Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's January Term, which begins Monday, January 8, 2018, with oral arguments scheduled for January 9-11, 2018. A total of 6 cases will be heard – 5 criminal and 1 civil.  The following cases are scheduled for argument this Term:

People v. Ricardo Vara, No. 121823: January 9

People v. Marc Pepitone, No. 122034: January 9

People v. Theophil Encalado, No. 122059: January 9

People v. Arthur Manning, No. 122081: January 10

People ex rel. Berlin v. Hon. Bakalis, No. 122435: January 10

Thounsavath v. State Farm Automobile Insurance Co., No. 122558: January 11

Below is a summary for one criminal case, People v. Theophil Encalado and one civil case, Thounsavath v. State Farm Automobile Insurance Co. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

People v. Theophil Encalado

Defendant was convicted of three counts of aggravated criminal sexual assault.  The victim, Y.C., alleged that at 6 a.m. one morning, defendant lured her into his car while she was walking to a bakery, drove her into an alley, and sexually assaulted her.  C.C. alleged that over three years earlier, defendant had also forcibly raped her, luring her into his car while she was walking from a nearby club.  DNA recovered from both victims matched defendant.  Defendant's defense was that both Y.C. and C.C. were prostitutes who had consented to sex in exchange for money and drugs after he had picked them up and asked for "a date."  Prior to the commencement of voir dire, defense counsel requested the court question prospective jurors: "you will hear evidence about prostitution.  Would that fact alone prevent you from being fair to either side?"  The trial court declined to ask the question, and the appellate court reversed, finding this ruling an abuse of discretion.

While the purpose of voir dire is to empanel an impartial jury free from bias or prejudice, it cannot be used to indoctrinate jurors.  In People v. Strain, the Illinois Supreme Court held that defendants are entitled to expose juror predisposition toward, and bias against, gangs.  Before the Illinois Supreme Court, the State argues that the trial court did not abuse its discretion in rejecting voir dire on prostitution because there was no need to depart from the general rule against allowing voir dire to preview particular evidence and potentially indoctrinate jurors.  Prostitution is not a topic that rises to the level of such intense controversy; the gang issue addressed in Strain is essentially sui generis.  In the alternative, the State argues that any error was harmless given overwhelming evidence of Encalado's guilt.  In response, Encalado asserts that the proposed question was phrased neutrally and potentially benefited the State as well given that under Encalado's version of events, State's witnesses were prostitutes.  An amicus brief filed on behalf of John Marshall Law School's Pro Bono Program and Clinic asserts that: (1) the appellate court's holding would discourage sexual assault victims, whether prostitutes or not, from coming forward in that such voir dire questioning allows defendants to insinuate that victims were prostitutes, circumventing the rape shield statute's general bar on admission of evidence about a victim's sexual history (or past work as a prostitute); and (2) bias against prostitutes is stronger than bias against patrons of prostitutes.

Thounsavath v. State Farm Mutual Automobile Insurance Co.

This issue in this case is whether a driver exclusion endorsement in an automobile policy barring coverage for the named insured violates Illinois law and public policy.

Plaintiff was insured by Defendant State Farm Mutual Automobile Insurance Company. Her policy specifically provided that State Farm would have no liability for losses incurred “while any motor vehicle is operated by: Clinton M. Evans.” Plaintiff was subsequently involved in an automobile accident while traveling as a passenger in a vehicle which was owned and operated by Mr. Evans. She thereupon filed a claim with State Farm, which denied coverage. Plaintiff filed a declaratory judgment action and on cross-motions for summary judgment, the circuit court granted Plaintiff’s motion.

On appeal, the First District Appellate Court affirmed. The appellate court noted that several cases have upheld the validity of named driver exclusions, but distinguished them on the basis that those exclusions were enforced as to parties other than the named insured. In reaching its decision, the Court relied on American Access Casualty Co. v. Reyes, 2013 IL 115601, which held that under section 7-317(b)(2) of the Financial Responsibility Law (625 ILCS 5/7-317(b)(2), which mandates insurance coverage, a named insured could not be excluded from coverage under a named driver exclusion provision in an insurance policy.

In its petition for leave to appeal, State Farm argues that the appellate court misapplied Reyes, and departed from other authority suggesting the validity of named driver exclusions in Illinois.