Quick take on Friday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil cases Poris v. Lake Holiday Property Owners Association and Bjork v. O'Meara and the criminal case People v. English.
By Jay Wiegman, Office of the State Appellate Defender
In a case of interest to both civil and criminal attorneys, as well as to anyone who lives within a private homeowners' association, the Illinois Supreme Court upheld the right of an Association to stop and detain drivers for rules violations, such as speeding, on private roads and to use amber lights on Association security vehicles to effectuate such stops. Poris v. Lake Holiday Property Owners Association, 2012 IL 113907. The Supreme Court also held that a private security officer does not commit false imprisonment when he stops an Association member on the basis of a strong and honest suspicion that the member was guilty of violating Association rules.
Plaintiff, who owned a home in Lake Holiday, and was thus a member of the Association, was stopped by a private security officer who, using radar, clocked Plaintiff at 34 miles per hour on an Association roadway, on which travel is limited to 25 miles per hour. Poris, 2013 IL 113907, ¶ 7, 15. The private security officer activated the amber and white oscillating lights on his vehicle and pulled Plaintiff over. Poris, 2013 IL 113907, ¶ 15. A speeding citation was issued. Poris, 2013 IL 113907, ¶16.
Plaintiff filed a complaint which ultimately included a declaratory judgment against the Association seeking, among other things, a declaration that the practices and procedures of the Association's security department were unlawful. Poris, 2013 IL 113907, ¶ 18. The third amended complaint also included a claim that Plaintiff had been falsely imprisoned. Poris, 2013 IL 113907, ¶ 19. The circuit court of LaSalle County granted summary judgment in favor of defendants on all counts in plaintiff's complaint. Poris, 2013 IL 113907, ¶ 20.
On appeal to the Third District Appellate Court, plaintiff argued, among other things, that the Association was not authorized by law to stop vehicles and detain drivers, to use amber oscillating and flashing lights on its vehicles, to record drivers with audio and video recording equipment, or to use radar. Poris, 2013 IL 113907, ¶ 20. The appellate court upheld the use of recording devices and radar. Poris, 2013 IL 113907, ¶ 21. However, the appellate court reversed the circuit court and held that the Association was not an entity authorized by the Illinois Vehicle Code to use amber lights on its vehicles, so that the Association’s use of those lights was unlawful. In addition, the appellate court held that the practice of stopping and detaining drivers for Association rule violations was unlawful, because security guards occupy the same status as private citizens and therefore may only stop and detain a person if he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. Poris v. Lake Holiday Property Owners Association, 2012 IL App (3d) 110131, ¶ 26. The appellate court stated that the security officers were attempting to assert police powers that they had neither the right nor the power to assert. Id. ¶ 28. The appellate court also found that plaintiff had established that he was restrained by the security officer, and that the officer acted without reasonable grounds to believe that plaintiff had committed an offense, because a violation of an Association rule or regulation is not an offense. Poris, 2012 IL App (3d) 110131, ¶¶ 54-57.
A unanimous Illinois Supreme Court reversed the appellate court’s decision granting summary judgment in favor of plaintiff on his declaratory judgment claims concerning the Association’s practices of stopping and detaining drivers for rule violations. Writing for the Court, Justice Thomas stated: "Plaintiff and the appellate court err in viewing this issue as one involving private citizens improperly attempting to assert police powers. The appellate court overlooked the fact that the Lake Holiday security officers only stop and detain drivers for violating Association rules occurring on private Association property, and citations are only issued to Association members. The appellate court failed to consider the Association’s enforcement of its rules and regulations in the context of its authority as a voluntary association to enact and enforce those rules and regulations." Poris, 2013 IL 113907, ¶ 30. The Court also held that this analysis -- that the stop was pursuant to Association rules and regulations rather than an instance of a private citizen effecting a citizen's arrest -- served as an absolute bar to plaintiff's claim for false imprisonment because the officer had a strong and honest suspicion, based on his radar reading, that Plaintiff had violated Association rules. Poris, 2013 IL 113907, ¶¶ 64, 65.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The Illinois Supreme Court reversed the dismissal of a claim for intentional interference with a testamentary expectancy based on the timeliness of filing the lawsuit. Such claims may be governed by the short six-month statute of limitations for will contests contained in The Probate Act, 755 ILCS 5/8-1 (West 2008). This one was not.
