A deeply divided Illinois Supreme Court upheld an appellate court decision in favor of a convicted felon fighting the state’s use of his criminal history to terminate his parental rights. In a strongly worded dissension, three of the seven justices warned of judicial overreach and the unintended consequences of new precedent.
“The majority tramples on the facts, judicial restraint, party presentation, appellate jurisdiction, proper procedure, precedent, and the role of courts in our adversarial system to achieve its desired result,” Justice Mary Jane Theis wrote for the minority.
Chief Justice Lloyd A. Karmeier authored the majority opinion, in which the court held that a conviction on a statute since found unconstitutional could not be used as evidence the man, referred to in court filings as Floyd F., is an unfit parent. The opinion was backed by justices P. Scott Neville, Thomas L. Kilbride and Anne M. Burke.
Ill Supreme Court Chief Justice Lloyd Karmeier
According to court filings, Floyd F. has been incarcerated since 2011, the year his daughter was born, on a conviction of being an armed habitual criminal. He has previous convictions out of Will County, in 2009 for unlawful use of a weapon by a felon and in 2008 for aggravated unlawful use of a weapon. The child’s mother has been unable to provide a stable home, and she has been raised largely by her grandmothers. Court documents say the child’s mother agreed to terminate her parental rights, paving the way for the girl’s adoption by her grandmother.
In an effort to terminate Floyd F.’s parental rights, the Illinois Department of Child and Family Services cited a statutory provision that states if a person has been convicted of three felonies there is a rebuttable assumption of depravity, making that person an unfit parent. Floyd F. appealed, and the Illinois Third District Appellate Court noted that his 2008 conviction relied on a law that has been determined on its face to violate the Second Amendment of the U.S. Constitution.
“A facially unconstitutional statute and any conviction based on the statute must be treated as if they never existed,” Karmeier wrote. “[Taking the conviction into consideration] would place the courts in the constitutionally untenable position of permanently depriving an individual of his fundamental parental rights based on conduct that the state had no power to punish.”
The appellate court determined the 2008 conviction had no legal force and could not be used in making a fitness determination. It remanded the matter of his parental fitness for further proceedings.
Karmeier noted that Floyd F. has filed a postconviction petition in his 2011 case claiming the 2008 case is null and cannot be used as evidence that he is an armed habitual criminal. He has not, however, filed a postconviction petition on the actual 2008 conviction. DCFS argued to the circuit court that while the conviction “is constitutionally infirm” it had not been vacated and could be used to establish Floyd F. is a three-time felon.
The appellate court then vacated the 2008 conviction, a decision lauded by the majority of the Supreme Court.
“We have an affirmative duty to invalidate Floyd F.’s … conviction and to treat the statute on which it was based as having never existed,” Karmeier wrote.
In special concurrence, Neville placed additional emphasis on the responsibility of the courts “to ensure fair administration of justice for all citizens of Illinois.”
“The burden of correcting an illegal conviction must be borne by all of the participants in the criminal justice system,” he wrote.
The dissenting justices argued that the responsibility of having a conviction overturned and expunged lies with the defendant, who has legal avenues to do so. The minority said future courts presiding over entirely different proceedings in which a party also has a potentially illegal conviction will be compelled to revisit the conviction even when not asked to do so.
Neville replied that any time they receive notice of a void conviction, prosecutors and courts at every level have a moral obligation to vacate and expunge it. He said it is unfair to permit defendants to challenge a void conviction only through standard channels, particularly if that conviction is being used against them.
“To preclude a defendant from challenging a void conviction in a proceeding in which that conviction is being used against him or her is unjust. Indeed, that seems to be the most appropriate time for doing so,” Neville wrote. “All three of Floyd F.’s felony convictions were entered before [the child] was born. The fact that the void conviction … was being used … to terminate his right to parent … is precisely why the termination proceeding was an appropriate proceeding to raise the constitutional challenge.”
Neville’s position was echoed by Kilbride, who, in a separate special concurrence, wrote “recognizing the ability of our courts to vacate void convictions sua sponte is consistent with our duty to ‘correct the wrongs wrought’ by a facially unconstitutional statute.”
Theis wrote the dissenting opinion, backed by justices Robert R. Thomas and Rita B. Garman. The minority wrote that the issue before the court was whether a criminal conviction that had not been collaterally attacked was admissible evidence of depravity, but the majority had strayed into a number of questions not under review.
“The appellate court contorted the issue to decide whether [it] had the authority to vacate the criminal conviction on appeal from the termination of parental rights proceeding,” she wrote. “The majority takes the bait and follows suit.”
Theis said the original record of the 2008 case did not reflect whether Floyd F. was convicted under the specific provision of the statute that was found unconstitutional. The appellate court stated it took it upon itself to seek out supplemental documents from the circuit court, which Theis said was beyond its purview.
“Appellate courts are courts of review, not fact-finding tribunals, and their role is to decide the merits of cases based on the record of proceedings,” she wrote.
She also noted that no supplement was ever made to the record, so the Supreme Court had no evidence before it illustrating the provision under which Floyd F. was convicted. Further, Theis wrote, Floyd F. never sought to have his conviction vacated. Even during the termination of parental rights proceeding, he sought only to rebut the presumption of depravity, but did not attack the conviction.
Theis maintains the appellate court overstepped its authority in using information from outside the record to “not only fill evidentiary gaps in the record” but to vacate the conviction. This sets a dangerous precedent going forward allowing appellate courts to undo final judgments based on information gleaned from entirely different proceedings, she said.
“After today, the appellate court has a … duty to engage in a minitrial on the underlying conviction to determine whether [it] is void and, if so, would have a … duty to vacate that conviction,” Theis wrote. “Using this new ad hoc method to vacate a judgment creates real life problems and consequences.”
The majority acknowledged that Floyd F.’s battle is likely not over. DCFS can come back with a different mechanism under which to terminate his parental rights. Even if it fails, the court wrote, Floyd F., who remains behind bars until 2019, is unlikely to have a “conventional” relationship with his daughter.
“Today, we hold simply that he cannot be found depraved and therefore unfit … based on his legally nonexistent and now-vacated 2008 … conviction,” Karmeier wrote.