In re N.G.

2018 IL 121939IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 121939, 121961, cons.)
In re N.G., a Minor (The People of the State of Illinois et al.,
Appellants, v. Floyd F., Appellee).
Opinion filed August 9, 2018.—Rehearing denied December 17, 2018.
CHIEF JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Justice Burke concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Neville specially concurred, with opinion.
Justice Theis dissented, with opinion, joined by Justices Thomas and Garman,
and dissented upon denial of rehearing, with opinion, joined by Justices Thomas
and Garman.
OPINION
¶1 At issue in this appeal is whether the circuit court of Will County erred when it
terminated Floyd F.’s parental rights to his minor child, N.G., on the grounds that
he was an unfit person within the meaning of section 1(D) of the Adoption Act (750
ILCS 50/1(D) (West 2010)) because, prior to N.G.’s birth, he had been convicted of
at least three felonies under the laws of this state and was therefore “depraved” (id.
§ 1(D)(i)).
¶2 The appellate court held that because one of the three felonies on which the
circuit court had relied in making its finding of depravity—a 2008 conviction for
aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1),
(a)(3)(A), (d) (West 2008))—was based on the same statute we found to be facially
unconstitutional under the second amendment to the United States Constitution
(U.S. Const., amend. II) in People v. Aguilar, 2013 IL 112116, the conviction had
no legal force or effect and therefore should not have been considered by the circuit
court in making its fitness determination. Consistent with that holding, the
appellate court vacated Floyd F.’s AUUW conviction and reversed the trial court’s
finding that he was an unfit parent. Without such a finding, there was no basis for
holding that termination of Floyd F.’s parental rights was in N.G.’s best interests.
The appellate court therefore reversed the trial court’s best interest determination as
well and remanded for further proceedings. 2017 IL App (3d) 160277.
¶3 One member of the appellate court dissented in part. She agreed that the
judgment terminating Floyd F.’s parental rights should be set aside and the cause
remanded for further proceedings. Unlike the other members of the panel, however,
she would have refrained from vacating the 2008 AUUW conviction, leaving that
instead to the circuit court. She would also have ordered that further consideration
of the petition to terminate be postponed until after the circuit court had addressed
the viability of Floyd F.’s 2008 AUUW conviction. 2017 IL App (3d) 160277, ¶ 37
(Wright, J., concurring in part and dissenting in part).
¶4 The Department of Children and Family Services (DCFS) and the minor,
through her guardian ad litem, separately petitioned this court for leave to appeal.
Ill. S. Ct. R. 315(a) (eff. Nov. 1, 2017). We allowed both petitions and consolidated
them for argument and disposition. For the reasons that follow, we affirm the
-2-
judgment of the appellate court.
¶5 BACKGROUND
¶6 Floyd F. is the natural father of N.G., who was born on July 27, 2011. On
December 19, 2011, while Floyd F. was incarcerated in the Department of
Corrections and N.G. was living with her mother, DCFS petitioned the circuit court
of Will County to adjudicate N.G. a ward of the court on the grounds that she was
neglected within the meaning of section 2-3(1)(b) of the Juvenile Court Act of 1987
(705 ILCS 405/2-3(1)(b) (West 2010)) because her environment was injurious to
her welfare. A guardian ad litem was appointed to represent N.G.’s best interests,
and a temporary custody hearing was held the same day (see id. § 2-10). At the
conclusion of the hearing, the trial court found probable cause to believe that N.G.
was neglected, determined that no efforts could reasonably be made to prevent or
eliminate her removal from the home, and held that it was in her best interest to be
placed in shelter care.
¶7 During the ensuing months, Floyd F.’s mother was given care of N.G., but N.G.
was subsequently placed with her maternal grandmother so that she could be
together with a half-sibling. The record shows that N.G.’s mother took N.G. to visit
Floyd F. in the Department of Corrections. Floyd F.’s grandmother (N.G.’s
paternal great-grandmother) also took her, at least monthly, to visit Floyd F. where
he was incarcerated. During those visits, Floyd F. and N.G. practiced counting
numbers, reciting the ABCs, and writing N.G.’s name.
¶8 While N.G. was briefly returned to her mother’s custody, her mother proved
unable to properly care for her or to remedy the problems that had led to filing of
the initial petition for adjudication of wardship. N.G. was once again placed with
her maternal grandmother. Eventually, N.G.’s mother admitted the allegations of
the petition, and the minor was adjudicated neglected on September 19, 2012. After
a dispositional hearing, the trial court made N.G. a ward of the court, granted
guardianship to DCFS with the right to place, and found Floyd F. to be an unfit
parent.
¶9 Originally, the goal of DCFS was to keep N.G. safe while it provided services
to her mother so that N.G. could be returned to her. However, 2½ years later, N.G.’s
-3-
mother was still unable to maintain a safe and stable environment, and it was not
foreseeable that she would be able to do so in the near future. Accordingly, DCFS
sought termination of both parents’ rights so that N.G. could be adopted by her
maternal grandmother.
¶ 10 In August 2014, DCFS filed a motion pursuant to section 2-29(2) of the
Juvenile Court Act (id. § 2-29(2)) to terminate the mother’s and Floyd F.’s parental
rights and to appoint a guardian for N.G. with the authority to consent to her
adoption. DCFS sought termination on the grounds that the parents were “unfit
person[s]” within the meaning of section 1(D) of the Adoption Act because they
had failed “to maintain a reasonable degree of interest, concern or responsibility as
to the [minor’s] welfare” (750 ILCS 50/1(D)(b) (West 2010)), failed “to make
reasonable efforts to correct the conditions that were the basis for the removal of
the [minor]” from them (id. § 1(D)(m)(i)), and failed “to make reasonable progress
toward the return of the [minor]” to them during any nine-month period after the
end of the initial nine months following the adjudication of neglect (id.
§ 1(D)(m)(ii)). DCFS asked the court to give its guardian administrator
guardianship of N.G. with the power to consent to her adoption.
¶ 11 The trial court continued the hearing on this motion twice: initially so Floyd F.
could take a paternity test in order to confirm that he was N.G.’s biological father,
as indicated on her unsigned birth certificate, and again because the court was
concerned that Floyd F. might not have received either proper notice that his
parental rights were at risk or a sufficient opportunity to participate in DCFS’s
services. In September 2015, the court found N.G.’s mother unfit but ruled that
DCFS had failed to prove its case against Floyd F. The trial court was unwilling to
find Floyd F. unfit until he had the opportunity to engage in services for at least
another nine months.
¶ 12 In February 2016, DCFS filed a second motion to terminate Floyd F.’s parental
rights. This time, however, it relied on an entirely new theory. Instead of citing
Floyd F.’s actions or failure to act with respect to N.G.’s welfare, the conditions
that were the basis for DCFS’s original motion, the new motion charged unfitness
based on totally different circumstances, all of which occurred before N.G. was
born. Specifically, it asserted that Floyd F. had been criminally convicted of at least
three felonies under the laws of this state and at least one of those convictions had
-4-
taken place within five years of the filing of its motion. The three convictions on
which DCFS relied were a 2008 AUUW conviction, a Class 4 felony; a 2009
conviction for unlawful use of a weapon by a felon, a Class 2 felony; and a 2011
conviction for being an armed habitual criminal, a Class X felony arising from an
arrest months before N.G.’s birth. DCFS’s new theory was that because of these
three prior felony convictions, Floyd F. was “depraved” or presumptively
“depraved,” within the meaning of section 1(D)(i) of the Adoption Act (id.
§ 1(D)(i)), and therefore unfit to retain his parental rights with respect to N.G., who
appears to be his only child.
¶ 13 DCFS’s decision to proceed under section 1(D)(i) and abandon its claims of
unfitness under the provisions of the Adoption Act asserted in its original
termination motion was timely. We note, however, that DCFS made no mention of
section 1(D)(i) until the five-year time limit set forth in that provision was nearing
its end. Floyd F.’s most recent conviction was entered August 22, 2011. DCFS’s
motion seeking termination under section 1(D)(i) was not filed until February 11,
2016, more than 4½ years later, and the order terminating Floyd F.’s parental rights
was entered May 12, 2016. The record offers no explanation for DCFS’s decision
to wait so long to invoke the provision. Under the circumstances, however, it seems
likely that DCFS resorted to section 1(D)(i) only because it thought the provision
offered a potential last-minute expedient for sidestepping the circuit court’s
rejection of its efforts to establish that Floyd F. was unfit on other grounds.
¶ 14 In any case, when the new termination hearing was held, DCFS moved to admit
into evidence certified copies of all three convictions. Floyd F. objected to the
admission of evidence of his 2008 AUUW conviction. He noted that there was a
pending appeal that could potentially affect the validity of that conviction. The
court indicated that it did not believe the appeal had any effect on the judgment of
conviction and admitted all three convictions into evidence. Other admitted
evidence established that respondent was currently incarcerated on his 2011 armed
habitual criminal conviction and is projected to be paroled in 2019. Based on this
evidence, the trial court found that respondent was depraved and, thus, unfit. As a
result, the trial court found that it was in the minor’s best interest to terminate Floyd
F.’s parental rights.
-5-
¶ 15 Floyd F. appealed to the appellate court. In that appeal, he argued that the trial
court erred in finding him depraved and therefore unfit under section 1(D)(i) of the
Adoption Act because the 2008 conviction on which that determination depended
was based on the specific statutory provision struck down by this court as facially
unconstitutional in Aguilar, 2013 IL 122116, and was therefore a nullity. 1 While
Floyd F. acknowledged that he had not explicitly raised this issue before the trial
court, he argued that the appellate court should exercise its authority to put aside
any considerations of waiver or forfeiture due to the novelty of the issue and the
liberty interest at stake.
¶ 16 DCFS and N.G. responded with three arguments: (1) that respondent had
forfeited the issue and failed to ask for consideration of his claim under the plain
error doctrine, (2) that under our decision in People v. McFadden, 2016 IL 117424,
the invalidity of the underlying statute did not render a conviction void but only
made it subject to vacatur, and respondent had not obtained vacatur of his 2008
conviction, and (3) that the record contained no evidence that respondent was
convicted under the provision found unconstitutional in Aguilar.
¶ 17 The appellate court reversed and remanded. It first observed that, under
McFadden, 2016 IL 117424, ¶ 31, invalidation of respondent’s 2008 conviction for
AUUW did not occur automatically; rather, it had to be invalidated through a direct
appeal or a collateral attack. 2017 IL App (3d) 160277, ¶ 18. The appellate court
then explained that the case at hand is a civil action to determine respondent’s
fitness to maintain a role in the minor’s life and that the continued existence of the
2008 conviction was pivotal to that determination on the basis asserted by DCFS.
Id. ¶ 20. Accordingly, the appellate court held that the action qualified as a
collateral attack and was a permissible vehicle for challenging the validity of Floyd
F.’s 2008 criminal conviction. Id.
1
In Aguilar, we held that the provision of the AUUW statute under which Floyd F. was
convicted was facially invalid because it violated the right to keep and bear arms, as guaranteed by
the second amendment. Aguilar, 2013 IL 112116. That determination was based on the United
States Supreme Court’s reasoning in District of Columbia v. Heller, 554 U.S. 570 (2008) (holding
that individuals have a right to keep and bear arms for the purposes of self-defense), and McDonald
v. City of Chicago, 561 U.S. 742 (2010) (holding a right to bear arms implies a right to carry a
loaded gun outside of the home), as well as the Seventh Circuit’s expansion of those cases in Moore
v. Madigan, 702 F.3d 933 (7th Cir. 2012) (holding Illinois’s unlawful use of weapons statute and the
AUUW statute, which generally prohibit the carrying of guns in public, violate second amendment
right to bear arms for self-defense outside the home).
-6-
¶ 18 The appellate court found that its authority to vacate respondent’s 2008
conviction was grounded in our precedent. Id. ¶ 21. It noted that in People v.
Thompson, 2015 IL 118151 (Dennis Thompson), we described three forms of
voidness challenges recognized in Illinois: (1) challenges to judgments entered by a
court without jurisdiction, (2) challenges to judgments based on a facially
unconstitutional statute that is void ab initio, and (3) challenges to judgments that
do not conform to the applicable sentencing statute. 2017 IL App (3d) 160277,
¶ 21. The third type of challenge was based on the “void sentence rule,” which was
recently abolished by People v. Castleberry, 2015 IL 116916. 2017 IL App (3d)
160277, ¶ 21. The appellate court then noted that in a pre-Castleberry case, this
court, in People v. Thompson, 209 Ill. 2d 19 (2004) (Ernest Thompson), considered
a claim raised for the first time in a postconviction proceeding that the
extended-term portion of a sentence was void and could be attacked at any time.
2017 IL App (3d) 160277, ¶ 22. As indicated by the appellate court, the Ernest
Thompson court explained:
“ ‘A void order may be attacked at any time or in any court, either directly or
collaterally. An argument that an order or judgment is void is not subject to
waiver. Defendant’s argument that the extended-term portion of his sentence is
void does not depend for its viability on his post conviction petition. In fact,
courts have an independent duty to vacate void orders and may sua sponte
declare an order void.’ ” (Emphasis omitted.) Id. (quoting Ernest Thompson,
209 Ill. 2d at 27).
The appellate court concluded that, even though the basis for voidness in Dennis
Thompson was invalidated in Castleberry, the decision in that case made it clear
that the voidness principles articulated in Ernest Thompson still apply to the two
remaining valid bases for voidness (lack of jurisdiction and judgment based on a
facially unconstitutional statute that is void ab initio). Id. The appellate court
therefore held that Floyd F.’s claim “may be raised at any time in any court.” Id.
¶ 23.
