"The Brief" - The ALA Blog

  • June 16, 2020 9:34 PM | Carson Griffis (Administrator)

    By:  Brad Jarka

    In November 2018, we hosted our annual moot court competition and students gathered to argue whether Title VII’s prohibition on employment discrimination “because of . . . sex,” included protections for employees suffering an adverse employment action for their sexual orientation or gender identity. Six months later, and again just days ago, the United States Supreme Court took the case from moot to momentous.

    The Court granted certiorari and consolidated three cases: Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. On June 15 this year the Court ruled, six to three, that Title VII protects LGBTQ folks from workplace discrimination based on their sexual orientation or gender identity.

    If you served as a judge or brief grader for our 2018 competition, you will find the discussion in all three opinions—the majority and each of two dissents—familiar. The case centers on complicated issues of statutory construction, causation, original public meaning, and hotly contested public policy. Our student competitors nonetheless anticipated and presented every argument the parties and the Court addressed. 

    To the students and ALA members considering participation in our competition this year, as the 2018 problem shows, what is moot today may matter tomorrow. We hone our skills as appellate advocates to protect the rights and interests of real clients at the highest levels of our court system. We hope you will join us again this November!

  • June 01, 2020 8:02 PM | Carson Griffis (Administrator)

    By:  Dodie O'Keefe

    In Lewis v. Lead Industrial Ass'n, 2020 IL 124107, the Illinois Supreme Court found the plaintiffs did not suffer any economic loss to sustain their tort claim where the only costs they sought to recover had been paid in full by Medicaid.

    Nearly two decades ago, the plaintiffs, a class of parents, filed a civil conspiracy claim against four companies that had previously manufactured lead paint (the defendants), to recover the economic costs of lead toxicity blood screenings underwent by their children as required by the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 2000)). Lewis, 2020 IL 124107, ¶ 3.

    The circuit court subsequently found that the plaintiffs, two of whom were Medicaid recipients, had suffered no economic injury to sustain their claims where the screening costs had been fully covered by Medicaid and where there was no other evidence of expenses incurred by the plaintiffs for the screenings. Id. ¶¶ 7-8. In reaching its conclusion, the circuit court rejected the plaintiffs’ arguments that they were nevertheless entitled to recover those costs because the State could seek reimbursement for any recovery they received, and furthermore, whether Medicaid had paid those costs had no bearing on their right to recovery under the collateral source rule. Id. Because the plaintiffs had neither suffered from economic loss or physical injury, the circuit court entered summary judgment in the defendants’ favor. Id.

    On appeal, the appellate court reversed that judgment, finding the plaintiffs had alleged a valid claim for economic injury because they had incurred an obligation for the screening costs under the Rights of Married Person Act (Family Expense Act) (750 ILCS 65/15 (West 2000)), which codifies parental liability for the expenses of their minor children. See Lewis, 2018 IL App (1st) 172894, ¶¶ 10, 15. The appellate court also found that the collateral source rule precluded the diminution of the plaintiffs’ recoverable damages by the benefits received from Medicaid. Id. ¶¶ 12-13. The supreme court disagreed.

    In its opinion, the supreme court held that the plaintiffs suffered no economic injury because they did not incur an obligation for the screening costs under the Family Expense Act since they were never indebted to the medical providers who conducted the screenings. Lewis, 2020 IL 124107, ¶¶ 37-38. The court also rejected plaintiffs’ argument that an obligation was created based on the State’s right of recoupment under section 11-22 of the Illinois Public Aid Code (305 ILCS 5/11-22 (West 2018)) for any recovery they received, noting that right may only be exercised against a judgment against the wrongdoer and not to seek repayment from the recipients. Id. ¶¶ 40-41. Last, the court held that because the plaintiffs in this case did not suffer an economic injury, the collateral source rule, which “prescribes the methodology of awarding damages,” was inapplicable. Id. ¶¶ 49, 52.

    In sum, the supreme court reemphasized that essential to every cause of action is some injury or harm to a legal right suffered by the plaintiffs. Id. ¶ 29.

