Quick Takes on Illinois Supreme Court opinions issued Thursday, March 23
Leading appellate attorneys review the Illinois Supreme Court opinions handed down Thursday, March 23. The civil cases are The Carle Foundation v. Cunningham Township, In re Marriage of Heroy, and Barr v. Cunningham, and, from the criminal docket, People v. Howard and People v. Pearse.
By Michael T. Reagan, Law Offices of Michael T. Reagan
The issues presented in The Carle Foundation v. Cunningham Township will one day provide an important statement about charitable-use tax exemptions for medical care facilities. For now, this opinion provides important lessons on SCR 304(a) jurisdiction, the proper scope of declaratory judgments, and factors touching upon the court’s use of its supervisory authority.
The Carle Foundation filed a complaint asserting that four parcels of its properties were exempt from real estate taxation under a charitable-use exemption because the properties were used in connection with the operation of the Carle Foundation Hospital. Most of the counts sought declaratory judgments that the Foundation was entitled to those exemptions. During the pendency of the case in the circuit court, new legislation created a charitable-use exemption specifically for hospitals, by enacting Section 15-86 of the Property Tax Code. (35 ILCS 200/15-86). Upon cross-motions for summary determination of a major issue, the Foundation prevailed on its contention that Section 15-86 applied retroactively. Thereafter, the Foundation filed an amendment to its complaint, adding a count seeking a declaratory judgment that “Section 15-86 applies to any determination of plaintiff’s entitlement to exemptions for the four parcels” for the tax assessment years at issue. The Foundation then filed a motion for summary judgment on that new count. The Foundation stated frankly that the purpose of the motion was “to facilitate interlocutory appellate review” of the court’s prior determination that Section 15-86 applied to the controversy. The Foundation similarly acknowledged that the prior cross-motions for summary determination did not dispose of an entire cause of action, thereby calling into question whether an interlocutory appeal would have been proper on that prior order. The circuit court was correspondingly frank in recognizing that “Count II presents that very basic question, … the question of what law is to be applied to this case – and no other question,” and that further resolution of that question would not resolve the merits of the claims. The circuit court entered the requested declaratory judgment, made a SCR 304(a) finding, and defendants then appealed.
The appellate court reversed. The court found that it had appellate jurisdiction, and held that Section 15-86 violated Article IX, Sec. 6 of the Illinois Constitution. Both the plaintiff and at least some of the defendants filed Petitions for Leave to Appeal to the Illinois Supreme Court, which were granted.
The supreme court first took up the question of whether appellate jurisdiction existed. The court stated that its prior cases have drawn a distinction between judgments that dispose of “separate, unrelated claims,” which are immediately appealable, and orders that dispose only of “separate issues relating to the same claim,” which are not immediately appealable under SCR 304(a). The court concluded that the declaratory judgment here resolved only an “issue,” and not a “claim.” What law governs a claim is not itself a “claim,” “as it resolves nothing other than the standard by which the underlying claim will be adjudicated.” Drawing upon In re Marriage of Best, 228 Ill.2d 107 (2008), the court stated that the two claims presented in Best were “separate” and “distinct,” “such that the parties’ right to adjudication of one would remain irrespective of how the other was resolved.” Here, though, the determination of which statute applied did nothing to dispose of any “claim,” but rather only decided an “issue,” albeit an issue which was essential to the determination of the claims.
The court also addressed the linked, but separate, question of whether the declaratory judgment requested in Count II, because it was pled as a stand-alone declaratory judgment claim, therefore presented an appealable “claim” rather than merely an “issue.” The supreme court rejected that contention because it found that Count II did not properly present a declaratory judgment count. Section 2-701(a), the declaratory judgment statute, states that “the court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof … .” This opinion states that the supreme court has never construed that phrase. The court stated that the Historical and Practice Notes do “construe” that phrase. The court quoted with approval a 1991 appellate court opinion that stated that “ ‘some part’ of the controversy does not mean an element of a single claim, but, rather, it means an entire claim which is part of more than one claim.” Here, the declaratory judgment, although standing alone, presented only a “mere element of a claim,” because it decided only what law governs the claim. Thus, Count II did not present a proper declaratory judgment action.
