Illinois Supreme and Appellate Court Case Summaries

By Laurence J. Dunford (LJD), Robert Clifford( RJC)  and Timothy J. Joyce(TJJ)

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3 Appellate Cases Posted 7-18-14

1.  Condominiums/Contracts/SOL: Reversed and remanded: The construction-based statute of limitation and repose apply to plaintiffs' claims. The fraud exception applies.  In the case at bar, the causes of action arise from activities enumerated in section 13-214. The material misrepresentations concerned the construction of the project, and the fiduciary duty at issue is based on defendants' failure to budget for necessary repairs when they knew that repairs would be needed as a result of inadequate construction methods and materials. Therefore, we find that section 13-214 provides the appropriate limitations period. The dismissal of this case was improper.  Plaintiffs have raised a question of fact: did defendants' concealment of the insulation lead to their failure to reasonably fund the reserves? Therefore, we find that these issues of material fact should have precluded dismissal under section 2-619.  Plaintiffs have adequately pled causes of action, and questions of fact remain. Gordon, J. with Palmer, J. specially concurring.

2014 IL App (5th) 130764    The Henderson Square Condominium Association v. Lab Townhouses - Modified   Filed 7-18-14 (RJC)

Plaintiffs Henderson Square Condominium Association (Henderson) and Henderson's board of managers (the Board) filed a five-count complaint, arising from the sale of condominium units to plaintiffs by defendant developers. Plaintiffs allege the following causes of action: (1) breach of the implied warranty of habitability; (2) fraud; (3) negligence; (4) breach of the Chicago Municipal Code's prohibition against misrepresenting material facts in the course of marketing and selling real estate (Chicago Municipal Code § 13-72-030) and (5) breach of a fiduciary duty. Defendant's filed motions to dismiss.  The trial court granted defendants' second motion to dismiss with prejudice, finding that plaintiffs failed to plead counts IV and V adequately and that these counts were time-barred. Although defendants moved to dismiss only count IV as failing to allege a cause of action, the trial court also found that count V failed to allege a cause of action. In their amended notice of appeal, plaintiffs appeal both the trial court's order on May 10, 2012, dismissing counts I, II, and III, and its order of February 8, 2012, dismissing counts IV and V. However, in its brief before this court, plaintiff is only appealing the dismissal of counts IV and V. For the following reasons, we reverse.

2.  Mental Health/Invol. Medication: Reversed: Torry’s testimony that he was willing to take certain medications and that he “knows enough that he’s got to get on some drug regimen.” In light of these findings, involuntary medication would only be permissible under section 2-107.1 if the State showed that all of the medications which Torry was willing to take would be “inappropriate” (405 ILCS 5/2-107.1(a-5)(4)(F) (West 2012)) to treat his condition. The State failed to make any such showing.  The State failed to prove by clear and convincing evidence that less restrictive services had been explored and found inappropriate, and, therefore, the trial court erred in granting the petition to involuntarily administer psychotropic medication to Torry. Taylor, J. 

2014 IL App (5th) 130709    In re Torry G.   Filed 7-18-14 (RJC)

Respondent Torry G. appeals the trial court’s order that he be administered involuntary psychotropic medication.  Torry was hospitalized in January 2013 and diagnosed with bipolar disorder and psychosis. On March 7, 2013, the trial court entered an order authorizing the involuntary administration of psychotropic medication to Torry for a period of 90 days. Torry now appeals that order. For the reasons that follow, we reverse.

3.  Administrative Review Law/due process: Reversed: In the case at bar, a tenured teacher is being terminated from her employment of over 20 years based almost entirely on the hearsay statements of one student, who was not present at the hearing. There were no eyewitnesses to the alleged incidents, and the only other evidence of the incidents considered by the Board was two witnesses who observed the student entering a room quickly and wearing a wrinkled shirt, respectively; the teacher denies the conduct and testified to only taking the student’s hand to remove him from the class line. While we have no way of knowing what actually occurred on October 28 and 30, 2008, it is simply unjust to terminate a tenured teacher’s employment without giving her the opportunity to cross-examine her accuser, and we cannot find that such a procedure comports with due process.  Plaintiff was not afforded due process during her termination hearing.  Plaintiff’s dismissal hearing violated her due process right to cross-examine adverse witnesses. Gordon, J. 

2014 IL App (5th) 123436    Kimble v. The Illinois State Board of Education   Filed 7-18-14 (RJC)

Plaintiff Sharon Kimble, a tenured teacher assigned to teach at Parkside Academy (Parkside), was dismissed from her employment by the defendant board of education of the City of Chicago1 (the Board) after over 20 years of service based on allegations that she pushed and choked a 10-year-old student. At the time of its alleged occurrence, the incident was reported to the Department of Children and Family Services (DCFS), which determined that the allegations of abuse were unfounded. However, the Board approved dismissal charges against plaintiff based on alleged violations of the Chicago Public Schools’ employee discipline and due process policy, which prohibited the use of corporal punishment. On administrative review before the trial court, the trial court reversed in part and remanded for further findings of fact, explaining that the record contained inadmissible hearsay and prior incidents evidence, and the factual basis of the hearing officer’s recommendation was not apparent from the record. On remand, the hearing officer issued a clarification, and the Board issued a supplemental order on remand, affirming plaintiff’s employment termination. On further administrative review, the trial court affirmed. Reversed.

