*1 (No. 86634. ILLINOIS, Appel THE OF OF STATE
THE PEOPLE JUNG, lant, Appellee. M. v. EDWARD July Opinion filed *2 FREEMAN, J., joined by McMORROW, JJ., MILLER and specially concurring. J., joined by FREEMAN, JJ., MILLER and also McMORROW specially concurring. HARRISON, C.J., RATHJE, JJ., and BILANDIC and dissent- ing. (Joel
James E. Ryan, Attorney General, of Springfield D. Bertocchi, General, Solicitor and William L. Browers and Kendall Mills, R. Assistant Attorneys General, of Chicago, counsel), of for the People.
Thomas L. McClintock and Melinda Sammons, G. of Kaufman, Aplington, McClintock, Steele Ltd., & Barry, Salle, La for appellee.
JUSTICE HEIPLE delivered the opinion the court: At issue this case is the constitutionality section 11 —501.4—1 of the Illinois Motor Code, Vehicle which allows the results of physician-ordered blood or urine tests conducted in the course of emergency treatment injuries resulting from a motor vehicle accident to be directly reported of- or local law enforcement to state 1996). (West The circuit ficials. ILCS 5/11—501.4—1 County a La ruled that the statute violates court of Salle right privacy patient’s medical records under his Constitution, which I, 12, of the Illinois article remedy “[e]very person that, find a certain shall states injuries wrongs which he receives in the laws for all and reputation.” person, privacy,property 111.Const. to his § appealed I, the circuit court’s 1970, art. State Supreme ruling directly pursuant court Court to this 302(a). 302(a). following 2d R. For Rule 134 111. reasons, and we reverse remand. approximately 1997, a.m., the
On March at 3:30 Jung, passenger riding defendant, a in his Edward car were involved a accident. Master one-vehicle Sergeant T.W Dalton of the Illinois State Police arrived investigate Sergeant Dalton the accident scene. While administering first aid he was to defendant noticed strong defendant had odor alcohol on his breath slurring Sergeant speech. was his Defendant told Dalton *3 driving accident, that he was at the and that time of drinking approximately p.m. he had been since evening, consuming a total of or five four beers.
An ambulance and took defendant to the arrived Sergeant hospital emergency for treatment. Dalton ar- hospital shortly Approximately at the rived afterward. Sergeant arrival, a minutes after Dalton’s lab technician copy him a test in ac- offered of defendant’s blood results cordance with Vehicle section 11—501.4—1 Motor provides pertinent part: Code, in which *** “(a) of urine performed [t]he results blood or tests alcohol, of purpose determining for of the content other drugs, both, or in an individual’s blood or urine conducted upon persons receiving hospital in medical treatment a emergency injuries a resulting room for from motor vehicle Department Po- may reported accident to the of State lice or Such urine agencies. local law enforcement blood or
tests are excep- admissible evidence as business record hearsay only any tion to the rule prosecutions for viola- of tion Section 11—501 of [625 501] this Code ILCS 5/11 — provision ordinance, or a similar prosecu- a local inor brought for tions reckless homicide under the Criminal seq.]. [720 Code ILCS et 5/1—1 (b) confidentiality provisions The pertaining of law medical records and medical ap- treatment shall not be plicable regard performed upon to tests an individual’s (a) provisions blood urine under the of subsection of this (West 1996). Section.” 625 ILCS 5/11 —501.4—1 Defendant’s test blood revealed a blood-alcohol legal 0.19, concentration of Sergeant in excess of the limit of 0.08. placed Dalton defendant under arrest driv- ing under the influence of alcohol.
Prior to defendant’s date, first scheduled court filed a records, State motion to turn over medical which granted objection. was over defendant’s also State subpoena requesting tecum, filed a duces that defendant’s medical records be released to the trial court. Defendant subsequently seeking limine, filed a motion in to bar the using ground from State the blood results on test that section 11—501.4—1is unconstitutional. presumed party are
Statutes constitutional. The chal- lenging validity a statute’s constitutional bears the clearly establishing burden that the is uncon- statute law, stitutional. Since our decision is one we review de respect novo circuit court’s decision with to a constitutionality. statute’s conducting initially review, our we note that the mistakenly
State refers “section several 5/11—501.4” opening brief, its than times rather to section 5/11— 1, which the circuit court held unconstitutional. 501.4— reading Nevertheless, whole, the entire brief as a the is sufficiently presented sues are defined and so as to make inappropriate. People dismissal See ex Carter rel. *4 (1955). Touchette, 5 Our Ill. 2d 305 decision ad by supported dress the State’s claims on their merits is 5 sought appellee to have that neither the fact against sought or sanctions brief stricken State’s response State, filed a coherent to the State’s but rather arguments. 16,000 were lost and over
Nationwide, over lives people injured in in alcohol-related crashes million were the total motor vehi- Illinois, alone. over 42% of drivers. Because cle crash fatalities involved drunken public compelling roads, in a driver’s has a interest safe privacy significantly expectations are diminished. of Highway driving privilege right. a and not a Drivers is knowledge driving their must demonstrate of rules and capacities. person license, own When a obtains driver’s by legislature imposed he consents the conditions exchange being privilege, in for that one such condition that found section 11—501.4—1. statute,
Under the the medical information instant may strictly police be disclosed to confined to which physician-ordered the results blood or urine tests. property seriously life, and are threat- Given limb driving given the all common ened drunken and too reality that a involved in a motor vehicle accident driver may privacy intoxicated, of a driver’s interest waiver rea- his blood urine test results this situation is right sonable does not violate his constitutional privacy. additionally argues 11—
Defendant face it also 501.4— is unconstitutional on its because passengers pedestrians, applies to nondriv- who, as subject expectation ers, are same reduced driving privacy. however, Defendant, at the time was standing chal- and, thus, the accident lacks to make this lenge. 11— alternative,
In the claims that section defendant it 501.4— is unconstitutional because violates powers separation provisions Illinois found in the Con- *5 6 1970, II, 1; VI, § §§ 111.