¶ 19 The appellate court then clarified that Floyd F. was not claiming, as the
defendant in McFadden had, that his void conviction served as the predicate for a
second conviction, both of which occurred prior to the invalidation of the statute
and only the second of which he sought to vacate. Id. ¶ 25. It explained, while that
-7-
may be the posture of the postconviction petition in respondent’s 2011 habitual
criminal case, it was not his argument here. Id. Rather, Floyd F.’s contention was
that (1) his 2008 conviction had been rendered a nullity in 2013, when Aguilar was
decided, (2) that conviction should be recognized as null and void, and vacated, and
(3) this void conviction could not serve in 2016 as a basis for the imposition of a
civil penalty—the loss of his parental rights. Id. The appellate court found these
differences distinguished Floyd F.’s case from McFadden and, therefore, did not
preclude Floyd F.’s challenge here. Id.
¶ 20 Consistent with this reasoning, the appellate court subsequently found that,
under Aguilar, Floyd F.’s 2008 conviction for AUUW was void and could not serve
as a basis for finding him depraved under section 1(D)(i) of the Adoption Act. Id.
¶ 31. It therefore vacated respondent’s 2008 conviction, reversed the trial court’s
unfitness finding, set aside the trial court’s related conclusion that termination of
Floyd F.’s parental rights was in N.G.’s best interest, and remanded the case to the
trial court for further proceedings. Id.
¶ 21 Both DCFS and N.G., through her guardian ad litem, petitioned this court for
leave to appeal. We allowed both petitions and consolidated the proceedings for
argument and disposition. For the following reasons, we affirm the appellate
court’s judgment.
¶ 22 ANALYSIS
¶ 23 We begin our review of this case by recognizing the gravity of the interests at
stake. When the State secured Floyd F.’s conviction under the portion of the
AUUW statute held unconstitutional in Aguilar, 2013 IL 112116, it violated his
second amendment rights. Through this proceeding, the State seeks to use that
unconstitutional conviction to secure an additional sanction: termination of Floyd
F.’s parental rights. Those parental rights are fundamental.
¶ 24 The United States Constitution provides that no state shall “deprive any person
of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV,
§ 1. The clause “guarantees more than fair process”; it offers “heightened
protection against government interference with certain fundamental rights and
liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997). “These
-8-
liberty interests include the right to contract, engage in an occupation, acquire
knowledge, marry, establish a home and raise children, and worship God.” In re
M.H., 196 Ill. 2d 356, 362 (2001) (citing Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 572 (1972), citing Meyer v. Nebraska, 262 U.S. 390, 399
(1923)). Parental rights, such as the right to rear one’s children or control their
education, are included in the parental rights protected by the due process clause.
Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). A natural parent’s right to
the care of his or her child is, in fact, an interest far more precious than any property
right protected by that provision. Santosky v. Kramer, 455 U.S. 745 (1982).
¶ 25 The United States Supreme Court has stated that, “ ‘[i]t is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose primary
function and freedom include preparation for obligations the state can neither
supply nor hinder.’ ” Troxel v. Granville, 530 U.S. 57, 65-66 (2000), (quoting
Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Further, “the interest of
parents in the care, custody, and control of their children—is perhaps the oldest of
the fundamental liberty interests recognized by [the United States Supreme
Court].” Troxel, 530 U.S. at 65. In light of this precedent, “it cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” Id. at 66. Indeed, such rights are a “central part” of the
liberty protected by that clause (Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.
Ct. 2584, 2600 (2015)), as the appellate court in this case correctly observed (2017
IL App (3d) 160277, ¶ 27).
¶ 26 Our court has likewise recognized parents’ fundamental liberty interest in
raising their children. See In re M.H., 196 Ill. 2d at 362; Lulay v. Lulay, 193 Ill. 2d
455, 470-71 (2000); People v. R.G., 131 Ill. 2d 328, 342 (1989); In re Enis, 121 Ill.
2d 124, 128-29 (1988); see also In re Vanessa C., 316 Ill. App. 3d 475, 481 (2000);
In re D.R., 307 Ill. App. 3d 478, 482 (1999);. Because a natural parent’s right to
raise his or her child is a fundamental liberty interest, involuntary termination of
parental rights is a drastic measure. Where a parent has not consented to
relinquishment of his or her parental rights, a court has no power to terminate the
parent’s rights involuntarily except as authorized by statute. In re Gwynne P., 215
Ill. 2d 340, 354 (2005).
-9-
¶ 27 A court’s statutory authority to terminate a parent’s rights involuntarily and to
appoint a guardian with the right to consent to the child’s adoption is delineated by
the language of the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2010)) and
the Adoption Act (750 ILCS 50/0.01 et seq. (West 2010)). These acts contain strict
requirements that embody Illinois’s policy favoring parents’ superior right to the
custody of their children. 705 ILCS 405/1-1 et seq. (West 2010); 750 ILCS 50/0.01
et seq. (West 2010). When a court exercises its authority, it must proceed within the
confines of those laws. In re E.B., 231 Ill. 2d 459, 464 (2008).
¶ 28 Under the Juvenile Court Act, parental rights cannot be terminated absent the
parent’s consent unless the court first determines, by clear and convincing
evidence, that the parent is an “unfit person” as defined by section 1(D) of the
Adoption Act (750 ILCS 50/1(D) (West 2010)). 705 ILCS 405/2-29(2) (West
2010). “Involuntary termination of a parent’s rights without a prior showing of
unfitness would, in fact, be unconstitutional.” In re Gwynne P., 215 Ill. 2d at 354;
In re Petition of Kirchner, 164 Ill. 2d 468, 501 (1995).
¶ 29 Each case concerning parental fitness is sui generis, unique unto itself. In re
M.I., 2016 IL 120232, ¶ 21. As a general rule, a trial court’s finding that a parent is
unfit under section 1(D) of the Adoption Act will not be reversed on appeal unless
that finding is against the manifest weight of the evidence. Id. A trial court’s
decision regarding a parent’s fitness is against the manifest weight of the evidence
only where the opposite conclusion is clearly apparent. Id.¶ 30 The circuit court’s finding of unfitness in this case was premised exclusively on
section 1(D)(i) of the Adoption Act, under which a parent is presumptively deemed
“depraved” and therefore unfit, if it has been established by clear and convincing
evidence that the parent has committed certain crimes or a combination of crimes.
See In re Gwynne P., 215 Ill. 2d at 249. More specifically, the circuit court found
Floyd F. “depraved” based on the portion of section 1(D)(i) that provides:
“There is a rebuttable presumption that a parent is depraved if the parent has
been criminally convicted of at least 3 felonies under the laws of this State or
any other state, or under federal law, or the criminal laws of any United States
territory; and at least one of these convictions took place within 5 years of the
filing of the petition or motion seeking termination of parental rights.” 750
ILCS 50/1(D)(i) (West 2010).
- 10 -
¶ 31 The problem, as Floyd F.’s trial counsel suggested and the appellate court
recognized, is that one of the three felony convictions on which DCFS’s claim of
depravity depended, the conviction from 2008 for aggravated unlawful use of a
weapon, was based on the very statute we struck down as unconstitutional in
Aguilar. The dispositive question in this appeal, and the one we must therefore now
address, is whether the trial court could rely on such a constitutionally invalid
conviction in determining whether DCFS had met its burden of establishing that
Floyd F. was unfit within the meaning of the depravity provisions of section 1(D)(i)
of the Adoption Act and, on that basis, terminate his constitutionally protected
parental rights. The answer to that question, as the appellate court correctly
concluded, is that it could not.
¶ 32 In Aguilar, we held that section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal
Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)), specifically
the offense of aggravated unlawful use of a weapon, was unconstitutional on its
face under the second amendment to the United States Constitution. 2013 IL
112116, ¶ 22; see also People v. Burns, 2015 IL 117387. There is no question that
Floyd F.’s 2008 conviction was based on that facially unconstitutional statute.
Although the certified copies of Floyd F.’s criminal convictions included in the
original record in this case did not reflect the specific provision of the statute under
which he was convicted, the appellate court recognized the importance of
determining whether Floyd F.’s conviction was, in fact, based on the particular
subsection of the statute found to be facially unconstitutional in Aguilar. The
appellate court therefore, sua sponte, took judicial notice of court records from
Floyd F.’s 2008 prosecution in the circuit court of Will County. 2017 IL App (3d)
160277, ¶ 17. Doing so was well within the appellate court’s authority. See
Metropolitan Life Insurance Co. v. American National Bank & Trust Co., 288 Ill.
App. 3d 760, 764 (1997); NBD Highland Park Bank, N.A. v. Wien, 251 Ill. App. 3d
512 (1993); State Farm Fire & Casualty Co. v. Watts Regulator Co., 2016 IL App
(2d) 160275, ¶ 40. Those records confirmed that Floyd F.’s 2008 conviction was
based on section 24-1.6(a)(1), (a)(3)(A), (d) of the Criminal Code of 1961 (720
ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)).
¶ 33 Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under
the second amendment to the United States Constitution (Aguilar, 2013 IL 112116,
¶ 22; Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th Cir.
- 11 -
2012)) and the existence of Floyd F.’s conviction under that facially
unconstitutional statute was necessary to the trial court’s determination that he was
depraved within the meaning of the Adoption Act, Floyd F.’s conviction under the
statute must be vacated, and the circuit court’s finding of depravity must be
reversed. The reason for that is grounded in both federal constitutional law, which
we are required to follow, and the law of this state.
¶ 34 The United States Supreme Court has identified two basic paths for analyzing
the consequences of a constitutionally deficient criminal conviction. Which path a
court must follow depends, in the first instance, on the reason the conviction is
unconstitutional. Where the conviction is found to have resulted from
constitutionally deficient procedures, that determination does not negate the
possibility that the defendant is actually culpable for the underlying offense and
could have been convicted of that offense had the constitutionally mandated
standards been followed.
¶ 35 In such cases, the conviction may still be used for some purposes, though not
for others. The general rule is that new rules of procedure do not apply retroactively
and therefore have no effect on prior convictions. Retroactive effect is given only in
a small set of cases where the decision by which the conviction was rendered
unconstitutional announced a watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the proceeding. See Schriro v. Summerlin,
542 U.S. 348, 351-52 (2004). Even in cases where such a watershed rule is
involved, however, there are circumstances in which the conviction obtained in
violation of that rule may still be given recognition and effect in later criminal
prosecutions. Lewis v. United States, 445 U.S. 55 (1980), discussed more fully later
in this opinion, elucidates this principle.
¶ 36 The second basic path identified by the United States Supreme Court,
exemplified by cases such as Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct.
718 (2016), and Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018), applies
where a conviction is invalid because it was based on a statute found to be
unconstitutional on its face. To hold that a statute is facially unconstitutional means
that the conduct it proscribed was beyond the power of the state to punish.
Montgomery, 577 U.S. ___, 136 S. Ct. 718. It was not, is not, and could never be a
crime. Ex parte Siebold, 100 U.S. 371, 376 (1879). That being the case, the
- 12 -
conviction must be treated by the courts as if it did not exist, and it cannot be used
for any purpose under any circumstances. Id. This is the line of authority by which
the present case is governed.
¶ 37 The principles underlying this second path are not new. They are deeply
embedded in our jurisprudence. See 16A Am. Jur. 2d Constitutional Law § 195
(1998). More than a century ago, the United States Supreme Court held that where,
as here, the statute on which a criminal conviction is based has been declared
facially invalid under the United States Constitution, the conviction must be
vacated and cannot be given any force or effect. Ex parte Siebold, 100 U.S. at
376-77. “An unconstitutional law is void, and is as no law.” Id. at 376. Thus, “[a]n
offence created by it is not a crime,” and “[a] conviction under it is not merely
erroneous, but is illegal and void.” Id.; Ex parte Royall, 117 U.S. 241, 248 (1886)
(“it is clear that if the [Virginia] statute under which [the defendant] was indicted be
repugnant to the constitution, the prosecution against him has nothing upon which
to rest, and the entire proceeding against him is a nullity”).
¶ 38 The United States Supreme Court recently reaffirmed these principles in
Montgomery, 577 U.S. ___, 136 S. Ct. 718. In accordance with long-established
precedent, the court held in Montgomery that where, as here, a conviction is based
on an unconstitutional law, that conviction is not only erroneous but is illegal and
void and cannot be the legal cause of punishment. Id. at ___, 136 S. Ct. at 730.
Indeed, for a state to enforce a proscription or penalty barred by the Constitution
would itself be unlawful. Id. at ___, 136 S. Ct. at 730. Accordingly, not only must
the State stop charging defendants under the invalidated law in future prosecutions,
it is precluded from using past convictions under the facially unconstitutional law
in any subsequent proceedings “ ‘to support guilt or enhance punishment for
another offense,’ ” for doing so would be tantamount to forcing the defendant to
suffer anew the deprivation of his constitutional rights. United States v. Bryant, 579
U.S. ___, ___, 136 S. Ct. 1954, 1956-57 (2016) (quoting Burgett v. Texas, 389 U.S.
109, 115 (1967), and holding that convictions obtained in violation of the sixth
amendment are deemed void and may not be used in subsequent prosecutions).