The dispute arose after the death of Frank Dama, between two of Dama's friends, Colleen Bjork, who had worked as a hospice nurse for Dama's late wife, and Frank O'Meara, Dama's dentist. Dama had two bank accounts at the Northern Trust with large amounts of cash - $800,000 and $566,000. According to Bjork, in the years before Dama's last illness he wanted to put Bjork's name on the latter account because O'Meara had been pressing Dama for money. Dama designated Bjork as the beneficiary on the account, but shortly after that transaction, signed a power of attorney appointing O'Meara as his agent and revoking all powers previously granted to Bjork. Dama and Bjork remained in regular contact after the revocation until about one month before Dama died; from that point, Bjork's telephone calls were not returned. Bjork learned after Dama's death that she was not a beneficiary to the bank account. O'Meara and his wife would receive Dama's entire estate.
Bjork sought discovery of information pertaining to the Northern Trust account in the probate proceedings initiated by O'Meara, whom the probate judge appointed as independent representative of Dama's estate. Because Northern Trust would not provide Bjork with information - other than the production of certain documents - without a court order, Bjork attempted to depose a Northern Trust representative who could shed light on the matters concerning the bank account Bjork claimed was hers, not the estate's. The judge denied Bjork's request to take the deposition on the erroneous premise that the court lacked authority to order the deposition. The assets of the estate were distributed - presumably, to the O'Mearas - and the estate was closed.
More than one year after Dama's death, Bjork filed a complaint against O'Meara for intentional interference with a testamentary expectancy based on Bjork's claim that O'Meara, by fraud, misrepresentation or undue influence, stopped Dama from fulfilling his intention to name Bjork the beneficiary of the bank account. O'Meara prevailed on a motion to dismiss the claim as barred by the statute of limitations that applies to will contests. The appellate court upheld the dismissal order.
Finding applicable the five-year general statute of limitations contained in 735 ILCS 13-205 (West 2008), the supreme court reversed. It distinguished the tort action against O'Meara from a will contest. Bjork, the court reasoned, did not seek to set aside the will; instead, she sought a personal judgment against O'Meara. The supreme court distinguished earlier decisions where the court had applied the six-month statute of limitations to a tort claim that would have the practical effect of invalidating a will. In Bjork's situation, unlike the earlier cases, the circuit court's erroneous ruling that prevented discovery made Bjork's claim only speculative during the course of the probate proceeding. The supreme court concluded that because no adequate remedy was available to Bjork in the probate proceeding and Bjork did not seek to invalidate the will, her tort action could proceed.
By Kerry J. Bryson, Office of the State Appellate Defender
In 1995, Scott English was charged with first degree (knowing) murder, first degree (felony) murder, and aggravated battery of a child. All of the charges arose out of the death of English’s girlfriend’s three-year-old daughter. At the conclusion of the evidence at defendant’s jury trial, the State dismissed the knowing murder charge. English was convicted of felony murder and aggravated battery of a child.
In 2004, English initiated the post-conviction proceedings which were the subject of this appeal. English argued that his conviction of felony murder, which was predicated on aggravated battery of a child, was improper under People v. Morgan, 197 Ill. 2d 404 (2001), and People v. Pelt, 207 Ill. 2d 434 (2003), because that predicate felony was inherent in, and arose from, the killing of the child and had no independent felonious purpose. The petition was denied by the trial court, and the appellate court affirmed.
The Supreme Court determined that defendant had forfeited the claim by not raising it on direct appeal. The Court concluded that even though Morgan and Pelt were decided after defendant’s direct appeal, the independent felonious purpose argument was available to him, it just had “less support in the law” at that time. On the other hand, the Court found that counsel on direct appeal did not provide ineffective assistance for not raising this available issue because, based on the state of the law at the time, it was reasonable for appellate counsel to conclude that this issue was unlikely to succeed. The Court stated that appellate counsel’s performance was not deficient for failing to predict the outcome in Morgan and subsequent cases.
The Court acknowledged that its holding left defendant in a “procedural lurch” because he is left without any means of remedying his improper felony murder conviction, but agreed with the State that this outcome was compelled by the limited scope of post-conviction review.
Justice Freeman authored a special concurrence, joined by Justice Burke, taking the position that the majority should have first considered the State’s argument that the rule announced in Morgan lacked a constitutional basis. The justices would have found that the rule was based on principles of statutory construction and thus was not independently cognizable in a post-conviction petition. Likewise, they would have found that defendant did not receive ineffective assistance of appellate counsel because counsel was not deficient in failing to predict the future endorsement of the independent felonious purpose rule.
Justice Freeman noted that the majority’s treatment of defendant’s claim amounted to “nothing more than a ‘gotcha,’ which leaves defendant in a procedural quandary that is at odds with the legislature’s intent in enacting” the post-conviction remedy.
This decision serves to emphasize the harsh reality that post-conviction review is limited in scope and even meritorious claims may be foreclosed of on the basis of procedural default.