stitution. Const. art. art. Specifically, defendant contends that the statute conflicts with uniquely judicial the function of managing the discovery process. Defendant is incorrect. The statute only states the blood or “may urine test results be reported” to law enforcement officials. 625 ILCS 5/11— (West 1996). 501.4— 1 nothing This has to do separa- powers. tion of the
Accordingly, judgment the circuit court is re- versed and the cause remanded for proceed- further ings.
Reversed and remanded. FREEMAN, JUSTICE specially concurring: I in concur the reached judgment today. the court Nevertheless, I, McMorrow, Justice like the believe opinion to court’s “fails the basis adequately explain for its 192 judgment.” (McMorrow, See Ill. 2d at 17 J., I specially base decision in concurring). my this case on the reasons set in forth Justice special McMorrow’s concurrence, I in fully join. which however,
I write
separately,
provide
more
complete picture of the
briefing
State’s
deficiencies as
identified
and in
opinion
court’s
the dissents.
I
agree with the court that
adequately
brief
allows this
court to decide the
appeal.
substantive merits
See
contrast,
2d at
In
Ill.
4-5.
both Chief Justice Harri
Rathje
son and Justice
believe that
State has violated
341(e)(7) (177
341(e)(7)).
Supreme Court Rule
Ill. 2d R.
both
Indeed,
for,
take the court
task
other
among
(see
for
things, “advocating”
the State
Both Chief Harrison and Justice refer Justice 341(e)(7). of the That provision Court Rule Supreme an brief must contain that an appellant’s rule provides of the contain the contentions “[a]rgument, which shall therefor, with citation reasons appellant on. Evidence and the of the record relied pages authorities be made copied length, be at but reference shall not shall abstract, any, if appeal on pages to the of the record may found. Citation of numerous evidence where point the same is not favored. support authorities argued shall raised are waived and not be Points rehearing.” brief, petition argument, in oral or on reply 341(e)(7). Ill. 2d R. brief According Rathje, opening to Justice State’s result, and, 11— 501.4 as a speaks only *6 11— 501.4—1 challenge has to section State waived its not Har- because are waived. Chief Justice points argued wrong argued, was rison believes because statute 341(e)(7). is in of Rule Both the State’s brief violation justices to take the view that that do appear arguments 341(e)(7) Rule do not merit consideration on satisfy appeal. to
Rule 341 was
to
an
promulgated
require parties
present
to
the court of review with clear and
appeal
Exchange,
& State
Currency
See 47th
orderly arguments.
Inc. v. B. Coleman
(1977),
Ill.
232
Corp.,
App.
56
3d
(1951).
citing Biggs
Spader,
appellate
Ill.
Our
law,
rules of
the force of
and this court
procedure have
order for the
logical
present
has observed
“some
observed,
ment of the issues to be reviewed must be
us,
before
bar,
presumed
or others
are
to
appearing
Biggs,
be
I believe that this court’s decision in Biggs is espe- cially helpful today’s to discussion it provides because insight into the type brief that fails to meet the stan- dard envisioned our by rules.1 The court in Biggs began by noting that the appeal came to the court from several orders entered the trial court in the course of prelimi- nary hearings,
“yet none of such orders complained are inof the errors upon relied for reversal. The assigned, rather, errors range argumentative from charging judges statements of the trial court Appellate and of the Court prejudice libel, extremely vague allegations that certain court rules and provisions of the Civil Practice Act have been violated. A reading of the bring brief fails enlightenment as to whether there appealable was a final and order in this cause, any grounds whether there are give which this court jurisdiction appeal, on direct appellant or whether is seek ing a review previous case], of the issues in [a in which this court previously denied petition his appeal. leave to presented entire brief is in a ambigu manner that is ous and arduous and present does not sought the issues orderly determined required manner expedite and facilitate the justice.” administration of Biggs, 411 Ill. at 43-44.