2 Appellate Cases Posted 7-17-14

1.  Criminal Law: Affirmed in part and vacated in part; cause remanded:  The State laid an adequate foundation for the admission of the firearms evidence and defendant's trial counsel was not ineffective for failing to object to that testimony.  The prosecutor's remark did not prejudice defendant and the trial court did not abuse its discretion in denying defendant's request for an involuntary manslaughter instruction.  In this case, defendant's armed robbery conviction arose from conduct committed on November 7, 2006, before the effective date of Public Act 95-688. At the time of the offense, therefore, Public Act 95-688 had not yet cured the proportionate penalties violation that rendered the 15-year sentence enhancement void. While People v. Blair, 2013 IL 114122,  held that Public Act 95-688 revived the sentence enhancement previously invalidated by Hauschild, it did not address the question presented in this case: whether the revived enhancement applies retroactively to offenses committed before October 23, 2007.  The revived 15-year enhancement does not apply retroactively to defendant's sentence. We agree with defendant that he should be resentenced for his armed robbery conviction. Epstein, J.

2014 IL App (5th) 103436    People v. Smith   Filed 7-17-14 (RJC)

A jury convicted defendant Salletheo Smith of first-degree murder, attempted first-degree murder, and armed robbery. The trial court sentenced defendant to consecutive terms of 45 years, 30 years, and 21 years in prison. Smith appeals his conviction and sentence, raising five issues: (1) he was denied a fair trial where the trial court allowed the State to introduce firearms evidence without laying a proper foundation; (2) his attorney was ineffective for failing to object to the inadmissible firearms evidence; (3) the State deprived him of a fair trial by remarking in closing argument that he "had four years to think about the story" he told the jury; (4) the trial court erred in denying his request for a jury instruction on the lesser offense of involuntary manslaughter; and (5) he should be resentenced on the armed robbery count because the trial court imposed an unconstitutional 15-year firearm enhancement.

2.  Criminal Law/Sentencing: Affirmed:  Defendant's federal conviction was equivalent to a Class X felony in Illinois. Defendant forfeited his challenge to his mandatory life without parole sentence under the Act. Even if defendant had not forfeited his claim, the plain language of the Act shows that the legislature intended to include serious federal drug offenses like defendant's as predicate offenses. Defendant's federal drug case, had it been tried under Illinois law, would have been a Class X felony. In this case, the court was precluded from sentencing defendant to anything other than the most severe penalty in Illinois, even though the trial court's comments indicate that it believed that a lesser sentence was appropriate. While we recognize the harshness of that outcome, we are compelled to uphold defendant's sentence. Within constitutional bounds, the legislature has broad discretion to fashion the penalties for the criminal offenses it defines. The facts of this case do not indicate that, in imposing a mandatory natural life without parole sentence on defendant, the Act exceeds those bounds. We therefore are compelled to affirm defendant's sentence.Epstein, J.

2014 IL App (5th) 120508    People v. Fernandez   Filed 7-17-14 (RJC)

Defendant Luis Fernandez sold 1,008.5 grams—approximately two pounds—of cocaine to an undercover police officer in 2010. For that amount of cocaine, defendant would have ordinarily faced a sentence of between 15 and 60 years' incarceration. 720 ILCS 570/401(a)(2)(D) (West 2010). In this case, because defendant had pled guilty to drug offenses in 1992 and 1999, the Habitual Criminal Act (Act) required the trial court to sentence defendant to spend the rest of his life in prison. 730 ILCS 5/5-4.5-95(a) (West 2010). The trial court noted, "It gives me no pleasure to do this," in sentencing defendant to the harshest penalty under Illinois law.  Defendant raises three issues on appeal: (1) his 1999 federal conviction cannot serve as a qualifying offense under the Act, because it did not have the same elements as a Class X offense; (2) the Act violates the eighth amendment to the United States Constitution; and (3) the Act, as applied, violates the proportionate penalties clause of the Illinois Constitution. Although defendant's natural life sentence is harsh, we are compelled to affirm it.

4 Appellate Cases Posted 7-16-14

1.  Criminal Law: Affirmed: The credibility of the witnesses was a matter for the jury to decide and the evidence supported Rouse's conviction for first degree murder where eyewitness testimony, as well as his own admissions, linked him to the shooting. As to the special finding, Rouse forfeited this challenge, having failed to object at trial or include the claimed error in a posttrial motion, and we decline his invitation to review the error under the plain error doctrine, finding his argument has not met either prong of the doctrine. Regarding the jury's review of the recording in the presence of both parties and the court during jury deliberations, the trial court exercised proper discretion due to technical difficulties preventing the recording from being viewed in the jury room. Hyman, J.

2014 IL App (5th) 121462    People v. Rouse   Filed 7-16-14 (RJC)

Defendant Justin Rouse, convicted of first degree murder before a jury, raises three issues on appeal. First, he contends reasonable doubt can be shown through the State's witnesses who, in implicating him, had a motive to lie and, hence, should not have been believed. Next, Rouse argues that the jury's special finding—that Rouse did not personally discharge the firearm that caused the victim's death—contradicts the verdict. Finally, Rouse maintains he was denied due process where, over defense counsel's objection, the trial court granted the jury's request to watch the surveillance footage. We affirm.

2.  Mortgage/Notes/Summary Judgment: Affirmed: Nothing in the record before the trial court called into question the fact that CitiMortgage was the actual holder of the note. Thus, this case is not governed by the rule that "[w]here an alteration in a deed is *** established by inspection, the burden of proof shifts to the person claiming the benefit of the instrument, as altered, to show the alteration was made under circumstances rendering it lawful." Given this conclusion, once CitiMortgage established that it was the holder of the note, it was incumbent upon defendants to present evidence to support their defense that the endorsement of the note was altered and that some person or entity other than CitiMortgage had the right to enforce it. Because the record lacks such evidence, the trial court properly granted summary judgment in favor of CitiMortgage. Mason, J. with dissent by Neville, J.