Lastly, the court addressed the request of the parties (“of a single mind”) that the supreme court review the appellate court’s decision on the merits by invoking the court’s supervisory authority. The supreme court declined to do that because disfavored piecemeal litigation would thereby be accommodated. Further, there were non-constitutional grounds for decision still pending in the circuit court. Because resolution of those non-constitutional issues might negate the need to decide the question of Section 15-86’s constitutionality, the familiar principle of decision that cases should be disposed of on non-constitutional grounds if possible, militated against the court’s using its supervisory authority to review the appellate court’s decision that the statute was unconstitutional.
The court’s reliance upon the Historical and Practice Notes constitutes a useful research and persuasion tip. Those notes are not contained in common versions of the rules which attorneys frequently consult, yet they are often indispensable to a full understanding of the statutes.
Joanne R. Driscoll, Forde Law Offices LLP
When a party in a dissolution of marriage proceeding seeks an award of attorney fees, does that party only have to show an inability to pay those fees and the other party’s ability to do so?
In a unanimous opinion, the Illinois Supreme Court analyzed what appeared to be a conflict among several appellate court panels as to whether the 1996 amendments to section 508 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508 (West 2014)) did away with the inability to pay standard. Examining the clear and unambiguous language of section 508, the court concluded that financial inability to pay remains a factor and that the inability to pay standard was never intended to limit awards of attorney fees to those situations where a petitioning party had to show complete divestment of assets and support. According to the court, a party is unable to pay if, after consideration of all the relevant statutory factors in section 508, including subsection 503(j) (requiring consideration of the criteria for division of marital property and maintenance awards), the court finds that requiring the party to pay the entirety of the fees would undermine his or her financial stability.
Applying that test to the evidence, the court reversed the appellate court and affirmed the circuit court’s award of attorney fees incurred in defending against the petition to modify or terminate maintenance and in the related appeal. Reviewing the evidence in the record, the court cited to the circuit court’s findings that although the party seeking fees was awarded substantial assets and maintenance, her assets had significantly declined, largely due to her payment of attorney fees, whereas the opposing party’s assets had increased and were expected to continue to increase over time. The supreme court concluded that these findings supported the circuit court’s conclusion that the financial stability of the party seeking fees would be undermined if she were required to pay the entirety of her attorney fees, whereas the other party had the ability to pay at least some of those fees.
The court then addressed separate issues concerning the circuit court’s order reducing permanent maintenance due to changed circumstances. The court reversed the appellate court’s vacatur of the circuit court’s order on grounds of a calculation error, finding that no such error was obvious from the record. The supreme court chose not to address the last issue of whether a permanent maintenance recipient has a continuing duty to become self-supporting. It found that the record showed some minimal efforts by the recipient and thus that the circuit court did not abuse its discretion in concluding those efforts were reasonable.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Barr v. Cunningham illustrates conduct that falls short of willful and wanton behavior in the context of school supervision over student activities. In this instance, the Illinois Supreme Court agreed with the circuit court that the plaintiff did not present enough evidence for a jury to consider whether a public high school physical education teacher’s actions met the statutory definition needed to overcome the affirmative defense of tort immunity: “utter indifference to or conscious disregard for the safety” of the student. 745 ILCS 10/1-210 (West 2010).
Playing floor hockey during gym class, a 15-year-old student sustained a serious eye injury when a plastic ball, used instead of a hard puck, ricocheted off his stick and hit him in the eye. Laurel Cunningham, the PE teacher, supervised the game, played with plastic, not wooden, hockey sticks and “squishy” safety balls. Cunningham’s safety rules included no high sticking, no checking, no tripping, and no bending of the sticks. She instructed the students to keep the ball on the floor and to stop playing at the whistle. The students, who had played hockey together during gym class 8-10 times before the accident, were following Cunningham’s rules.