Undeniably, the state is barred from giving any legal recognition to a conviction
based on a facially unconstitutional statute. That is so even if the underlying statute
is not invalidated until after the conviction becomes final. Montgomery, 577 U.S. at
___, 136 S. Ct. at 730.
- 13 -
¶ 39 The explanation for this inheres in the nature of what it means for a statute to be
declared facially unconstitutional. While legislative repeal of a statute may not
invalidate convictions based on conduct occurring prior to the repeal (5 ILCS 70/4
(West 2010); People v. Glisson, 202 Ill. 2d 499, 507-08 (2002)), that is not the case
where a statute is declared unconstitutional by the courts. As a matter of federal
constitutional law, a judicial declaration that a criminal statute is facially invalid
under the United States Constitution means that the statute was fatally infirm from
the moment of its enactment and that the conduct it sanctioned was never a crime at
all. Ex parte Siebold, 100 U.S. at 376. Accordingly, in contrast to situations where a
conviction was obtained through a constitutionally deficient procedure, there is no
possibility of guilt or criminal culpability. The underlying conduct was
constitutionally immune from punishment. United States v. United States Coin &
Currency, 401 U.S. 715, 724 (1971). While the text of the law may remain in the
statute books, it is “ ‘in legal contemplation, as inoperative as though it had never
been passed.’ ” United States ex rel. Williams v. Preiser, 497 F.2d 337, 339 (2d Cir.
1974) (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)).
¶ 40 Put in other words, a judicial determination that a law is facially invalid under
the Constitution of the United States means, as a matter of federal constitutional
law, that the state had no authority and the courts never acquired jurisdiction to
impose punishment under that law. Montgomery, 577 U.S. at ___, 136 S. Ct. at
730-31. And because there was never authority or jurisdiction to impose the
punishment in the first place, the United States Supreme Court has further held that
“a court has no authority to leave in place a conviction or sentence that violates a
substantive rule, regardless of whether the conviction or sentence became final
before the rule was announced.” Id. at ___, 136 S. Ct. at 731. “There is no
grandfather clause that permits States to enforce punishments the Constitution
forbids,” the Court has explained. Id. at ___, 136 S. Ct. at 731. “To conclude
otherwise would undercut the Constitution’s substantive guarantees.” Id. at ___,
136 S. Ct. at 731. When a court is confronted with a law repugnant to the
constitution, what it must do “is simply to ignore it” and “decide[ ] the case
‘disregarding the [unconstitutional] law.’ ” (Emphasis omitted and in original.)
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 760 (1995) (Scalia, J., concurring,
joined by Thomas, J.) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
(1803)).
- 14 -
¶ 41 State courts are under a mandatory obligation to adhere to this federal
constitutional command. Under the supremacy clause of the federal constitution
(U.S. Const., art. VI, cl. 2):
“ ‘[w]e are bound to follow the United States Supreme Court’s interpretation of
the Constitution of the United States.’ People v. Wagener, 196 Ill. 2d 269, 287
(2001). This means that when the Supreme Court adopts a particular framework
for applying a federal constitutional provision, we are required to follow that
framework, regardless of how other courts, including this one, may have
approached the issue in other decisions. People v. Hale, 2013 IL 113140, ¶ 20.”
People v. Hood, 2016 IL 118581, ¶ 22.
Accordingly, because the United States Supreme Court has held that a statute that is
facially invalid under the constitution is void and unenforceable and “is as no law,”
the supremacy clause requires this court to reach the same conclusion. As the
highest court of one of our sister states has observed, “[i]t is fundamental that by
virtue of the Supremacy Clause, the State courts are bound by the decisions of the
Supreme Court with respect to the federal Constitution and federal law, and must
adhere to extant Supreme Court jurisprudence. U.S. Const. art. VI, cl. 2;
Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 221, 51 S.Ct. 453, 75 L.Ed. 983(1931).” Council 13, American Federation of State, County & Municipal
Employees v. Rendell, 986 A.2d 63, 77 (Pa. 2009); see also People v. Hope, 184 Ill.
2d 39, 44 (1998) (“state courts are required to follow United States Supreme Court
precedent where the result therein is mandated by the Constitution of the United
States” (citing People v. Gillespie, 136 Ill. 2d 496, 502 (1990))). “States may not
disregard a controlling, constitutional command in their own courts.” Montgomery,
577 U.S. at ___, 136 S. Ct. at 727; see also Reynoldsville Casket Co., 514 U.S. at
760 (Scalia, J., concurring, joined by Thomas, J.) (where Ohio statute violated
federal constitution, Ohio courts were bound to ignore it).
¶ 42 We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction
and to treat the statute on which it was based as having never existed. Because the
finding of depravity depended on a void conviction based on a constitutionally
nonexistent statute, we must, in turn, reverse that finding, for without that
conviction the State would have failed to meet its burden of showing by clear and
convincing evidence that Floyd F. was depraved and therefore unfit under section
- 15 -
1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). Absent that
conviction, the statutory presumption of depravity under section 1(D)(i) would not
even have been triggered.
¶ 43 There is no merit to the argument that this proceeding is not an appropriate
forum for Floyd F. to invoke Aguilar to establish that his 2008 AUUW conviction
was invalid because it was based on a statute that is facially invalid under the
second amendment. Our court has held that a judgment based on a statute that is
facially unconstitutional is void. People v. Price, 2016 IL 118613, ¶ 31. Illinois law
permits void judgments to be “ ‘impeached at any time in any proceeding whenever
a right is asserted by reason of that judgment, and it is immaterial *** whether or
not the time for review by appeal has expired.’ ” People v. Meyerowitz, 61 Ill. 2d
200, 206 (1975) (quoting Reynolds v. Burns, 20 Ill. 2d 179, 192 (1960)); R.W.
Sawant & Co. v. Allied Programs Corp., 111 Ill. 2d 304, 309 (1986) (a void
judgment, order, or decree “may be attacked at any time or in any court, either
directly or collaterally” (emphasis omitted)). Further, challenges to void judgments
are not subject to forfeiture or other procedural restraints. Price, 2016 IL 118613,
¶ 30. Because Illinois state courts would thus afford the opportunity for a collateral
challenge to the validity of a judgment in cases such as this, we cannot refuse to
give retroactive effect to a substantive federal constitutional right that is dispositive
of the challenge advanced by Floyd F. here. The supremacy clause of the United
States Constitution prohibits it. Montgomery, 377 U.S. at ___, 136 S. Ct. at 731-32.
¶ 44 Following the same established principles applied in Montgomery, other state
courts have reached the same conclusion under similar circumstances. See, e.g.,
People v. Germany, 674 P.2d 345, 349 (Colo. 1983) (en banc), where the Supreme
Court of Colorado invalidated a provision of state law that imposed a time bar on
challenges to unconstitutional convictions, including convictions based on statutes
declared unconstitutional after the conviction was imposed. Id. at 352. In reaching
this result, the court reasoned that a contrary conclusion would contravene “the
long-standing rule that a conviction under an unconstitutional law is void.” Id. “[I]t
is axiomatic,” held the court, “that a conviction imposed in violation of a basic
constitutional right may not be used to support guilt or to enhance punishment,” a
precept that emanates from “the principle that unconstitutional convictions, in
addition to being of suspect reliability, abridge the very charter from which the
government draws its authority to prosecute anyone.” Id. at 349. “[T]he
- 16 -
implementation of an accused’s right to challenge governmental use of an
unconstitutional conviction is no more than one aspect of the duty of the judiciary
to uphold the constitution in all judicial proceedings.” Id. at 350. And while “the
state has a legitimate interest in preserving the finality of criminal convictions,”
“the state’s interest in finality is not a justification for permitting unconstitutional
convictions to stand.” Id.
¶ 45 To similar effect is Keeny v. Fitch, 458 S.W.3d 838 (Mo. Ct. App. 2015). In that
case, the defendant was required by state law to register as a sex offender after
pleading guilty more than 25 years earlier to a sexual offense based on consensual
conduct that was subsequently found by the United States Supreme Court in
Lawrence v. Texas, 539 U.S. 558 (2003), to be constitutionally protected. Keeny,
458 S.W.3d 838. The defendant claimed that he should no longer be required to
register as a sex offender. Id. By the time the United States Supreme Court declared
that his conduct could not be made a crime, however, there was no longer any
mechanism under Missouri state law for him to withdraw his plea. Id. The Missouri
Court of Appeals nevertheless granted him relief. Id. It held that he was entitled to a
declaratory judgment that he was no longer required to register as a sex offender
and ordered the state to remove his name and all other registration information
about him from the state’s sex offender registry. Id.¶ 46 State v. Smith, 2016-Ohio-3521, 68 N.E.2d 114 (Ct. App.), a recent Ohio case
decided after Montgomery, is also in accord. Similar to Keeny, 458 S.W.3d 838, the
case involved a defendant who was under an ongoing duty to register as a
child-victim-oriented offender following his release from confinement for
convictions for child-enticement offenses under Ohio law. Smith, 2016-Ohio-3521,
68 N.E.2d 114. The convictions were imposed in 2004, no appeal was taken, and
defendant was released from confinement in 2007. Id. Seven years later, in an
unrelated case, the Ohio Supreme Court determined that the statute under which the
defendant had been convicted was facially unconstitutional under the first
amendment to the United States Constitution. Id. Based on that ruling, the
defendant filed motions to vacate his 2004 conviction. Id. The trial court rejected
defendant’s claims, but the Ohio Court of Appeals reversed. Id. After recognizing
that the effect of the 2014 ruling was to leave defendant convicted under an
unconstitutional statute, the court turned to the question of its jurisdiction to grant
relief. Id. It noted that the defendant had not specified a particular statute or rule on
- 17 -
which relief could be granted and concluded that none of the normal procedural
avenues under Ohio law for appeal or collateral attack remained available to him.
Id. ¶ 15. The court held, however, that under the United States Supreme Court’s
decisions in Siebold and Montgomery, as well as under Ohio law, the effect of the
Ohio Supreme Court’s 2014 declaration that the statute under which defendant had
been convicted was facially unconstitutional under the first amendment of the
United States Constitution was to render defendant’s convictions void. Id. ¶ 29.
Under Montgomery and related Supreme Court precedent, the court was obligated
to give the 2014 state court ruling full retroactive effect. Id. ¶¶ 22-29. Because in
Ohio, as in Illinois, “a court always has jurisdiction to correct a void judgment” (id.
¶ 20), it reversed the trial court’s judgment and remanded with instructions to
vacate defendant’s conviction and ordered “that he be discharged from further
prosecution for those offenses,” a command that would relieve defendant from any
ongoing obligation to register as a child-victim-oriented offender under Ohio law.
Id. ¶ 30.
¶ 47 Application of these principles by federal courts has likewise afforded
individuals relief when they have found no recourse in state courts. In United States
ex rel. Williams, 497 F.2d 337, for example, the United States Court of Appeals for
the Second Circuit affirmed the grant of habeas corpus relief to a licensed
physician who had been convicted of manslaughter under state law and sentenced
to prison for performing a nonnegligent, consensual medical procedure eight years
before the United States Supreme Court ruled that physicians had a constitutional
right to perform the procedure without fear of prosecution. The court held that
because the states were forbidden by the constitution from regulating such
procedures, the state law for which the physician had been prosecuted was “ ‘in
legal contemplation, as inoperative as though it had never been passed.’ [Citation.]”
Id. at 339. It necessarily followed that the physician could no longer remain
deprived of liberty based on that law. “This declaration of retroactive invalidity,”
concluded the court, “assures the supremacy of the newly recognized substantive
right over a state’s power to punish.” Id.
¶ 48 Moreover, while the United States Supreme Court has refused to consider
claims on habeas corpus that an indictment did not state an offense (Ex parte
Parks, 93 U.S. 18 (1876)), that an individual had been placed in double jeopardy
for the same offense (Ex parte Bigelow, 113 U.S. 328 (1885)), or that an individual
- 18 -
had been compelled to incriminate himself (In re Moran, 203 U.S. 105 (1906)), the
Court has consistently and without exception recognized an obligation to afford
relief to a person convicted under an unconstitutional (void) statute (Ex parte
Siebold, 100 U.S. 371), and it continues to do so, as Montgomery illustrates.
¶ 49 Indeed, the United States Supreme Court reaffirmed the foregoing principles
just this year in Class, 583 U.S. ___, 138 S. Ct. 798. There, a defendant who had
been convicted of unlawful possession of a firearm on the grounds of the United
States Capitol sought to challenge the constitutionality of the statute under which
he was charged on the theory that it violated the second amendment and the due
process clause. Class, 583 U.S. ___, 138 S. Ct. 798. The government objected,
arguing that the defendant should be barred from raising his constitutional
challenge because he had pled guilty to the offense and because he had not
followed procedures set forth in the Federal Rules of Criminal Procedure. Id. The
Supreme Court rejected these arguments. Id. Following its prior precedent, it held
that because defendant’s constitutional challenge, like the challenge asserted by
Floyd F. here, went to the power of the government to criminalize the conduct at
issue and, if successful, would have meant that the offense in question was one that
the government had no constitutional authority to prosecute, defendant had the
right to raise that challenge on direct appeal. Id. Although Class involves a guilty
plea, the same underlying principle applies. Defendants convicted under a facially
unconstitutional statute may challenge the conviction at any time, even after a
guilty plea, because the state or government had no power to impose the conviction
to begin with.
¶ 50 Likewise, Illinois law mandates Floyd F.’s 2008 conviction be vacated and the
finding of depravity reversed. Although the terminology may differ in certain
respects, Illinois follows the same basic approach as the United States Supreme
Court when dealing with the consequences of a facially unconstitutional statute.
When a statute is found to be facially unconstitutional in Illinois, it is said to be
void ab initio; that is, it is as if the law had never been passed (McFadden, 2016 IL
117424, ¶ 17; People v. Holmes, 2017 IL 120407, ¶¶ 12-13; Dennis Thompson,
2015 IL 118151, ¶ 32; People v. Carrera, 203 Ill. 2d 1, 14 (2002); Hill v. Cowan,
202 Ill. 2d 151, 156 (2002); People v. Gersch, 135 Ill. 2d 384, 399 (1990)) and
never existed (People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999)). Such laws
are “infirm from the moment of [their] enactment and, therefore, [are]
- 19 -
unenforceable.” McFadden, 2016 IL 117424, ¶ 17; Holmes, 2017 IL 120407, ¶ 12;
Dennis Thompson, 2015 IL 118151, ¶ 32.