2014 IL App (5th) 130023   CitiMortgage, Inc. v. Sconyers   Filed 7-16-14 (RJC)

CitiMortgage, Inc., filed a complaint against Rona Sconyers and Marcus Wells, seeking to foreclose a mortgage after they failed to make payments due on a note given in exchange for a loan from Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Security National Mortgage Company. Defendants argued that CitiMortgage did not produce a "valid" assignment of the note. The trial court granted summary judgment in favor of CitiMortgage. We find that CitiMortgage sustained its burden to show that it was the holder of the original note and mortgage and that defendants failed to adduce any competent evidence that the endorsement on the note had been altered. We affirm.

3.  Gov't. Tort Immunity: Affirmed: The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act for providing police protection or service (745 ILCS 10/4-102 (West 2004)), which provides blanket immunity, or whether the court should have held that section 2-202 of the Act (745 ILCS 10/2-202 (West 2004)) for execution or enforcement of the law applied instead, which contains an exception for willful and wanton conduct. The court correctly determined that section 4-102 applies to the facts of this case, as the police were providing a service and were not engaged in the execution or enforcement of any law at the time of the incident. Pucinski, J.

2014 IL App (5th) 123101    Payne v. City of Chicago   Filed 7-16-14 (RJC)

Summary judgment was granted in favor of defendant City of Chicago (the City) on plaintiff's complaint, which brought a claim for common-law battery and also alleged "willful and wanton conduct." The police responded to a call for assistance by plaintiff's relatives because plaintiff was high on crack cocaine, suffering hallucinations, physically swinging around him, had broken furniture and a window, and was injured and bleeding. When the police arrived a responding sergeant used a TASER7 (TASER) to subdue him. Plaintiff then either fell or jumped out of the second-floor window and became a high-level paraplegic as result of the fall. The issue presented for review is whether the trial court erred when it granted summary judgment for the defendant based on its immunity under section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act for providing police protection or service (745 ILCS 10/4-102 (West 2004)), which provides blanket immunity, or whether the court should have held that section 2-202 of the Act (745 ILCS 10/2-202 (West 2004)) for execution or enforcement of the law applied instead, which contains an exception for willful and wanton conduct.

4.  Premises Liability/Contracts/MSJ: Affirmed: Century 21 did not have a contractual obligation to inspect the owner’s property, subject to the “Master Listing Agreement,” for structural defects in order to protect prospective buyers, such as plaintiff. Further, after carefully reviewing the record, there is no evidence establishing Century 21 had actual knowledge the staircase was unstable. Therefore, summary judgment in favor of Century 21 was proper as a matter of law. Wright, J.

2014 IL App (3d) 130667    Hart v. Century 21 Windsor Realty    Filed 7-16-14 (RJC)

On July 5, 2011, Century 21’s real estate agent was showing plaintiff a property, subject to a listing agreement between Century 21 and the owner. During the showing, plaintiff was injured while walking down a basement staircase that collapsed. Plaintiff filed a complaint alleging negligence against multiple defendants, including Century 21, the owner’s real estate agent. The trial court granted summary judgment in favor of Century 21 after finding the listing agreement between the property owner and Century 21 did not create a contractual duty for Century 21 to inspect the premises for safety hazards to protect potential buyers. On appeal, plaintiff contends summary judgment was not proper because genuine issues of material fact related to Century 21’s duty to inspect the property for safety hazards. We affirm.

1 Appellate Case Posted 7-15-14

1.  Criminal Law: Affirmed in part and  Vacated in part: Under the one-act one-crime rule, multiple convictions arising out of a single physical act are prohibited. Sincethe state did not differentiate between shots, the rule applies.  The standard of review on a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The trier of fact is not required to disregard inferences that flow from the  evidence or search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.  A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. There is no difference between the mental states required to prove attempted first degree murder and second degree murder. First degree murder and second degree murder share the same elements, including the same mental states, but second degree murder requires the presence of a mitigating circumstance.  Pierce, J.

2014 IL App (5th) 110450 People v. Guyton  Filed 7-15-14 (LJD)

Following a jury trial, defendant Kasey Guyton was convicted of second degree murder, attempted first degree murder, and aggravated discharge of a firearm. In a simultaneous bench trial, defendant was convicted of unlawful use of a weapon by a felon. Defendant was subsequently sentenced to 18 years' imprisonment for second degree murder and 16 years' imprisonment for attempted first degree murder with a 20-year mandatory add-on for the personal discharge of a weapon, and 6-year concurrent terms for aggravated discharge of a firearm and unlawful use of a weapon by a  elon.  For the following reasons, we affirm the judgment of the trial court but vacate defendant’s conviction for aggravated discharge of a firearm.

1 Appellate Case Posted 7-10-14

1.  Rule 137: Reversed and Remanded:  When a trial judge rules on a motion for sanctions pursuant to Rule 137, that judge must provide specific reasons for his or her ruling, regardless of whether sanctions are granted or denied. The decision rendered–either orally or in writing–with regard to sanctions "needs to clearly set forth the factual basis for the result reached." Id. That is because upon review it is the function of this court to determine "whether (1) the circuit court's decision was an informed one, (2) the decision was based on valid reasons that fit the case, and (3) the decision followed logically from the application of the reasons stated to the particular circumstances of the case." Spomer, J.

2014 IL App (5th) 130109 Lake Environmental, Inc. v. Arnold  Filed 7-10-14 (LJD)

Following protracted litigation at the administrative and circuit court levels, on July 3, 2012, the plaintiff, Lake Environmental, Inc., filed a motion, pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), for sanctions against the defendants, LaMar Hasbrouck, in his capacity as Director of Public Health,1 and the Illinois Department of Public Health (IDPH). The motion was denied, and the plaintiff now appeals. For the following reasons, we reverse the order of the circuit court and remand with directions.