The court struck the brief and dismissed the appeal, notwithstanding the fact that it had “serious doubts” as to the propriety of the judgment order in the case.
Biggs was decided in time, 1951. Since that courts review have been less detailed in describing the manner in which a brief violates the appellate extent, rules. To an the question subjective is a one. Obviously, whether a brief is of poor quality depends largely upon the percep- tions of the Nevertheless, reader. some deficiencies are Biggs,
1In compliance the court addressed with former Rule 39 predecessor of this court. Rule 39 was the of our current Rule
9 dispute, would judges Few uniformly recognized. argu to address an a court decline may example, without citation conclusory fashion speaks ment that it is because, legal support, without authority to legal v. Immanuel Spinelli than an See opinion. more nothing Inc., 389, Ill. 2d 118 Evangelical Congregation, Lutheran (1987) conclusory (noting support failure 401 in waiver of the is results legal authority statement with sue). difficult, however, when an more is question authority, argu but the by legal is argument supported obtuse, written, badly structured. poorly ment itself is pro a court is faced with a This sometimes occurs when is without but it can also litigant legal training, se who counsel. represented by occur is licensed party when in such situa provides objective guidance Our case law appellate procedure tions. We have held that the rules of and the will not be “arbi jurisdictional appeal are not reading if a trarily noncompliance dismissed for to determine entire makes it for the court possible brief ex People or issues to be raised.” questions sought (1955). 303, Touchette, v. 5 Ill. 2d 305 Courts rel. Carter dismissal, sanctions, when have also used other short 341(e)(7) violations, strik including Rule confronted with argument. the brief or consideration of the ing declining 934, Russell, 253 Ill. 3d See, App. Cottrill v. e.g., (1989). 355, (1993); Trimble, 181 Ill. 3d People App. but responsible party, have admonished the Other courts merits in the interests nevertheless reviewed the WHGK, Inc., 228 Ill. 3d App. Taake v. justice.
(1992). must determine Therefore, the court of review substantially complied its rules have been whether (see 45), question means that the 411 Ill. at which Biggs, reviewing for the becomes one of discretion ultimately Luttrell v. found to exist. See jurisdiction court once (and (1993) cited Panozzo, Ill. 3d 597 cases App. *8 therein). Stat., See also Ill. Ann. 110A, ch. par. (Smith-Hurd 1985) Notes, Historical & Practice at 478 (noting what action a court of review will take when party is in with the noncompliance appellate rules “is a matter in its entirely discretion, a discretion usually exercised by reference to the effect of the case on the public and on the parties”).
In light of the foregoing principles, agree cannot with those in dissent who believe that the State’s brief contains so inadequately an presented argument ávis vis section 11—501.4—1 that consideration of the merits this court is precluded. Justice Rathje grossly misrepre- sents the in State’s brief asserting that the State only referred to the incorrect A statute. careful reading of the State’s brief that, reveals contrary to the expressed views dissents, the State did speak terms 11—501.4—1. For example, argument section of the State’s brief with a begins reads, heading “The trial court erred when it declared 625 ILCS 5/11 —501.4—1 unconstitutional.” This heading corresponds with the first heading of the State’s “Points and Authorities” sec- tion. The first sentence of the argument reads, State’s 29, 1998, “On October the Circuit Court of La Salle County entered a written order declaring ILCS unconstitutional and granting Defen- 5/11 —501.4—1 dant’s motion in limine.” The problem with the State’s (625 brief is that it also speaks section 11—501.4 ILCS (West 1996)).2At certain in the points State’s 5/11 —501.4 argument, State speaks section 11—501.4 when it should be speaking of section 11—501.4—1. The errone- ous reference to section 11—501.4 occurs on 9 of page
2Section admissibility 11 —501.4 deals with the at trial of chemical blood and urine provid tests conducted in the course of ing emergency treatment; permits section 11—501.4—1 disclosure tests, of blood presence or urine used to detect the of alcohol or drugs, to law enforcement officers. argu- elsewhere in the
the State’s brief. It also occurs acknowledge provi- to both ment. I that the references confusing. any However, confusion about which sions are appeal easily particular can statute is at issue by referring order, to the circuit court’s written resolved *9 which can be found in the record and which is contained appendix order, In to the State’s brief. that expressly circuit court ruled that “Section 11 —501.4—1 of the Illinois Motor Vehicle Code is unconstitutional, based on the decision of the Illinois (1997). Taylor Court in Best v. Supreme privacy inter patient est of a as to medical information and records is a right under the Illinois Constitution and can be overcome only by process hearing already waiver or after a due as place in the Motor Vehicle Code.” That the State’s brief could have been better structured (or proofread) question,3 disagree is without but that this court now must consider the issue waived as a result 341(e)(7). of the A violation of Rule waiver occurs when argument conclusory consists of sentences which are supported by any authority. legal Spinelli, not See (stating support conclusory Ill. 2d at 401 that failure to legal authority statement with results in waiver of the is sue). In instances, such the “waiver” results not from (to party’s failure to raise the issue which the doc properly procedural “waiver,” default, trine of or more normally applies), party’s but from the violation certainly guilty shortcomings 3The State in its is several 341(e) requires every appellant’s brief. Rule that brief filed in an court of review certain delineated sections. Illinois must contain The State’s fails to include an accurate “statement of the is brief 341(e)(3). presented sue” for review. See 177 Ill. 2d R. cases validity statute, here, of a as subsection which involve such (e)(5) requires quoted in a section statute be verbatim precede that is to the statement of facts. The State’s brief fails to above, argument include such a section. As noted and, the brief cites to both sections 11—501.4 and 11—501.4—1 as such, confusing. brief, rules. In