¶ 51 We apply these principles strictly where a defendant’s constitutional rights are
in need of vindication. Perlstein v. Wolk, 218 Ill. 2d 448, 466 (2006). “[W]here a
statute is violative of constitutional guarantees, we have a duty not only to declare
such a legislative act void, but also to correct the wrongs wrought through such an
act ***.” Gersch, 135 Ill. 2d at 399. As we recently noted in McFadden, to refuse to
give a decision declaring a statute facially unconstitutional full retroactive effect
would forever prevent those injured under the unconstitutional legislative act from
receiving a remedy for deprivation of a guaranteed right, a result that “ ‘would
clearly offend all sense of due process.’ ” McFadden, 2016 IL 117424, ¶ 18
(quoting Gersch, 135 Ill. 2d at 397).
¶ 52 While a conviction and sentence based on a facially unconstitutional statute
have no legal force or effect, and can be given none, their nullification is not
self-executing. Id. Judicial action is necessary. As we recently said in McFadden,
“[i]t is axiomatic that no judgment, including a judgment of conviction, is deemed
vacated until a court with reviewing authority has so declared.” Id. ¶ 31. The
voidness of a conviction and sentence based on a facially unconstitutional statute
may be addressed either on direct review of the conviction and sentence or in a
collateral proceeding. Id.
¶ 53 Floyd F. did not challenge the validity of his 2008 AUUW conviction through
direct appeal. The time for pursuing such a direct appeal had expired five years
before we declared the statutory basis for that conviction invalid under the second
amendment in Aguilar, 2013 IL 112116. A collateral challenge was therefore his
only option. Illinois law provides two statutory options for collaterally attacking an
invalid judgment in a criminal case. The first is a postconviction petition filed
pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2014)), and the second is a petition filed pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2014)). While Floyd F. has pursued a
postconviction petition in his 2011 criminal case claiming that his 2008 conviction
was a nullity and could not serve as a basis for an armed habitual criminal charge,
that petition is not before us, nor was it before the appellate court.
- 20 -
¶ 54 That, however, is of no consequence. Despite DCFS’s contentions to the
contrary, the foregoing options are not and have never been held to be the sole
means for collaterally attacking the validity of a conviction premised on a facially
invalid, and indisputably unenforceable, statute. Malone v. Cosentino, 99 Ill. 2d 29(1983), cited by DCFS as support for a contrary conclusion, is inapposite. Malone
was a class action in which the lead plaintiff sought to recover modest monetary
penalties and fees he paid after pleading guilty to two traffic violations. Id. at 31. In
contrast to Floyd F., the plaintiff in Malone did not take issue with the validity of
his convictions. Id. His contention centered exclusively on the constitutionality of
the statutes authorizing the penalties and fees he had been required to pay following
those convictions. Id.¶ 55 In rejecting the plaintiff’s challenge in Malone, our court held that he was
barred from collaterally challenging the penalties and fees in what it described as an
“ad hoc” proceeding because he had neither appealed the underlying judgment nor
sought collateral review in one of the “established forms of collateral proceedings,”
and the modest fees and assessments involved did not involve a substantial denial
of constitutional rights. Id. at 33-35. We took care, however, to contrast the
situation with People v. Warr, 54 Ill. 2d 487, 491-93 (1973), where defendants,
who had been convicted of misdemeanors, brought suit to challenge their
convictions on the grounds that the convictions had been obtained in violation of
constitutional protections mandated by controlling United States Supreme Court
precedent, and with McCabe v. Burgess, 75 Ill. 2d 457 (1979), where defendant
sought to use a civil action to expunge constitutionally infirm convictions from his
criminal record and the criminal records of other indivuals and to recover fines paid
in connection with those unconstitutional convictions, and Meyerowitz, 61 Ill. 2d
200 (1975), discussed more fully below. Malone, 99 Ill. 2d at 34-35. In such
circumstances, where there was a substantial denial of constitutional rights, we held
that allowing nonstatutory remedies would be justified. Id. at 35. This, of course, is
just such a case. Here, there is an unconstitutional conviction on Floyd F.’s record.
Further, Floyd F. has alleged a substantial denial of not only his second amendment
rights but also his right to rear his child, a fundamental liberty interest. Malone thus
refutes rather than supports DCFS’s position.
¶ 56 Meyerowitz, 61 Ill. 2d 200, cited by this court in Malone, underscores the lack
of merit in DCFS’s position. In Meyerowitz, we considered whether defendants
- 21 -
may properly attack the judgments of conviction in their motions to terminate
probation. Id. In holding that they may, we reiterated “that considerations of justice
and fairness require that an accused who asserts a substantial denial of his
constitutional rights in the proceedings in which he was convicted be afforded a
procedure by which the challenged proceedings may be reviewed.” Id. at 205.
Accordingly, where a person has been convicted under an unconstitutional statute,
he or she may obtain relief from any court that otherwise has jurisdiction. The
person is not restricted to specific statutory methods for collaterally attacking a
judgment. Id. at 206. And it does not matter that the time for direct appeal may have
passed. “ ‘A void judgment can be impeached at any time in any proceeding
whenever a right is asserted by reason of that judgment, and it is immaterial, in a
consideration of the validity of the judgment, whether or not the time for review by
appeal has expired.’ ” Id. (quoting Reynolds, 20 Ill. 2d at 192).
¶ 57 Simply put, under Illinois law, there is no fixed procedural mechanism or
forum, nor is there any temporal limitation governing when a void ab initio
challenge may be asserted. See Ernest Thompson, 209 Ill. 2d at 25. Under our
precedent, it is sufficient if a person subject to a conviction premised on a facially
invalid statute raises his or her challenge through an appropriate pleading in a court
possessing jurisdiction over the parties and the case. See McFadden, 2016 IL
117424, ¶ 21. Indeed, if the constitutional infirmity is put in issue during a
proceeding that is pending before a court, the court has an independent duty to
vacate the void judgment and may do so sua sponte. Ernest Thompson, 209 Ill. 2d
at 27; Meyerowitz, 61 Ill. 2d 200. A void order may be attacked at any time in any
court. Ernest Thompson, 209 Ill. 2d at 27. Such challenges are not subject to
forfeiture (People v. Relerford, 2017 IL 121094, ¶ 29 n.2) or any other ordinary
procedural bar (Dennis Thompson, 2015 IL 118151, ¶¶ 30-33).
¶ 58 Moreover, it is not a valid objection that permitting parents such as Floyd F. to
challenge their constitutionally invalid convictions in termination proceedings will
adversely impact administration of the criminal justice system. Establishing that a
prior conviction is invalid because it was based on a facially unconstitutional
statute requires no elaborate fact-finding or hearing. The statutory basis for the
conviction can be readily ascertained by retrieval and review of official court
records, of which a subsequent court can take judicial notice (see People v.
Williams, 149 Ill. 2d 467, 492 (1992)), as happened in this case, and the fact that the
- 22 -
statute has been found unconstitutional can be confirmed by the case law. As for
concerns over the finality of judgments, these are of little consequence as a
practical matter because penal statutes are rarely found facially invalid and, when
they are, defendants have every incentive to raise the defect at the earliest possible,
practical moment. Moreover, the particular statute on which Floyd F.’s challenged
2008 conviction was based was declared unconstitutional five years ago, ending
further prosecutions under that statute and limiting the number of convictions that
will have to be set aside going forward.
¶ 59 In any event, to the extent that the administration of justice may be
inconvenienced by the need to take corrective action, such concerns cannot justify
leaving in place and giving further effect to a criminal conviction based on a
facially unconstitutional statute. While the State has a weighty interest in the
finality of convictions and sentences, the United States Supreme Court has made it
clear that whatever administrative, penal, or other policy concerns might be taken
into account in other circumstances, if the State were required to revisit convictions
that had been obtained in conformity to then-existing constitutional standards, such
concerns have absolutely no application where, as here, a statute has been declared
facially invalid under a substantive rule of constitutional law, “for no resources
marshaled by a State could preserve a conviction or sentence that the Constitution
deprives the State of power to impose.” Montgomery, 377 U.S. at ___, 136 S. Ct. at
732 (“ ‘There is little societal interest in permitting the criminal process to rest at a
point where it ought properly never to repose’ ” (quoting United States v. Mackey,
401 U.S. 667, 693 (1971) (Harlan, J., concurring in part and dissenting in part))).
The procedural objections raised by DCFS and N.G. to Floyd F.’s challenge to his
void 2008 AUUW conviction were therefore meritless and properly rejected by the
appellate court.
¶ 60 The appellate court was likewise correct to reject the contention by DCFS that
under this court’s decision in McFadden, 2016 IL 117424, Floyd F.’s
constitutionally invalid (and therefore legally nonexistent) firearms conviction
could still be used by the State to meet its burden of establishing that Floyd F. was
“depraved” within the meaning of the Adoption Act so that his parental rights could
be extinguished. In making that argument, DCFS was asking the court to hold, in
effect, that a person’s fundamental rights to parenthood may be terminated based
on conduct protected by the second amendment and therefore beyond the power of
- 23 -
the state to punish. That such is not the case should be self-evident. It can certainly
find no support in McFadden.
¶ 61 McFadden was a criminal proceeding involving the validity of a defendant’s
conviction for unlawful use of a weapon by a felon (UUWF). Id. The state’s
contention was that under the governing provisions of Illinois’s criminal code, the
defendant in that case was eligible to be convicted for UUWF based on a prior
conviction for aggravated unlawful use of a weapon (AUUW). Id. The defendant,
however, argued that because the AUUW statute had been declared facially
unconstitutional in Aguilar, his conviction under that statute should not have been
be taken into account for purposes of determining whether his subsequent offense
constituted UUWF. Id. ¶ 16.
¶ 62 The appellate court agreed, but this court reversed and reinstated the UUWF
conviction. Id. ¶ 27. Although we reaffirmed long-standing principles that a
facially unconstitutional statute is void from the moment of its enactment and
unenforceable, that a declaration that a statute is facially invalid must be given full
retroactive effect, and that a conviction based on such a statute cannot stand, we
held, based on the language of the UUWF statute, that where a defendant has not
taken affirmative action to have a court set aside the initial conviction and therefore
still has an extant, undisturbed felony conviction on his record at the time he
engaged in the conduct on which the subsequent UUWF prosecution was
predicated, the elements of the UUWF statute are satisfied and the UUWF
conviction may stand, regardless of whether the initial conviction might be subject
to vacatur later on the grounds that it was unconstitutional. Id. Underlying this
conclusion was a concern that unless felons who had previously been convicted of a
firearms offense were required to formally clear their prior records before obtaining
firearms, they might resort to self-help and acquire firearms again in the hope that,
after the fact, they could defend against any subsequent firearms charges by having
their earlier conviction set aside. Id. ¶ 30. Such an outcome, in our view, would
undermine the UUWF statute’s purpose of protecting the public from dangerous
persons who are seeking to obtain firearms. Id. ¶¶ 29-30.
¶ 63 Because Floyd F. did not move to nullify his 2008 AUUW conviction prior to
initiation of the parental rights termination proceedings at issue in this case, DCFS
contends that while the conviction is constitutionally infirm, it may likewise be
- 24 -
used, under the same reasoning we employed in McFadden, to establish that he was
a three-time felon and thus “depraved” within the meaning of the Adoption Act.
We agree with the appellate court that DCFS’s argument is not well taken.
¶ 64 As a preliminary matter, a careful reading of McFadden reveals evidentiary and
procedural differences that separate that case from this one. While our decision in
Aguilar was raised in both cases, Aguilar did not invalidate the entire AUUW
statute, only part of it, namely, section 24-1.6(A)(1), (a)(3)(A) of the Criminal
Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)). In contrast to the
matter before us here, there was no indication in the record in McFadden as to
either the particular provision of the AUUW statute to which the defendant had
pled guilty or the factual basis for the plea. McFadden, 2016 IL 117424, ¶¶ 4,
32-33. 2 We therefore had no basis for concluding that the defendant’s prior
conviction was, in fact, premised on section 24-1.6(A)(1), (a)(3)(A) (720 ILCS
5/24-1.6(a)(1), (a)(3)(A) (West 2008)), and we took care to specifically point out
that we were not doing that. McFadden, 2016 IL 117424, ¶ 41. Without evidence
that defendant had actually been convicted for violating that particular subsection,
any claim that defendant’s subsequent UUWF conviction was premised on a void
prior conviction was, of course, completely untenable.
¶ 65 No such problem is present in this case. In contrast to McFadden, it is clear
from the supplemented appellate record that Floyd F.’s AUUW conviction was
based on exactly the same section of the statute we found facially unconstitutional
in Aguilar. Id. at ¶¶ 25, 28. We can therefore say with certainty that the trial court’s
finding of unfitness here was premised on a conviction that has no legal force or
effect.
¶ 66 We note, moreover, that while the defendant in McFadden sought to set aside
his subsequent UUWF conviction on the grounds that his prior AUUW conviction
should not be given legal recognition under Aguilar, he never filed any pleadings to
2
In McFadden, we stated that “[a]lthough for purposes of this appeal, the State does not dispute
that defendant’s 2002 conviction is premised on an unconstitutional statute, the record does not
confirm defendant’s assertion. The indictment for the 2008 UUW by a felon offense does not
identify the specific nature of the 2002 predicate AUUW offense under which defendant pleaded
guilty. Rather, it alleges that defendant had a felony conviction for ‘[AUUW] under case number
02CR-30903.’ ” McFadden, 2016 IL 117424, ¶ 32. We went on to make clear that “the record does
not affirmatively reflect that defendant pleaded guilty under section 24-1.6(a)(1), (a)(3)(A), the only
section held unconstitutional in Aguilar.” Id. ¶ 33.
