Quick takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Friday's Illinois Supreme Court opinions in the civil cases Ferguson v. Patton, Julie Q. v. the Department of Children and Family Services and DeHart v. DeHart and the criminal cases People v. Cruz and People v. Donelson.
By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa
For more than 50 years plaintiff believed his decedent father’s representation that the decedent was plaintiff’s biological father. Plaintiff found to the contrary when he obtained a certified copy of his birth certificate to obtain a passport, which revealed who his biological father was. That man had abandoned the plaintiff when he was two, and had no further contact. Decedent married plaintiff’s mother, and for more than 60 years held plaintiff out to everyone as his biological son.
Plaintiff’s mother died in April 2001. In 2005, decedent, then 83, married defendant, 29 years his junior. Three hundred sixty-four days later, decedent executed a new will in which he stated “I have no children.” A prior will provided bequests for plaintiff and plaintiff’s children.
Legal suspense builds throughout this Opinion as the court methodically works through the six counts of the complaint which had been dismissed by the circuit court, knowing that what lies at the end will be the court’s treatment of the theories for “contract for adoption” and “equitable adoption.” The appellate court, which had reversed the circuit court’s dismissal of all counts, was affirmed in the entirety.
Plaintiff’s theories of lack of testamentary capacity, undue influence, fraudulent inducement and tortious interference with economic expectancy were all found to have been properly pled. As to those tort claims, the court noted that evaluation of the element of damages was premature because the will contest remained viable on remand. If plaintiff succeeded in contesting the will, the dismissal of the tort claims would then be appropriate because the adequacy of probate relief would be undisputed, eliminating the possibility of damages in tort. To the contrary, if the will contest failed, then the plaintiff could proceed on those tort claims.
The Court then arrived at the less frequently encountered theories. Plaintiff successfully argued that he had pled a cause of action for “contract to adopt” in conformity with a 1958 opinion of the Court. The Court agreed that the facts permitted inference that a contract to adopt existed between decedent and plaintiff’s mother, with plaintiff as a third-party beneficiary. The Court expressly found no merit to defendant’s contention that the abandoning father was a necessary party to that contract.
The Court then engaged in an extensive review of the national state of the law on “equitable adoption.” The Court made a discriminating analysis of differing elements of the theory as encountered in other jurisdictions. The Court, noting that the theory had never been expressly recognized, nor rejected, in Illinois, nonetheless found precursor underpinnings in earlier Illinois Supreme Court opinions. The Court held that the plaintiff must prove by clear and convincing evidence an intent to adopt expressed through objective conduct together with the formation of a close and enduring familial relationship. The Court carefully cautioned that its holding was narrow and would foreclose claims against the estate of a foster parent or step-parent “who merely treats a foster or step-child lovingly and on an equal basis with his or her natural or legally adopted children.”
Lastly, the Court dealt with the question of whether the attorney who drafted the contested will could be deposed, or whether the attorney/client privilege barred that. The Court noted that even though the attorney/client privilege normally survives the client’s death, that a different rule applies with respect to wills. There, the privilege is only “temporary,” existing only during the lifetime of the client. The Court explained that the rationale behind that exception is that a decedent would “if one could ask him, forego the privilege so that his distribution scheme could be given effect.”
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In a case arising from an investigation into the propriety of an award of a city contract, the inner workings of the City of Chicago collided with legal principles concerning subject matter jurisdiction and the power of an office that is the creature of a municipal ordinance. The three actors involved in this dispute are the plaintiff, Chicago's Inspector General; the defendant, the city's Corporation Counsel; and, although not a party, the mayor. Inspector General Joseph Ferguson, an appointee of the mayor authorized by a provision of the Municipal Code to act as watchdog over city government, initiated an investigation regarding the award of a contract, outside of normal competitive channels, to a former city employee. Ferguson directed a subpoena for all documents relevant to the process in question to the city's law department. Pursuant to Municipal Code Section 2-56-090 and an Executive Order of the mayor, No. 2005-2, the law department provided documents - but, claiming the attorney-client and work product privileges, withheld some responsive documents.
Unable to resolve the dispute, the Inspector General hired private lawyers and filed a lawsuit seeking enforcement of the subpoena. Ruling that the Inspector General lacked authority to retain counsel and, on the merits, finding that the materials were protected under the attorney-client privilege, the circuit court dismissed the case. The Inspector General, however, won round 2. The appellate court held that Mr. Ferguson had not exceeded his authority and remanded the matter to the circuit court for a second look at whether the Corporation Counsel had sustained its burden to establish that the attorney-client privilege shielded the documents from outside eyes.