  • May 11, 2020 8:41 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court's May Term begins Monday, May 11, 2020.  For the first time, the Court will be conducting remote oral arguments using Zoom videoconferencing.  Oral arguments are scheduled for May 12, 13, and 14, 2020.  A total of 10 cases will be heard -- 6 criminal and 4 civil.  The following civil cases are scheduled for argument this Term:

     May 13, 2020

    People ex rel. Dep't of Human Rights v. Oakridge Nursing & Rehab. Center, No. 124753

    May 14, 2020

    Sharpe v. Westmoreland, No. 124863

    Goral v. Dart, No. 125085

    United States v. Gilspie, No. 125483

    Below is a summary for one of those cases, Sharpe v. Westmoreland.  Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

    Sharpe v. Westmoreland, No. 124863

    This case concerns two questions certified by the circuit court under Supreme Court Rule 308: (1) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request visitation with his or her deceased partner’s child as a step-parent under 750 ILCS 5/602.9(a)(3) (the Illinois Marriage and Dissolution of Marriage Act (“Marriage Act”)); and (2) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request parental responsibilities of his or her deceased partner’s child as a step-parent under 750 ILCS 5/601.2(b)(4).

    The marriage of Crystal Westmoreland and Matt Sharpe was dissolved in January, 2013. As part of the dissolution, they agreed to a joint parenting agreement with respect to their child, A.S., who was then seven years old. While the parties shared equal parenting time, A.S.’s legal residence was with Sharpe. In November, 2013, Sharpe entered into a civil union with Kris Fulkerson. A.S. continued to reside with Sharpe and Fulkerson and her three children. Sharpe died on January 2, 2017. After his death, Westmoreland began to deny Fulkerson visitation with A.S., even though A.S. expressed a desire to live with Fulkerson and her children. Fulkerson then filed a petition seeking visitation rights and an allocation of parental responsibilities with respect to A.S.

    The circuit court granted Fulkerson’s petition for leave to intervene, determining that she had standing as a step-parent under the Marriage Act to seek visitation with and parental responsibilities of her deceased partner’s child, A.S. Westmoreland argued that Fulkerson did not have standing because she is not a step-parent of A.S., given that she was never legally married to A.S.’s father as required by the definition of step-parent under sections 600(l) and 602.9(a)(3) of the Marriage Act (750 ILCS 5/600(l), 602.9(a)(3)).  The circuit court certified the above two questions under Rule 308 and the appellate court granted the petition for leave to appeal.

    The appellate court explained the purposes behind the Marriage Act and Civil Union Act, explaining that while the Civil Union Act provides persons entering into civil unions with the same obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to those persons entering into marriages, the equation of partners’ rights and obligations in relation to each other does not necessarily equate civil union partners to married spouses in relation to children. The Marriage Act specifically addresses the allocation of parental responsibilities, including establishing visitation with a minor child by a nonparent. A step-parent under the Marriage Act is defined as someone who is or was married to the parent, immediately prior to his or her death. 750 ILCS 5/600(l), 602.9(a)(3). The court explained that neither of these sections mentions or includes partners to a civil union and held that the omission of any reference to partners joined by civil unions in the definition of step-parents reflects a legislative intent not to include civil union partners in the category of nonparents who have standing to seek visitation. The court then held that step-parentage requires a legal marriage as opposed to a civil union.  The appellate court answered both certified questions for interlocutory appeal in the negative, reversed the circuit court’s ruling and remanded for further proceedings. 

    Fulkerson seeks relief in the Illinois Supreme Court, arguing in part that the appellate court’s opinion conflicts with the Religious Freedom Protection and Civil Union Act, 750 ILCS 75/1, et seq., deprives parties to civil unions of the rights the General Assembly promised them, and stigmatizes their relationship as second-class by denying them legal protections accorded to married couples.

  • May 03, 2020 10:33 AM | Carson Griffis (Administrator)

    The Illinois Supreme Court's May Term begins Monday, May 11, 2020.  For the first time, the Court will be conducting remote oral arguments using Zoom videoconferencing.  Oral arguments are scheduled for May 12, 13, and 14, 2020.  A total of 10 cases, 6 criminal and 4 civil, will be heard. 

    The following criminal cases are scheduled for argument this Term:

    May 12, 2020

    People v. Ashanti Lusby, No. 124046

    People v. Miguel DeLeon, No. 124744

    People v. Ronald Lee Stoecker, No. 124807

    People v. Kevin Jackson, No. 124818

    May 13, 2020

    People v. Joseph Hollahan, No. 125091

    People v. Keith Gaines, No. 125165

    Below is a summary for one of these cases, People v. Ashanti Lusby.  Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

    People v. Ashanti Lusby, No. 124046

    In People v. Bailey, 2017 IL 121450, the Court held that the circuit court must not seek or be influenced by State input when evaluating whether a defendant should be given leave to file a successive postconviction petition.  The first issue presented by this case is whether the appellate court can assess cause and prejudice (to decide whether leave to file should have been granted) following a Bailey error, or whether the appellate court must remand the matter back to the circuit court for consideration without the State's input.  In the analogous context of improper State influence during summary first-stage review of an initial postconviction petition, the Court has required remand.  Nonetheless, since Bailey, an appellate split has developed regarding whether the appellate court can reach the merits of the leave-to-file issue or must remand.  While defendant's brief remains largely silent on this issue, the State's brief acknowledges that the Court, under its broad supervisory authority, can reach the merits of the leave-to-file issue (as it did in Bailey).  But the State urges the Court to address the scope of the appellate court's authority to resolve the appellate court split.