- 25 -
actually vacate that prior AUUW conviction and did not request that the prior
conviction be vacated in the case then under review. Id. ¶ 21. That was not true of
Floyd F. Unlike the defendant in McFadden, he not only challenged the use of the
prior AUUW conviction in this subsequent proceeding, he sought to have the prior
conviction itself nullified and vacated. 2017 IL App (3d) 160277, ¶ 25. As our
previous discussion makes clear, using a collateral proceeding to attack a
conviction based on a facially unconstitutional statute, as Floyd F. has done here, is
clearly permissible.
¶ 67 McFadden is also problematic because of the line of United States Supreme
Court authority on which it is based. In upholding the use of defendant’s prior
firearms conviction to establish an element of the subsequent firearms offense for
which he had been convicted, our opinion in McFadden neither considered nor
addressed Montgomery or the numerous earlier United States Supreme Court cases
which have consistently held that convictions based on facially unconstitutional
statutes are void, can be given no effect, and must be treated by the courts as if they
do not exist. No mention of Montgomery is made in the dissent either. While the
decision was referenced in a motion filed by defendant for leave to file additional
authority and was argued in his petition for rehearing, it triggered no analysis by the
majority or the dissenters in our court, and defendant’s petition for rehearing was
ultimately denied without comment. Because a judicial opinion, like a judgment, is
authority only for what is actually decided in the case (Board of Governors of State
Colleges & Universities for Chicago State University v. Illinois Fair Employment
Practices Comm’n, 78 Ill. 2d 143, 149 (1979); Spring Hill Cemetery of Danville v.
Ryan, 20 Ill. 2d 608, 619 (1960)), McFadden cannot be read as expressing any view
by this court as to the implications of Montgomery for the circumstances present in
that case. Suggestions to the contrary by our appellate court (see, e.g., People v.
Smith, 2017 IL App (1st) 151643, ¶ 18; People v. Spivey, 2017 IL App (1st)
123563, ¶ 14) are incorrect and have no basis in our case law regarding the
interpretation of judicial precedent.
¶ 68 What is clear from the discussion in McFadden is that our decision was based,
instead, squarely on the United States Supreme Court’s decision in Lewis, 445 U.S.
55 (1980). At issue in Lewis was whether a defendant’s extant prior felony
conviction, which was subject to collateral attack on the grounds that the defendant
had been denied his right to counsel pursuant to Gideon v. Wainwright, 372 U.S.
- 26 -
335 (1963), could be used as the predicate for a subsequent conviction under
section 1202(a)(1), as amended, of Title VII of the Omnibus Crime Control and
Safe Streets Act of 1968 (18 U.S.C.A. § 1202(a)(1) (1976)), which barred
possession of firearms by any person who “has been convicted by a court of the
United States or of a State *** of a felony.” (Internal quotation marks omitted.)
Lewis, 445 U.S. at 60.
¶ 69 In answering this question in the affirmative, the Supreme Court examined the
legislative history of section 1202(a)(1) as well as the overall statutory framework
of which it was a part and concluded that its prohibitions were triggered by any
felony conviction, not merely “valid” convictions. Id. Accordingly, for purposes of
that statute, it did not matter that the predicate felony might be subject to collateral
attack on the grounds that it was obtained in violation of a defendant’s right to
counsel. Id. So long as the defendant’s conviction for that felony remained
undisturbed through court challenge or pardon at the time of the conduct giving rise
to the subsequent felony (possession of a firearm), it could be used to establish an
element of the second offense. Id. at 62-65. A contrary conclusion, in the Court’s
view, would be at odds with the statutory scheme enacted by Congress “in response
to the precipitous rise in political assassinations, riots, and other violent crimes
involving firearms, that occurred in this country in the 1960’s,” under which even
mere indictment was a disabling circumstance, and which was designed to be “a
sweeping prophylaxis *** against misuse of firearms.” Id. at 63.
¶ 70 While the Court acknowledged its precedent holding that uncounseled
convictions obtained in violation of the sixth amendment under Gideon could not
be used to enhance punishment under a state’s recidivist statute (Burgett, 389 U.S.
109) or considered by a court in sentencing a defendant after a subsequent
conviction (United States v. Tucker, 404 U.S. 443 (1972)) or to impeach the general
credibility of the defendant in a subsequent prosecution (Loper v. Beto, 405 U.S.
473 (1972); Lewis, 445 U.S. at 60), it distinguished those situations on the grounds
that in each instance, the constitutional defect affected the reliability of the prior
conviction. In Lewis, by contrast, the focus of the federal gun laws was “not on
reliability, but on the mere fact of conviction, or even indictment, in order to keep
firearms away from potentially dangerous persons.” Lewis, 445 U.S. at 67. The
court also found it significant that the sanction imposed by the federal statute could
not be said to “ ‘support guilt or enhance punishment’ ” because that sanction
- 27 -
“attaches immediately upon the defendant’s first conviction” and not, as in Burgett,
only after the fact of the second conviction. Id. (quoting Burgett, 389 U.S. at 115);
see Deborah S. Prutzman, Prior Convictions and the Gun Control Act of 1968, 76
Colum. L. Rev. 326, 339 (1976).
¶ 71 In McFadden, we found that Illinois’s UUWF statute was similar in purpose,
structure, and operation to the federal firearms statute at issue in Lewis and that it
was therefore appropriate to follow the same reasoning in construing and applying
the Illinois law. In focusing on the similarity of the statutory schemes, however, we
failed to take into account a fundamental distinction between the constitutional
flaws afflicting the two predicate offenses. In contrast to McFadden, Lewis did not
present a situation where the prior offense was based on a facially unconstitutional
statute that penalized conduct the state had no power to punish, and no second
amendment concerns were at play (see District of Columbia v. Heller, 554 U.S.
570, 625 n.25 (2008)). The problem with the predicate conviction in Lewis, felony
breaking and entering with intent to commit a misdemeanor imposed under Florida
law by a Florida state court, was that it was subject to attack on the grounds that it
was obtained through a constitutionally deficient procedure, specifically, a trial in
which the defendant had been denied the right to counsel, a defect the defendant
had failed to raise in any Florida state proceeding prior to being prosecuted for the
federal offense then before the court.
¶ 72 The distinction is a critical one, as the United States Supreme Court’s prior case
law demonstrates and its decision in Montgomery confirms.
“Procedural rules, in contrast, are designed to enhance the accuracy of a
conviction or sentence by regulating ‘the manner of determining the
defendant’s culpability.’ [Citations.] Those rules ‘merely raise the possibility
that someone convicted with use of the invalidated procedure might have been
acquitted otherwise.’ [Citation.] Even where procedural error has infected a
trial, the resulting conviction or sentence may still be accurate; and, by
extension, the defendant’s continued confinement may still be lawful. For this
reason, a trial conducted under a procedure found to be unconstitutional in a
later case does not, as a general matter, have the automatic consequence of
invalidating a defendant’s conviction or sentence.” Montgomery, 577 U.S. at
___, 136 S. Ct. at 730.
- 28 -
Correspondingly, a conviction resulting from a trial in which the defendant was not
afforded his or her right to counsel may be used for some purposes but not for
others. Lewis, 445 U.S. at 66-67.
¶ 73 What our decision in McFadden did not take into account is that “[t]he same
possibility of a valid result does not exist where a substantive rule has eliminated a
State’s power to proscribe the defendant’s conduct or impose a given punishment,”
for “ ‘[e]ven the use of impeccable factfinding procedures could not legitimate a
verdict’ where ‘the conduct being penalized is constitutionally immune from
punishment.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 718 (quoting United
States Coin & Currency, 401 U.S. at 724). Convictions resulting from a facially
unconstitutional statute fall directly within this category. As discussed in detail
earlier in this opinion, under Montgomery and the long line of cases on which
Montgomery is based, such convictions are illegal and void, a nullity to which no
court may give adverse effect in any proceeding against the defendant. They can
give rise to no criminal status nor create any legal impediment, for the state had no
authority, and the courts never acquired jurisdiction, to impose punishment under
such laws to begin with. Id. at ___, 136 S. Ct. at 730-31.
¶ 74 Because of this, as we have explained, a facially unconstitutional statute and
any conviction based on the statute must be treated as if they never existed. Because
they are nonexistent, as a matter of federal constitutional law, and must therefore be
ignored by the courts, using them against a defendant in any subsequent
proceeding, civil or criminal, is not only conceptually impossible (if something has
no legal existence how can it be given any legal recognition?) but would subvert the
very constitutional protections that resulted in the statute being found facially
invalid to begin with and is incompatible with the United States Supreme Court’s
command that when, as under Aguilar and here, the conduct penalized by a statute
is constitutionally immune from punishment, that determination must be given
complete retroactive effect. Id. at ___, 136 S. Ct. at 731. Nothing in Lewis or any
other United States Supreme Court decision of which we are aware supports a
different conclusion. 3
3
The fact that this is the only reasonable conclusion is emphasized by the number of defendants
that have petitioned for certiorari following the denial of their petition for leave to appeal by this
court. See People v. McGee, 2017 IL App (1st) 141013-B, leave to appeal denied, No. 122419 (Ill.
- 29 -
¶ 75 Our appellate court has struggled to reconcile McFadden with the line of
United States Supreme Court authority culminating in Montgomery, often calling
for a legislative solution in the absence of direction from our court. See Smith, 2017
IL App (1st) 151643, ¶ 15; Spivey, 2017 IL App (1st) 123563, ¶¶ 25-26 (Hyman, J.,
specially concurring); People v. McGee, 2017 IL App (1st) 141013-B, ¶ 33
(Hyman, J., specially concurring). The appellate court’s unease is unsurprising and
justified, especially given that the appellate court’s findings took the proper
analytical approach. See People v. McGee, 2016 IL App (1st) 141013; People v.
Cowart, 2015 IL App (1st) 113085; People v. Richardson, 2015 IL App (1st)
130203; People v. Ramsey, 2015 IL App (1st) 131878; People v. Faulkner, 2015 IL
App (1st) 132884; People v. Claxton, 2014 IL App (1st) 132681; People v. Soto,
2014 IL App (1st) 121937; People v. Fields, 2014 IL App (1st) 110311; People v.
Dunmore, 2013 IL App (1st) 121170. Numerous unpublished orders follow the
same analysis, indicating the appellate court no longer considered this analysis to
be a new or conflict-ridden area of law. See Ill. S. Ct. R. 23(a)-(b) (eff. July 1,
2011); see also People v. Brown, 2015 IL App (1st) 122651-U; People v. Sterling,
2015 IL App (1st) 130556-U; People v. Fields, 2014 IL App (1st) 122012-U;
People v. Hernandez, 2015 IL App (1st) 131871-U; People v. Somerville, 2014 IL
App (1st) 132202-U; People v. Spivey, 2015 IL App (1st) 123563-U; People v.
White, 2014 IL App (1st) 122371-U; People v. Fryer, 2015 IL App (1st) 141409-U;
People v. Smith, 2015 IL App (1st) 123281-U; People v. Smith, 2014 IL App (1st)
Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 935 (2018); People v. Faulkner, 2017 IL App
(1st) 132884, leave to appeal denied, No. 122204 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___,
138 S. Ct. 1023 (2018); People v. Perkins, 2016 IL App (1st) 150889, leave to appeal denied, No.
121407 (Ill. Nov. 23, 2016), cert. denied, ___ U.S. ___, 137 S. Ct. 2294 (2017); People v. Williams,
2016 IL App (3d) 120840, leave to appeal denied, No. 121329 (Ill. Nov. 23, 2016), cert. denied, ___
U.S. ___, 137 S. Ct. 2294 (2017); People v. Brown, 2017 IL App (1st) 122651-U, leave to appeal
denied, No. 122309 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 936 (2018); People v.
White, 2017 IL App (1st) 122371-UB, leave to appeal denied, No. 122423 (Ill. Sept. 27, 2017), cert.
denied, ___ U.S. ___, 138 S. Ct. 935 (2018); People v. Fryer, 2017 IL App (1st) 141409-U, leave to
appeal denied, No. 122273 (Ill. Sept. 27, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 1029 (2018);
People v. Carter, 2017 IL App (1st) 123589-UB, leave to appeal denied, No. 121929 (Ill. May 24,
2017), cert. denied, ___ U.S. ___, 138 S. Ct. 199 (2017); People v. Williams, 2016 IL App (1st)
143453-U, leave to appeal denied, No. 121482 (Ill. Jan. 25, 2017), cert. denied, ___ U.S. ___, 138
S. Ct. 67 (2017); People v. Powell, 2015 IL App (1st) 140837-U, leave to appeal denied, No.
121758 (Ill. Mar. 29, 2017), cert. denied, ___ U.S. ___, 138 S. Ct. 172 (2017). This is clearly
becoming a pressurized issue. The further we extend McFadden’s reach, the less justification we
have for following Lewis down the wrong analytical path.
- 30 -
122370-U; People v. Dean, 2015 IL App (1st) 122570-U; People v. Carter, 2014 IL
App (1st) 123589-U; People v. Crosby, 2014 IL App (1st) 121645-U; People v.
Moton, 2015 IL App (1st) 123385-U; People v. Lester, 2014 IL App (1st)
121882-U; People v. Speciale, 2015 IL App (1st) 132376-U; People v. Marshall,
2015 IL App (1st) 142461-U; People v. Foster, 2014 IL App (1st) 101376-U.
Simply put, the analysis in McFadden not only took the wrong analytical path, it
failed to recognize that the other path existed.
