By Steven R. Merican

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

Feltmeier v. Feltmeier, 2003 Ill. Lexis 1421, Docket No. 95019 (9/18/03). (1) A former spouse may sue her former husband for intentional infliction of emotional distress for actions he took during the time they were married. (2) Intentional infliction of emotional distress is a "continuing tort," so the statute of limitations begins to run on the date of the last alleged tortious act.

The Feltmeiers were married for 11 years, and then divorced in December 1997. In August 1999, Lynn sued Robert for intentional infliction of emotional distress. She alleged that Robert engaged in a pattern of physical and mental abuse that began soon after they were married and continued after their divorce. Robert’s motions to dismiss were denied, and the trial court certified questions for interlocutory appeal. The first question was whether Lynn’s complaint stated a cause of action. The second question was whether emotional distress based on actions alleged against Robert that preceded the complaint by more than two years were barred by the statute of limitations.

Robert argued that actions by one spouse toward the other during marriage could not be the bases for a claim of infliction of emotional distress. He cited to the law of South Dakota, New Mexico, and Texas, which arguably prohibit that cause of action on public policy grounds. However, the Illinois Supreme Court sided with jurisdictions that do permit a former spouse to sue for intentional infliction of emotional distress. The court adopted thinking from the Supreme Judicial Court of Maine: "Behavior that is ‘utterly intolerable in a civilized society’ and is intended to cause severe emotional distress is not behavior that should be protected in order to promote marital harmony and peace."

The court rejected the argument that "the events leading to most divorces involve some level of emotional distress," so allowing a former spouse to sue for infliction of emotional distress invited "excessive and frivolous litigation." The court stated that the threshold to prove an action for intentional infliction of emotional distress "provides a built-in safeguard against excessive and frivolous litigation."

In this case, Lynn’s complaint alleged "more than a decade of verbal insults and humiliations with episodes where freedom of movement was deprived and where physical injury was often inflicted." The court concluded that the complaint stated a cause of action because "a reasonable trier of fact could easily conclude that Robert’s conduct was so outrageous as to be regarded as intolerable in a civilized community,"

Robert also argued that the all of the acts alleged against him that occurred more than two years before Lynn filed the lawsuit could not serve as bases for the suit because they were barred by the two-year statute of limitations. The court agreed that the two-year limitation for personal injury claims applied to actions for intentional infliction of emotional distress. However, the court stated that intentional infliction of emotional distress was a "continuing tort" – i.e., it involved continuing unlawful acts and conduct. Thus, the statute of limitations was held in abeyance until the date of the last injury suffered or when the tortious acts cease.

Lynn’s complaint included allegations of tortious behavior by Robert occurring as late as August 1999. "Applying the continuing tort rule to the instant case, Lynn’s complaint, filed August 25, 1999, was clearly timely and her claims based on conduct prior to August 25, 1997, are not barred by the applicable statute of limitations."

People v. Lampitok, 2003 Ill. Lexis 1422, Docket No. 93699 (9/18/03). Probation officers could search probationer’s motel room to see if she changed her residence, but they did not have reasonable suspicion to search for drugs or weapons. Kitty Bircher was on probation. She lived and represented that her residence was at her cousin’s apartment. She had to leave the apartment, and spent some time with Defendant Lampitok at a nearby motel. She did not inform her probation officer that she had changed her residence address.

Kitty was obliged to inform her probation officer if she changed her residence. Kitty’s probation officer made a routine home visit, and learned from Kitty’s relatives that she was staying with defendant at the motel. Three officers went to the motel to verify Kitty’s residence. Kitty was not there, but defendant was. Defendant told the officers that Kitty had been staying there, but he refused to give permission for the officers to search the room. They did anyway, and found drugs and weapons. Defendant Lampitok was arrested and charged with unlawful possession of a weapon, a firearm, and a controlled substance.

Defendant moved to suppress the evidence of the weapons and the drugs. He claimed that the search was unconstitutional because it was warrantless, nonconsensual, and without suspicion. The supreme court agreed that the evidence should have been suppressed.

The court ruled that the search of the motel room to determine whether Kitty changed her residence was constitutional. "We conclude that the officers reasonably decided to investigate further whether Bircher had in fact changed her residence because the statement that she had moved came from Bircher’s relatives present at the Charleston [first] apartment."

But the court reached the opposite conclusion regarding the search of the room for drugs and weapons. The court stated that a guest in a motel room has the same fourth amendment protection against an unreasonable search as "residents in their private homes." The outcome in this case turned on whether Kitty’s cohabitation with defendant, a suspected drug user, provided reasonable suspicion that Kitty violated her probation, thus permitting the search. Even given a probationer’s reduced expectation of privacy, the court concluded Kitty’s relationship to defendant did not provide reasonable suspicion for the officers to conduct the search. "Individualized suspicion must be based at least in part on facts indicating possible present criminal activity."

The court ruled that the search was not reasonably related in scope to the circumstances that justified search in the first place. "The record, however, discloses that none of the evidence used to charge defendant was found in plain view … Thus, we find that the circuit court properly suppressed all the evidence found in room 14 because it was discovered beyond the constitutionally reasonable scope of the probation search."