People v. Jung

¶1dissenting:

¶2My colleagues have misrepresented the circumstances of this case. The statute invalidated by the trial court is section 11 — 501.4—1 of the Illinois Vehicle Code (625 ILCS 5/11 — 501.4—1 (West 1996)). In its appeal, however, the State directs its arguments to the validity of section 11 — 501.4 of the Illinois Vehicle Code (625 ILCS 5/11— 501.4 (West 1996)). Section 11 — 501.4—1 is not a subsection of section 11 — 501.4. They are separate provisions.

¶3The argument portion of the State’s brief contains no “contentions of the appellant and the reasons therefor, with citation of the authorities,” as they pertain to section 11 — 501.4—1. The State’s analysis does not mention 11 — 501.4—1 at all. All arguments and citations to authority are directed instead to section 11 — 501.4, which has nothing to do with this case. With respect to section 11 — 501.4—1, the statute at issue here, the State’s brief is therefore in violation of Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341 (e)(7)), which is applicable to criminal appeals pursuant to Supreme Court Rule 612(i). 177 Ill. 2d R. 612(i); People v. Thomas, 116 Ill. 2d 290, 303-04 (1987).

¶4The State’s failure to comply with Rule 341(e)(7) should be fatal to its appeal. A reviewing court is entitled to have issues clearly defined with pertinent authority cited and coherent arguments presented. Arguments inadequately presented are waived. See People v. Lantz, 186 Ill. 2d 243, 261-62 (1999); Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 401 (1987); Vernon Hills III Ltd. Partnership v. St. Paul Fire & Marine Insurance Co., 287 Ill. App. 3d 303, 311 (1997); see also Maun v. Department of Professional Regulation, 299 Ill. App. 3d 388, 399 (1998) (arguments that do not satisfy Rule 341(e)(7) do not merit consideration on appeal and may be rejected for that reason alone).

¶5Although the State did eventually address arguments to the correct statutory section in its reply brief, those arguments came too late. Under Supreme Court Rule 341(e)(7), points not argued in the appellant’s brief are waived and cannot be raised for the first time in appellant’s reply brief. 177 Ill. 2d R. 341(e)(7); Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997); Illinois Farmers Insurance Co. v. Cisco, 178 Ill. 2d 386, 395 (1997); People v. Thomas, 116 Ill. 2d at 304.

¶6Because the State’s contentions as to section 11— 501.4 — 1 are not properly before us, analysis of the State’s position would require this court to speculate as to the nature of the arguments that could have been made, but were not. See In re Parentage of Janssen, 292 Ill. App. 3d 219, 228 (1997). A reviewing court will not become an advocate for, as well as the judge of, points the appellant seeks to raise. See Vernon Hills, 287 Ill. App. 3d at 311. The State should therefore be deemed to have forfeited its right to challenge the propriety of the circuit court’s judgment. See Cisco, 178 Ill. 2d at 395; Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 516 (1988); Maun, 299 Ill. App. 3d at 399.

¶7The State’s error was evident to this court when we heard oral argument. Why my colleagues have chosen to ignore it today is something only they can account for. Perhaps they believe some higher purpose will be served. Perhaps they want to spare the Attorney General’s office embarrassment. In either case, I cannot condone their actions.

¶8The power to promulgate rules conferred on this court by the Illinois Constitution does not carry with it any concomitant right to disregard the rules whenever we are unhappy with the effect they will have in a particular case. To the contrary, as author of the rules, our court has a special duty to see that they are honored and obeyed in every case, regardless of the circumstances. We sit above all tribunals, save the United States Supreme Court. If this is to be a government of laws, not men, we, above all others, must set the example.

¶9Our court should not be an adjunct to the prosecution or an apologist for the State. When the Attorney General’s office makes an error as fundamental as the one committed in this case, we do a disservice when we look the other way. Lawyers entrusted with responsibility for defending the laws of Illinois should at least be able to correctly identify what laws they are supposed to be defending. If something so basic is beyond their competence, what will happen when they are called upon to protect the interests of the people in cases where human life or public safety are at stake? The consequences could be disastrous.

¶10The Attorney General’s office has suffered chronic personnel problems. Based upon requests for time extensions in other cases pending before our court, it appears that turnover is high and staffing inadequate. Work is not being completed as it should. In one instance, People v. Barrow, No. 80332, delays were so extreme that this court was forced to hold that the State had forfeited its right to file a brief.