¶ 76 Had our analysis in McFadden taken into account the distinction between a
prior conviction resulting from a constitutionally deficient procedure and one based
on a facially unconstitutional statute, the approach we took in that case would have
been different. It is important that we acknowledge that now. “Our most important
duty as justices of the Illinois Supreme Court, to which all other considerations are
subordinate, is to reach the correct decision under the law.” People v. Mitchell, 189
Ill. 2d 312, 339 (2000). Courts are and should be reluctant to abandon their
precedent in most circumstances, but considerations of “[s]tare decisis should not
preclude us from admitting our mistake” when we have made one and interpreting
the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too often
never comes, and so one ought not to reject it merely because it comes late.’ ” Id.(quoting Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600
(1949) (per curiam) (Frankfurter, J., dissenting)). “[S]tare decisis is not so static a
concept that it binds our hands to do justice when we have made a mistake.” Vitro v.
Mihelcic, 209 Ill. 2d 76, 93 (2004) (Fitzgerald, J., dissenting, joined by Kilbride
and Rarick, JJ.) (“Here, there are not only compelling reasons, but also the best
cause to abandon Dralle v. Ruder, 124 Ill. 2d 61 (1988): it was incorrectly
decided.”). Justice Calvo, a former member of this court, put the matter more
bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this
wrong, *** the more difficult it will be to rectify the error, embedded in the case
law through usage.” Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450,
495-96 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.).
¶ 77 Even if Lewis could somehow be construed to justify the result in McFadden,
notwithstanding the fundamental qualitative difference in the predicate
convictions, we would decline to extend it to the matter before us here. At least one
state court has rejected Lewis outright. See State v. Portsche, 606 N.W.2d 794(Neb. 2000) (limiting the reach of Lewis to the federal statute in that case and
- 31 -
holding that defendant’s prior uncounseled conviction could not be used to
establish that he was a convicted felon for purposes of Nebraska’s
felon-in-possession statute). And numerous subsequent decisions by the federal
courts, including the United States Supreme Court, have declined to extend the
decision to cases which do not involve felon-in-possession statutes. See Baldasar v.
Illinois, 446 U.S. 222 (1980) (holding that a defendant can collaterally attack an
uncounseled misdemeanor conviction used to convert a subsequent misdemeanor
into a felony); United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987) (“Lewis
is inapplicable where prior convictions are used to determine the punishment,
rather than to define the offense.”); United States v. Paleo, 9 F.3d 988 (1st Cir.
1992) (despite Lewis the sentence enhancement statute does not require a court to
consider unconstitutionally obtained—but not yet set aside—convictions as
sentencing predicates); United States v. Nicholas-Armenta, 763 F.2d 1089 (9th Cir.
1985) (allowing collateral attacks on deportation orders that form the basis of a
subsequent criminal conviction).
¶ 78 If Lewis’s effect is thus limited even within the context of criminal cases, it is
difficult to see any sound justification for extending it—or McFadden—to a civil
case such as this one. Those decisions are simply inapposite. Both involved
criminal prosecutions, both involved the interpretation and application of specific
felon-in-possession statutes, and both were premised on concerns over effectuating
the purposes of those statutes, namely, protecting the public from dangerous
persons who are seeking to obtain firearms. McFadden, 2016 IL 117424, ¶¶ 29-30;
Lewis, 445 U.S. at 67. None of those factors is present here. This is not a criminal
proceeding, and we are not being called upon to construe and apply either Illinois’s
UUWF statute or the federal felon-in-possession statute. Rather, this is a parental
rights termination proceeding involving section 1(D)(i) of the Adoption Act (750
ILCS 50/1(D)(i) (West 2010)). The issue here is whether Floyd F. is fit to be a
parent. Insisting that Floyd F.’s prior AUUW conviction be given effect in this
proceeding would not advance any firearms-related public safety concerns. It
would have no impact on firearms policy or public safety at all. Instead, all it would
do is 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.
- 32 -
¶ 79 We note, moreover, that in Lewis, on which McFadden relied, the United States
Supreme Court justified use of the constitutionally deficient firearms conviction
because, in that case, the sanction imposed by the federal felon-in-possession
statutory scheme “attache[d] immediately upon the defendant’s first conviction”
and, unlike its earlier decisions in Burgett, Tucker, and Loper, the subsequent
conviction did not depend on reliability of that first conviction. Lewis, 445 U.S. at
67. Those considerations are not present here either. Under section 1(D)(i) of the
Adoption Act (750 ILCS 50/1(D)(i) (West 2010)), the provision that controls this
case, the sanction—being deemed “depraved” and thus unfit—does not attach
immediately upon the first offense. Three convictions of certain specified types are
required, and they must fall within a certain time frame. And whether one meets the
definition of “depravity” depends not just on the fact of those three prior
convictions but on what they tell us about a person’s fitness to continue to be a
parent. Reliability of the convictions thus matters a great deal.
¶ 80 This is apparent from the terms of section 1(D)(i) of the Adoption Act. Under
the plain and unambiguous language of the statute, the existence of a prior felony
conviction is not dispositive for purposes of establishing that a parent is “depraved”
and therefore unfit and subject to having his or her rights terminated. Id. Rather, the
conviction merely goes to creation of a rebuttable presumption of “depravity,” a
presumption that a parent is given the chance to refute. Indeed, the statutory
opportunity afforded parents under section 1(D)(i) to show why the presumption is
inapplicable is the very thing that differentiates this subsection from a related
provision struck down by this court in In re D.W., 214 Ill. 2d 289 (2005).
¶ 81 It is difficult to envision a more compelling reason for rejecting the
presumption of depravity than that one of the predicate convictions on which the
State’s claim of depravity depends is actually a legal nullity and must therefore be
ignored, as Floyd F. clearly established in this case with regard to his
constitutionally invalid 2008 AUUW conviction. If a parent were barred from
making such a showing and the circuit court were barred from taking that evidence
into account, the protections afforded to parents by the statute would be reduced to
an empty promise. The presumption of depravity would not be rebuttable at all. In
reality, it would be conclusive. Such a conclusion cannot be squared with the plain
language of the Adoption Act and would place Illinois in direct opposition to the
core constitutional principle that one may not be forced to suffer sanctions for
- 33 -
conduct the federal constitution places beyond the power of the state to punish. We
must therefore reject it.
¶ 82 We note, moreover, that if Lewis and McFadden applied to parental rights cases
in the same way that they applied to prosecutions for firearms violations, it would
mean that a person would have to set aside the unconstitutional weapons offense
before exercising his or her fundamental constitutional right to procreate and raise a
child. Parents who failed to do so and thus stood convicted of three felonies, as
Floyd F. was here, would be unable to escape the categorization of “depravity”
within the meaning of the Adoption Act and therefore be categorically barred from
parenthood. Such a result would place Illinois law uncomfortably close to the
Oklahoma statute struck down on equal protection grounds in Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535 (1942), under which defendants who had
committed two or more felonies of certain types could be deemed “habitual
criminals” and subject to forced sterilization.
¶ 83 It would also raise serious due process concerns particularly where, as here, the
rule announced in McFadden requiring vacatur of the unconstitutional conviction
prior to engaging in the subsequent constitutionally protected conduct—in this case
procreation of a child—had no antecedent in Illinois law and was not announced by
our court until five years after the child was already born, by which time it was too
late for the father to take the action the new rule requires. Notice and “fair
warning,” touchstones of due process (Rogers v. Tennessee, 532 U.S. 451, 461-62
(2001)), and changes in judicial interpretation of the law making the law less
favorable to defendants can only be applied prospectively (People v. Patton, 57 Ill.
2d 43, 47-48 (1974)). Extending McFadden to this case could not be squared with
these well-established principles.
¶ 84 In sum, Floyd F.’s unconstitutional AUUW conviction is null and void, thus it
cannot serve as a basis for finding him depraved under section 1(D)(i) of the
Adoption Act (750 ILCS 50/1(D)(i) (West 2010)). With this conviction removed
from consideration, DCFS cannot establish that Floyd F. met the statutory
definition of depravity. Id. It follows that respondent’s parental rights cannot be
terminated on that basis. The trial court’s termination of Floyd F.’s parental rights
under the presumption of depravity was therefore contrary to the manifest weight
of the evidence and was properly set aside by the appellate court. While we find this
- 34 -
case distinguishable from McFadden, to the extent that this result and controlling
United State’s Supreme Court precedent conflict with McFadden, McFadden is
hereby overruled.
¶ 85 In reaching this conclusion, we in no way seek to excuse Floyd F.’s
shortcomings as a parent. Based on the record before us, it seems unlikely that he
will ever succeed in maintaining a relationship with N.G. that comports with
conventional norms. Such concerns, however, cannot excuse us from our
obligation to follow the law. As our precedent makes clear, “[t]he liberty interest of
parents in the care, custody and management of their child ‘ “does not evaporate
simply because they have not been model parents or have lost temporary custody of
their child to the State.” ’ In re D.T., 212 Ill. 2d 347, 359 (2004), quoting Santosky
v. Kramer, 455 U.S. 745, 753, 71 L.Ed.2d 599, 606, 102 S. Ct. 1388, 1394-95
(1982).” In re D.W., 214 Ill. 2d at 311.
¶ 86 On remand, DCFS will have the opportunity to attempt to prove that Floyd F.
meets the definition of unfitness under some other provision of the Adoption Act.
Today, we hold simply that he cannot be found depraved and therefore unfit under
section 1(D)(i) of the Adoption Act based on his legally nonexistent and
now-vacated 2008 AUUW conviction.
¶ 87 CONCLUSION
¶ 88 For the foregoing reasons, the judgment of the appellate court is affirmed.
¶ 89 Appellate court judgment affirmed.
¶ 90 Circuit court judgment reversed.
¶ 91 JUSTICE KILBRIDE, specially concurring:
¶ 92 I agree with and join the court’s opinion. I also agree with the part of Justice
Neville’s special concurrence emphasizing that the primary burden of vacating a
void conviction based on a facially unconstitutional statute should not be placed on
the defendant who has already suffered the violation of his constitutional rights.
- 35 -
The special concurrence correctly explains that the dissent’s approach unjustly
places the entire burden for vacating a void conviction on the defendant. As this
court has held, “courts have an independent duty to vacate void orders and may
sua sponte declare an order void.” People v. Thompson, 209 Ill. 2d 19, 27 (2004).
¶ 93 A facially unconstitutional statute is void ab initio. The statute was, therefore,
constitutionally infirm from the moment it was enacted and must be treated as if it
were never enacted. People v. McFadden, 2016 IL 117424, ¶ 58 (Kilbride, J.,
concurring in part and dissenting in part, joined by Burke, J.). Given those
circumstances, it is fundamentally unfair to use a void conviction based on a
facially unconstitutional statute against a defendant in a subsequent proceeding
when he or she has not taken affirmative action to vacate the void conviction.
McFadden, 2016 IL 117424, ¶¶ 62-63 (Kilbride, J., concurring in part and
dissenting in part, joined by Burke, J.) (requiring a defendant to obtain official
vacatur of a void conviction before engaging in constitutionally protected conduct
offends all sense of due process). “ ‘[W]here a statute is violative of constitutional
guarantees, we have a duty not only to declare such a legislative act void, but also to
correct the wrongs wrought through such an act by holding our decision
retroactive.’ ” McFadden, 2016 IL 117424, ¶ 73 (Kilbride, J., concurring in part
and dissenting in part, joined by Burke, J.) (quoting People v. Gersch, 135 Ill. 2d
384, 399 (1990)). In my view, 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. See Gersch, 135 Ill. 2d at 399. Accordingly, I
specially concur.
¶ 94 JUSTICE NEVILLE, specially concurring:
¶ 95 I agree with the court’s opinion. I write separately to highlight important
concerns that are not necessary to the resolution of this appeal but that weigh
heavily on this court’s duty to ensure the fair administration of justice for all
citizens in Illinois.
¶ 96 There is no dispute that a statute that has been declared to be facially
unconstitutional is void ab initio and is unenforceable from the time it was enacted.
Supra ¶ 50. Like my colleagues in the majority, I agree that a criminal conviction
based on a facially unconstitutional statute is “ ‘illegal and void.’ ” Supra ¶ 37
- 36 -
(quoting Ex parte Siebold, 100 U.S. 371, 376 (1879)). Consequently, such a
conviction is a nullity and “cannot be used for any purpose under any
circumstances.” Supra ¶ 37 (citing Siebold, 100 U.S. at 376). As the court’s opinion
correctly observes, the State is prohibited from giving any efficacy to a prior
conviction based on a facially unconstitutional statute (supra ¶ 38 (citing
Montgomery v. Louisiana, 577 U.S. ___, ___, 136 S. Ct. 718, 730 (2016))) because
to do so “would be tantamount to forcing the defendant to suffer anew the
deprivation of his constitutional rights” (supra ¶ 38 (citing United States v. Bryant,
579 U.S. ___, ___, 136 S. Ct. 1954, 1956-57 (2016))).
¶ 97 The appellate court vacated defendant’s 2008 conviction for aggravated
unlawful use of a weapon, and our agreement with that decision settles the question
for this appeal. But the pervasive problem of properly allocating the responsibility
for correcting a void conviction endures.
¶ 98 The dissent expresses the view that each defendant whose constitutional rights
have been violated by an illegal conviction must undertake the task of having that
conviction vacated and must do so in an “appropriate proceeding.” See infra
¶¶ 133-36, 158, 171. The upshot of this position is that if a defendant fails to do so,
the illegal conviction stands and can be used against that defendant in later
proceedings where his or her criminal history is at issue. This approach nullifies the
void ab initio rule and places additional restrictions and burdens on defendants who
have been convicted under a facially unconstitutional statute. I strongly disagree
with the dissent’s approach.
