on its counterclaim because both parties retained valid claims for breach of contract. The Court explained that the circuit court should have entered judgment in favor of both parties on their breach of contract claims. The circuit court then should have calculated each party’s respective damages and determined the appropriate offset from the ultimate award given. Based on its analysis, the Illinois Supreme Court reversed the appellate court and affirmed the circuit court in part and reversed the circuit court in part and remanded for further proceedings.

Justice Rochford specially concurred, noting that while she agreed with the outcome, the majority’s opinion “veered off-course, perpetuating the myth of the ‘partial breach.’” Justice Rochford explained that the partial breach doctrine was more accurately described as an election of remedies, observing that reference to a “partial” breach could cause confusion because contract breaches are already described as being either minor or material. Thus, any reference to a breach as being “partial” would be a misnomer.

People v. English, 2023 IL 128077

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

Johnny English sought leave to file a successive post-conviction petition, which was denied on August 3, 2020. To appeal that decision, English’s notice of appeal was due by September 2, 2020. The notice of appeal he filed was not file-stamped until September 10, 2020. But, the envelope containing the notice of appeal had a postage meter stamp dated September 1, 2020. On appeal, English argued that the postage meter stamp could be used to prove the date of mailing, thus rendering his notice of appeal timely under the mailbox rule.

The appellate court rejected that argument and dismissed English’s appeal for lack of jurisdiction. The Illinois Supreme Court affirmed that decision.

Illinois Supreme Court Rule 373 provides the sole means for establishing the date of mailing for a pro se incarcerated petitioner. Under Rule 373, a notice of appeal generally is deemed filed as of the date it is received by the circuit clerk. If the notice is received after its due date, however, it may be deemed timely under the mailbox rule if proper proof of mailing is provided in accordance with Illinois Supreme Court Rule 12(b)(6). Rule 12(b)(6) provides that such proof is made:

…in case of service by mail by a self-represented litigant residing in a correctional facility, by certification under section 1-109 of the Code of Civil Procedure of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.

And, section 1-109 provides a means of verification which is essentially equivalent to notarization where the signer certifies that what is stated therein is “true and correct.”

Here, English failed to comply with Rule 12(b)(6) because he did not file a certification stating when and where he placed the notice in the institutional mail and the address to which it was sent. The Court agreed that a postage meter stamp is equivalent to a postmark and accepted “as fact” that English placed his notice of appeal in the mail on September 1, 2020, before it was due. But, the Court held that the aforementioned rules provide the only means of proving timeliness, and English failed to comply with those rules.

The Court declined to create an exception based on the circumstances here, noting that such action would provide little incentive for litigants to comply with the rules as they are written. And, the Court noted that English could have taken advantage of Rule 606(c), which provides a means for seeking leave to file a late notice of appeal, but he did not do so.

Justice O’Brien dissented. She would have held that the absence of a section 1-109 verification did not operate to invalidate English’s timely-mailed notice of appeal. Because the Court accepted “as fact” that English had placed his notice of appeal in the mail before its due date, his appeal should not have been dismissed solely based on his failure to strictly comply with the rules. Such a result is unduly harsh and is contrary to the Court’s mandate to provide fair and equitable access to justice.

People v. Sneed, 2023 IL 127968

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

Keiron Sneed was charged with two counts of forgery when his wife’s employer discovered two false paychecks in Sneed’s name drawn on the employer’s account. The checks had been cashed using a mobile deposit application, which consists of photographing a check and submitting it electronically to a financial institution for deposit. After arresting Sneed and seizing his cell phone, the police obtained a search warrant for the contents of the phone, including any photographs of the checks at issue, messages between Sneed and his wife regarding the forged paychecks, and evidence related to the mobile deposit of the checks.

As it turned out, Sneed’s phone was passcode protected, and the police were unable to access its contents. So, the State filed a motion to compel production of Sneed’s passcode. The circuit court denied that motion, finding that compelling Sneed to produce his passcode would violate his fifth amendment privilege against self-incrimination. The State appealed, and the appellate court disagreed, concluding that compelled production of the passcode is non-testimonial and thus not protected by the fifth amendment. Further, the appellate court concluded that the foregone conclusion doctrine provided an additional basis for requiring Sneed to enter his passcode.