3 Appellate Cases Posted 7-09-14

1.  Tax Deed Proceedings: Reversed and Remanded: Several rules of statutory interpretation set out and discussed.  Section 21-380 of the Property Tax Code provides that a redemption under protest may be sustained only on those grounds that would provide a basis to deny the issuance of a tax deed.  Section 21-350 of the Property Tax Code provides that the period of redemption is two years from the date of sale, unless that period is extended.   Section 21-385 of the Property Tax Code sets forth that the purchaser or his assignee may extend the redemption period for one additional year if he provides notice to the property owner that the redemption period has been extended.  Section 22-85 of the Property Tax Code provides that, if a tax deed is not recorded within one year of when the redemption period ends, otherwise the tax certificate holder loses his right to obtain a tax deed. Section 22-40 of the Property Tax Code provides that a court must insist on strict compliance with section 22-10 of the Property Tax Code before it issues a tax deed.  Section 22-10 of the Property Tax Code  provides that the purchaser or his assignee shall not be entitled to a tax deed unless he gives the owner three to six months’ notice of the expiration of the redemption period.   Schostok, J.

2014 IL App (2d) 130995  In re Application of the County Treasurer Filed 7-9-14 (LJD)

On April 5, 2012, the petitioner, John Zajicek, d/b/a Z Financial, filed a petition for a tax deed as to property owned by the respondent, Lloyd Giordano. On October 2, 2012, the respondent redeemed his property under protest, arguing that the funds he paid should be returned to him because the petitioner had not complied with the requisite provisions of the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2012)). After the trial court struck the respondent’s protest, the respondent filed a timely notice of appeal. For the reasons that follow, we reverse and remand for additional proceedings.

2. Criminal Law: Affirmed in part, Reversed in part and Remanded: To sustain a conviction of obstructing identification, the prosecution must prove that a person: (1) intentionally or knowingly provided a false or fictitious name, residence address, or date of birth to a peace officer; and (2) was either (a) lawfully arrested or detained, or (b) the information was requested from an individual that was reasonably believed to have witnessed a crime. The prosecution has wide latitude in making a closing argument and may comment on the evidence and any fair, reasonable inferences it yields, even if such inferences reflect negatively on defendant. The prosecution's arguments will result in reversible error only when they result in substantial prejudice against a defendant "to the extent that it is impossible to determine whether the jury's verdict was caused by the comments or the evidence."  Closing arguments must be viewed in their entirety and in context.  Section 113-3.1 of the Code of Criminal Procedure of 1963 (Code) permits a court to order a defendant to pay a fee for the service of a public defender.   However, before the fee may be imposed, a hearing must be conducted on either the court's own motion or on the motion of the State. Id. The hearing may be held any time after the appointment of counsel, but no later than 90 days after the entry of a final order disposing of the case. A court may only order reimbursement if it finds that defendant has a reasonably foreseeable ability to pay.  O'Brien, J.

2014 IL App (3rd) 120574 People v. Schronski  Filed 7-9-14 (LJD)

After a jury trial, defendant, Heather C. Schronski, was found guilty of obstructing identification (720 ILCS 5/31-4.5(a)(2) (West 2010)). The trial court sentenced defendant to 10 weekends in the county jail and 2 years of conditional discharge. On appeal, defendant argues that: (1) the trial  ourt erred in denying her motion for a directed verdict; (2) the State made several references to a deceased police officer in its closing argument that denied defendant a fair trial; (3) the court erroneously imposed a public defender fee without a hearing; and (4) the court did not award presentence incarceration credit. We affirm in part, reverse in part, and remand for further proceedings.

3.  Reasl EstateTaxation/ Trial Court Jurisdiction: Yes to Certified Question Answered and Remanded:  The underassessment of property not owned by the objector is cognizable in a tax objection case.  However, the only "relief available is a refund of the amount that the  objecting taxpayer would not have paid had the other property been correctly assessed."  The tax objection procedure does not provide a remedy to plaintiffs who feel that another’s property is being undertaxed and are seeking an increase in taxes on that property, rather than a decrease of their own taxes.  Plaintiffs seeking an increase in taxes are entitled to file an action for declaratory and injunctive relief.     Lytton, J.

2014 IL App (3rd) 120574  The Board of Trustees of Illinois Valley Community College District No. 513 v. Putnam County  Filed 7-9-14 (LJD)

From 2009 to 2011, defendant Kevin Kunkel, as Putnam County treasurer and collector, abated taxes for an ethanol facility owed by Marquis Energy, LLC. Plaintiffs filed a complaint against Kunkel, Marquis Energy, and Putnam County, seeking equitable and declaratory relief.   Marquis Energy filed a motion to dismiss, arguing that the court lacked jurisdiction.  Certified Question Answered

4 Appellate Cases Posted 7-08-14

1.  Illinois Public Labor Relations Act: ReversedThe issue before this court is whether the Board erred in finding that the ISA II position qualifies as a "confidential employee" position under the Act. The Treasurer failed to prove that Schuering's theoretical, yet unrealized, exposure to collective-bargaining documents as part of her Excel troubleshooting responsibilities qualifies her as a "confidential employee" under the Act. The Board's final decision that the position of ISA II is a "confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor Relations Act was clearly erroneous. Further, the Treasurer's alternative basis for affirming the Board's decision is not supported by the record. Liu, J. with Harris, J. dissenting.

