DCBA - Recent Case Law

Recent Case Law

By Steven R. Merican

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

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

Zaabel v. Konetski, 2004 Ill. Lexis 359, Docket No. 96581 (3/11/04). Uniform Interstate Family Support Act does not address or diminish jurisdiction of circuit court to enforce its support order even when the parties no longer reside in Illinois and they have not consented to jurisdiction. Jerry and Doris Zaabel were divorced in 1986 by order entered in the Circuit Court of DuPage County, Illinois. Doris and the children moved to Iowa, and Jerry moved to Arizona. In July 2001, they agreed to an order, which was entered in DuPage County, for Jerry to pay certain medical and educational expenses for the children.

Doris felt that Jerry did not comply with the order, so to force Jerry to pay, in February 2003 she filed a "Petition for Indirect Civil Contempt and Other Relief" in DuPage County. Jerry’s motion to dismiss the petition for lack of jurisdiction was denied. He then brought an original action in the Supreme Court of Illinois for a writ of prohibition. Jerry sought to prevent the circuit court from taking any action on Doris’s petition.

The supreme court denied the writ out of hand because Jerry did not "attempt[…] to explain why the normal appellate process would not afford an adequate remedy," a requirement for establishing the propriety of a writ.

The court also reviewed Jerry’s substantive argument: that section 205(a) of the Uniform Interstate Family Support Act deprived the circuit court of subject matter jurisdiction. Section 205(a) states that a court has continuing, exclusive jurisdiction over a child-support order "as long as" one of the parties or a child is a resident of the State or "until all of the parties" have consented to jurisdiction.

The supreme court agreed that Section 205(a) is ambiguous "with regard to whether continuing exclusive jurisdiction is lost in the circumstances at bar, where all relevant persons reside outside Illinois but not all parties have filed consent to jurisdiction elsewhere."

However, the court declined to address Jerry’s jurisdiction argument. The court ruled that Section 205(a) speaks only to modification of support orders, not enforcement. Thus, to invoke the jurisdictional requirements of Section 205(a), Jerry had to establish that Doris’s petition was an attempt to modify, not enforce, the support order. The supreme court ruled that "Jerry has not even attempted" to do so.

In re D.C., 2004 Ill. Lexis 364, Docket No. 95841 (3/18/04). An adjudication of parental unfitness as to some children cannot be used to deprive parental rights to a child born later. At a hearing in August 1999, Tontorya C. admitted allegations of neglect as to her three children. The children were adjudicated neglected minors and were made wards of the court. Tontorya gave birth to another child, P.C., on January 20, 2001. Five days later, DCFS filed a neglect petition alleging that P.C. was "in substantial risk of physical harm due to the fact that her siblings were already under the guardianship of DCFS as a result of neglect by Tontorya, and that Tontorya had not made sufficient efforts or progress to allow for the return of those children." Tontorya admitted those allegations of neglect, so the court found P.C. to be a neglected minor. P.C. was made a ward of the court with DCFS as her guardian in May 2001.

In September 2001, DCFS filed a petition to terminate Tontorya’s parental rights as to all four children. The DCFS alleged that Tontorya was an unfit parent and that she had "failed to make reasonable progress toward the return of her children during the nine-month period beginning November 1, 2000 and ending July 31, 2001."

In March 2002, the circuit court ruled in favor of the DCFS. In May 2002, the court terminated Tontorya’s parental rights to all four children. The appellate court affirmed the termination of rights as to the first three children, but reversed as to P.C. The supreme court affirmed because DCFS did not show that Tontorya was an unfit parent, as to P.C., during the period required by the Adoption Act.

Section 1(D)(m)(iii) of the Adoption Act states the possible grounds for a finding of unfitness. The DCFS petition proceeded on the third ground: failure to make reasonable progress toward the return of the child during the nine-month period that proceeds the first nine months after an adjudication of neglect. P.C. was not adjudicated neglected until April 27, 2001. Thus, the nine-month period from November 1, 2000 to July 31, 2001, was not, with respect to P.C., a "9-month period after the end of the initial 9-month period following the adjudication."

The court rejected the State’s argument that "unfitness as to one child is unfitness as to all." The court stated that "it is always necessary to find, by clear and convincing evidence, that the parent is unfit with respect to each child, based on some ground set forth in section 1(D) of the Adoption Act.

The court also rejected the State’s argument that its failure to adhere to the precise language of the Adoption Act was in keeping with the intent of the legislature. The court focused on the extreme consequences of terminating parental rights and stated: "We do not agree with the State that adherence to the literal language of the statute would be demonstrably at odds with legislative intent. Although the State’s expansive interpretation of the statute would ‘speed up the process’ of adoption, expediency is not our only concern. We are mindful that termination of parental rights is an extraordinary measure. Thus, when conducting such proceedings, it is not simple logic, but the literal language of the statute that must control."

