DCBA - Recent Case Law

Recent Case Law

By Christopher S. Carroll

November 2004

Following are summaries of three Illinois Supreme Court decisions published in the month of September. Two of them involve the Illinois Parentage Act.

GERD DEFENSE TO DUI

People v. Bonutti. 9/23/04

Following his DUI arrest, defendant Petitioned to rescind his statutory summary suspension alleging that he suffered from gastroesophageal reflux disorder (GERD), and that during his twenty minute observation period prior to breath testing, he experienced an episode of reflux. At a hearing on the petition, the evidence consisted of the arresting officer’s testimony that he observed the defendant for a twenty minute period during which time he saw no regurgitation. The defendant testified to his diseases and reflux episode. The petition was denied. Subsequently, defendant filed a motion to exclude the breath test at trial. At the hearing on the motion to suppress, the defendant’s personal physician testified that he treated the defendant for GERD for many years, and that GERD can cause episodes of reflux. The motion to suppress was granted. On appeal, the State argued that that the governing regulation, (1286.310(a)), required only uninterrupted observation by the arresting officer, and that relfux or regurgitation should not render the breath test inadmissible. Justice Thomas rejected the States argument and affirmed the suppression order stating: (1) The clear wording of the regulation requires that the observation period must be started over in the event of regurgitation; and (2) The public policy behind this requirement is to prevent false positive test results to be admissible into evidence.

PATERNITY ACT CONSTITUTIONAL

Izaguirre and Madigan v. Malkowski 9/23/04

Dennis and Maria suffered a stormy marriage into which Javier inserted himself. At the time that Dennis and Maria were married, Baby John was born so that Dennis was the presumptive father under Section 5(a)(1) of the Illinois Parentage Act. This presumption of paternity can be rebutted by paternity testing under Section 7(a) of this Act. Javier filed a Petition to establish his paternity over Baby John. Dennis moved to strike Javier’s petition. At a hearing on the Motion to strike the court held the Parentage Act unconstitutional on its face, and as applied on due process and equal protections grounds. The rationale of the trial court’s decision was that the Statute did not require a "Best Interest Finding". On a motion for rehearing, which was denied, DNA testing was submitted in support of the motion which confirmed Javier’s paternity.

On appeal, the Illinois Supreme Court reversed, citing: (1) An evidentiary hearing is required before a court can find a statute unconstitutional. No such hearing was held by the lower court in this case. (2) To find a statute unconstitutional on its face, the court mujst determine that there are no set of circumstances under which the statute could be valid. The constitutional attack fails here because Dennis did not show why a best interest finding should be required where the biological father and child reside together following the de facto termination of the biological mother’s marriage (3) Dennis’ contention must also fail, because the best interest of the child cannot be invoked to the benefit of someone other than the child (i.e., Dennis). Justice McMorrow concluded that Dennis could not meet his burden of facial invalidity and did not meet his burden of invalidity in application.

COMPLAINT TO DETERMINE NON-PATERNITY UNAVAILABLE TO THOSE WHO VOLUNTARILY ACKNOWLEDGE PATERNITY

People ex rel. DPA v. Smith 9/23/04

Smith voluntarily acknowledged paternity for Kendra. With the passage of time, he noticed dissimilarities in Kendra’s physical appearance to such an extent that he resorted to DNA testing, which ruled out his paternity. He filed an action under 7(b-5) of the Parentage Act to declare the nonexistence of a parent child relationship. The Circuit Court granted the State’s motion to dismiss based on his voluntary acknowledgment of paternity. The Appellate Court held that alleged father was entitled to challenge paternity after his acknowledgment. Justice Thomas’ opinion reviewed conflicting provisions of the Parentage Act. A section 7(b-5a) action may be brought by a man adjudicated to be a father pursuant to Section 5 of the Parentage Act, which sets forth four presumptions of paternity (two from marriage and two from voluntary acknowledgment). Section 6(d) of the same Act provides only remedies to set aside a signed acknowledgment of paternity, as follows: (1) Recision within 60 days; or (2) challenge based on fraud, duress or material mistake of fact. The court reviewed the history of these enactments. The legislative debates accompanying the enactment of 7(b-5) exemplified an express legislative intent to provide relief to an alleged father following dissolution of marriage resulting in an order wrongfully finding him to be responsible for the support of children born during marriage but of which he is not the biological father. Sect. 6(d) was enacted to bring Illinois parentage law into compliance with Federal law, namely, Temporary Assistance for Needy Families (TANF) which replaced the notorious AFDC program. The clear social policy here was to bring some control to social welfare costs by imposing financial responsibility on men who impregnate women that they do not marry. Therefore, from a social policy perspective, the remedies available to an unwed father are more procedurally constrained than those available to a deceived husband. In light of these considerations, the Supreme Court reversed the judgment of the Circuit Court, and remanded the cause for additional proceedings consistent with its opinion.