In challenging the trial court’s decision to direct a verdict for the defendants, Cunningham and the school district that employed her, the plaintiff offered two theories to show willful and wanton conduct that could overcome the statutory immunity defense. First, plaintiff contended that Cunningham demonstrated a conscious disregard for the safety of her students when she decided not to require the hockey players to use readily available safety goggles. Rejecting this theory, the supreme court cited precedent holding that school employees who exercise “some precautions” to protect students from injury are not guilty of willful and wanton conduct – even if additional precautions existed and the precautions taken did not prove to be sufficient.
The supreme court also rejected plaintiff’s second theory, that Cunningham failed to take reasonable precautions after gaining “knowledge of impending danger.” The supreme court noted that no prior injuries had occurred at the school during floor hockey games played with this equipment. Plaintiff argued that Cunningham nonetheless knew the ball could fly above the players’ waists and hit a player in the eye. Not enough, said the supreme court; in the absence of prior injuries, plaintiff at least had to show some evidence of a general association of the activity with a risk of serious injury. Finding no such association in this case, the court contrasted two cases involving inadequately supervised, potentially dangerous activity, Murray v. Chicago Youth Center, 224 Ill. 2d 213 (2017) (jumping on a mini-trampoline), and Hadley v. Witt United School District 66, 123 Ill. 2d 19 (1984) (pounding a piece of scrap metal through an anvil during an industrial arts class).
By Kerry Bryson, Office of the State Appellate Defender
Archie Howard drove a friend to her grandchildren’s school to deliver lunch to her grandchildren. While the friend took the lunches inside, Howard waited in his car in front of the school. Normally this would not be a problem, but Howard was a convicted child sex offender. While Howard was waiting (for four or five minutes), a police officer drove past, ran his license plate, and discovered Howard’s sex offender status. Howard explained that he was waiting for his friend, and that friend returned during his conversation with the officer. Howard was charged with, and ultimately convicted of, being a child sex offender loitering in a school zone in violation of 720 ILCS 5/11-9.3(b).
The statute prohibits a child sex offender from loitering within 500 feet of a school while children are present. Under the applicable portion of the statute, loitering is defined as “standing, sitting idly, whether or not the person is in a vehicle, or remaining” in or around school property.
Howard challenged the proof, arguing that because he was in a vehicle, the “sitting idly” provision applied, and asserting that he was not sitting “idly” when he was there waiting for his friend to deliver lunch to her grandchildren and thus had a legitimate purpose. The Illinois Supreme Court rejected this argument, not because Howard was “idle," but instead finding that the “remaining” portion of the definition also applied and was satisfied by Howard’s having stayed in the school zone while waiting for his friend.
The court also rejected Howard’s constitutional vagueness challenges to the statute. Specifically, the court found that the statute was not unconstitutionally vague as applied because ordinary people, as well as law enforcement officials, could readily determine that stopping to drop someone off in a school zone and then immediately leaving was permissible, but parking one’s car in front of a school and waiting for someone was not.
Howard also argued that the statue was unconstitutionally vague for the same reasons as the gang loitering ordinance struck down in City of Chicago v. Morales, 527 U.S. 41 (1999). The court distinguished Morales on the grounds that this statute applied only to child sex offenders, while the ordinance in Morales applied to all persons, whether gang members or not. Also, the ordinance in Morales applied in all public places, while this statute is limited to areas within 500 feet of schools and applies only when children are present. Finally, the court concluded that the Morales holding that a law defining loitering as remaining in a place with “no apparent purpose” was irrelevant here because the instant statute made no reference to any purpose at all.
Thus, the court rejected Howard’s challenge to the absence of any “overt act” or “improper purpose” requirement in the sex offender loitering statute.
