Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Keating v. City of Chicago, Madigan v. Illinois Commerce Commission, Pusateri v. Peoples Gas Light and Coke Company and Huber v. American Accounting Association and the criminal cases People v. Denson, People v. Holt, In re Detention of New and Cordrey v. Illinois Prison Review Board. The court also released In re Edmonds.

CIVIL

Keating v. City of Chicago

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

This opinion, while not reaching the merits of the case, reflects an important point of Illinois constitutional law.

The appellants sought review from a Supreme Court Rule 23 Order which affirmed dismissal of the plaintiffs’ complaint challenging the City of Chicago’s red light camera ordinance.  On review, the Supreme Court dismissed the appeal:

In this case, two Justices of this Court have recused themselves and the remaining members of the Court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, § 3).  Accordingly, the appeal is dismissed.

The Court explained that the effect of this dismissal is the same as an affirmance by an equally divided court of the decision under review but it does not have precedential value.

People ex rel. Madigan v. Illinois Commerce Comm'n

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC

Explaining the interplay between supreme court rules that set a 30-day deadline for filing a notice of appeal of final judgments and specific legislative enactments pertaining to time deadlines for review of administrative decisions, the Illinois Supreme Court revived an appeal brought under the Public Utilities Act, 220 ILCS 5/10-201(a) (West 2010). Under section 10-201(a), a notice of appeal filed 35 days after the denial of a request for rehearing of an Illinois Commerce Commission ruling  was timely filed. Under Supreme Court Rule 303(a), it was not. The appellate court found that the 30-day deadline applied and dismissed the appeal.

The supreme court began its analysis with the observation that, under the Illinois Constitution, the state’s reviewing courts are empowered to review, as a matter of right, only final judgments of the circuit courts. The courts may review administrative actions only “as provided by law.” Ill. Const. 1970, art. VI, sec. 6, 9. The General Assembly has enacted laws that prescribe procedures for obtaining judicial review of an administrative decision and thus confers “special statutory jurisdiction” with such provisions.

The supreme court has concurrent constitutional authority with the legislature to promulgate rules for appellate court review of administrative decisions. Supreme Court Rule 335 applies certain other rules governing appeals – including Rule 303 - to review of administrative decisions. Rule 335, however, does not require courts to apply the 30-day provision in Rule 303(a) to the review of all administrative orders by the appellate court. Rather, Rule 335(1)(i) applies Rule 303 to the review of administrative rulings only “insofar as appropriate,” meaning when the legislature has not explicitly stated a deadline for seeking appeal of a particular type of administrative decision. In this case, section 10-201(a) provided a deadline, so the notice of appeal was timely filed. The supreme court observed that the appellate court had relied on two earlier appellate decisions that failed to take into account the concept of special statutory jurisdiction.

State of Illinois ex rel. Pusateri v. Peoples Gas Light & Coke Co.

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

State of Illinois ex rel. Pusateri v. The Peoples Gas Light and Coke Co. was decided based upon the interplay between the subject matter jurisdiction of circuit courts and a statutory analysis of the False Claims Act and the Public Utilities Act.  Plaintiff Joseph Pusateri filed a complaint under the False Claims Act, 740 ILCS 175/1, alleging that he acquired knowledge while a supervisor at defendant The Peoples Gas Light and Coke Company that defendant instructed its employees to change computer logs to reflect a better response time to potential gas leaks so as to avoid the statutory requirement of reporting responses which took more than one hour.  Plaintiff claims that the resultant falsified reports of response times were used by PG to help justify rate increases obtained in Illinois Commerce Commission rate-setting proceedings.  The Attorney General declined to prosecute that  complaint and accordingly plaintiff Pusateri proceeded on his own pursuant to court direction.

The circuit court dismissed the complaint, finding that there was no causal nexus between the purported false claim and increased payments by the State, as a gas customer, because the Commerce Commission would not look at safety reports in deciding the rate.  The appellate court reversed, construing the complaint liberally to conclude that the alleged false reports could form the basis of a claim within the meaning of the False Claims Act to the extent that a false record was offered in support of a claim for payment.

The supreme court began its analysis by explaining the jurisdiction of the Illinois Commerce Commission in setting rates.  The court then noted that the circuit and appellate courts have jurisdiction to review administrative agency actions only as provided by statute.  Rate-setting is a legislative function, not a judicial one.  If a rate order is reversed, the court does not itself set a new rate.  At several critical junctures in the opinion, the court relied upon the fact that the False Claims Act was adopted in 1991, long after the establishment of the Commission’s exclusive rate-setting jurisdiction.  A claim for reparation is at heart a claim that a utility has charged too much for a service, as opposed to a claim for damages, the essence of which is that the utility has done something else to wrong the plaintiff. Claims for reparations against a regulated utility are subject only to the exclusive jurisdiction of the Commission.