    The merits of the petition concern the constitutionality of defendant's sentence.  Following Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and People v. Holman, 2017 IL 120655, this case presents the question of whether a de facto natural life sentence (an aggregate 130-year sentence served eligible to be served at 50%) for an offender who committed crimes at age 16 violated the Eighth Amendment.  The State's position on the question first acknowledges that there is a procedural and a substantive component to the Eighth Amendment analysis.  The sentencer must consider youth and its attendant characteristics (the procedural component), before deciding on a proportionate sentence, in that the sentencer must determine whether the crimes reflected transient immaturity, so that a life sentence is unavailable, or reflect permanent incorrigibility, so that a life sentence is available (the substantive component).  Here, the State argues that the appellate majority erred in determining that the sentencer failed to honor this procedural component as reflected in its emphasis on the sentencer's failure to explicitly state that it considered the presentence investigation report that contained evidence relevant to youth and attendant characteristics.  The State further asserts that the appellate majority should have held that, under Holman's analytical framework, the sentence passes constitutional muster.  Defendant, in contrast, emphasizes the factual differences between this case and Holman in agreeing with the appellate majority's conclusion that the sentence violates the Eighth Amendment.

    Finally, the State challenges the remedy that the appellate majority provided upon finding an Eighth Amendment violation.  Because the appellate court was reviewing the circuit court's order denying defendant leave to file his successive postconviction petition, the State insists that the majority erred in ordering a new sentencing hearing.  The State suggests that the majority instead should have remanded the matter to the circuit court for the petition to be filed and for second-stage postconviction proceedings to occur.  Defendant finds no fault in the majority's remedy, noting other Eighth Amendment precedent that provides new sentencing hearings even for cases in similar procedural posture.

  • April 22, 2020 7:55 AM | Carson Griffis (Administrator)

    Several reviewing courts located in Illinois have begun to hold oral arguments remotely, either by telephone or by online chat services.

    The U.S. Court of Appeals for the Seventh Circuit has ordered all oral arguments through the end of April to be conduct by telephone.  On the day of the argument, the court calls counsel on a teleconference line and mutes them until it is their turn to argue.  The Presiding Judge on the panel keeps track of time and reminds counsel of the time limits.  For people interested in "attending" an argument, the Seventh Circuit livestreams audio of its arguments on its YouTube channel.

    The Illinois Supreme Court announced that it is holding its May arguments via the Zoom teleconferencing platform.  The court has stated that it will hold training sessions with counsel to inform them of procedures for argument.  Like the Seventh Circuit, the Illinois Supreme Court will livestream its arguments on its own YouTube channel.

    The Second District of the Illinois Appellate Court has used the WebEx videoconferencing platform for its April oral arguments.  The arguments are audio-only, and counsel may argue through the microphone on their computer or call in via phone.  The other districts of the Appellate Court have not yet announced procedures for remote oral arguments.

  • April 10, 2020 8:32 AM | Louis Manetti (Administrator)

    By: Richard Harris

    The Illinois Supreme Court recently resolved a disagreement in the appellate court as to whether the doctrine of primary jurisdiction authorizes a circuit court to stay the proceedings before an administrative agency. In Hastings Mutual Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, the First District answered that question in the affirmative. In West Bend Mut. Ins. Co. v. TRRS Corp., 2019 IL App (2d) 180934, the Second District declined to follow Hastings Mutual and held that the doctrine can only be applied to stay judicial proceedings pending the resolution of a specialized controversy before an administrative agency. The Supreme Court sided with the Second District and overruled Hastings Mutual.

    West Bend involved a coverage dispute on a workers’ compensation claim. The injured worker, Gary Bernardino, underwent surgery to repair his torn rotator cuff. When Bernardino later learned he needed a follow-up surgery, he filed an “application for adjustment of claim” in the Illinois Workers’ Compensation Commission (IWCC). West Bend denied its responsibility for coverage, claiming Bernardino’s employers chose to cover his lost wages and medical expenses relating to the first surgery without reporting the injury to West Bend.