appellate opening its the State contends that, contrary conclusion, to the circuit court’s defendant does not have a protected privacy right to medical infor- mation and records under the Illinois Constitution. This contention is supported with citations to both Illinois and United States Court Supreme decisions. The State’s argument concerning also contains a discussion the inap- plicability of our decision in Best to the facts of this case. The State further cites decisions from other jurisdictions as persuasive authority. There is no reason why this court cannot respond definitively to these assertions. Clearly, the State has this court an supplied argument sup- 341(e)(7) ported by authority such Rule has been substantially complied with. To hold otherwise would be to elevate form over substance. from the
Apart
confusing reference to section 11—
501.4, neither Chief Justice Harrison nor Justice Rathje
identifies what
it is about
this brief that causes them to
harshly
react
to it so
if
just
bad,
when briefs that are
as
worse,
accepted
have been
and the
of the ap
merits
*10
e.g., People ex rel. Carter v.
peal
See,
have been reached.
Touchette,
Stork,
People v.
(1955);
I that the four court must also stress members of this today are not the appeal reach the merits of this who As the argument. could discern the State’s only ones who in notes, the this case correctly appellee court’s opinion take action any punitive has never asked this court to The appellee the State’s brief. regard opening with nor has to have the State’s brief stricken sought has not with our rules. noncompliance he sanctions for sought filed a brief that contains Instead, appellee the has the State’s brief. opening reasoned and lucid response notion that This, view, strengthens in further my in is appellant’s argument this is not a case which the Willett, 44 Ill. 3d unintelligible. People App. See v. (1976) court be (noting appellate perfectly would many in brief that contained justified striking appellant’s choosing instead to address unintelligible arguments, but of the appeal). merits dis my I cannot foregoing, agree view as colleagues today advocating, that the court senting the State seeks to raise. adjudicating, points well as noted, can deduced position easily As the State’s To does not reading argument its brief. address Rather, any way. this court to “advocate” require argument, to an responding inartfully presented court is add, has to something, might unfortunately this court As Posner of the Seventh many Judge do cases. Chief “if out, failure to Appeals pointed Circuit Court has were a grounds perspicuous ground make one’s of appeal waiver, few issues to decide.” Ko very we would have (7th 1999) Elmhurst, 894, 905 Cir. 193 F.3d pec City of fact (Posner, C.J., Given the dissenting). here, the court is of a statute is at issue
constitutionality the discretion that we exercising perfectly justified for “the party have in this matter so as not to punish Co., 244 attorney.” sins of Roberts v. Dow Chemical [its] *11 (1993). Stat., ch. 253, Ill. 3d See also Ill. Ann. App. Notes, Practice at 478 110A, Historical & par. (Smith-Hurd 1985) there (stating when is noncom- rules, the court of pliance appellate with review “does *** necessarily have to visit the on the consequences litigant may but vindicate the rule enforcement proceedings against attorney responsible [citation] the matter to the by referring Attorney Registration and Commission”). Disciplinary demonstrates,
As the foregoing authority a court of has review the discretion to enforce the rules of appellate procedure the manner it sees fit with an eye toward the interests of justice parties. concern for the The every cases make clear that not infraction of Rule 341(e)(7) can or be handled in the Away. should same majority merely of this court has seen fit to admonish for the violation and not visit attorney responsible on the consequences litigant People this case the —in of the State of Illinois. This an appropriate exercise our discretion and is one that is more than amply sup- ported by Illinois decisional law.
Had
Chief Justice
and Justice
been
Rathje
content
the four
reproach only
today’s
members
end
majority,
special
would
this
concurrence
here
because we in the
have the
to re
majority
opportunity
however,
to their
spond
charges. Unfortunately,
jus
both
unnecessary
tices have chosen to lace their dissents with
State, which,
aspersions
stage
directed at the
at this
no real
appeal,
opportunity
explain
has
to defend or
its actions. It is for
reason that I
take
strongly
issue
with the tone and tenor
in which
have
my colleagues
voiced their
the office of the
displeasure
Attorney
example,
General. For
Chief Justice Harrison chastises
the office for the
of its
“inadequacy”
staffing
ques
there
competency
attorneys
employed
tions
(see
(Harrison, C.J., dissenting)).