The court concluded that Pusateri’s complaint was one for reparations, and was therefore subject to the exclusive jurisdiction of the Commission.  The court also concluded that the complaint constituted a prohibited collateral attack on a Commission rate order.  It would not be possible for a court to determine how much the alleged fraud increased the rate without of logical necessity determining what the rate would have been without those false reports.

The court rejected a claim of forfeiture made by Pusateri, in part noting that forfeiture does not apply to questions of subject matter jurisdiction, without ever stating that there had been a forfeiture.

The court cautioned that it was not deciding that the legislature could not constitutionally craft a whistle blower reward within the context of utility rates.  Rather, the court’s analysis was confined to the existing statutes in determining that the legislature has not done so.

The court offered a concise lexicon of the False Claims Act and the Whistleblower Act.

Huber v. American Accounting Association

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

The mailbox rule is alive and well in Illinois but litigants must ensure that they follow the requirements to prove mailing.  That is the lesson to be learned from this case.

Huber appealed from an adverse final order dated March 6, 2013.  The circuit court clerk did not receive his notice of appeal until April 9, 2013 (four days late).  The appellate court dismissed the appeal for lack of jurisdiction and the Supreme Court affirmed.

Supreme Court Rule 373 provides that if a notice of appeal is received after the due date, the time of mailing shall be deemed the time of filing.  Proof of mailing must be provided as set forth in Supreme Court Rule 12(b)(3).

Rule 12(b)(3) states that where service is by mail, service is proved “by certificate of the attorney, or affidavit of a [non-attorney], who deposited the document in the mail…,stating the time and place of mailing…, the complete address which appeared on the envelope or package, and that fact that proper postage…was prepaid.”  In this case, the appellant had not provided an attorney certificate or a nonattorney affidavit “and thus failed to provide the proof of mailing required by our rules.” 

The Court rejected the appellant’s argument that a post mark from the U.S. Post Office could serve as proof of mailing because that method of proof had been eliminated from the current version of Rule 373.  In any event, the appellant’s envelope did not have an official “postmark” but, rather, contained only an “Automated Postal Center” label, which shows the date of sale [of the postage], not the date of mailing.

CRIMINAL

People v. Denson

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

Denson challenged the admission of coconspirator statements at his murder trial, as well as admission of a prior consistent statement of a State witness.  The appellate court found that defendant had forfeited his coconspirator statement challenge because he had not filed a motion in limine seeking to exclude those statements but rather had filed a response to the State’s motion in limine seeking admission of them, and he had not raised a contemporaneous objection when they were admitted at trial.  The court went on to analyze the merits, however, and found that even if preserved, Denson was not entitled to relief because the statements (including the prior consistent statement) were properly admitted or were harmless.

The Supreme Court was critical of the appellate court’s forfeiture holding. The Court clarified that if a motion in limine is filed by the State, a defendant preserves his objection by filing a response to that motion, as he did here.  Defendant need not also file a separate motion in limine, as such a requirement would elevate form over substance and encourage duplicate pleadings.

Further, defendant need not raise a contemporaneous objection at trial to evidence which has been ruled admissible during in limine proceedings.  The Court distinguished the civil rule (where a contemporaneous trial objection is required) from the criminal rule (where it is not).  This difference exists because in criminal cases, post-trial motions are required to preserve issues for appeal, while they are not in many civil cases.  Thus, in a criminal case, an in limine issue is brought to the trial court’s attention one additional time by inclusion in a post-trial motion, while in civil cases it is done by contemporaneous trial objection.

The Court also noted that here, the State sought an in limine ruling in the trial court expressly for the purpose of avoiding a trial objection, but then argued forfeiture from the lack of a trial objection when the case came up on appeal.  The Court “strongly discouraged” the State from proceeding in this manner in future proceedings as it amounted to advancing a theory on appeal inconsistent with the position it took below.

Ultimately, while the Court disagreed with the Appellate Court’s forfeiture conclusion, it upheld the Court’s decision on the merits in a brief, three-paragraph, section of the opinion.  The Court saw “no need to repeat or replicate” the Appellate Court’s analysis.  Thus, the primary import of this opinion is its clear statement of forfeiture principles in Illinois criminal cases.