¶11The problem in this case may be symptomatic of these difficulties. When too few people are forced to do too much work, mistakes are inevitable. What can be done about this I do not know. That is a matter for the Attorney General alone. All I know is that if we say nothing and do nothing, the Attorney General will have no incentive to put things in proper order. The problems will continue unchecked. They will come back to confront us again, and the people of Illinois will be the worse for it.

¶12For the foregoing reasons, the judgment of the circuit court of La Salle County should be affirmed. I therefore dissent.

¶13also dissenting:

¶14I cannot join the majority opinion. This court should order the appellant to brief the issue of whether section 11 — 501.4—1 of the Illinois Vehicle Code (625 ILCS 5/11 — 501.4—1 (West 1996)) is unconstitutional. The appellant here addressed its opening brief to the constitutionality of a different statutory section; namely, section 11 — 501.4 of the Illinois Vehicle Code (625 ILCS 5/11— 501.4 (West 1996)). The appellant’s brief block-quotes section 11 — 501.4 and argues that this court should hold that statute constitutional.

¶15The appellee’s brief makes no mention of the error. The appellee’s brief simply argues that section 11— 501.4— 1 is unconstitutional. The appellee may not have noticed the appellant’s error because of the similarity in the numbering of the two separate statutory provisions; however, it is possible that the appellee saw the mistake and chose not to argue waiver.

¶16The failure of both parties to call the appellant’s error to the court’s attention in a timely manner indicates that there may have been a mutual mistake. Instead of issuing an opinion without proper briefing, this court should issue an order directing the parties to rebrief this cause.

¶17also dissenting:

¶18The majority concludes its discussion of the separation of powers issue by stating that this case “has nothing to do with separation of powers.” 192 Ill. 2d at 6. Stated more accurately, this case, as defined and argued by the State, has nothing to do with section 11— 501.4— 1.

¶19According to the majority, the “issue in this case is the constitutionality of section 11 — 501.4—1 of the Illinois Motor Vehicle Code.” 192 Ill. 2d at 2. Curious. Apparently, I have received a different set of briefs than my colleagues. In my copy of the State’s brief, the “Issue Presented for Review” is, “Whether the trial court erred in declaring 625 ILCS 5/11 — 501.4 unconstitutional and in granting Defendant’s motion in limine to exclude Defendant’s blood test results.” (Emphasis added.) The majority is obviously deciding an appeal other than the one that the State has presented to us.

¶20To be sure, the statute that the majority cites is the one that the trial court held unconstitutional. Unfortunately, the State on appeal decided to defend the constitutionality of a different statute. Any notion that the “Issue Presented for Review” section merely contains a typographical error is immediately dispelled when the State quotes section 11 — 501.4 in its entirety and refers to that statute no less than 15 times. The State consistently argues that section 11 — 501.4 is constitutional. The argument that the State should have made is that section 11 — 501.4—1 is constitutional. The State did not make that argument and thus has forfeited its challenge to the trial court’s ruling. See 177 111. 2d R. 341(e)(7) (“points not argued are waived”). Accordingly, the trial court’s judgment should be affirmed.

¶21Admittedly, in its reply brief, the State finally block-quotes section 11 — 501.4—1 and argues that this section is constitutional. The State does so, however, without acknowledging its previous mistake. Indeed, the State acts as if it has been arguing about this statute all along. At this point, the State could no longer preserve its argument. According to Supreme Court Rule 341(e)(7), “Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” (Emphasis added.) At oral argument, the State admitted that it was aware that it had argued the wrong statute in its opening brief. In other words, the State knew that it had argued the wrong statute, but took no corrective action, such as seeking leave to file a corrected brief. Instead, the State left this court with an opening brief that made no sense and then slipped the correct statute into its reply brief without acknowledging the problem.