2014 IL App (1st) 132455     American Federation of State, County and Municipal Employees v. Illinois Labor Relations Board     Filed 7-08-14 (RJC)         
Petitioner, American Federation of State, County and Municipal Employees, Council 31 (Union), is the union that represented a State of Illinois employee in the position of "Information Systems Analyst II" (ISA II) who was excluded from the collective-bargaining unit when the respondent, Illinois Labor Relations Board (Board), granted a petition filed by the respondent, Treasurer of the State of Illinois (Treasurer), seeking to exclude any incumbent in that position from Union membership because it is a "confidential employee" position within the meaning of section 3(c) of the Illinois Public Labor Relations Act (5 ILCS 315/3(c) (West 2012)) (Act). Reversed.

2. Humane Care for Animals Act: Affirmed:  Koy has not demonstrated why the forfeiture of the horses under section 3.04(a) was a punishment that resulted from a criminal proceeding and not the result of a civil proceeding. A hearing on the forfeiture of companion animals before trial, pursuant to section 3.04(a) of the Act, is not a criminal proceeding and therefore does not implicate the sixth amendment right to a jury trial. Because the forfeiture proceeding was civil, the sixth amendment was not implicated. Spence, J. 

2014 IL App (2d) 130906    People v. Koy     Filed 7-08-14 (RJC)         
Respondent, Jamie A. Koy, appeals the trial court’s order granting the State’s petition for forfeiture of eight horses that were in her possession. She challenges the forfeiture order, arguing that section 3.04(a) of the Humane Care for Animals Act (Act) (510 ILCS 70/3.04(a) (West 2012)) is unconstitutional because it required the State to prove that she violated the Act only by a preponderance of the evidence at the forfeiture hearing, not to a jury beyond a reasonable doubt as the sixth amendment guarantees. Because we find that the sixth amendment did not apply to the forfeiture hearing, we affirm.

3. DCFS\expungement: Reversed and remanded: Under section 3(b) of the Abused and Neglected Child Reporting Act (Act) (325 ILCS 5/3(b) (West 2010)), a child is abused when a person responsible for the child's welfare "creates a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function."  The majority of the ALJ's findings focused on the fact plaintiff made an inexplicable and poor decision in intervening in the school staff's handling of N.A. and then in his handling of N.A.  A bad decision does not necessarily constitute abuse. The evidence does not show plaintiff's actions rose to level of creating a substantial risk of death, disfigurement, impairment of health, or loss of bodily function.  Turner, J. 

2014 IL App (4th) 130722     Oglesby v. The Department of Chldren and Family Services    Filed 7-08-14 (RJC)              
In May 2011, plaintiff, Scott Oglesby, sought to expunge an indicated finding of abuse based on a substantial risk of physical injury that defendant, the Department of Children and Family Services (Department), had determined was credible. In September 2011, the Director of the Department accepted the administrative law judge's (ALJ's) recommendation and issued a final administrative decision denying the expungement because the finding of a substantial risk of physical injury was supported by a preponderance of the evidence. In November 2011, plaintiff sought administrative review of the Department's final order in the McLean County circuit court. Plaintiff later sought to amend his complaint to add a claim under section 1983 of the Civil Rights Act (42 U.S.C. § 1983 (2000)) based on the Department's failure to include a transcript of the witnesses' testimony at the administrative hearing in the record, but the court denied his request. Plaintiff also filed a motion to strike the Department's bystander's report of the testimony at the administrative hearing. At a July 2013 hearing, the court denied plaintiff's motion to strike and affirmed the Department's decision. Plaintiff appeals, arguing (1) the administrative guideline relied upon by the Department in indicating plaintiff is void, (2) the Department failed to comply with the Administrative Review Law (735 ILCS 5/art. III (West 2010)), (3) the circuit court erred by denying plaintiff's motion to amend his complaint, and (4) the Department's decision was against the manifest weight of the evidence. We reverse the circuit court's judgment, reverse the Department's order, and remand the cause with directions.

4. Criminal Law\AUUW: Vacated: Even though the Aguilar court "specifically limited" its holding to the Class 4 form of the offense, we cannot see how the Class 4 form of the AUUW statute can be unconstitutional on its face, but the Class 2 form is not, since both classes of the offense require the State to prove the exact same elements. The defendant's conviction for AUUW under section 24-1.6(a)(1), (a)(3)(A) is voidHarris, J. 

2014 IL App (4th) 120216-B     People v. Gayfield - Modified upon denial of rehearing    Filed 7-08-14 (RJC)

On January 11, 2012, a jury convicted defendant, J.W. Gayfield, of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 offense based on a prior felony conviction. The trial court sentenced defendant to seven years in prison. Defendant appealed, arguing the prosecutor made improper remarks in his closing argument, thereby denying defendant a fair trial. On August 19, 2013, this court issued an order finding the prosecutor's closing argument was not improper and affirming the trial court's judgment.  On August 26, 2013, defendant filed a petition for rehearing pursuant to Illinois Supreme Court Rule 367 (Ill. S. Ct. R. 367 (eff. Dec. 29, 2009)). For the first time, defendant asked this court to consider whether his conviction should be reversed, asserting the AUUW statute was unconstitutional. On September 9, 2013, this court denied defendant's petition for rehearing.  On October 9, 2013, defendant filed a motion for supervisory order in the Illinois Supreme Court, which the supreme court granted on November 6, 2013. As a result, the supreme court directed this court to vacate our judgment in Gayfield, and our order denying the petition for rehearing, and to reconsider our judgment in light of Aguilar, to determine whether a different result was warranted.  In accordance with the supreme court's direction, we vacated our prior judgment and our order denying the petition for rehearing, and reconsidered our prior judgment in light of Aguilar. We again affirmed, finding that Aguilar did not change the result in this case. On March 25, 2014, defendant filed a petition for rehearing. We now modify our decision upon denial of defendant's petition for rehearing. we
vacate defendant's Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).

