Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the Civil case Karbin v. Karbin and the Criminal case In re S.B.
By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa
In holding that a plenary guardian of a disabled adult has standing to institute dissolution of marriage proceedings on behalf of the ward, Karbin v. Karbin directly overruled In re Marriage of Drews, 115 Ill.2d 201 (1986). The circuit and appellate courts were constrained by Drews. Justice Garcia, for the appellate majority, noted both vulnerabilities of Drews in light of subsequent developments and the alternative need for legislative action. The late Justice Cahill dissented, seeking to distinguish Drews on the ground that the ward’s initial filing here was as a counter-petitioner for dissolution. (How graceful it is that the appellate majority referred to "our colleague in dissent," in light of Justice Cahill’s passing.)
The supreme court found that stare decisis operated with lessened force because of inconsistency in the application of the principles identified in Drews subsequent to that opinion. Cases subsequent to Drews did not require express authority in the guardianship statute in order for guardians to take serious "personal" actions on behalf of their wards. The court found no reason to treat a guardian’s decision to seek permission to institute a dissolution action any different from numerous other personal decisions, such as involuntary sterilization or ending life-support measures. The supreme court also placed great weight on the passage of the no-fault dissolution regime, which did not control in Drews. The court was of the further opinion that a perpetuation of Drews would result in unequal treatment of incompetent spouses, leaving them at the complete mercy of the competent spouse without consideration of their best interest.
The sweep of Karbin is broad: "Whether a guardian is initiating, responding to, or continuing a dissolution action, the interests of the ward that may require protection remain constant, regardless of the procedural posture of the case."
The circuit court was directed to hold a "best interests" hearing, noting that "a guardian only acts as the hand of the court." The court further held that the guardian must satisfy a clear and convincing burden of proof that the dissolution is in the ward’s best interest.
By Kerry J. Bryson, Office of the State Appellate Defender
At issue in this case was whether a minor who is not adjudicated delinquent, but rather is found “not not guilty” at a discharge hearing, is required to register as a sex offender.
A delinquency petition charged the minor with aggravated criminal sexual assault and aggravated criminal sexual abuse. The minor was found unfit and it was determined that he was not likely to regain fitness within a year. At a discharge hearing, the minor was acquitted of the assault charge and was found “not not guilty” of the abuse charge. When further treatment failed to restore the minor to fitness, the State filed a motion to compel him to register as a sex offender.
Initially, the Court addressed an issue of first impression – whether discharge hearings under 725 ILCS 5/104-25(a) are applicable in juvenile proceedings. The Court held that discharge hearings exist to safeguard individuals’ due process rights and are incorporated into the Juvenile Court Act (JCA) pursuant to 705 ILCS 405/5-101(3), the JCA clause providing for the general inclusion of all procedural rights of adults in criminal proceedings unless specifically precluded.
The Court went on to find that juveniles found “not not guilty” are required to register under the Sex Offender Registration Act (SORA) because 730 ILCS 150/2(A)(1)(d) defines “sex offender” as “any person” charged with a sex offense who is the subject of a finding not resulting in acquittal. The Court rejected the minor’s contention that section 2(A)(5) of SORA, which refers only to juveniles “adjudicated delinquent,” means that a juvenile found “not not guilty” is not subject to the registration requirements of SORA.
The Court recognized that section 3-5 of SORA, allowing delinquent minors to petition for early termination of registration, does not include minors found “not not guilty” and that precluding those minors from seeking the same relief is “absurd.” To remedy that absurdity, the Court chose to read the statute as including juveniles found “not not guilty.” The Court went on to read into section 121 of the Sex Offender Community Notification Act (SOCNA) a similar provision, specifically that juveniles found “not not guilty” are included within its terms.
Justice Garman filed a dissenting opinion. She agreed with the majority that the trial court properly conducted a discharge hearing, but declined to join in the portion of the opinion imposing registration requirements upon a juvenile found “not not guilty.”
This decision is notable in several respects. First, it specifically provides for the application of the discharge-hearing procedure in juvenile delinquency cases. It also resolves the question of whether a minor found “not not guilty” of a qualifying offense must register as a sex offender. Finally, it provides protections under SORA and SOCNA to juveniles found “not not guilty” equivalent to those for delinquent minors, even though juveniles found “not not guilty” are not referenced anywhere within those provisions.