    West Bend filed a complaint for declaratory judgment in the circuit court of McHenry County, seeking a declaration that it had no duty to defend or indemnify Bernardino’s employers in connection with his IWCC claim. Shortly thereafter, the IWCC scheduled an expedited hearing on Bernardino’s claim, which prompted West Bend to file an emergency motion in the circuit court to stay the IWCC proceedings until the declaratory judgment action was resolved. The circuit court agreed with West Bend that under Hastings Mutual, the doctrine of primary jurisdiction required the entry of an order staying the IWCC proceedings until the coverage dispute was resolved in the circuit court.

    However, the Supreme Court agreed with the Second District that Hastings Mutual was wrong to allow the inverse application of the primary jurisdiction doctrine, which may be invoked when two courts share concurrent jurisdiction over the subject matter of the dispute. The doctrine holds that in certain instances, a circuit court should stay its own judicial proceedings pending the referral of a specialized controversy to an administrative agency having expertise in the area. The Supreme Court noted that it had never applied the doctrine to stay an administrative proceeding. The Court held, “[t]he doctrine operates to facilitate, not delay or otherwise hinder, an administrative agency’s resolution of a technical or specialized issue that requires administrative knowledge or expertise.”

    Left open was the question of whether a circuit court possesses the inherent equitable power to issue the stay of an administrative proceeding pending judicial review. The Supreme Court declined to consider West Bend’s alternative arguments and remanded the case to the circuit court. Quoting the Second District, the Supreme Court “[took] no position as to what procedures, if any, are available to West Bend if it seeks to renew its motion in the circuit court to stay the IWCC proceedings.”

  • April 07, 2020 7:31 AM | Carson Griffis (Administrator)

      By:  Kimberly Glasford

    In Crim v. Dietrich, 2020 IL 124318, the Illinois Supreme Court held that when the trial court enters a partial directed verdict, a litigant must file a post-trial motion to preserve any challenge to the jury’s subsequent verdict on a remaining claim. Equally interesting, however, are the justices’ varying applications of Illinois Supreme Court Rule 308 (eff. July 1, 2017), and different interpretations of an appellate court mandate.

    The Crims filed a medical malpractice action against Gina Dietrich, D.O., alleging that she failed to obtain informed consent for a natural birth and was negligent during delivery. At trial, the court granted Dietrich’s motion for a partial directed verdict as to the informed consent claim. The jury then found in her favor on the remaining negligent delivery claim but the Crims did not file a post-trial motion challenging that finding.

    On appeal in Crim I, the appellate court found the directed verdict was improper, reversed the judgment and remanded for a new trial. According to the mandate, the appellate court held that “the order on appeal from the circuit court be REVERSED and the cause be remanded . . . for such other proceedings as required by order of this court.”  On remand, the parties disputed whether retrial was limited to the informed consent claim or whether the Crims could present evidence regarding the negligent delivery claim.

    According to Dietrich, retrial was limited to the informed consent claim because the Crims did not file a post-trial motion attacking the jury’s verdict on the negligent delivery claim and the reviewing court did not address it. The Crims argued, however, that the mandate in Crim I was general, requiring a new trial on all issues.

    The trial court sided with the Crims but certified, pursuant to Rule 308, the question of “[w]hether the ruling of the appellate court, [in Crim I], reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The appellate court found in Crim II that the new trial should encompass all claims. The supreme court disagreed.

    The majority opinion, authored by Justice Karmeier and joined by Justices Garman, Theis and Neville, noted that “[a] certified question under Rule 308 permits the discretionary appeal of an otherwise unappealable interlocutory order of the circuit court where the court ‘finds that the order involves a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Crim, 2020 IL 124318, ¶ 19 (quoting Ill. S. Ct. R. 308(a) (July 1, 2017)). The majority found that the certified question met that standard because it involved a pure question of law and did not invite an advisory opinion. Additionally, answering the question would materially advance the termination of the litigation.

    The majority acknowledged it would be improper for a certified question to seek a new interpretation of Crim I. Indeed, a certified question could not revest the appellate court with jurisdiction to revisit a previously decided case. The certified question at issue, however, did not reflect an improper purpose. Instead, it merely asked whether Crim I required an entirely new trial, which “is no different than a certified question involving statutory construction.” Crim, 2020 IL 124318, ¶ 21. In support, the majority cited a case involving the impact of a United States Supreme Court decision on an Illinois case, rather than the impact of an Illinois decision on the same Illinois case. Id. (citing Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6). 