3 Appellate Cases Posted 7-07-14

1.  Worker's Compensation: Reversed and remanded:  The manifest weight of the evidence shows claimant's left shoulder injury arose out of his employment. Although the act of "reaching" is one performed by the general public on a daily basis, the evidence in this case established the risk to which claimant was exposed was necessary to the performance of his job duties at the time of injury. His action in reaching and stretching his arm into a deep, narrow box to retrieve a part for inspection was distinctly associated with his employment.  Harris, J.

2014 IL App (4th) 130392WC    Young v. The Illinois Workers' Compensation Commission       Filed 7-07-14 (RJC)
On June 2, 2010, claimant, Don Young, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2008)), seeking benefits from the employer, Doncasters, d/b/a MECO, Inc., and alleging a work-related injury to his left shoulder that arose out of and in the course of his employment on February 19, 2010. Following a hearing, the arbitrator denied claimant benefits under the Act, finding his injury was caused by a risk to which the general public was equally exposed.  On review, the Illinois Workers' Compensation Commission (Commission), with one commissioner dissenting, struck a portion of the arbitrator's decision but otherwise affirmed and adopted his decision and ultimate ruling in the case. On judicial review, the circuit court of  Edgar County confirmed the Commission's decision. Claimant appeals, arguing the Commission erred in finding his left shoulder injury did not arise out of his employment. We reverse and remand for further proceedings.

2.  Whistleblower Act: Affirmed:  The defense of laches is available where a discharged public-sector employee seeks back pay, regardless of whether the employee also seeks reinstatement. By affirming the trial court’s decision that plaintiff’s lawsuit is barred by laches, we do not mean to suggest any opinion as to whether plaintiff’s claim for front pay would otherwise be viable under Illinois law. Jorgensen, J.

2014 IL App (2d) 130947   Lashever v. Zion-Benton Township High School    Filed 7-07-14 (RJC)      
Plaintiff, Laura Lashever, appeals from the dismissal, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2012)), of her lawsuit against defendant, the Zion-Benton Township High School, seeking damages resulting from defendant’s alleged violation of section 15 of the Whistleblower Act (740 ILCS 174/15 (West 2012)). Defendant moved for dismissal on the basis that the lawsuit was barred by laches. Plaintiff argues on appeal that, because she sought no equitable relief, the defense of laches does not apply. We affirm.

3.  Juvenile\Abuse & Neglect: Affirmed:  The circuit court properly entered a finding of neglect, and reject Melissa's arguments, which rely on the same facts of record, that the circuit court should have entered a finding of no-fault dependency under section 2-4(1)(c) of the Act. The trial court's findings that Rayshawn was a neglected minor, and that the evidence did not support a finding of no-fault dependency, were not against the manifest weight of the evidence.  The circuit court did not abuse its discretion in granting the State's motion in limine to exclude the postpetition evidence in question. Cunningham, J.

2014 IL App (1st) 132178    In re Rayshawn H.    Filed 7-07-14 (RJC)      
This appeal arises from the April 30, 2013 and May 30, 2013 orders entered by the circuit court of Cook County, which found respondent Rayshawn H. (Rayshawn) neglected, and which adjudged Rayshawn as a ward of the court and set a permanency goal of "return home" within five months of the May 30, 2013 order. On appeal, Rayshawn's mother, respondent Melissa H. (Melissa), argues that: (1) the circuit court erred in finding that Rayshawn was neglected; (2) the circuit court erred in failing to find that Rayshawn was a "dependent" under the Juvenile Court Act of 1987 (705 ILCS 405/2-4(1)(c) (West 2012)) through no fault of Melissa; and (3) the circuit court erred in granting the State's motion in limine to exclude certain witness testimony regarding Rayshawn's mental state and behavior. We affirm.

1 Appellate Case Posted 7-03-14

1.  Juvenile\termination of parental rights: Affirmed:  Based on the evidence presented, the trial court’s determination that respondent failed to make reasonable progress toward the return of her children during the relevant nine-month period was not against the manifest weight of the evidence. No reason to depart from the plain language of the statute and hold that the trial court properly measured respondent’s progress during the nine-month period following G.S.’s adjudication of neglect.  Lytton, J.

2014 IL App (3d) 140060    In re A.S.   Filed 7-03-14 (RJC)

Respondent is the mother of L.S., A.S. and G.S. In October 2010, the court adjudicated L.S. and A.S. neglected minors. In August 2011, respondent gave birth to G.S, who was adjudicated a neglected minor on December 21, 2011. The State filed a petition for termination of respondent’s parental rights, alleging that respondent was unfit for failing to make reasonable progress toward the return of her children during the nine-month period of December 21, 2011, to September 21, 2012. Following a hearing, the trial court found respondent unfit. We affirm.

2 Supreme Court Cases Posted 7-3-14

1. Pensions\Admin. Review: Reversed: On appeal by both Burge and the Board, the Illinois Supreme Court addressed the issue of who should decide whether the pension benefits should be terminated—not whether they should be. The supreme court said that the earlier statutory provision giving the Board exclusive, original jurisdiction over matters “relating to or affecting the [pension] fund” governs because it is more specific than the more recently enacted general provision concerning violation of the Pension Code under which the Attorney General brought her action. Burge’s benefits had been approved by the Board in 1997. Unlike what the appellate court had held, the fact that, because of a tie vote, the Board did not terminate the benefits, but permitted them to continue, was not a statutory violation.  As noted, the question in this appeal is limited solely to who decides whether a police officer’s pension benefits should be terminated when he commits a felony.  On this issue, the legislative intent is clear. The decision lies within the exclusive, original jurisdiction of the Board under section 5-189. The appellate court was reversed and the circuit court’s dismissal of the Attorney General’s action was affirmed. Justice Burke delivered the judgment of the court, with opinion. Justices Thomas, Karmeier, and Theis concurred in the judgment and opinion. Chief Justice Garman dissented, with opinion, joined by Justice Kilbride. Justice Freeman dissented, with opinion.

