Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term, which begins Monday, March 13, 2017, with oral arguments scheduled for March 14, 15, and 21, 2017.  A total of 6 cases will be heard – 4 civil and 2 criminal. The following cases are scheduled for argument this Term:

People v. David Holmes—No. 120407—March 14

People v. Blackie Veach—No. 120649—March 14

Bogenberger v. Pi Kappa Alpha, et al.—Nos. 120951, 120967, 120986 (cons.)—March 15

In re Estate of Thomas F. Shelton—Nos. 121199, 121241 (cons.)—March 21

Ferris, Thompson & Zweig v. Esposito—No. 121297—March 21

Better Government Association v. Illinois High School Association—No. 121124—March 21

Below is a summary of one of the civil and criminal cases to be argued this term. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

INEFFECTIVE ASSISTANCE OF COUNSEL

No. 120649
People v. Veach 

The issue in this case is whether the appellate court majority erred in holding that defendant’s ineffective assistance claim, raised on direct appeal, should wait until postconviction proceedings (the claim faulted trial counsel for stipulating to admission of recorded interviews with State’s witnesses without redacting inadmissible prior consistent statements and bad character evidence). The dissent would have held that the court could determine, based on the direct appeal record, that defendant received ineffective assistance of counsel.

In the PLA, defendant contended that the Fourth District holds that only in the “most extraordinary case” should an ineffective assistance claim be addressed on direct appeal.  Perhaps this broader procedural issue motivated the Court to take the case.  However, during briefing, both parties asserted that the issue could be addressed on direct appeal because the record on appeal confirms that the ineffective assistance claim is meritorious (defendant) or meritless (the State).  If the Court agrees, then the broader procedural issue would not be reached, and perhaps the Court will need to grant leave to appeal in one of the handful of PLAs that appear to be holding for resolution of this case.

FREEDOM OF INFORMATION ACT

No. 121124
Better Government Association v. Illinois High School Association

The main issue in this case involves whether the Illinois High School Association (“IHSA”) is a subsidiary “public body” under the Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”).

Plaintiff Better Government Association (“BGA”) submitted written requests under FOIA to the IHSA seeking all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded that it was a nonprofit 501(c)(3) charitable organization that was not subject to FOIA. BGA then filed a complaint against IHSA and Consolidated High School District 230, requesting that the court declare IHSA a subsidiary “public body” under FOIA, declare that IHSA performs a governmental function on behalf of its member schools, including District 230, and order IHSA and District 230 to produce the requested documents. IHSA moved to dismiss, arguing that it was not subject to FOIA because it was neither a public body nor a subsidiary as the terms are used in FOIA. The trial court granted IHSA’s motion to dismiss (and District 230’s motion to dismiss), holding that IHSA was not a subsidiary public body covered by FOIA. Plaintiff appealed.

The Illinois Appellate Court affirmed, explaining that FOIA provides that all records in the custody or possession of a public body are presumed to be open to inspection or copying. FOIA defines “public body” to be “all legislative, executive, administrative, or advisory bodies of the State, state universities and college, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof ...” 5 ILCS 140/2. A subsidiary public body is itself a public body for purposes of compliance with FOIA. “Subsidiary public body” is not defined in FOIA so the court followed the three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978) for determining whether an entity is a “subsidiary body” as that term is used in the Open Meetings Act (5 ILCS 120/1.02).

The Rockford Newspapers test instructed courts to consider: (1) whether the entity has a legal existence independent of governmental resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted. Applying the first factor to the IHSA, the court determined that IHSA was a voluntary, unincorporated association of member Illinois high schools, both public and private and had an independent legal existence separate from its member schools where IHSA has independent standing to sue and be sued. As for the second factor, the Illinois Appellate Court determined that although a public body could perform the same functions of the IHSA in developing, supervising, and promoting interscholastic competitions among its member schools, the private, independent not-for-profit IHSA does not perform public, governmental functions in this case. Under the third factor, the court concluded that IHSA was not controlled by a government entity to such a degree that it constitutes a subsidiary public body. Therefore, the appellate court held that IHSA was not a subsidiary public body as the term was used in FOIA and affirmed the circuit court’s order granting IHSA’s motion to dismiss.