It my hope type incivility of rancor and can be avoided in of a by future cases the use show cause order, which sua by sponte. can be issued the court note this is procedure utilized the Federal Court of See, United States e.g., Circuit. for the Seventh
Appeals
(7th
Ford,
1995);
v.
Sosa,
Cir.
United States
JUSTICES *13 concurrence. special concurring: specially also
JUSTICE McMORROW the by entered from an order appeal This is a direct 11— holding section County circuit court of La Salle (625 Code ILCS 1 of the Illinois Vehicle 501.4— 5/11— (West 1996)) 11— Section 1 unconstitutional. 501.4— or urine tests 1 that results of blood 501.4— states the level of determining purpose for the performed the while in a bloodstream drugs person’s alcohol or treat receiving room emergency in a hospital person may accident from a car injuries resulting ment for 625 ILCS agencies. enforcement to law reported 5/11— 1996). (West also states 11—501.4—1 1 Section 501.4— medi pertaining of law “confidentiality provisions the apply treatment” will records and medical cal 625 in these circumstances. performed results of tests (West 1996). ruled The circuit court ILCS 5/11 —501.4—1 right privacy 11—501.4—1 violates that section Constitution, the Illinois guaranteed by records medical Works, Ill. 2d 367 179 Machine citing Taylor Best v. (1997). and finds sec- circuit court reverses the majority
The I While concur constitutional. tion 11—501.4—1 majority opinion result, believe fails to adequately explain judgment. legal for basis its community legislature rely opinions and the on our map evolving separately, course of the law. I write provide analysis therefore, to which forms the basis my for decision in this case. majority matter,
As an initial concludes that sec- impermissible tion 11—501.4—1 does not constitute an infringement privacy major- on a driver’s interests. The ity ground ruling privacy seems to its on the reduced expectation that drivers are deemed to have virtue of operation their automobile, an as well as the State’s compelling discouraging driving interest in while intoxi- agree. cated. I
Although
recognized constitutionally
this court has
privacy
based
interest
“confidential medical informa
(Best Taylor
tion”
v.
Works,
Machine
367,
Ill. 2d
(1997)), the court has also noted that an individual’s
expectations
privacy
operating
are reduced when
an
(Fink
(1996)).
Ryan,
automobile
174 Ill. 2d
subjects
driving
This is because the state
automobile
regulation.
intensive
Fink,
Additionally, held that the the Fink court testing “special State, be a need” served blood chemically impaired keep yond enforcement, to mere law 308-, Fink, 2d at 174 Ill. off of Illinois roads. drivers presence appears of a hold that the Thus, Fink upon permits specialized a to intrude need the state compelling privacy a citizen submit as interest such concurrently long can show test, as the state a blood as privacy. expectation Fink, of of a reduced the existence 309, 312. 174 Ill. 2d at keep “special Illinois in Fink to described
The
need”
present
at
in the case
drivers is
free of intoxicated
roads
Additionally,
urine is col-
blood or
the driver whose
bar.
in
described
circumstances
11—
lected under
concerning
privacy
expectation of
has a reduced
501.4—1
operating
mere
person
an automobile.
while
his
activity.
heavily regulated
operation
automobile is
of an
permits
the blood
at 310. The statute
Fink, 174 111.2d
very
only
narrow circumstances:
be drawn under
urine to
(2)
(1)
emergency
hospital
the driver is
room, where
in a
injuries
brought
ac-
an auto
sustained
for treatment
(3)
determining
solely
purposes
cident, system.
presence
625 ILCS
driver’s
intoxicants
(West 1996).
as
such
circumstances
5/11—501.4—1
expectation
only
reduced
have a
these,
would not
drivers
concerning
physical
privacy
condi-
information
their
expect
they might
information
that such
even
tion, but
necessarily
medical
to render
in order
be obtained
would
by the
reached
Thus, the conclusion
to them.
treatment
is
majority
constitutional
11—501.4—1
that section
legal authorities.
Illinois
consistent
*15
Defendant
also
11—501.4—1
argues
section
(111.
violates the
of
doctrine
Const.
separation
powers
16)
1;
VI, §§
II,
1,
§
art.
art.
because it infringes
upon
authority
this court’s
to
the court
regulate
system,
it
with
court
supreme
because
conflicts
rules
concerning discovery. Defendant relies
on Best
principally
Walton,
and Kunkel
(1997),
The Best court held section
unconstitu
2—
tional because the statute conflicted with
court
supreme
rules concerning discovery. Best, 179
at
Ill. 2d
1003(a)
particular, section
undercut
those rules that
2—
a
allow court to tailor
discovery
severity
sanctions to
of the recalcitrance
by
litigant. Best,
exhibited
a
Ill.
1003(a)
2d at 449. Section
also conflicted with rules
2—
a
permit
discovery
court to limit
to materials that
are relevant
to the
claims
defenses raised
the par
ties, and to
of protection
enter orders
to shield particu
larly sensitive materials
from unnecessary disclosure.