The Illinois Supreme Court began its review by rejecting the Corporation Counsel's argument that the intra-agency character of the dispute established that no actual controversy existed, and that the court, accordingly, lacked subject matter jurisdiction. The supreme court reasoned that it was addressing a real dispute, not an abstract question. In addition, the court observed that it had the authority to consider the powers conferred on the actors involved by local ordinance. The court also sided with the Inspector General on the question of its authority to take action to enforce the subpoena.
On the dispositive issue, however, the court ruled that the Inspector General did not have the unilateral power to retain counsel. The court noted an interesting catch-22: having been established by municipal ordinance, the office had no legal status apart from the city. The code provisions creating the office did not confer on it the ability to retain private counsel; by local law, that power belonged only to the Corporation Counsel. Normally, the Inspector General must look to the Corporation Counsel for legal representation. In this unusual case, however, the obvious conflict excused the Inspector General from asking the Corporation Counsel to take legal action (against himself). The Inspector General's only recourse was to look to the mayor to resolve the impasse. The supreme court, therefore, did not reach the privilege issue. It affirmed the circuit court's dismissal of the case.
By Alyssa M. Reiter, Williams, Montgomery & John Ltd.
A finding of child neglect was reversed because the Department of Children and Family Services acted outside its authority in promulgating a rule. Of broader interest, this case illustrates that an agency cannot use its rule-making authority to create a rule that has the effect of adding a definition which the legislature has deleted from the statute to which the rule applies.
The Abused and Neglected Child Reporting Act, when first enacted, defined neglect to include “subjecting a child to an environment injurious to the child’s welfare.” That language was removed from the definition in 1980 because of concerns that the term was ambiguous. That 1980 version applied to this case. (In 2012, after this case, the “environment-injurious” language was added again.) DCFS had promulgated rules necessary to carry out its duties. In 2001, it adopted Allegation 60, which listed “substantial risk of physical injury/environment injurious to health and welfare” as an example of a specific incident of harm constituting abuse or neglect. In this case, DCFS found that there had been child neglect pursuant to Allegation 60.
The Supreme Court held that the DCFS did not have authority, through its rules, to reestablish a definition of neglect that the legislature had removed. Allegation 60 was therefore void and the neglect finding had to be reversed.
By Kerry J. Bryson, Office of the State Appellate Defender
Cruz filed an untimely post-conviction petition. The State moved to dismiss arguing untimeliness, waiver, res judicata, and lack of a substantial showing of a constitutional violation. Cruz, proceeding pro se, filed a supplemental petition containing allegations that he was not culpably negligent. The State filed a response to the supplemental petition, arguing that the untimeliness could not be excused by lack of culpable negligence. The trial court dismissed finding that the petition was untimely and rejecting Cruz’s claim that he was not culpably negligent.
On appeal, the State argued for the first time that dismissal was warranted because Cruz failed to attach a notarized affidavit to his pro se supplemental petition alleging lack of culpable negligence. The appellate court accepted this argument and affirmed the dismissal.
The Supreme Court found that the State had forfeited its argument regarding lack of notarization by not raising it in the trial court. Had the State raised it below, Cruz could have cured any defect by providing a notarized affidavit. The Court reversed and remanded to the appellate court to consider the question of whether Cruz had demonstrated a lack of culpable negligence.
Of particular interest to practitioners is the special concurrence by Justice Freeman, joined by Justice Burke, suggesting that proceedings under Section 122-5 of the Post-Conviction Hearing Act should be litigated with an eye toward civil motions practice. The special concurrence indicated that the original post-conviction petition can be thought of like a complaint in a civil case. Once the State enters the case, it should proceed much like civil matters do.
By Kerry J. Bryson, Office of the State Appellate Defender
Donelson pled guilty to first degree murder, home invasion, and aggravated criminal sexual assault in exchange for concurrent sentences of 50, 30, and 30 years, respectively. Subsequently, it was realized that consecutive sentencing was mandated by statute. The Supreme Court was called upon to determine the proper remedy.
Donelson argued for vacating the plea under People v. White, 2011 IL 109616 (negotiated plea to a sentence below the mandatory minimum vacated). The State argued for a remand for resentencing because valid consecutive sentences could be fashioned such that they would total no more than 50 years.
The Court noted that both the State and Donelson were entitled to the benefits of their bargains and determined that the most appropriate way to remedy the error here was to remand for resentencing. White did not require vacating the plea; it was distinguishable on the basis that a legally valid sentence could not have been fashioned within the terms of the agreement there.
An important consideration for the Court was that the intent of the parties could be discerned from the record here. In a case where the record is not as clear, it might be argued that a remand for resentencing is not the appropriate relief.