No. 2014 IL 115635    People ex rel. Madigan v. Burge   Filed 7-3-14 (RJC)

In 1997, Jon Burge retired from the Chicago Police Department, where he had served as a supervisor, and he began receiving pension benefits. In 2003, a federal civil rights lawsuit was filed alleging that torture and abuse of prisoners had taken place under his command and that he was aware of it. He denied all this under oath. In 2010, he was sentenced to four and one-half years in prison after a federal grand jury found him guilty of the felonies of perjury and obstruction of justice in the civil rights proceeding. Thus, Burge’s conduct in the civil lawsuit is the only criminal activity for which he has been convicted, and he has not been indicted or convicted for conduct taking place while he was a police officer. In 2011, the Retirement Board of the Policemen’s Annuity and Benefit Fund took up the question of whether Burge’s pension benefits should be terminated due to his felony convictions. The eight-person board was tied as to whether the convictions arose out of Burge’s employment as a police officer, and a motion to terminate benefits was not passed. The Board then issued a decision that benefits would continue, and no administrative review was sought.  In the circuit court of Cook County, the Attorney General filed a civil action under a 1982 statute permitting her to seek to enjoin any act or practice that violates the Pension Code. She sought a termination of new payments and repayment of earlier disbursements. It was alleged that the convictions related to, arose out of, or were connected with Burge’s service as a police officer, making the payments forbidden by the Code. The circuit court, however, was of the view that it did not have subject matter jurisdiction to hear the Attorney General’s complaint and dismissed it, finding that an earlier 1972 statute vested jurisdiction over the issue exclusively in the Board.  In the appellate court, a different conclusion was reached. That reviewing body opined that the Board and circuit court had concurrent jurisdiction, but that the Board had erred when it determined, on the basis of a tie vote, to allow benefits to continue. The appellate court found that decision to be a “voidable” one which should not be deferred to, and it reinstated the Attorney General’s complaint, remanding to the circuit court for a decision on the merits.

2. IL Pension Code\State Employees Group Insurance Act: Reversed:  The “pension protection” clause states that “membership in any pension or retirement system of the State *** shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” In this decision, the Illinois Supreme Court held that the State’s provision of health insurance premium subsidies for its retirees is a benefit of membership in a pension or retirement system under this provision, which the General Assembly was precluded from diminishing or impairing.   The supreme court said that the plain language of the constitution supports this conclusion. When the provisions of the 1970 Constitution were formulated, the group insurance statute then in effect provided health insurance subsidies to members of the State’s retirement systems, and the drafters of the Constitution are presumed to have known that. Health care benefits are not referred to in the pension clause, but neither is there any limitation imposed concerning them. The Illinois Supreme Court said in this decision that it is a well settled principle that pension rights should be liberally construed in favor of the rights of the pensioner. The circuit court erred in dismissing, for failure to state a cause of action, the plaintiffs’ claims that the challenged statute is void and unenforceable under the pension protection clause. Plaintiffs are entitled to proceed on their claims that their rights are governed by the version of section 10 of the Group Insurance Act which was in effect prior to the enactment of the challenged statute. Other common law and constitutional claims had been raised by the plaintiffs, but the supreme court refrained from addressing them here. The dismissal of the actions was reversed.  Justice Freeman delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, and Theis concurred in the judgment and opinion. Justice Burke dissented, with opinion.

No. 2014 IL 115811    Kanerva v. Weems   Filed 7-3-14 (RJC)


On July 1, 2012, Public Act 97-695 took effect. It eliminated the statutory standards for the State of Illinois’ contributions to health insurance premiums for members of three of its retirement systems and established, instead, a new system under which the Director of the Department of Central Management Services (Malcolm Weems, one of the named defendants here) would make an annual administrative determination as to the amounts to be charged to the State and to its retirees. This statute thus fundamentally altered the State of Illinois’s obligations to contribute toward the cost of group health insurance benefits for these retired state employees. Four putative class actions were filed challenging the validity of this legislation under, among other things, the pension protection clause of the Illinois Constitution of 1970. They were consolidated in the circuit court of Sangamon County. The circuit court dismissed each of them for failure to state a cause of action, without certifying any classes. The Illinois Supreme Court allowed direct appeal. This is an issue of first impression.      

1 Appellate Case Posted 7-02-14

1.  Criminal Law\Post-Conviction Hearing Act: Affirmed: Section 5-5-3(c)(8) is susceptible to more than one interpretation and therefore ambiguous with regard to when a defendant's age should be considered for purposes of the statute. Defendant was not eligible for a Class X sentence pursuant to section 5-5-3(c)(8) due to his age at the time he was charged in this case.  No reason why defendant's plea agreement cannot be reformed so a valid sentence of between 3 and 10 years may be entered on remand giving both parties the respective benefits they each bargained for in the plea agreement.  As a result, this case is remanded for a new sentencing hearing so the trial court may impose a valid sentence, considering defendant is not eligible for Class X sentencing, that meets the parties' intent.  Pope, J.

