DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

Here are a few recent cases of importance and note - January 2004.

Following are summaries of selected opinions recently issued by the Illinois Supreme Court.

Smith v. Central Illinois Regional Airport, 2003 Ill. Lexis 2276, Docket No. 95593 (11/20/03). Dismissal of complaint with leave to amend does not bar a motion for voluntary dismissal made within the time allowed to amend. Plaintiff, an unhappy property owner in the vicinity of an annual airshow, sued to prevent the show and for damages he claimed the show caused him. His complaint asserted causes of action for trespass, nuisance, and inverse condemnation.

The circuit court granted motions to dismiss the common law counts with prejudice. The court also dismissed the inverse condemnation count, but allowed plaintiff 60 days to amend. Before the 60 days lapsed, plaintiff filed a motion to voluntarily dismiss the condemnation count without prejudice. The circuit court ruled on the motion after the 60 days expired. The court ruled that plaintiff’s failure to amend was "determinative," and thus denied the motion for voluntary dismissal. Plaintiff then filed an amended motion for a voluntary dismissal. The circuit court denied that motion, too, and stated: "Plaintiff having failed to amend Count III within the time permitted, Count III is herby dismissed with prejudice. Plaintiff’s Amended Motion to Dismiss is denied as moot."

Plaintiff argued that he had an unfettered right to a voluntary dismissal without prejudice. The supreme court rejected that notion, and ruled that "a plaintiff’s right to a voluntary dismissal is not always absolute." However, the supreme court held that the dismissal with leave to amend was not a bar to the subsequent motion for voluntary dismissal. The court stated that the dismissal with leave to amend "expressly left the suit pending for further proceedings." The court ruled that the dismissal would be considered to be with prejudice only after the 60 days lapsed. "Because plaintiff acted within the period of time left open for amendment, we believe his right to a voluntary dismissal was intact."

Vuagniaux v. Department of Professional Regulation, 2003 Ill. Lexis 2279, Docket No. 94073 (11/20/03). Board does not have authority to make a temporary appointment. Reprimand and fine vacated because Board was not properly constituted. Thad Vuagniaux advertised his chiropractic practice in a St. Louis newspaper. Among other things, his ads stated that he practiced "Specific Chiropractic" and that he was a "Kale Certified Brain Stem Specialist." The ads also discussed numerous ailments and diseases, and suggested that "Specific Chiropractic" enabled patients to gain their "fullest health potential without the use of drugs or surgery."

The ads provoked complaints from other chiropractors, and the Department of Professional Regulation brought a disciplinary proceeding against Vuagniaux. Vuagniaux asserted a host of constitutional and procedural defenses. Among those, he moved to exclude Dr. Lacy Cook, the only chiropractor on the Medical Disciplinary Board, from participating in the disciplinary proceedings. Vuagniaux complained that Cook would be prejudiced against Vuagniaux’s chiropractic theories. To avoid the appearance of prejudice, the administrative law judge excluded Cook.

The Department then moved for appointment of a "Special Chiropractor" to the disciplinary board. The motion was granted, and Dr. Roger Pope was named to serve. Vagniaux protested Pope’s appointment as violating the Medical Practices Act. The Act states that members of the Medical Disciplinary Board must be appointed by the governor, with the advice and consent of the senate. Vuagniaux’s objection was denied.

After a hearing, the administrative law judge recommended that Vuagmiaux be fined $2,500. The Board recommended the fine plus a reprimand, which was adopted by the Department’s director.

On review, citing numerous reasons, the circuit court set aside the Department’s decision. The supreme court focused on the replacement of the Disciplinary Board member, and ruled that that alone was enough to throw out the sanction. The court ruled that the Board did not have authority to appoint Pope as a replacement. The Board, seated with Pope, therefore was unlawfully constituted, so its recommendation to fine and sanction Vuagniaux were invalid.

The supreme court ruled that there "is no situation under the [Medical Practice] Act where anyone other than the Governor, by and with the advice and consent of the Senate, may appoint a person to be a member of the Board . . . Neither the Medical Practice Act nor the Illinois Constitution of 1970 permit appointment or involuntary removal of Board members without gubernatorial action."

The court remanded the matter to the Department for reconsideration by a legally constituted disciplinary board, and ruled that not all of the Board’s actions were invalid. "Because the Board’s initial decision to pursue charges against Vuagniaux preceded Pope’s participation on the Board, it is unaffected." But the proceedings following Pope’s appointment, including the evidentiary hearing, "are invalid and are to be disregarded."

People v. Caballes, 2003 Ill. Lexis 2280, Docket No. 91547 (11/20/03). Terry stop test applies to a canine drug sniff at a traffic stop. Evidence of drugs suppressed because police did not have specific and articulable facts to support the use of a canine sniff. Roy Caballes was stopped for doing 71 in 65 m.p.h. zone. While the officer was writing a warning, another officer arrived with his dog to perform a canine sniff of Caballes’s car. The dog alerted the officers that drugs were in the trunk. The officers found marijuana, and Caballes was arrested and convicted of trafficking.

Caballes’s motion to suppress the drugs and quash the arrest was denied, and affirmed by the appellate court. However, the supreme court reversed because the police did not have specific and articulable facts to expand the traffic stop into a canine sniff for drugs.

The supreme court ruled that the Terry stop test applied to canine sniffs. Terry requires a two-part test: (1) whether the officer’s action was justified at its inception, and (2) whether the stop was reasonably related in scope to the circumstances which justified the interference in the first place.

The State argued that there were sufficient reasons to turn the speeding stop into a canine sniff – the car smelled of air freshener; Caballes was dressed for business even though he was unemployed; Caballes seemed nervous; there was no visible luggage despite Caballes’s report that he was moving to Chicago. The court rejected those reasons, and stated that they "constitute nothing more than a vague hunch that defendant may have been involved in possible wrongdoing. Accordingly, we hold that the trial court should have granted defendant’s motion to suppress based on the unjustified expansion of the scope of the stop."

In re A.H., 2003 Ill. Lexis 2274, Docket No. 95669 (11/20/03). Order denying State’s petition to terminate parental rights is not final, and is not appealable under Rule 303. A.H.’s parents were found to be unfit. The State filed a petition to terminate parental rights. After trial, the circuit court denied the petition and ordered subsidized guardianship as the permanency goal for A.H. The circuit court also continued the case for a permanency hearing.

The State appealed the denial of its petition to terminate parental rights. The appellate court dismissed the appeal sua sponte for lack of jurisdiction. The supreme court affirmed on the basis that the order denying the petition to terminate was not final and appealable. "… [I]t did not end the litigation of the parties on the issue of termination of parental rights and did not ‘set or fix’ the rights of the paties on either side of the controversy. Although the order decided the important issue of whether to terminate the parental right at that time, such does not, in itself, render the order final."

Steve Merican is a sole practitioner in Oak Brook, Illinois. Steve’s practice is concentrated in appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com.