By Jay Wiegman, Office of the State Appellate Defender
In People v. Pearse, 2017 IL 121072, the Illinois Supreme Court addressed whether a registered sex offender who registered with police when he was admitted to a hospital away from his home was required to “reregister” when he returned to his home. Ultimately, the supreme court unanimously determined that the Sex Offender Registration Act does not require a registered sex offender to “reregister” or “reestablish” a residence – terms that are not even included in the statutory scheme. To reach this conclusion, the court waded through an intensive fact pattern, and quoted extensively from the trial proceedings, as it was the only way to truly demonstrate the confusion over the statute that the state’s attorney, defense counsel, trial judge, and appellate court faced, and because their efforts at working through the statutory scheme ultimately informed the supreme court’s decision. While the ultimate conclusion may be relatively straightforward, reading this opinion will provide a better understanding of the court’s holding and of how to apply it to other cases. The court also provides an informative discussion about what it views to be the proper balance between achieving the legislature’s goals while still following the rule of lenity, which requires that in construing criminal statutes, any ambiguity must be resolved in the manner which favors the accused.
Section 2(I) of the Act defines a “fixed residence” as “any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year.” 730 ILCS 150/2(I) (West 2012).
Section 3 provides in pertinent part:
“(a) A sex offender . . . shall, within the time period prescribed in subsections (b) and (c), register in person and provide accurate information as required by the Department of State Police. . . . The sex offender . . . shall register:
(1) with the chief of police in the municipality in which he or she resides or is temporarily domiciled for a period of time of 3 or more days . . .
For purposes of this Article, the place of residence or temporary domicile is defined as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year. ***
A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address. . . .
(b) Any sex offender . . . regardless of any initial, prior, or other registration, shall, within 3 days of . . . establishing a residence, place of employment, or temporary domicile in any county, register in person as set forth in subsection (a).”
730 ILCS 150/3(a), (b) (West 2012).
Section 6 of the Act states in relevant part: “If any other person required to register under this Article changes his or her residence address . . . he or she shall report in person, to the law enforcement agency with whom he or she last registered, his or her new address.” 730 ILCS 150/6 (West 2012).
Writing for the court, Chief Justice Karmeier stated that the purpose of the Act as a whole is to aid law enforcement by facilitating ready access to information and to so protect the public. Consonant with that purpose, the court interpreted the Act as defining a “fixed residence” as any and all places where a sex offender resides for more than 5 days total within a calendar year, and a “temporary domicile” as any and all places where a sex offender resides for more than 3 total days in one year. So interpreted, Pearse was required to report his presence at a hospital in Forest Park, which he did. While there could then be a reasonable difference of opinion as to whether the hospital was reported as a temporary domicile in addition to his residence in Belvidere, or whether he had registered both as fixed residential address, he clearly and properly reported the hospital address, and never intended to abandon his home address.
Section 3 then appears to require that the defendant notify Belvidere police, the law enforcement agency for his home, that he was leaving for the hospital in Forest Park, and section 6 required him to register with Forest Park. In the instant case, there is no indication that Pearse notified the Belvidere police when he left – though a police officer knew when he was transferred to Forest Park and the defendant was not charged with a failure to report his departure from Belvidere – nor did it appear that he notified Forest Park when he left to go home. However, the state made clear that he was not being charged with leaving either jurisdiction without notifying those authorities.
Thus, the question facing the supreme court was whether the defendant was required to notify Belvidere of his return there. The court readily concluded that there is no such duty under the statute. While it appears that the legislature’s intent was to track an offender by requiring that he or she both notify the jurisdiction that is being left and register with law enforcement upon arrival in a new residence or temporary domicile, the defendant was not charged in such a way as to give him proper notice or the ability to defend against the charge.
The court then encouraged the legislature to revisit the statutory scheme. The supreme court also noted that the evidence adduced at trial indicated that further confusion could be revamped by modification of the registration forms and by a change in the computer system used by the Illinois State Police, as an address query with that agency apparently yields only a single address, whether or not a sex offender has registered more.