By Steven R. Merican

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

In re Andrea F., 2003 Ill. Lexis 2608, Docket No. 93595 (12/18/03). No denial of due process where parents were not admonished specifically that failure to cooperate or comply with DCFS service plan would risk termination of parental rights. The State filed a petition of abuse and neglect, alleging that the father sexually abused his children. At the first hearing, the parents were admonished that if the allegations in the petition were found to be true the children could be declared wards of the court, removed from the parents’ custody, and placed under guardianship of the DCFS. The court did not specifically tell the parents that their failure to cooperate with the DCFS, or comply with the terms of the DCFS service plan, could result in termination of their parental rights. In fact, the trial court never gave this admonishment during any of the hearings.

The allegations in the petition were proved, and the parents were ordered to cooperate with DCFS and to participate in DCFS recommended counseling. Eventually, the State filed a petition to terminate parental rights. Among other things, the State alleged that the parents had failed to "make reasonable efforts to correct the conditions that were the basis of the removal or to make reasonable progress toward the return of Andrea [child] … within nine months after an adjudication of neglect or abuse." The mother surrendered her parental rights, and the circuit court terminated the father’s rights, and authorized the DCFS to consent to the child’s adoption.

The supreme court first held that the Juvenile Court Act, before a 1998 amendment, did not require that a parent be admonished specifically that failure to cooperate with the DCFS or to comply with its service plan could result in termination of parental rights.

But the father also argued that the circuit court’s failure to give that admonishment deprived him of due process. The supreme court rejected the argument, ruling that it was unlikely on this record that the father did not receive due process. "We find that the risk that T.F. was erroneously deprived of that interest as a result of the failure to give the admonishment in question is minimal because the record amply demonstrates that T.F. was aware of the need to cooperate with DCFS and that his parental rights could be terminated."

Hall v. Henn, 2003 Ill. Lexis 2607, Docket No. 95431 (12/18/03). Immunity not available under the Recreational Use of Land and Water Areas Act to landowner who allowed only invited guests to use property. The Henns built a sled run in their backyard. Friends and neighbors were allowed to use the run if they asked for and received permission. Ellen Hall received permission. Unfortunately, she slipped on icy stairs at the run, and injured her right arm and left leg. Ellen sued the Henns for negligence. The Henns’ motion for summary judgment, based on the immunity granted by the Recreational Use of Land and Water Areas Act, was granted. The appellate court reversed on the basis that the property was not open to the public. The supreme court affirmed.

The Act states that owners of land owe "no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure or activity on such premises to persons entering for such purposes." The court was persuaded that a landowner is entitled to the protections of the Act only if the land is open to the public. The purpose of the Act is to "make land and water areas available to the public." "Conversely, the Act’s protections are not available to landowners who restrict the use of their property to invited guests only."

People v. Braggs, 2003 Ill. Lexis 2604, Docket No. 95359 (12/18/03). Mental capacity should be considered in determining whether an individual is in police custody. Defendant was accused of a double homicide. There was unrebutted evidence that she suffered from severe mental disability. After several rounds of questioning by the police — during which defendant’s sister acted as an "interpreter" because defendant was unable to understand and communicate with the police investigators — defendant made inculpatory statements that were used at a suppression hearing. Eventually, defendant was arrested and given Miranda warnings, after which she gave a confession.

The first issue was whether defendant was in police custody when she gave the inculpatory statement, and thus should have been given her Miranda warnings. A "reasonable person" standard exists to determine whether an individual is in custody – i.e., under the circumstances, would a reasonable person feel that he or she is at liberty to terminate the interrogation and leave.

The supreme court ruled that the individual characteristics of the person being questioned should be incorporated into the reasonable person assessment. "As we consider the age, intelligence, and mental makeup of the accused in our examination of the circumstances surrounding the interrogation, so those factors are analytically intertwined with the reasonable-person prong of the custodial question."

The court favorably reviewed a number of opinions from other jurisdictions that relaxed the reasonable-person test for children who were being questioned by police. The court concluded: "The same rationale that required modification of the reasonable person standard to take into account the general characteristics of juveniles also militates in favor of such a modification where the mentally retarded are concerned … Just as they are more susceptible to police coercion during a custodial interrogation, the mentally retarded are also more susceptible to the impression that they are, in fact, in custody in the first instance."

In this case, where the evidence showed defendant had severe retardation, there was "no doubt whatsoever that a reasonable person with defendant’s mental capacity would have believed he or she was in custody and not free to leave the police station."

Because she was in custody, the court also addressed whether the inculpatory statements accompanied a knowing and intelligent waiver of defendant’s Miranda rights. In view of defendant’s condition, she did not knowingly and intelligently waive her Miranda rights.

The court was critical of the police interrogation in view of defendant’s mental capacity. "… [T]he minimal level of communication between law enforcement officials and the defendant throughout the investigation of this case is a matter of great concern to this court and should have been to the officers involved, who proceeded to repeatedly question defendant despite her obvious impairment and vulnerability." The court acknowledged that "[c]ustodial interrogation trades on the weakness of individuals" and that "the young and mentally infirm are most vulnerable. The potential for abuse is obvious, as is the need for adequate safeguards."

Board of Trustees of Community College District No. 508 v. Coopers & Lybrand, 2003 Ill. Lexis 2610, Docket No. 94676 (12/18/03). Audit Interference Doctrine prohibits financial auditor who is sued for negligent failure to discover and report client’s noncompliance with investment policy from asserting comparative fault based on client’s poor business practices. Coopers and Lybrand was one of the auditors for District 508. The District’s treasurer made risky investments that violated District policy, and resulted in big losses for the District. Coopers, which had audited the District’s books for one of the three years the treasurer made the risky investments, did not inform the Board about the investments. A jury trial resulted in a judgment against Coopers for more than $12 million.

At trial, the circuit court invoked the Audit Interference Doctrine to prevent Coopers from putting in evidence of the District’s comparative fault in allowing the investments to be made. That Doctrine generally holds that the comparative or contributory fault of the client cannot be asserted by the auditor when there is no evidence that the client interfered with the audit.

Coopers argued that the Illinois Public Accounting Act negated the Doctrine. But the supreme court rejected that argument because the Accounting Act lacked a clear "expression of legislative intent to abrogate it [the Doctrine]." The court held that "a client’s poor business practices cannot be asserted as a defense to the auditor’s negligent failure to discover and report the client’s noncompliance with investment policy and legal requirements."

The court also addressed the question of setoff. Arthur Andersen had audited the District for two of the three years that the high risk investments were made. But Andersen settled before trial, and Coopers wanted a setoff in the amount of that settlement applied against the judgment. All of the District’s losses were sustained after the Andersen and Coopers audits were completed – presumably after the Board learned about the investments and sold them.

The court ruled that Cooper was entitled to a setoff in the amount of the Andersen settlement because "the damages claimed against Andersen were exactly the same as, and indivisible from, those claimed against Cooper … Therefore, we hold that the appellate court erred when it concluded that the harm could be divided into portions, separately attributable to each defendant."

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.