Best, 179
at
addition,
Ill. 2d
445. In
this court found that
1003(a)
unduly
infringed upon
court’s
2—
authority by
the court
a
requiring
plaintiffs
to dismiss
lawsuit,
prejudice,
if the plaintiff failed to follow the
statutory
Best,
disclosure
Ill. 2d at
requirements.
441-42; see
Kunkel,
also
does doctrine. separation powers not violate 11— 501.4—1 at issue pertinent provision of section worker to show the results permits hospital case circumstances, test, limited a blood conducted under *16 The is un- personnel. subject provision law enforcement any that control the course of discovery related to rules Therefore, subsequent prosecution against patient. the rules of discovery in this is adverse to nothing provision this Nor are the terms of section by court. promulgated authority at with a court’s to control 11—501.4—1 odds litigation. the course of by I Free- share the concerns voiced Justice
Finally, and in his concurring join man in specially opinion, his Free- believe that Justice concurring opinion. specially the man is observation remarks correct his Rathje and Justice which are crit- Chief Justice Harrison office are Attorney ical the State and the General’s Attorney unfair, because State untimely re- opportunity denied an to General’s office have been states, had As Justice Freeman spond to those criticisms. incompre- brief majority a of the court found State’s or- hensible, the court have issued show cause should (155 Bilan- 375), or, by 111.2d R. as advocated Justice der further dic, parties to brief issue. directed in this join MILLER and FREEMAN JUSTICES concurrence. special HARRISON, dissenting:
CHIEF JUSTICE My misrepresented circumstances colleagues have is the trial court of this The statute invalidated case. (625 the Illinois Vehicle Code section 11— 501.4—1 of (West 1996)). however, In its appeal, ILCS 5/11 —501.4—1 validity of section its to the arguments the State directs (625 ILCS of the Illinois Vehicle Code 11— 501.4 5/11— (West 1996)). 501.4 Section 11—501.4—1 is not a subsec- They separate provisions. tion section 11—501.4. are
The of the State’s contains no argument portion brief therefor, “contentions of the appellant and reasons authorities,” pertain with citation of the as they sec tion analysis 11—501.4—1. State’s does not mention arguments 11—501.4—1 at all. All and citations authority 501.4, are directed instead to section which 11— has nothing do with case. With respect to section 501.4—1, here, the statute at issue the State’s brief 11— 341(e)(7) is therefore violation of Rule Supreme Court (177 Ill. R. 341 (e)(7)), 2d which applicable to criminal 612(i). appeals pursuant to Supreme Court Rule 177 Ill. 612(i); 2d R. People Thomas, v. 2d 290, Ill. 303-04 (1987). 341(e)(7)
The State’s failure to
with Rule
comply
should be fatal to its
A
appeal.
reviewing court is entitled
clearly
have issues
pertinent
defined with
authority
cited and coherent arguments presented. Arguments
inadequately presented are
People Lantz,
waived. See
*17
243,
186 Ill.
(1999);
2d
261-62
Spinelli v. Immanuel Lu
theran Evangelical
Inc.,
Congregation,
389,
118 Ill. 2d
401 (1987); Vernon
III
Partnership
Hills
Ltd.
v.
Paul
St.
Fire &
Co.,
303,
Marine Insurance
Ill.
3d
311
App.
287
(1997); see also Maun v. Department
Regu
of Professional
(1998)
lation,
388,
299 Ill.
3d
399
App.
(arguments that
341(e)(7)
satisfy
do not
Rule
do not merit consideration
alone).
on
be
appeal
may
for that
rejected
reason
the
Although
eventually
State did
address arguments
brief,
to the
statutory
correct
section in its reply
those
came
arguments
too late. Under Supreme Court Rule
341(e)(7),
points
argued
not
are
appellant’s brief
waived and cannot be raised for the first time in appel
341(e)(7);
lant’s
2d
reply brief. 177 Ill.
R.
Sylvester
District,
Chicago
500,
(1997);
Park
179 Ill. 2d
Il
507
Cisco,
linois Farmers
386,
Insurance Co. v.
178 Ill. 2d
Thomas,
395 (1997); People v.