The Illinois Supreme Court affirmed the appellate court, albeit on somewhat different grounds. Initially, the Court addressed the question of whether it even had jurisdiction to consider the order denying the State’s motion to compel production of the passcode under Illinois Supreme Court Rule 604(a)(1). Sneed argued that because the order did not invalidate the search warrant and the State had other means of seeking the phone’s contents, for instance via a third party commercial decryption service, the order did not have the substantive effect of quashing the warrant or suppressing evidence. The Court disagreed, noting that in People v. Spicer, 2019 IL App (3d) 170814, the appellate court previously held that “[w]hen a warrant has issued allowing a search of a defendant’s phone, an order that denies a motion to compel the defendant to decrypt the phone is like an order suppressing evidence.” Thus, it was proper for to take the State’s certificate of impairment at face value that the order substantially impaired its ability to prosecute its case.

On the merits, the State had argued in the appellate court that the act of producing the passcode was non-testimonial and thus not protected by the fifth amendment. But, in the Supreme Court, the State changed course and conceded that the compelled act of entering a passcode is in fact testimonial. The Illinois Supreme Court agreed with that concession. The Court ultimately concluded, however, that the testimony implicit in the act of entering the passcode was a “foregone conclusion” and thus  “insufficiently testimonial” to be protected by the fifth amendment.

The foregone conclusion doctrine is an exception to the fifth amendment. Under the foregone conclusion doctrine, where the testimony implicit in a compelled act is essentially already known by the State, it has no testimonial value. The foregone conclusion exception applies where the State establishes that it already knows with “reasonable particularity” that the evidence (1) exists, (2) is in defendant’s possession or control, and (3) is authentic. While Sneed argued that the evidence in question was the contents of the phone and thus was not already known to the State, the Court held that the focus for purposes of the foregone conclusion doctrine is on the passcode itself, not the evidence on the phone. And, here, the State knew that the passcode existed because it could not access the phone’s contents without it. And, the State knew with reasonable particularity that Sneed had the passcode based upon the fact that the phone was seized from Sneed at the time of his arrest. Finally, the Court held that a cell phone passcode is self-authenticating if, when it is entered, it unlocks the phone.

In support of his argument that the foregone conclusion doctrine should not apply, Sneed noted that modern cell phones are capable of storing vast amounts of data and compelling production of a passcode thereby compels production of all of the information on the phone. The Court noted that this concern would be more appropriately raised as a fourth amendment challenge to the scope of the search but not a fifth amendment challenge to production of the passcode. Because Sneed had not raised a fourth amendment issue, the Court did not consider it here.

The Illinois Supreme Court reversed the circuit court’s order denying the State’s motion to compel production of the cell phone passcode and remanded the matter for further proceedings.

Justice Neville dissented. He would have affirmed the order denying the State’s motion to compel on the basis that forcing Sneed to enter his passcode would violate Article I, Section 10 of the Illinois Constitution. Specifically, compelling Sneed to decrypt the contents of his cell phone would be compelling him “in a criminal case to give evidence against himself” where the State intended to use the cell phone contents to prove Sneed committed forgery.

Initially, Justice Neville agreed with the majority that the circuit court’s order effectively suppressed evidence. Though the State could have pursued access to the phone’s contents via a third party commercial service, such an option was probably cost prohibitive in this case. Decryption can cost thousands of dollars, and Sneed was being prosecuted for forging checks worth less than $1,000, a relatively minor offense. Thus, the court’s order left the State with limited choices, and thereby effectively suppressed evidence and substantially impaired the prosecution.

