Supreme Court agrees to hear two Fifth District cases

By Bethany Krajelis | Feb 1, 2013

The Illinois Supreme Court earlier this week agreed to hear arguments in two Fifth District cases.

The cases – People v. David K. Elliott and Rhonda Bartlow, et al., etc. v. Joseph Cositgan, etc. – represent two of 10 petitions for leave to appeal that the justices allowed this week. They denied more than 200.

The criminal case on appeal from the Fifth District presents the court with a question over the meaning of “rescind” when it comes to statutory summary suspension under the state’s Vehicle Code.

The defendant in the criminal case is David Elliott, an attorney at Tomerlin Law Office in East Alton. He is represented by Edward Unsell, also of East Alton.

Between August and October 2009, Elliott, a law student at the time, was the subject of two traffic stops, the first of which left him with a Jackson County notice of statutory summary suspension after he refused to submit to testing for driving under the influence.

The notice stated that his license would be suspended in 46 days. Before that took effect, Elliott’s attorney in September filed a petition for recession of statutory summary suspension.

The state’s Vehicle Code allows drivers to petition the court for a hearing to contest the suspension within 90 days of notice and requires courts to hold a hearing within 30 days of the petition of first appearance date for the DUI citation.

Prosecutors filed a confirmation of the suspension and set it to begin on Oct. 11, 2009. A hearing on the matter was originally scheduled for Sept. 21, but it was twice delayed, first to Oct. 5 and then to Oct. 19.

Elliott’s suspension commenced on Oct. 11 and about a week later, the circuit court heard his petition, granted it and ordered the recession of the suspension. The Secretary of State later that month entered a “Notice/Order of Rescind.”

While Elliott was dealing with court proceedings over his Jackson County traffic stop, he was issued a citation in Perry County for driving on a suspended license.

That stop occurred after the Oct. 11 commencement of the summary suspension, but before the hearing and Oct. 19 order to rescind in Jackson County.

Perry County Circuit Judge James Campanella in November 2010 found Elliott guilty of driving on a suspended license and ordered him to pay a fine and serve 10 days in jail or 30 days of community service.

He appealed to the Fifth District Appellate Court and in November 2012, a panel comprised of Justices Richard Goldenhersh, Thomas Welch and Melissa Chapman reversed the lower court.

The appeals panel focused its analysis on the language of Section 2-118.1 of the Vehicle Code, which states that trial courts hearing petitions to rescind have two possible options: to sustain or rescind the suspension, and the meaning of the term “rescind.”

“The act of rescinding is not simply to terminate,” Goldenhersh wrote for the appeals panel. “Both common usage and the operation of the term in legal proceedings impute an intention to undo an action so that it never existed.”

Reversing Elliott’s Perry County conviction “on the ground that the suspension was rescinded a few days after the citation was issued," the appeals panel explained that “even though the suspension commenced shortly before the citation was issued, … the rescission of the suspension constituted a finding that the suspension was void from its inception.”

In its opinion, the appellate court noted it was aware that its decision appeared to conflict with decisions handed down in People v. Focia (1997) and People v. Ciechanowski (2008).

Those cases, according to the appellate court opinion, indicate “that a conviction for driving with a suspended license may stand even if the suspension is rescinded.” A dissent in Focia, however, offered the same reasoning as the Fifth District in Elliott’s case.

Unsell said he assumes the conflict between appellate districts spurred the state high court to accept the state’s appeal in his client’s case. He expects arguments will revolve around the meaning of “rescind.”

The other Fifth District case the Supreme Court agreed to hear originated in Franklin County.

At issue in that case – Bartlow v. Cositgan -- is the constitutionality of the state’s Employee Classification Act.

This Act, according to the appellate court opinion, “establishes criteria for determining whether an individual performing services for a construction contractor is an employee or an independent contractor.”

The appellate court affirmed the lower court’s judgment that granted summary judgment to the defendant after determining that among other findings, the act is not facially unconstitutional.

The Supreme Court this week also agreed to hear the following Fourth District cases: People ex rel. The Department of Labor v. E.R.H. Enterprises, Inc.; People v. Mitchell A. Tousignant; and Gillespie Community Unit School District No. 7, etc., v. Wight & Co., etc.

In addition, the court accepted petitions for leave to appeal in People v. Keith Pikes and People v. Ronald Patterson; Spanish Court Two Condominium Association v. Lisa Carlson; and Hartney Fuel Oil Co., et al. v. Brian A. Hamer, etc., et al.

The justices have not yet set dates for when they will hear arguments in these cases.

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