22 to 11— contentions as
Because State’s us, not of the properly analysis 501.4 — 1 are before court as position speculate would this to require State’s arguments of could have been to the nature Janssen, 292 In re Parentage made, but were not. See (1997). A will not 219, reviewing Ill. court App. 3d of, for, points the judge become an advocate as well as Hills, 287 Ill. seeks to raise. See Vernon appellant to therefore be deemed 3d at 311. The State should App. challenge its to right propriety have forfeited Cisco, 395; 2d at judgment. circuit court’s See Ill. Housing Development Authority, v. Illinois 122 Ill. Greer Maun, (1988); Ill. 3d at 399. App. 2d this court when we The State’s error was evident to Why colleagues oral have chosen argument. my heard can account for. today something only they it ignore some will be served. Perhaps they higher purpose believe Attorney General’s office Perhaps they spare want to case, I In either cannot condone their embarrassment. actions. on this power rules conferred promulgate not with it carry the Illinois Constitution does
court disregard the rules whenever any right concomitant partic- the effect will have in a unhappy they are we rules, our To the as author contrary, ular case. they has are honored and special duty court a see We case, regardless the circumstances. obeyed every tribunals, Supreme the United States sit above all save we, laws, men, government If is to Court. others, all must set the example. above prosecu- to the adjunct Our should not be an court Attorney for the State. When the tion or an apologist fundamental as the makes an error as General’s office we *18 case, in do a disservice when committed this we one responsibil- Lawyers entrusted way. look other at be of Illinois should least defending for the laws ity to laws are to correctly identify they supposed able what their If so basic is com- defending. something beyond be happen they upon what will when are called petence, the interests cases human protect people where life public safety are at stake? The could consequences be disastrous. Attorney
The General’s office has suffered chronic time personnel problems. requests Based exten- upon court, sions other cases our it pending appears before high turnover Work is staffing inadequate. instance, not being completed as it should. one People Barrow, No. were so delays extreme this court was forced to hold that the State forfeited had its right to file a brief. problem may symptomatic case these
difficulties. When too are people few forced do too work, much mistakes are inevitable. What can be done about this I do know. That is a matter for the At- torney All General alone. I know is that if saywe noth- ing and do nothing, Attorney General will have no incentive to put things in order. The proper problems will continue unchecked. will come They back confront again, us people of Illinois will be the worse for it.
For the foregoing reasons, the judgment of circuit court La Salle County should be affirmed. therefore dissent. BILANDIC,
JUSTICE dissenting: also I cannot join majority opinion. This court should order the appellant brief the issue of whether section (625 11—501.4—1 of the Illinois Vehicle Code ILCS (West 1996)) The ap- is unconstitutional. 5/11 —501.4—1 pellant here addressed its brief to the constitu- opening tionality statutory section; a different namely, section (625 11—501.4 of the Illinois Code Vehicle ILCS 5/11— (West 1996)). 501.4 The appellant’s block-quotes brief *19 argues 11—501.4 and that this court should hold section that statute constitutional.
The brief no mention the error. makes of appellee’s that 11— appellee’s argues The brief section simply have appellee may 501.4— is unconstitutional. The similarity noticed the error because of the appellant’s two numbering statutory provisions; the separate however, appellee it is that the saw the mistake possible argue and chose not to waiver.
The call the er- parties appellant’s failure of both timely ror to the attention in a manner indicates court’s that there have been a mutual mistake. Instead of may court issuing an without this opinion proper briefing, should issue an order to rebrief this directing parties cause. RATHJE, dissenting:
JUSTICE also majority separa concludes its discussion of this noth powers by tion of issue that case “has stating 6. to do 192 Ill. 2d at ing separation powers.” case, accurately, argued Stated as defined and more 11— State, has to do with nothing section 501.4— is to the the “issue in this case
According majority, Il 11—501.4—1 of the constitutionality section Code.” Ill. 2d at Ap linois Motor Vehicle 2. Curious. my a than received different set briefs parently, have brief, of the State’s the “Issue colleagues. my copy is, erred the trial court Presented for Review” “Whether ILCS unconstitutional declaring 625 5/11 —501.4 exclude Defendant’s motion in limine to granting added.) The (Emphasis test Defendant’s blood results.” than the obviously deciding appeal an other majority presented has to us. one the State cites is sure, majority To be the statute that Unfortu- one that the trial court held unconstitutional. to defend the consti- nately, appeal the State on decided tutionality different statute. notion that Any “Issue Presented for merely Review” section contains a typographical error is immediately dispelled when the State quotes 11—501.4 in its and refers entirety to that statute no less than 15 times. The State consis- tently argues that section 11—501.4 is constitutional. The argument the State should have made is that section 11—501.4—1 is constitutional. The State did not argument make that and thus has forfeited its challenge 341(e)(7) to the trial court’s ruling. See 177 111.2d R. waived”). (“points not are argued the trial Accordingly, judgment court’s should be affirmed.
Admittedly, brief, its reply the State finally block- quotes section 11—501.4—1 argues that this section is so, constitutional. The State however, does without its acknowledging previous Indeed, mistake. the State acts as if it has been arguing about this statute all along. At this the point, State could no longer preserve argu- its ment. According Supreme 341(e)(7), Court Rule “Points not argued are waived and shall not be raised in the reply brief, oral argument, or on for petition rehear- added.) ing.” (Emphasis At oral argument, the State admitted that it was aware that it had the argued wrong statute in its opening words, brief. In other the State knew that it had argued statute, the wrong but took no action, corrective such as leave to seeking file a corrected Instead, brief. 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.