    As to the merits, the majority concluded that the Crim I mandate did not require a new trial on all claims because the Crims failed to file a post-trial motion under 735 ILCS 5/2-1202. Furthermore, the “mandate could not remand the matter for a new trial on an issue never raised and not considered.” Crim, 2020 IL 124318, ¶ 40.  Finally, the majority recognized that “[w]hen a court of review does not determine the merits of a case but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated and the cause stands as if no trial had occurred.” (Internal quotation marks omitted.) Id. ¶ 40 (quoting People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 326 (1959)). But it concluded that the appellate court ruled on the merits by finding that the trial court improperly entered a directed verdict, notwithstanding that the appellate court had not made a determination as to liability.

    Chief Justice Burke specially concurred, finding that a new trial on all claims was not necessary because the opening brief in Crim I expressly abandoned the Crims’ objection to the jury’s verdict. Additionally, the appellate court did not review the jury’s verdict.

    Chief Justice Burke recognized that, “[i]f a judgment in an ordinary suit at law in which the parties are entitled to a jury trial is reversed for errors intervening prior to the entry of the judgment and the cause is remanded generally, the parties are entitled to a trial de novo.” (Internal quotation marks omitted.) Id. ¶ 53 (quoting Roggenbuck v. Breuhaus, 330 Ill. 294, 300 (1928)). But she disagreed that the erroneous partial directed verdict in Crim I constituted an error “prior to the entry of judgment” within the meaning of that rule because “a directed verdict is itself a judgment.” Crim, 2020 IL 124318, ¶ 55 (Burke, C.J., specially concurring). When “Crim I stated that it was reversing the ‘judgment’ of the trial court, it was necessarily referring to the directed verdict since the only matter the appellate court addressed was the informed consent claim.” Id. ¶ 56.

    Justice Kilbride dissented, stating that the certified question did not satisfy Rule 308 because it was case-specific. Crim, 2020 IL 124318, ¶ 67 (Kilbride J., dissenting). Additionally, Justice Kilbride believed that the parties asked the certified question to clarify what the mandate in Crim I meant, which the majority acknowledged would be improper. Specifically, the Crims’ attorney stated on remand, “I think that there’s going to need to be a 308 appeal, an interlocutory appeal so that the Appellate Court can tell us what it wanted when it issued its order.” Furthermore, there was no substantial ground for disagreement: “no court has ever addressed what the mandate in Crim I means, nor will any court ever address that question again.” Id. ¶ 76.

    Justice Kilbride also disagreed that construing a mandate was akin to statutory construction, noting that while statutes have general applicability, mandates by nature are case-specific. He added that by finding that Crim I could not have required a new trial on all claims due to the Crims’ failure to file a section 2-1202 motion, the majority confused a party’s forfeiture with the appellate court’s power to grant relief.

    The supreme court’s decision indicates that in interpreting a mandate, the court will adopt a reading that renders the mandate legally correct. The decision also suggests that justices will differ as to whether a procedural issue presents a purely legal issue. With that in mind, litigants should ensure that mandates and certified questions are crystal clear while the court has jurisdiction to clarify any ambiguity.

  • April 01, 2020 8:00 AM | Carson Griffis (Administrator)

    In response to the COVID-19 public health emergency, the Seventh Circuit has suspended the requirement that parties provide paper copies of electronically filed briefs, appendices, and petitions for rehearing under Federal Rule of Appellate Procedure 30(a)(3) and Circuit Rules 31(b) and 40(b).  The suspension does not apply to cases currently scheduled for oral argument, and the court may direct parties to provide paper copies in certain cases.  Parties still must serve paper copies on pro se litigants.

    The suspension is in effect until further order of the court.  The Seventh Circuit's order is available here.

  • March 24, 2020 5:58 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court has issued two orders extending various deadlines in cases before it and the Illinois Appellate Court.

    These extended deadlines will remain in effect until further order by the Illinois Supreme Court.  Both orders, and all other court updates regarding COVID-19, may be found here.

    Illinois Appellate Court

    The deadline for filing any notice of appeal from a circuit court judgment due on or after March 24, 2020, is extended from 30 to 60 days. 

    The deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

    The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

    Illinois Supreme Court

    The deadline for filing a petition for leave to appeal from an appellate court judgment, denial of a petition for rehearing, entry of judgment on rehearing, issuance of an opinion after granting a motion to publish, or order denying a motion to publish due on or after March 24, 2020, is extended from 35 to 70 days.