People v. Holt

By Jay Wiegman, Office of the State Appellate Defender

Where the State expresses a bona fide doubt as to a defendant's fitness to stand trial in a criminal proceeding, is defense trial counsel ineffective for failing to advocate the defendant's position that he is fit?  In People v. Holt, 2014 IL 116989, announced today, the Illinois Supreme Court said that counsel is not ineffective for failing to adopt the defendant's position and argue for a fitness finding, as doing so would violate counsel's duty to his client and suborn a violation of due process.

During pretrial proceedings in People v. Holt, the State declared, without elaboration, that it had “a bona fide doubt to the defendant’s fitness.” Defense counsel did not object. The circuit court found that the State raised a bona fide doubt as to the defendant’s fitness, and ordered her to report to the Kane County Diagnostic Center for an evaluation.

Defendant's pro se motion to vacate the court’s order was denied.

Ultimately, the court held a jury trial on the issue of fitness. The State asserted in its opening statement that it would be unable to meet its burden of proving the defendant fit.  The State then called psychologist Dr. Timothy Brown, the Director of the Kane County Diagnostic Center, who testified that the defendant unsuccessfully completed examinations used by the Center to determine fitness, and that in Dr. Brown’s opinion, the defendant was unfit to stand trial. Specifically, according to Dr. Brown, the defendant suffered from mental illness, specifically a “mood disorder,” and that, with treatment, it was possible that she could attain fitness within one year. Following Dr. Brown’s testimony, the court granted a defense motion for directed finding of unfitness, and found the defendant unfit to stand trial.

The defendant appealed.  While the appeal was pending before the Second District Appellate Court, Holt was found fit to stand trial, and thus the question was rendered moot. However, the appellate court the collateral consequences exception to the mootness doctrine applicable, and affirmed the circuit court’s finding that the defendant was unfit to stand trial.  People v. Holt, 2013 IL App (2d) 120476.  The Illinois Supreme Court granted leave to appeal.

In a unanimous decision, the Supreme Court affirmed.  Writing for the Court, Justice Karmeier first addressed the issue of mootness, and concluded that the public interest exception applied.  People v. Holt, 2014 IL 116989, ¶48.  The Court felt that the instant case presented "an opportunity to speak to a circumstance where defense counsel quite reasonably believes that his client is unfit to stand trial, but the unfit client opposes that position, where the facts of the case are not such as to make fitness even arguable, and where it is highly improbable—given the wealth of evidence in the record (in the form of defendant’s own thoughts as expressed in her pro se filings)—that controverting evidence could have been brought to bear upon the issue."   Holt, 2014 IL 116989, ¶48.  The Court also noted that the precedent in this area is "scant," which the Court found puzzling because the facts of this case suggest that "this cannot be the only instance where a troubled defendant and defense counsel are at odds over the question of defendant’s fitness to stand trial."  Holt , 2014 IL 116989, ¶48.

Substantively, the Court first addressed defendant's contention that trial counsel did not consider her unfit because the question of her fitness was raised by the State rather than defense counsel.  Holt, 2014 IL 116989, ¶50.  The Court considered that counsel demonstrated that he thought an evaluation was in order when he did not object to the State's request for an evaluation.  Holt, 2014 IL 116989, ¶50.  Moreover, the Court did not consider counsel ineffective for not objecting to such an evaluation, as the evaluation would provide additional information about the defendant's condition.  Holt, 2014 IL 116989, ¶50.  The evaluations, coupled with the defendant's motions and behavior in court, supported a belief by counsel and the court that the defendant was not fit.

Given that counsel could fairly be convinced that the defendant was unfit, the question is whether defense counsel is constitutionally obligated to argue for a finding of fitness, in deference to defendant’s wishes.  The Supreme Court answered in the negative: "No plausible interpretation of the right to counsel would require defendant’s lawyers to fight for an outcome that, in counsel’s estimation—and in fact—would violate due process. The due process clause of the fourteenth amendment bars prosecution of a defendant unfit to stand trial."   Holt, 2014 IL 116989, ¶51.  Thus, the Court held: "Where, as here, the evidence clearly indicates that defendant is unfit to stand trial, but a defendant contends that he or she is fit, defense counsel is not obligated to adopt the defendant’s position and argue for a finding of fitness. In fact, in doing so, defense counsel would be violating his duty to the client and suborning a violation of due process.  Holt, 2014 IL 116989, ¶56.