¶ 99 According to the dissent, the defendant bears the responsibility for vacating his
illegal conviction premised on a facially unconstitutional statute. See infra
¶¶ 149-53, 158. But it is manifestly unfair to hold defendants exclusively
responsible for vacating a void conviction. This approach places an onerous burden
on lay defendants who are the least equipped to undertake that burden because they
lack legal skills and do not know how to navigate the legal system. The dissent’s
approach would allow a void conviction to remain on the record of this defendant
and all other similarly situated defendants. That result cannot be tolerated in a
well-ordered system of justice.
¶ 100 Vacatur is the procedural means used to correct the entry of a void judgment of
conviction. See Black’s Law Dictionary 1782 (10th ed. 2014) (defining “vacatur”
- 37 -
as “[t]he act of annulling or setting aside” or “[a] rule or order by which a
proceeding is vacated”). However, vacatur alone is inadequate to remedy the wrong
occasioned by an illegal conviction. The rights and interests of the defendant can
only be restored if the record of that conviction is expunged from his or her criminal
record. Expungement is the procedure used to remove the conviction from the
defendant’s record after a conviction has been vacated. See 20 ILCS 2630/5.2(b)(6)
(West 2016); 730 ILCS 5/5-5-4(b) (West 2016). Thus, it is the necessary capstone
in providing a remedy to those who were prosecuted under a facially
unconstitutional statute.
¶ 101 In my view, the burden of correcting an illegal conviction must be borne by all
of the participants in the criminal justice system. It is axiomatic that “courts have an
independent duty to vacate void orders and may sua sponte declare an order void.”
People v. Thompson, 209 Ill. 2d 19, 27 (2004). Therefore, our circuit and appellate
courts must take action to vacate and expunge a conviction that was based on a
facially unconstitutional statute.
¶ 102 Prosecutors also share the responsibility of ensuring that void convictions are
vacated and expunged. In fact, I believe the standards adopted by the American Bar
Association indicate that prosecutors have a duty to initiate proceedings of their
own accord to vacate any convictions that are premised on a statute that has been
declared to be facially unconstitutional. Section 3-1.2(f) of the American Bar
Association (ABA) Standards for Criminal Justice, titled “Functions and Duties of
the Prosecutor,” states:
“The prosecutor is not merely a case-processor but also a problem-solver
responsible for considering broad goals of the criminal justice system. The
prosecutor should seek to reform and improve the administration of criminal
justice, and when inadequacies or injustices in the substantive or procedural
law come to the prosecutor’s attention, the prosecutor should stimulate and
support efforts for remedial action.” ABA Standards for Criminal Justice,
Standard 3-1.2(f) (4th ed. 2015).
The “[p]revailing norms of practice as reflected in American Bar Association
standards *** are guides to determining what is reasonable.” Strickland v.
Washington, 466 U.S. 668, 688 (1984). While the imperatives set forth in section
3-1.2(f) are “only guides” (id.), they highlight the fact that prosecutors are often in
- 38 -
the best position to address inadequacies or injustices in the criminal justice system
by initiating remedial action to improve the administration of justice.
¶ 103 Therefore, contrary to the views expressed by the dissent, I reject the notion that
the burden of correcting a void conviction falls exclusively on the defendant.
Rather, the State should be required to undertake that responsibility. Where a
court—at any level—has notice that a defendant’s conviction is void, that court has
an independent obligation to vacate and expunge the void conviction. In addition,
the state’s attorney in each county should commence proceedings to vacate and
expunge all void convictions that were predicated on a statute that has been
declared to be facially unconstitutional. In my view, the aforementioned remedies
can be used by criminal justice participants to return illegally convicted defendants
to their preconviction status.
¶ 104 I also disagree with the dissent’s conclusion that the vacatur of a void
conviction can only be accomplished by the filing of a petition in a collateral
proceeding under (i) the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
(West 2016)) or (ii) section 2-1401 of the Code of Civil Procedure (735 ILCS
5/2-1401 (West 2016)) or (iii) the Habeas Corpus Act (id. § 10-124). See infra
¶ 133. As this court’s opinion observes, such petitions are not the only avenues
available to mount a collateral attack on a conviction under a statute that has been
declared to be facially unconstitutional. Supra ¶ 54. Rather, void judgments are not
subject to forfeiture and may be attacked at any time or in any court (supra ¶ 43).
¶ 105 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. The position adopted by the dissent
would leave in place a conviction premised on a facially unconstitutional statute
merely because the defendant failed to commence a collateral attack prior to the
State’s attempt to use the illegal conviction against him—a circumstance that the
defendant may not be able to anticipate. The facts of this case illustrate the point.
All three of Floyd F.’s felony convictions were entered before N.G. was born. The
fact that the void conviction for aggravated unlawful use of a weapon was being
used against him to terminate his right to parent N.G. is precisely why the
termination proceeding was an appropriate proceeding to raise the constitutional
challenge.
- 39 -
¶ 106 In conclusion, I concur that the judgment of the appellate court in this case must
be affirmed. I remind our circuit and appellate courts of their duty to sua sponte
vacate and expunge void convictions. I also encourage the state’s attorney in each
county to commence proceedings to vacate and expunge any illegal convictions
based on a facially unconstitutional statute. Finally, I note that the expungement of
void convictions from the criminal record is necessary for all defendants who have
been wrongfully convicted to receive complete justice.
¶ 107 JUSTICE THEIS, dissenting:
¶ 108 The issue brought before the appellate court was whether a criminal conviction,
which had not been collaterally attacked, was admissible as evidence of depravity
in a subsequent termination of parental rights proceeding. The appellate court
contorted the issue to decide whether the appellate court had the authority to vacate
the criminal conviction on appeal from the termination of parental rights
proceeding. The majority takes the bait and follows suit. In doing so, 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.
¶ 109 Facts matter. In proceedings before a reviewing court, the record is vital to our
understanding of the procedural posture of the case and to our analysis. The
majority insists that (1) “it is clear from the supplemented appellate record” (supra
¶ 65) that respondent’s conviction was based on the unconstitutional statutory
provision addressed in Aguilar and (2) that respondent “sought to have the prior
conviction itself nullified and vacated” (supra ¶ 66). Both points are egregiously
inaccurate.
¶ 110 First, the record as presented to this court contains no “supplemented appellate
record” from which this court could verify the documents of which the appellate
court took judicial notice. The appellate court indicated that it “sought and obtained
documents from the Will County circuit court” (2017 IL App (3d) 160277, ¶ 8), but
there is no indication that any order was entered to obtain those documents, and no
supplement to the record was actually made. 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.
- 40 -
¶ 111 Second, the record contains absolutely no pleading filed by respondent in
which he sought to have his 2008 judgment of conviction vacated. Furthermore, at
no point in the termination of parental rights hearing before the circuit court did
respondent seek to vacate that conviction, nor did he even seek to do so for the first
time on appeal from the termination proceeding. At most, respondent testified at
the unfitness hearing, to rebut the presumption of depravity, that there was a
pending appeal, or perhaps a postconviction petition attacking his 2011 conviction,
and that if successful it would impact his release date. The majority’s
misstatements and mischaracterizations of the record not only undermine
confidence in its decision but skew the result, making it outcome determinative.
¶ 112 Judicial restraint matters. As recognized by the appellate court, there was a
factually unresolved question on appeal as to whether our decision in Aguilar was
even applicable to respondent’s 2008 conviction. That matter was outside the
record of these proceedings. At the termination hearing, the State submitted into
evidence certified copies of respondent’s convictions. The certified copies,
however, did not indicate that the 2008 conviction was based on the provision
declared unconstitutional in Aguilar. No other documents were made part of the
record by respondent before the circuit court with respect to the 2008 criminal
proceeding.
¶ 113 At the time of the offense, the AUUW statute required the State to prove the
elements found in subsections (a)(1) or (a)(2), as well as one of the elements found
in subsection (a)(3). See 720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3) (West 2008). Only
subsection (a)(1), (a)(3)(A) (id. § 24-1.6(a)(1), (a)(3)(A)) was found to be
unconstitutional in Aguilar due to a recent intervening change in constitutional
interpretation. People v. Aguilar, 2013 IL 112116. There is simply no indication in
the record that respondent’s conviction was under that subsection.
¶ 114 Although Illinois Supreme Court Rule 366(a)(3) (eff. Feb. 1, 1994) permits this
court to order or permit amendments to the record by correcting errors in the record
or by adding matters that should have been included from the record, “it is
axiomatic that where evidence was not offered during the trial of a matter, it cannot
be introduced for the first time on appeal.” H.J. Tobler Trucking Co. v. Industrial
Comm’n, 37 Ill. 2d 341, 344 (1967). Instead, the appellate court took it upon itself
to investigate the 2008 criminal proceeding, which was not squarely before the
- 41 -
court. It also took it upon itself to investigate respondent’s pending postconviction
petition related to his 2011 judgment of conviction. As the majority recognizes, that
petition was also not squarely before the appellate court. Supra ¶ 53.
¶ 115 After taking judicial notice of certain facts from the 2008 criminal proceeding
to establish evidentiary proof regarding the nature of the conviction, the appellate
court used those facts to not only fill evidentiary gaps in the record but as a basis to
vacate the judgment of conviction in the 2008 criminal proceeding. Despite the fact
that the majority finds the investigation was “well within the appellate court’s
authority” (supra ¶ 32), none of the majority’s cited precedent, nor the Illinois
Rules of Evidence (Ill. R. Evid. 201 (eff. Jan. 1, 2011)) regarding judicial notice,
countenances the use of judicially noticed facts from outside the record on appeal to
fill gaps in the evidentiary record and to sua sponte vacate a judgment of conviction
in a separate criminal proceeding. The majority ignores any proper limitations on
the use of judicially noticed facts. Now, going forward, appellate courts have the
green light to undo final judgments in a completely different proceeding.
¶ 116 Party presentation of the issues matters. The appellate court’s sua sponte
actions were especially problematic where respondent did not seek to have his 2008
judgment of conviction vacated in this termination proceeding. Instead, he raised
an entirely different issue for the first time on appeal, seeking to bar the admission
of his 2008 conviction as evidence in his termination proceeding because that
conviction was based on an unconstitutional statute.
¶ 117 By sua sponte reaching a totally different issue here the appellate court no
longer functioned as neutral arbiter. Instead, the court became an advocate for
respondent and denied the State and the minor the opportunity to address the newly
reframed issue regarding the court’s authority to vacate the 2008 conviction.
Indeed, the minor specifically argued before this court that the appellate court
circumvented her right to a full hearing on that matter. She asserted that “the
appellate court overreached in its authority and discretion by sua sponte
supplementing the original appellate record [which it actually did not even
supplement], and by vacating respondent’s [2008] conviction in a Juvenile matter
where respondent did not request a vacatur, nor filed a notice of appeal or any other
post conviction motions in his [2008] case.”
- 42 -
¶ 118 As we have repeatedly explained, our precedent counsels adherence to the
principle of judicial restraint. The parties are responsible for advancing the facts
and arguments entitling them to relief. “ ‘[Courts] do not, or should not, sally forth
each day looking for wrongs to right. We wait for cases to come to us, and when
they do we normally decide only questions presented by the parties. ***’
[Citation.]” Greenlaw v. United States, 554 U.S. 237, 244 (2008); see also People
v. Boeckmann, 238 Ill. 2d 1, 13 (2010) (it is not appropriate to address issues in a
case where the parties have not raised or argued it); accord Roberts v. Northland
Insurance Co., 185 Ill. 2d 262, 270 (1998).
¶ 119 The doctrine of judicial restraint is especially compelling here where the
appellate court had to first sua sponte fill in an evidentiary gap and then sua sponte
reframe the issue without any briefing on the issue of vacatur by the State or the
minor. This process is antithetical to our pledge, audi alteram partem—hear the
other side—which is prominently displayed in our courtroom. Despite the myriad
problems with the appellate court’s approach, the majority barrels on without
pause.
¶ 120 Nevertheless, the majority fails to break down the analysis of the entirely
separate and distinct questions now before this court. Seen clearly, the issues before
this court are as follows: (1) whether the reviewing court had jurisdiction to vacate
the 2008 criminal conviction on appeal from the termination of parental rights
proceeding and, if not, (2) whether the 2008 criminal conviction could be admitted
as evidence in the termination of parental rights proceeding to establish the
rebuttable presumption of depravity.
¶ 121 Jurisdiction to Vacate the 2008 Conviction
¶ 122 The appellate court lacked jurisdiction to vacate the 2008 criminal conviction in
these proceedings. The circuit court’s jurisdiction over the 2008 judgment of
conviction had long since lapsed. No appeal had been taken from that judgment.
Thus, at the time the State alleged respondent was depraved, respondent had a
judgment of conviction that was final and had not been vacated. The only matter
before the circuit court was the State’s pleading in the termination proceeding. The
circuit court entered a judgment in that proceeding, and respondent appealed from
that judgment.
- 43 -
¶ 123 As we explained in Flowers, “the appellate court is not vested with authority to
consider the merits of a case merely because the dispute involves an order or
judgment that is, or is alleged to be, void.” People v. Flowers, 208 Ill. 2d 291, 308
(2003). Thus, as applied here, the appellate court was not vested with jurisdiction to
enter any orders with respect to the 2008 judgment merely because the termination
dispute involved a judgment in another proceeding that is alleged for the first time
on appeal to be void. Respondent correctly recognized this problem where he stated
in his supplemental brief to the appellate court that declaring the 2008 conviction as
“inadmissible for evidentiary purposes in a hearing on a petition to terminate
parental rights is not necessarily tantamount to declaring the conviction void and
vacating it. This may well reconcile any jurisdictional concerns.” The appeal from
the judgment in the termination proceeding was simply not a vehicle for obtaining
relief from a final judgment in a separate criminal proceeding.