Jinkins v. Lee, 2004 Ill. Lexis 366, Docket No. 96876 (3/18/04). Sovereign immunity does not bar a malpractice action against a state employed psychiatrist whose alleged negligent failure to commit patient resulted in patient’s suicide. George Jinkins was diagnosed at the Christ Hospital emergency room with acute psychosis with suicidal behavior. He was transferred to the Madden Center, a state facility. Dr. Lee, the "intake psychiatrist," and Dr. Medlin, another psychiatrist, evaluated Jinkins at Madden. They diagnosed Jinkins with "alcohol related disorder, NOS [not otherwise specified] and alcohol abuse." Jinkins was not admitted because, Dr. Lee stated, "at the time he was not certifiable." As a result, Jinkins went home, where he fatally shot himself in the head.

Jinkins’s estate, and his wife, Earlean, sued Drs. Lee and Medlin. The complaint alleged that Lee and Medlin committed malpractice in not committing Jinkins and allowing him to leave the Madden Center.

Claiming sovereign immunity, Lee and Medlin moved for summary judgment. The circuit court granted the motion, but the appellate court reversed. The supreme court affirmed the split appellate court, and ruled that Lee and Medlin were not entitled to sovereign immunity because the alleged malpractice arose independently from their state employment.

The court stated that the "dispute here centers on … whether the duty allegedly breached was not owed to the public generally independent of the fact of state employment." In this case, "the source of the defendants’ duty was their status as mental health professionals, rather than their employment with the state." Nor were Lee or Medlin performing a uniquely governmental function. Lee’s and Medlin’s duty of professional conduct toward their patient "is derived from the doctor’s status as a licensed physician and is not dependent upon the physician’s employment status. We find here, therefore, that the source of the defendants’ duty arose independently of their state employment."

The supreme court rejected defendants’ argument that they would not even have seen Jinkins if they were not employed by the State at the Madden Center. "Because we rely on the source-of-the-duty test, we reject defendants’ argument that they would have had no duty toward George ‘but for’ their employment with the state … [W]here the employee is charged with breaching a duty imposed on him independently of his state employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court.

Fritz v. Johnston, 2004 Ill. Lexis 367, Docket No. 96325 (3/18/04). Sovereign immunity does not bar a lawsuit against government officials whose alleged tortious actions were criminal or in furtherance of a conspiracy to commit a crme. Plaintiff Fritz was the deputy director of the Illinois Department of Veterans Affairs. He claimed that two defendants took illegal actions to force him out of his job, and that another two conspired along the same lines.

Defendant Johnston was the new director of the department. Defendant Bergstrom was his administrative assistant. Fritz alleged that Johnston requested the state police to investigate defendants’ charges that Fritz had threatened Johnston and Bergstrom with physical harm and damage to their homes. Fritz alleged that Johnston and Bergstrom knew the charges were false when they made them.

Defendant Gaffney was an assistant legislative officer. Defendant Ford was the governor’s personal legal counsel. Fritz claimed that Gaffney and Ford acted in furtherance of a conspiracy to force Fritz’s resignation.

All of the defendants raised the defense of sovereign immunity, asserting that as government officials, a lawsuit against them was a lawsuit against the State, which could not be maintained in circuit court. The circuit court dismissed the lawsuit, and the appellate court affirmed. In reversing and affirming in part, the supreme court held that sovereign immunity was not a defense for any of the defendants.

The complaint against Johnston and Bergstrom alleged that they knew the accusations they made to the police about Fritz were false. Making false accusations to the police is a crime. The supreme court concluded that sovereign immunity was defeated "since plaintiff has alleged that Johnston and Bergstrom acted ‘in violation of statutory or constitutional law.’"

Johnston and Bergstrom asserted that their story to the police was required by an administrative order mandating that they report criminal incidents by State employees. The court rejected that argument because: "First, this [administrative] order clearly did not require Johnston to file a false report of a threat against himself. Second … regardless of the existence and applicability of the administrative order, both these defendants violated the criminal law, accepting plaintiff’s allegations as true." The court also ruled that the source of the duty Fritz alleged Johnston and Bergstrom breached — to obey the criminal law — was independent of their State employment, so sovereign immunity did not apply.

Plaintiff did not claim that Gaffney’s or Ford’s actions violated criminal statutes. Rather, plaintiff "merely contends that they conspired with defendants Johnston and Bergstrom to force him [Fritz] out of his position with the state with a threat of a State Police investigation based on false claims."

The court ruled that the doctrine of sovereign immunity did not protect Gaffney or Ford. The court focused on the "the more fundamental principle that sovereign immunity is designed to protect the state’s autonomy of action and to preserve state funds – not to protect individuals." The supreme court concluded that Fritz’s action was unlikely to affect the State’s authomony. "The possibility that Gaffney and Ford might be held liable for acting in furtherance of a civil conspiracy — notwithstanding that their action might appear innocent if divorced from context — should not preclude or chill state employees from engaging in lawful conduct on behalf of the state."

Steve Merican is a sole practitioner in Oakbrook Terrace, Illinois. His practice concentrates on appeals in state and federal courts. His URL is http://www.illinoislocalcounsel.com.