Quick Takes on Thursday's Illinois Supreme Court opinions
Our panel of leading appellate attorneys review Thursdays's Illinois Supreme Court opinions in the criminal case People v. McDonald and the civil cases Schweihs v. Chase Home Finance, LLC and In re M.I.
By Kerry J. Bryson, Office of the State Appellate Defender
Defendant Stanley McDonald stabbed his partner, Larry Gladney, resulting in Gladney’s death. A paramedic who had responded to the scene testified that Gladney was very combative as they tried to treat him. Gladney smelled of alcohol and had needle track marks indicative of drug use. Later testing showed a BAC of .19 and cocaine in Gladney’s system. Gladney died two days later, with the cause being a stroke resulting from a stab wound to his right cheek which had damaged his carotid artery and caused a blood clot.
An autopsy revealed a total of three stab wounds on Gladney’s body - the fatal wound, and “superficial” wounds to his chest and upper arm.
Other evidence presented by the State was that McDonald thought Gladney was having an affair, and that earlier on the date of the stabbing, McDonald was upset and told his cousin, Charlotte Davis, that he was going to kill Gladney. Davis and her boyfriend lived in the same house as Gladney and McDonald, in a separate section of the basement. On the night in question, Davis heard the men arguing and saw them standing at the top of the stairs, with McDonald trying to pull Gladney’s bike down the stairs and Gladney pulling in the opposite direction. She heard Gladney say “ugh,’ and put his hand to his right eye with blood running down his face. Davis’s boyfriend said he saw the men outside with McDonald on top of Gladney saying “please don’t die.” An officer found a large carving knife lying on the ground. McDonald was arrested and taken to the hospital. He had a superficial laceration to his upper lip and abrasions to both of his knees.
McDonald tendered instructions on second degree murder (serious provocation and unreasonable belief in self-defense), involuntary manslaughter, and self-defense. The court gave the instructions on self-defense and second degree murder based on unreasonable belief in self defense, but refused the provocation and involuntary manslaughter instructions. The jury convicted McDonald of first degree murder, and the appellate court affirmed.
The Supreme Court first considered the appropriate standard of review on the issue of the trial court’s refusal to give a requested jury instruction, with McDonald asserting de novo review, and the State asserting that abuse of discretion is the appropriate standard. The Court first acknowledged its “less than clear” history on the question of whether a lesser-included offense instruction is warranted, and clarified that the appropriate standard for that determination is “whether there is some evidence in the record that, if believed by the jury, will reduce the crime charged to a lesser offense, not whether there is some credible evidence.”
As for the standard of review, the Court clarified that an abuse of discretion standard is proper when reviewing a court’s refusal to give an instruction due to insufficient evidence to justify it.
The Court then went on to consider whether the court here had abused its discretion in refusing to instruction the jury on second degree murder based on serious provocation and on involuntary manslaughter and concluded that it had not. There was no evidence that Gladney had threatened McDonald, and the direction of the fatal stab wound suggested not that McDonald was swinging the knife recklessly but rather that he struck Gladney in a downward motion deep enough to damage the carotid artery.
Likewise, there was no evidence of serious provocation, but rather the evidence was that McDonald had a knife earlier in the day and was threatening to kill Gladney.
Justice Burke authored a dissent concluding that the appropriate standard of review should be de novo because there is no reason to give deference to the trial court’s determination where the trial court is not assessing the credibility of the evidence in determining whether there is some evidence to support the giving of an instruction. Likewise, Justice Burke concluded that the denial of the involuntary manslaughter instruction was in error because there was some evidence that McDonald acted without any intent to kill. Likewise, she concluded that there was some evidence of mutual combat sufficient to warrant a second degree/provocation instruction.
Justice Burke was critical of the majority, finding that it had improperly weighed the evidence in finding the instructions not warranted, rather than simply considering whether there was “some evidence” to support them.
Justices Freeman and Kilbride joined the dissent.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
In a decision that a law school professor should use as a model for a final examination question on the torts of negligent and intentional infliction of emotional distress, the Illinois Supreme Court focused its attention on the “impact rule” applicable in direct claims for negligent infliction of emotional distress. Despite some indication in past decisions that the impact rule had been abrogated, the supreme court has now clarified that the rule still applies in “direct victim” situations.
The issue arose in the context of a tort action arising out of foreclosure proceedings involving the plaintiff, Melinda Schweihs. She sued Chase, outside companies, and two individual vendors who perform inspection and preservation services on foreclosed properties. Schweihs defaulted on the mortgage for her home in Northbrook in 2007. Chase obtained a judgment of foreclosure in May of 2010, and Schweihs had the right to possession until the redemption period expired in August of that year. In June, the individual defendants, Todd Gonsalez and Edilfonso Centeno, went to the home after they were engaged to change the locks and turn off the utilities. They were instructed not to do any work if they found the home occupied. Schweihs testified that she was packing in the basement when she heard knocking, which she ignored. After spending more than 45 minutes to determine if anyone was home, and hearing from neighbors that the house was usually vacant, Gonsalez knocked a second time on the front door. Receiving no answer, Gonsalez and Centeno contacted the management and were told to proceed, which they did, by removing the lock to the back door. Inside the house, they encountered Schweihs, who ordered them to leave and stated she was calling her lawyer. She testified that one of the two workmen spoke to her “in a forceful way” about securing and winterizing the house and needing to speak with her outside the home. Gonsalez and Centeno then went outside, around to the front of the house, and knocked again. Schweihs did not answer, and the men waited for the police, who did not speak to the plaintiff, but to Gonsalez, Centeno and a neighbor. The police made no arrests.