    The appellate court is directed to hold its mandates for 70 days from the date of its judgment, including judgments entered 35 days before March 24, 2020.

    Unless the Illinois Supreme Court previously granted a motion for an extension that was marked "final," the deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

    The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

    The relaxed requirement that parties provide paper copies of e-filed documents within 14 rather than 5 days is extended to documents e-filed through April 7, 2020.

  • March 19, 2020 8:19 AM | Carson Griffis (Administrator)

    By:  John M. Fitzgerald

    In less than two years, Justice P. Scott Neville, Jr., has already left his mark on the Illinois Supreme Court.  In the opinions he has authored since joining the Illinois Supreme Court in June 2018 — his opinions while serving on the Illinois Appellate Court, First Judicial District, may be the subject of another article — he has consistently demonstrated a passion for protecting the constitutional rights of criminal defendants.  A few significant examples are highlighted below.

    In People v. Buffer, 2019 IL 122327, Justice Neville authored an opinion for the Court which held that a 50-year murder sentence imposed on a then-16 year-old defendant was a de facto life sentence in violation of the Eighth Amendment.

    Writing for a divided court in People v. Murray, 2019 IL 123289, Justice Neville reversed the defendant’s conviction for unlawful possession of a firearm by a street gang member, finding that there was insufficient evidence that the Latin Kings were a street gang for purposes of the Illinois Streetgang Terrorism Omnibus Prevention Act.  Justice Neville’s opinion in Murray is notable for its discussion of the standards for the admissibility of expert opinion testimony in a criminal trial.  Justice Neville found that, while the state’s gang expert generally discussed the State’s gang database, the expert failed to establish a sufficient connection between the database and his conclusion that the Latin Kings were a street gang.

    In a partial dissent in People v. Clark, 2018 IL 122495, Justice Neville disagreed with the Court majority’s holding that the Public Defender Records Automation Fund fee was a fee instead of a fine.  His partial dissent stands out for his invocation of the rule of lenity, which generally holds that an ambiguous statute should be construed in favor of a criminal defendant.

    In a dissenting opinion in People v. Kimble, 2019 IL 122830, Justice Neville disagreed with the Court majority’s holding that a defendant’s right to a fair trial was not violated by the trial judge’s ex parte comment to deadlocked jurors.  He believed that double jeopardy barred the defendant’s re-prosecution.

    Finally, his special concurrence in In re N.G., 2018 IL 121939, should be studied by any law student who intends to pursue a career in the criminal justice system.  In that case, a father’s parental rights were terminated due to his conviction for violating a statute that had, in another case, been held facially unconstitutional.  Although the statute had been held unconstitutional in another case, the father never obtained a court order in his criminal case vacating his conviction.  The issue in N.G. was whether the father’s parental rights could be terminated on the basis of a conviction that, while based on an unconstitutional statute, had not been vacated.  The majority held that the father was not required to first obtain an order in the criminal case vacating his conviction; because his conviction was void, it could not be used as a basis to terminate his parental rights.  Justice Neville authored a special concurrence in which he argued that everyone, particularly prosecutors, have a responsibility to correct illegal convictions.  Here is the key language:

    • “But it is manifestly unfair to hold defendants exclusively responsible for vacating a void conviction. This approach places an onerous burden on lay defendants who are the least equipped to undertake that burden because they lack legal skills and do not know how to navigate the legal system. The dissent's approach would allow a void conviction to remain on the record of this defendant and all other similarly situated defendants. That result cannot be tolerated in a well-ordered system of justice. . . . In my view, the burden of correcting an illegal conviction must be borne by all of the participants in the criminal justice system."
    • "I reject the notion that the burden of correcting a void conviction falls exclusively on the defendant. Rather, the State should be required to undertake that responsibility. Where a court—at any level—has notice that a defendant's conviction is void, that court has an independent obligation to vacate and expunge the void conviction. In addition, the state's attorney in each county should commence proceedings to vacate and expunge all void convictions that were predicated on a statute that has been declared to be facially unconstitutional. In my view, the aforementioned remedies can be used by criminal justice participants to return illegally convicted defendants to their preconviction status."
    • “I also encourage the state's attorney in each county to commence proceedings to vacate and expunge any illegal convictions based on a facially unconstitutional statute. Finally, I note that the expungement of void convictions from the criminal record is necessary for all defendants who have been wrongfully convicted to receive complete justice."
    These are stirring words.  They remind all of us to do our part to fight injustice wherever we find it.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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