2014 IL App (4th) 120617    People v. Douglas     Filed 7-02-14 (RJC)

In March 2012, defendant, Shamere Douglas, filed a pro se petition for relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2010)). On June 5, 2012, the trial court summarily dismissed defendant's petition, finding the claims raised by Douglas were frivolous and without merit. Defendant appealed the summary dismissal of his postconviction petition.  However, on appeal, defendant does not argue any of the issues he raised in his postconviction petition. Instead, he argues the trial court erred in sentencing him as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-5-3(c)(8) (West 2008)) because he was under 21 when the crime was committed and when he was charged. Because defendant was not 21 when he was charged in this case, we find the trial court should not have sentenced defendant as a Class X offender pursuant to section 5-5-3(c)(8). However, because the plea agreement can be reformed so the sentence is valid and both parties receive the benefits for which each party negotiated, we remand this case to the trial court for a new sentencing hearing.

4 Appellate Cases Posted 7-01-14

1.  Property Tax Code\Tax deed: Reversed and Remanded: The issue is whether the trial court should have sustained the protest because the petitioner failed to comply with the requisite notice provisions of the Property Tax Code and thus could not have obtained a tax deed. Because the petitioner did not strictly comply with section 22-10 of the Property Tax Code, the petitioner was not entitled to a tax deed. That was a proper basis to sustain the respondent’s protest. The trial court therefore erred in not sustaining the protest. Schostok, J.

2014 IL App (2d) 130995     In re Application of the County Treasurer     Filed 6-30-14 (RJC)

On April 5, 2012, the petitioner, John Zajicek, d/b/a Z Financial, filed a petition for a tax deed as to property owned by the respondent, Lloyd Giordano. On October 2, 2012, the respondent redeemed his property under protest, arguing that the funds he paid should be returned to him because the petitioner had not complied with the requisite provisions of the Property Tax Code (35 ILCS 200/1-1 et seq. (West 2012)). After the trial court struck the respondent’s protest, the respondent filed a timely notice of appeal. We reverse and remand for further proceedings.

2.  Criminal Law\Post-conviction Petition: Affirmed: Defendant did not raise the gist of a constitutional claim of ineffective assistance of appellate counsel. There was no basis in law to argue that the admission of D.C.’s videotaped statements violated the confrontation clause, because the record clearly demonstrated that D.C. was available as a witness for cross-examination at trial, her gaps in memory notwithstanding. Our opinion in Learn does not control here, as it is distinguishable, and we instead apply the well-established precedent that, if a declarant is physically present at trial and willing to answer questions, the confrontation clause does not preclude or restrict the use of hearsay evidence. Accordingly, the trial court properly dismissed defendant’s postconviction petition at the first stage as frivolous and patently without merit, and we affirm the judgment of the circuit court of Winnebago County.  Spence, J. with Schostok, J. specially concurring.

2014 IL App (2d) 121169    People v. Kennebrew     Filed 6-30-14 (RJC)

On April 5,Defendant, Reginald Kennebrew, appeals from the first-stage dismissal of his petition for postconviction relief. In 2009, he was found guilty of two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse, although one of the counts of predatory criminal sexual assault was later reduced to aggravated criminal sexual abuse, which is a lesser included offense of predatory criminal sexual assault. He filed a pro se postconviction petition, arguing in part that his appellate counsel was ineffective. The trial court dismissed his petition, finding it to be frivolous and patently without merit for failing to raise the gist of a constitutional claim. Affirmed.

3.  Criminal Law: Affirmed: In the instant case, the trial court properly denied defendant's motion to dismiss the predatory charge on double jeopardy grounds. Simply put, jeopardy did not attach to the predatory charge at the time of the plea hearing because defendant did not enter a plea of guilty to that charge.  Rather, the charge was nol-prossed on motion of the State during the same hearing as part of the plea agreement. Although there have been some unclear statements in the law on this point, the precedent of our supreme court is fairly
well settled that jeopardy would not have attached to the predatory charge at the time of the plea hearing under the circumstances of the present case. Carter, J.

2014 IL App (3d) 130275    People v. Ventsias    Filed 7-01-14 (RJC)

After a jury trial, defendant, Peter A. Ventsias, was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Prior to sentencing, he filed a motion to dismiss the charge, alleging a double jeopardy violation. The trial court denied the motion, and defendant filed an interlocutory appeal to challenge that ruling. Affirmed.

4.  Negligent training/Counterclaims: Affirmed in part, reversed in part, and remanded: The negligent training claim is not duplicative and unnecessary, and allowing it to stand will create no danger of a judge or jury assessing or apportioning Terracon's alleged liability twice.
Accordingly, although we otherwise affirm the order of the trial court, we reverse the order with regard to the plaintiffs' negligent-training claim against Terracon and remand for further proceedings, at which time both parties may seek leave of court to amend their pleadings so that the court may adjudge the viability or nonviability of that claim. Spomer, J.

2014 IL App (5th) 130257    National Railroad Passenger Corporation v. Terracon Consultants, Inc.    Filed 7-01-14 (RJC)

The plaintiffs, National Railroad Passenger Corporation, Kathy M. Richardson, Gateway Eastern Railway Company, Kansas City Southern Railway Company, Union Pacific Railroad Company, Platte Pipe Line Company, Kinder Morgan Pipelines (USA), Inc., and Kinder Morgan Canada, Inc., appeal the order of the circuit court of Madison County that dismissed their complaint for contribution against the defendants, Terracon Consultants, Inc. (Terracon), and Matthew S. Balven, as special administrator of the estate of Heather S. Balven, deceased (Heather's estate). Affirmed in part, reversed in part, and remanded for further proceedings.