On the merits, Justice Neville noted that the Court had previously held that Article I, Section 10, of the Illinois Constitution differs significantly from the fifth amendment, citing People v. McCauley, 163 Ill. 2d 414 (1994). Justice Neville would reject application of the lockstep doctrine entirely, noting that the doctrine strips the Illinois Supreme Court of the power to protect Illinois citizens, even as the United States Supreme Court expands government powers. Justice Neville would conclude that the Illinois Constitution forbids compelled decryption of cell phones even if the fifth amendment allows it. And, as to the foregone conclusion doctrine, Justice Neville would have held that “the extent of the government’s knowledge can never provide grounds for compelling a citizen to produce evidence for the government to use in a criminal prosecution of the citizen.”

People v. Urzua, 2023 IL 127789

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

Ernesto Urzua was convicted of attempted murder. Some years later, Urzua filed a post-conviction petition raising, among other things, a claim of newly discovered evidence of actual innocence. That claim was supported by the unnotarized “affidavit” of an individual named Markus Spires, stating that he knew who actually committed the offense, and it was not Urzua. The court appointed counsel to represent Urzua on the petition.

Appointed counsel later filed a Rule 651(c) certificate and a motion for leave to withdraw as counsel, citing People v. Greer, 212 Ill. 2d 192 (2004), and stating that Urzua’s petition lacked merit. The court allowed appointed counsel to withdraw and granted Urzua a continuance to retain new counsel, which he did. Retained counsel ultimately stood on the pro se petition.

The State then filed a motion to dismiss. With regard to the actual innocence claim, the State noted that Spires’s statement was not notarized and the claim was therefore inadequately supported to warrant further proceedings. At the hearing on the State’s motion, retained counsel stated that he had “put 30 seconds in looking for Spires” and had found someone with that name, around the right age, who had been arrested in Cook County in 2016, and thus Urzua’s claim could be verified. Counsel argued that notarization was not necessary because Spires had signed his statement “under penalty of perjury.” Counsel asserted that whether Spires actually existed and would testify consistently with his statement was a question for an evidentiary hearing, not a motion to dismiss. Ultimately, the court disagreed and granted the State’s motion to dismiss, noting as to the actual innocence claim that the lack of notarization on Spires’s affidavit was fatal.

On appeal, Urzua argued that retained counsel failed to provide him with a reasonable level of assistance. The appellate court agreed. And, the Illinois Supreme Court affirmed the appellate court in a divided opinion.

The majority first rejected the State’s argument the court had ruled on the merits of Urzua’s petition when it permitted counsel to withdraw. Under Greer, where a court grants appointed counsel’s request to withdraw without making a specific finding that the petition lacks merit, and where the State has not yet filed an answer or motion to dismiss the petition, the withdrawal order does not dispose of the petition itself. It was clear that the court did not rule on the merits here where the judge specifically granted a continuance in anticipation of Urzua hiring new counsel.

The State also argued that Urzua had no right to reasonable assistance from a second attorney because he had been afforded reasonable assistance by appointed counsel and the post-conviction act does not provide for successive counsel. But, defendant’s second attorney was retained, not appointed. And, pursuant to People v. Johnson, 2018 IL 122227, “at all stages of post-conviction proceedings, defendants are entitled to a reasonable level of attorney assistance,” even where they lack the statutory right to appointed counsel.

Finally, the majority agreed that retained counsel failed to provide reasonable assistance where counsel erroneously believed that notarization of the witness’s statement was not necessary to survive a motion to dismiss. Given this clear misstatement of law, the presumption of reasonable assistance was rebutted by the record.

The Illinois Supreme Court remanded the matter to allow Urzua to respond to the State’s motion to dismiss, but rejected the appellate court’s conclusion that new counsel should be appointed on remand, affirming that the post-conviction act does not permit appointment of a second attorney.

Chief Justice Theis authored a dissent, joined by Justices Overstreet and Holder White. The dissent agreed that Urzua was entitled to reasonable assistance from retained counsel, but concluded that counsel had met that standard here. Specifically, the dissent held that the court could presume that counsel attempted to obtain an affidavit from Spires but was unable to do so and thus counsel “mounted what was presumably the best defense available” when he argued against the affidavit requirement.