Apparently, Chief Justice Harrison and I are the only members of this court bothered the by State’s conduct in this case.4 The majority ignores the State’s clear waiver and addresses the constitutionality 11— Section argues
4Justice separate Bilandic in a dissent that this court appellant should order the to brief the issue of whether section fail to criticize the majority does the only 501.4 —1. Not mak- conduct, rewards the State majority State’s the deciding and then the argument the State’s for it ing Freeman asserts his in the State’s favor. Justice case has of this court majority “[a] concurrence that special for attorney responsible admonish the merely seen fit to J., (Freeman, specially 192 111.2d at the violation.” JJ.). McMorrow, Miller and Where? concurring, joined by inor majority opinion find no in either can instance in which the State Justice Freeman’s concurrence or advise. “Admonish” means caution “[t]o admonished. against or to warn against wrong To counsel practices, (6th ed. Dictionary an offense.” Black’s Law danger of 1990). cautioned the State majority The has nowhere Quite on wrong appeal. statute against arguing the State that instead assures contrary. majority to the there are no According to its actions. consequences unconstitu- the trial court holds a statute majority, when an constitutionality tional, the State can defend and this court will appeal, different statute on entirely have the State should arguments address simply the State made. actually made instead of the ones for the several defenses provides Justice Freeman the fact the State ignore decision majority’s First, Free- on Justice wrong appeal. statute argued criticizing the State dissenting justices man scolds the State given court should have argues *21 it re- in and allowed to the brief problems notice of authority propo- for the Freeman cites no Justice spond. and an notice give parties this court must sition that an issue waived. finding before respond to opportunity rule if of the waiver Indeed, purpose be the what would a existed? requirement such already done so. has This court 11—501.4—1 is unconstitutional. April on brief in this case ordered to file its
The State was Next, Justice Freeman the State should argues not have leave file a it sought to corrected brief because briefing at oral acknowledged problem argument. State, however, The acknowledged problem only a fil- response question from the bench. time for a corrected brief realized that ing was when State there in the significant deficiency was brief. Instead of so, the State the correct statute in its doing argued reply brief without acknowledging previous mistake. The State the court apparently hoped would not notice I disagree mistake. with Justice Freeman’s convic- tion that beyond this conduct is somehow reproach from this court.
Justice Freeman’s final is that defense the State’s brief contains the proper argument but cita- improper According Freeman, tions. to Justice “clearly the State has supplied this court an argument such that Rule 341(e)(7) has been substantially complied with.” must respectfully disagree with Justice Freeman’s assertion 341(e)(7) that a party substantially with Rule complies by devoting its entire brief to arguing about a statute other than the one at issue the case.
Section 11—501.4 addresses the in evi- admissibility dence of blood tests conducted in the course of providing medical emergency treatment. Section 11—501.4—1 ad- dresses when the results of blood tests taken during emergency treatment can reported law enforce- ment officials. The entirety of the State’s brief is ad- results, dressed to the admissibility of blood test whether those results can be reported law enforce- instance, ment officials. For Justice Freeman notes that the State’s brief discusses out-of-state True. authority. The brief authority discusses out-of-state that holds that similar blood test results are admissible. Justice Free- man further assures the reader that the ad- State’s brief dresses a patient’s his or her medical right privacy
28 Again, records. Justice Freeman is correct. The State’s on argument captioned: this issue is “Admission Defendant’s blood test results does not violate Defen- dant’s fundamental to as right privacy guaranteed by Due Process Clause of the Fourteenth Amendment.” added.) (Emphasis
The clearest of the State’s confusion in example this brief,5 case in section C of appears its where State its specifically applies arguments to terms of the stat section, ute. In this the State discusses the legislature’s 501.4, intent in passing block-quotes section 11— statute, notes that it sets forth specific requirements results, the admission into evidence of blood test explains why that statute is neither nor arbitrary discriminatory, and that the statute argues meets the rational basis test. Thus, not, claims, is as Justice an example Freeman of an argument failing “perspicuous.” 192 Ill. 2d at J., (Freeman, specially concurring, joined by Miller JJ.). McMorrow, The State’s argument entirely clear; just wrong My it is in the argument. colleagues majority claim that can that an they argument discern admissibility about the of blood test results evidentiary pursuant really argument to section 11—501.4 is an turning about over blood test results to law enforcement I pursuant officials to section 11—501.4—1. must take word, I argu them at their but when read the State’s admissibility pursuant ment about the of blood tests 501.4, I that it that. precisely discerned was 11— sum, reviewing courts this state should for, of, become advocates as well as that an judges points Hills III Ltd. Partner appellant seeks raise. Vernon Co., v. St. Paul Fire & Marine Insurance 287 Ill. ship (1997). Here, 3d in the ma App. my colleagues the dual roles of jority apparently play are content referring in the State’s brief. I am 5There are two section Cs appears pages through to the one that on judges advocates for the State appellate both confine their duties to appeal. prefer they would Court. justices Supreme those of Illinois
(No. 86888. ILLINOIS, THE OF THE OF PEOPLE STATE Appel lant, HAGBERG, v. PATRICK Appellee.
Opinion July filed