¶22Apparently, Chief Justice Harrison and I are the only members of this court bothered by the State’s conduct in this case.4 The majority ignores the State’s clear waiver and addresses the constitutionality of Section 11— 501.4 — 1. Not only does the majority fail to criticize the State’s conduct, the majority rewards the State by making the State’s argument for it and then deciding the case in the State’s favor. Justice Freeman asserts in his special concurrence that “[a] majority of this court has seen fit to merely admonish the attorney responsible for the violation.” 192 111. 2d at 14 (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.). Where? I can find no instance in either the majority opinion or in Justice Freeman’s concurrence in which the State is admonished. “Admonish” means “[t]o caution or advise. To counsel against wrong practices, or to warn against danger of an offense.” Black’s Law Dictionary 48 (6th ed. 1990). The majority has nowhere cautioned the State against arguing the wrong statute on appeal. Quite the contrary. The majority instead assures the State that there are no consequences to its actions. According to the majority, when the trial court holds a statute unconstitutional, the State can defend the constitutionality of an entirely different statute on appeal, and this court will simply address the arguments the State should have made instead of the ones the State actually made.

¶23Justice Freeman provides several defenses for the majority’s decision to ignore the fact that the State argued the wrong statute on appeal. First, Justice Freeman scolds the dissenting justices for criticizing the State and argues that this court should have given the State notice of the problems in the brief and allowed it to respond. Justice Freeman cites no authority for the proposition that this court must give the parties notice and an opportunity to respond before finding an issue waived. Indeed, what would be the purpose of the waiver rule if such a requirement existed?

¶24Next, Justice Freeman argues that the State should not have sought leave to file a corrected brief because it acknowledged the briefing problem at oral argument. The State, however, acknowledged the problem only in response to a question from the bench. The time for filing a corrected brief was when the State realized that there was a significant deficiency in the brief. Instead of doing so, the State argued the correct statute in its reply brief without acknowledging the previous mistake. The State apparently hoped that the court would not notice the mistake. I disagree with Justice Freeman’s conviction that this conduct is somehow beyond reproach from this court.

¶25Justice Freeman’s final defense is that the State’s brief contains the proper argument but improper citations. According to Justice Freeman, “clearly the State has supplied this court with an argument such that Rule 341(e)(7) has been substantially complied with.” I must respectfully disagree with Justice Freeman’s assertion that a party substantially complies with Rule 341(e)(7) by devoting its entire brief to arguing about a statute other than the one at issue in the case.

¶26Section 11 — 501.4 addresses the admissibility in evidence of blood tests conducted in the course of providing emergency medical treatment. Section 11 — 501.4—1 addresses when the results of blood tests taken during emergency treatment can be reported to law enforcement officials. The entirety of the State’s brief is addressed to the admissibility of blood test results, not whether those results can be reported to law enforcement officials. For instance, Justice Freeman notes that the State’s brief discusses out-of-state authority. True. The brief discusses out-of-state authority that holds that similar blood test results are admissible. Justice Freeman further assures the reader that the State’s brief addresses a patient’s right to privacy in his or her medical records. Again, Justice Freeman is correct. The State’s argument on this issue is captioned: “Admission of Defendant’s blood test results does not violate Defendant’s fundamental right to privacy as guaranteed by the Due Process Clause of the Fourteenth Amendment.” (Emphasis added.)

¶27The clearest example of the State’s confusion in this case appears in section C of its brief,5 where the State specifically applies its arguments to the terms of the statute. In this section, the State discusses the legislature’s intent in passing section 11 — 501.4, block-quotes that statute, notes that it sets forth specific requirements for the admission into evidence of blood test results, explains why that statute is neither arbitrary nor discriminatory, and argues that the statute meets the rational basis test. Thus, this is not, as Justice Freeman claims, an example of an argument failing to be “perspicuous.” 192 Ill. 2d at 13 (Freeman, J., specially concurring, joined by Miller and McMorrow, JJ.). The State’s argument is entirely clear; it is just the wrong argument. My colleagues in the majority claim that they can discern that an argument about the evidentiary admissibility of blood test results pursuant to section 11 — 501.4 is really an argument about turning over blood test results to law enforcement officials pursuant to section 11 — 501.4—1. I must take them at their word, but when I read the State’s argument about the admissibility of blood tests pursuant to section 11 — 501.4, I discerned that it was precisely that.

¶28In sum, reviewing courts in this state should not become advocates for, as well as judges of, points that an appellant seeks to raise. Vernon Hills III Ltd. Partnership v. St. Paul Fire & Marine Insurance Co., 287 Ill. App. 3d 303, 311 (1997). Here, my colleagues in the majority are apparently content to play the dual roles of both appellate advocates for the State and judges of the appeal. I would prefer that they confine their duties to those of justices of the Illinois Supreme Court.