Schweihs filed a complaint against the defendants. Following extensive discovery and motion practice, the circuit court dismissed a count for negligent infliction of emotional distress and entered summary judgment in favor of the defendants on plaintiff’s claim of intentional infliction of emotional distress. Counts for trespass and nuisance survived.
The supreme court focused on clarifying the law concerning the impact rule as applied in actions for negligent infliction of emotional distress. After a thorough analysis of three prior supreme court decisions, Rickey v. CTA, Corgan v. Muehling, and Pasquale v. Speed Products Engineering, the court concluded that – contrary to the plaintiff’s argument – this precedent had not eliminated the impact rule for plaintiffs claiming to be a direct victim of the tort. Acknowledging that Pasquale and Corgan contained language indicating that the impact rule had been abrogated, the court determined that those statements were non-precedential obiter dictum. The supreme court also noted a number of appellate and federal decisions applying the impact rule in that context.
Schweihs’ complaint lacked any allegation of a physical impact during her encounter with Gonsalez and Centeno. Accordingly, the supreme court affirmed the circuit court’s decision to dismiss that negligence count.
In a notable prelude to the court’s intentional infliction analysis, the court disposed of a forfeiture argument. The defendants argued that, although the plaintiff had challenged the judgment entered on both the negligent and intentional infliction claims in her petition for leave to appeal, after the supreme court denied the petition, plaintiff referenced only the negligent infliction of emotional distress claim in a motion to reconsider; thus, the defendants argued, plaintiff forfeited review of the intentional tort. Disagreeing with that analysis, the court determined that the order allowing the motion to reconsider permitted review of all of the claims addressed in the petition for leave to appeal.
Having cleared that procedural hurdle, Schweihs lost on the merits of her challenge to the order entering summary judgment on the intentional infliction count. The court assessed the facts of record concerning plaintiff’s encounter with the individual defendants and found that plaintiff had not been subjected to extreme and outrageous mistreatment. The court found that the defendants’ efforts to preserve the property, pursuant to the bank’s contractual right, did not constitute atrocious conduct “utterly intolerable in a civilized community.”
In a special concurrence, Justice Rita Garman explained the impact of the court’s 2011 decision in Clark v. Children’s Memorial Hospital. In Clark, Justice Garman found confirmation that the court had rejected – at least in part – the basis for the holding in Corgan v. Muehling.
By Joanne R. Driscoll, Forde Law Offices LLP
When terminating parental rights under the Adoption Act for failure to maintain a reasonable degree of interest in the child, must the juvenile court consider whether the parent’s conduct was willful and whether the parent was provided reasonable accommodations and services in light of his mental impairment? Reversing the appellate court, the Supreme Court, in a unanimous opinion, answered this question in the negative.
M.I. was adjudicated neglected and made a ward of the court, and the Department of Children and Family Services was named guardian. J.B., M.I.’s father and non-custodial parent, was ordered to cooperate with DCFS and undergo various evaluations. J.B. underwent a psychological evaluation and registered an extremely low IQ (mildly retarded) with skills ranging from kindergarten to third grade level. The psychologist concluded that J.B. could not parent on an independent basis. Following more than three years of contact between J.B. and his caseworker, the State filed a petition to terminate his parental rights based on unfitness. The State relied on evidence that J.B. was unemployed and homeless, did not attend drug testing or participate in drug and alcohol evaluation, and completed some services but was inconsistent with visitation, rarely visiting M.I. J.B.’s caseworker was aware that he had been diagnosed with bi-polar disease but did not seek additional services for him. The juvenile court found J.B. unfit for failure to maintain a reasonable degree of interest in M.I. and failure to make reasonable progress toward the return of M.I. (750 ILCS 50/1(D)(b), (m) (West 2014)).
The appellate court, in a divided opinion, reversed, holding that the juvenile court incorrectly equated the failure to complete a task beyond one’s intellectual capacity with a willful refusal to comply with court-ordered directives. The appellate court held that the juvenile court was required to consider how J.B’s mental or intellectual capacity impacted his efforts. A dissenting opinion stated that subsections (b) and (m) of section 1(D) of the Adoption Act impose no requirement to consider the parent’s mental health.
Applying rules of statutory construction to subsection (b), the Illinois Supreme Court held that there was no carve out or exception for “faultless failure.” Analogizing J.B.’s intellectual disability and poverty to the plaintiff’s mental illness in In re E.O., 311 Ill. App. 3d 720 (2d Dist. 2000), the Court held that neither condition provided a valid excuse for a parent’s failure to regularly attend visitation and, thus, was evidence of a failure to show a reasonable degree of interest, concern or responsibility as to the child’s welfare. After examining the record, the Court held that the juvenile court’s finding of unfitness under subsection (b) was not against the manifest weight of the evidence. In doing so, the Court declined to find that evidence of the lack of a service plan or service modifications did not excuse J.B.’s sporadic attendance at visitation.
As to the other issues raised, the Court declined to address the proofs necessary under subsection (m) of section 1(D) of the Adoption Act, but did hold that the State could choose any of the grounds for unfitness under section 1(D) even if another ground, such as mental impairment under subsection (p), could apply.