As the Court noted, even though few cases even comment on this problem, this is not the first time that counsel has been at odds with a client who believes that he is fit, despite significant evidence to the contrary.  In this situation, there is often a concern that counsel who does not adopt the defendant's position will be viewed as having shifted from acting as an advocate to acting as a guardian ad litem.  Today, the Supreme Court made clear that counsel functions appropriately as a criminal defense attorney when he ensures that an unfit client is not tried on criminal charges in violation of due process guarantees.  Trial counsel will be well served by following the guidance provided by the Court: "We believe the first responsibility of any criminal defense attorney, upon his or her appointment to representation, should be to independently assess whether the client is fit to stand trial. In fulfilling that preliminary responsibility, and taking appropriate action thereon, irrespective of the State’s position, a defense attorney has afforded his client appropriate representation."  Holt, 2014 IL 116989, ¶52.

In re Detention of New

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

John New was the subject of an Sexually Violent Persons commitment proceeding. At issue on appeal was whether expert testimony that New was diagnosed with “paraphilia NOS, sexually attracted to adolescent males” (also known as hebephilia) was subject to Frye analysis.

At the hearing on the State’s petition, two experts testified that New suffered from hebephilia demonstrated by his attraction to pubescent males ranging in age from 11 to 15.  Both experts acknowledged that hebephilia was not included as a diagnosis in the DSM-IV-TR, nor was it listed as a specific category of paraphilia NOS which was in the DSM-IV-TR and included categories such as sadism, voyeurism, and pedophilia.  Hebephilia’s inclusion in the DSM-V was pending at the time of the hearing, over broad objection, and had been rejected by the time this matter came up on appeal.

A defense expert testified that hebephilia was not a generally accepted diagnosis.  He explained that it is “statistically normal” for adults to be sexually attracted to sexually immature adolescents, and that while it is illegal to act on those attractions, “the fact that something is illegal does not make it pathological.”

While inclusion in the DSM is not required for general acceptance, the Court’s decision makes clear that it is a very relevant consideration. Hebephilia’s absence from the DSM, coupled with conflicting literature on the subject, prevented the Court from taking judicial notice of its general acceptance.  The Court also noted that there was no case law from which general acceptance could be found as the question had not been adequately litigated.  The Court concluded that the diagnosis of hebephilia is subject to Frye and affirmed the Appellate Court’s decision remanding the matter for a Frye hearing.

Cordrey v. Illinois Prisoner Review Board

By Jay Wiegman, Office of the State Appellate Defender

"Violating an offender at the door" is a legal fiction wherein it is imagined that the offender is released from custody and placed on Mandatory Supervised Release," but then is immediately placed back in custody upon his release for violating  his supervision terms, most often because he does not have suitable housing.  In reality, the offender simply remains incarcerated until a MSR prerequisite is satisfied or his term of MSR expires.  This is an obvious concern for the prisoner who finds his incarceration extended by the length of his MSR term.  It is also a concern for the public at large, as prisoners who are eventually released once the term of MSR has expired will not receive any supervision upon their release.  It was hoped that Cordrey v. Prisoner Review Board, 2014 IL 117155, a mandamuspetition supported by 18 organizations, would address these concerns.

Cordrey's petition sets forth Equal Protection and Due Process arguments, as it alleges that more affluent offenders, who can afford suitable housing, can walk out the prison door, but the indigent offender is violated at the door and sent back to prison.  While the issue has become moot because Cordrey has been released from MSR, the Supreme Court found that the public interest exception to the mootness doctrine applied, because the question is of a substantial public nature, there is a need for an authoritative decision to provide future guidance and the situation is likely to recur.  Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 14, 17.

However, because Cordrey's complaint does not allege a clear right to relief, a clear duty of the public official to act, and a clear authority in the public official to comply with the writ of mandamus, as well as the lack of other adequate remedies, the Supreme Court unanimously found that mandamus is inappropriate.  Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 19.  The Court did so largely because the case is predominated by factual questions, including whether Cordrey was violated at the door strictly because of his indigency.  Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 34.  Further, the Court stated that there is no clear authority in the Prisoner Review Board, named as respondent in this complaint, to act, as opposed to the Department of Corrections.   Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ ¶ 20-24.  Thus, while Justice Thomas, writing for the Court, stated that the Court  was "not insensitive to the plight of inmates that are violated at the door, or the fact that 'violating at the door' appears to be an ongoing practice in our penal system, " the Court concluded  that Cordrey simply has not established a clear right to mandamus in this case.   Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ ¶ 39.

Hopefully, the significant interests involved in this case issue will find an appropriate forum for these concerns to be addressed, whether it be in the Legislature, or through another judicial avenue.  Perhaps the Court's Opinion will provide guidance for another attempt at addressing this issue.