¶ 124 The majority buys into the appellate court’s judicial sleight of hand and
proceeds to case discussion. The majority insists that Montgomery v. Louisiana,
577 U.S. ___, 136 S. Ct. 718 (2016), Ex Parte Siebold, 100 U.S. 371 (1879), and
our own precedent mandate that the court has an affirmative duty to vacate
respondent’s 2008 conviction in these proceedings and that this is an appropriate
forum to seek that relief. Supra ¶¶ 34-36. These cases say nothing of the kind.
¶ 125 Montgomery merely stands for the proposition that, under the supremacy
clause, new substantive constitutional rules must be made retroactively applicable
to cases on state collateral review. In Montgomery, the United States Supreme
Court held that the rule announced in Miller v. Alabama, 567 U.S. 460 (2012),
which held that mandatory life sentences without parole for juvenile offenders
violated the eighth amendment, was a new substantive constitutional rule that must
be given retroactive effect in state collateral proceedings regardless of when the
conviction became final. Montgomery, 577 U.S. at ___, 136 S. Ct. at 733-34.
Montgomery was relying on the retroactivity jurisprudence announced in Teague v.
Lane, 489 U.S. 288, 300 (1989), which clarified and limited the circumstances
under which a defendant whose conviction was final could claim the benefit of a
new rule. As we recently reiterated, “[i]f a new rule qualifies as a ‘substantive rule’
under Teague, then defendants whose convictions are final may seek the benefit of
that rule through appropriate collateral proceedings.” People v. Price, 2016 IL
- 44 -
118613, ¶ 31. In contrast, new rules of criminal procedure, other than a watershed
rule of procedure, will not be applied on collateral review. Teague, 489 U.S. at 310.
¶ 126 Finality of judgments matters. The majority makes the extraordinary claim that
“[a]s for concerns over the finality of judgments, these are of little consequence as a
practical matter.” Supra ¶ 58. As the Supreme Court explained in Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993), retroactivity jurisprudence “was motivated by
a respect for the States’ strong interest in the finality of criminal convictions.” In
recognizing that finality of judgments mattered, the Supreme Court in Montgomery
reiterated that when a state court “adjudicate[es] claims under its collateral review
procedures,” the claim must be “properly presented in the case.” Montgomery, 577
U.S. at ___, 136 S. Ct. at 732. The Court explained that “this Court is careful to
limit the scope of any attendant procedural requirement to avoid intruding more
than necessary upon the States’ sovereign administration of their criminal justice
systems.” Id. at ___, 136 S. Ct. at 735.
¶ 127 To state the corollary, the supremacy clause does not impose upon state courts a
constitutional obligation to grant relief from a final judgment where the claim is not
properly presented in the state court proceedings. Nor does the supremacy clause
mandate the procedural mechanisms by which state courts afford collateral review.
The Court was well aware that the proper mode of collaterally attacking a criminal
conviction in a state court depends on state law, not federal law. See Danforth v.
Minnesota, 552 U.S. 264, 288 (2008) (“the remedy a state court chooses to provide
its citizens for violations of the Federal Constitution is primarily a question of state
law”).
¶ 128 To the extent the majority hangs its analytical hat on Siebold for the proposition
that we have a duty to vacate respondent’s criminal conviction in these
proceedings, the majority is again off base. Siebold mandates that there be a remedy
for a challenge to a conviction obtained under an unconstitutional law. It does not
mandate that we create a new method of collateral attack.
¶ 129 In Siebold, petitioners were convicted of violating federal election laws. They
filed a petition for a writ of habeas corpus in the Supreme Court attacking the
validity of the judgment on the ground that the federal statutes under which they
were convicted were unconstitutional. The Supreme Court addressed whether
habeas relief was an available remedy because a federal court had no inherent
- 45 -
habeas power. It was unlawful to use the federal habeas writ “as a mere writ of
error.” Siebold, 100 U.S. at 375.
¶ 130 The Court held that a conviction obtained under an unconstitutional law
warranted expansion of habeas relief because, if the law was unconstitutional and
void, it placed the conduct beyond the power of the Congress to proscribe and
“cannot be a legal cause of imprisonment.” Id. at 377. If the federal habeas statute
did not expand to allow for challenges to a conviction obtained under an
unconstitutional law, then prisoners would have no remedy. Id. Therefore, the
claim was subject to collateral attack in federal habeas corpus proceedings. Id.¶ 131 Montgomery holds that the conclusion in Siebold applies to state collateral
review proceedings, “assuming the claim is properly presented in the case.”
Montgomery, 377 U.S. at ___, 136 S. Ct. at 732. This limitation is an important one.
Illinois applies the principle of finality of judgments rigorously in both civil and
criminal cases. We recognize only those remedies clearly embedded in our statutes
and common law.
¶ 132 Under the specific facts in Montgomery, the defendant had a state law collateral
remedy, which was properly presented. Id. at ___, 136 S. Ct. at 726. As the
Montgomery court explained, in Louisiana, there are two principal mechanisms for
collateral challenge to the lawfulness of imprisonment. Indeed, the defendant had a
state remedy and followed the proper procedure to obtain that remedy by bringing a
collateral attack on his sentence by filing a motion to correct an illegal sentence in
the district court. Id. at ___, 136 S. Ct. at 726. Thus, Montgomery requires that, in a
properly presented state court collateral proceeding, the Louisiana Supreme Court
was required to give Miller retroactive effect.
¶ 133 Illinois has several procedural methods by which a defendant could collaterally
attack a final judgment. A prisoner may seek habeas corpus relief on the grounds
enumerated in section 10-124 of the Habeas Corpus Act. See 735 ILCS 5/10-124
(2014); People v. Gosier, 205 Ill. 2d 198, 205 (2001). Additionally, a defendant
whose conviction is final and who claims his conviction is premised on an
unconstitutional statute may seek relief under the Post-Conviction Hearing Act
(725 ILCS 5/122-1 et seq. (West 2014)) or by filing a petition pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).
- 46 -
¶ 134 Section 2-1401 establishes a comprehensive, statutory procedure that allows for
final orders and judgments to be challenged more than 30 days after their entry. See
People v. Vincent, 226 Ill. 2d 1, 7 (2007). A defendant seeking to vacate a void
judgment is not subject to the usual time limitations or due diligence requirements
of section 2-1401. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104-05
(2002); People v. Harvey, 196 Ill. 2d 444, 452-53 (2001) (McMorrow, J., specially
concurring, joined by Freeman, J.). Thus, in this case, section 2-1401 is an available
mechanism to collaterally attack respondent’s 2008 conviction where respondent
could present evidence before the circuit court to support his claim and where the
State would have the opportunity to respond accordingly. See, e.g., People v.
Shinaul, 2017 IL 120162, ¶ 14 (the defendant properly understood that the way to
vacate his void conviction after a final judgment had been entered on his guilty plea
was to collaterally attack it through the filing of a section 2-1401 petition).
Respondent did nothing like that.
¶ 135 Until now, we have never held that an appeal from a termination of parental
rights proceeding is a proper vehicle under Illinois law to seek relief from a final
judgment of conviction in a criminal proceeding. To put this proceeding in the
framework of Montgomery, the termination proceeding is not a state
“collateral-review proceeding” and does not involve a claim that is “properly
presented.”
¶ 136 Instead, the majority perverts and distorts the concept of collateral attack.
Under the majority’s novel and unprecedented view, despite there being a remedy
available to respondent, after today, Illinois courts are now compelled to sua sponte
revisit settled convictions in any proceeding that is pending before a court where
defendant contends his conviction is based on a facially unconstitutional statute.
“[I]f the constitutional infirmity is put in issue during a proceeding that is pending
before a court, the court has an independent duty to vacate the void judgment and
may do so sua sponte.” Supra ¶ 57. The breadth of this holding is stunning.
¶ 137 Additionally, the majority’s application of retroactivity jurisprudence in the
context of collateral review is misplaced here. The matter at issue here is a direct
review of whether the circuit court erred in the termination proceeding. The Aguilar
decision was rendered before the termination proceeding. Therefore, to say that we
- 47 -
must apply Aguilar “retroactively” to this matter, on direct review from a
termination proceeding that did not predate Aguilar, makes no sense.
¶ 138 More importantly, this is not a case where we are asked to decide whether a new
substantive constitutional rule applies to a criminal case pending on collateral
review. Montgomery would be relevant if respondent sought to have his prior 2008
judgment of conviction vacated in a proper collateral proceeding attacking that
judgment, which did precede Aguilar. That is not by any stretch of the imagination
the procedural posture of this case.
¶ 139 Not only is Montgomery inapt here, none of the Illinois cases cited by the
majority remotely support the majority’s newly articulated view. For example,
People v. Meyerowitz, 61 Ill. 2d 200 (1975), involved the defendants’ motion to
vacate their guilty pleas and to terminate probation based on an unconstitutional
statute. This court allowed that motion to serve as an appropriate mechanism to
collaterally attack their judgments of conviction where there was no other statutory
remedy available to them. In doing so, this court “recognized that considerations of
justice and fairness require that an accused who asserts a substantial denial of his
constitutional rights in the proceedings in which he was convicted be afforded a
procedure by which the challenged proceedings may be reviewed.” Id. at 205. The
court also emphasized that the circuit court had continuing jurisdiction over the
defendants in that case because they were still under probation when they initiated
the postconviction proceedings. Id.¶ 140 People v. Warr, 54 Ill. 2d 487 (1973), involved certain defendants who pleaded
guilty to certain offenses without the assistance of counsel. A year later, they filed
pleadings in the trial court purporting to be either a habeas petition or a
postconviction petition in which they contended that the plea violated their
constitutional rights. The circuit court dismissed the pleadings because they did not
fall within the scope of the remedies that had been sought. Id. at 490-91. This court
recognized the familiar statutory methods of collateral attack upon a judgment;
however, these remedies were not available to these defendants. Id. at 491-92. This
court found it was imperative that a remedy be provided for the substantial
violations of constitutional rights. Thus, in the court’s exercise of its supervisory
authority, it held that, where there was no other remedy, these defendants could
institute a proceeding in the nature of a postconviction proceeding. Id. at 493.
- 48 -
¶ 141 Finally, in People v. Thompson, 209 Ill. 2d 19, 25-27 (2004), this court allowed
a challenge to a sentence as void to be raised for the first time in an appeal from the
denial of a postconviction petition. Under the void sentence rule, which has now
been abolished, defendants could, at any time, challenge their sentence as void
because they were not authorized by statute, thereby bypassing the normal rules of
forfeiture. See 725 ILCS 5/122-3 (West 2014) (any claim of substantial denial of
constitutional right not raised in the original or an amended petition is forfeited);
Price, 2016 IL 118613, ¶ 16 (“the void sentence rule functioned as a judicially
created exception to the forfeiture doctrine”).
¶ 142 The takeaway from these Illinois cases is not the extremely broad holding
articulated by the majority. The majority insists that these cases stand for the broad
principle that “there is no fixed procedural mechanism or forum, nor is there any
temporal limitation governing when a void ab initio challenge may be asserted.”
Supra ¶ 57. The majority again misses the mark. These cases merely represent
examples of the unremarkable proposition that we provide a mechanism by which
to remedy the substantial denial of a constitutional right and that, where a
conviction is alleged to be void, the normal rules of forfeiture and statutory
limitation periods are simply inapplicable. Here, to be sure, respondent has not
forfeited his right to a remedy. He has a procedural mechanism by which to remedy
the deprivation of his constitutional right. He just never used that mechanism.
¶ 143 The majority’s novel and expansive holding has serious implications. After
today, a final judgment of conviction is apparently now open to a new,
unprecedented form of collateral attack.The appellate court now has a sua sponte
duty to engage in a minitrial on the underlying conviction to determine whether the
underlying conviction is void and, if so, then would have a sua sponte duty to
vacate that conviction. Indeed, Justice Wright sounded the alarm. 2017 IL App (3d)
160277, ¶ 39 (Wright, J., dissenting) (“I respectfully disagree that this court should
vacate the 2008 criminal conviction in order to resolve the serious issues in this
appeal. I have concerns that the precedent flowing from this decision to vacate a
criminal conviction in a juvenile case would have far reaching, but unintended
consequences we have yet to consider.”).
¶ 144 Using this new ad hoc method to vacate a judgment creates real life problems
and consequences. It is important to note that the appellate court’s ruling vacating
- 49 -
the 2008 judgment appears in the body of the opinion: “Accordingly, we vacate the
2008 conviction, reverse the circuit court’s unfitness finding and, reverse, by
necessity, the court’s best interest determination, and remand the case for further
proceedings consistent with this decision.” Id. ¶ 31 (majority opinion). The vacatur
appears nowhere in the actual judgment line. Id. ¶¶ 33-34. Nor could it. The
judgment line is telling.
¶ 145 After today, anyone relying on the status of a conviction, including the circuit
court clerk, the Department of Corrections, law enforcement, probation officers,
prosecutors, and counsel, will have to scour our opinions to determine if a judgment
in another proceeding has been vacated. The majority fails to address any of these
real concerns and, indeed, perpetuates the problem by agreeing that the 2008
conviction must be vacated but then affirming the judgment of the appellate court,
which merely reversed and remanded the judgment in the termination proceeding.
Supra ¶ 88.
¶ 146 To recap, the appellate court lacked jurisdiction to vacate the 2008 judgment of
conviction in these proceedings, and the majority should not have followed that
court’s errant lead and vacated that conviction.
¶ 147 Whether the 2008 Conviction Was Admissible in This Proceeding
¶ 148 The majority’s error does not stop with the improper vacatur. Assuming the
2008 judgment could be vacated in this proceeding, then there were only two
convictions from which to seek a finding of depravity and, thus, a failure of proof
under section 1(D)(i) of the Adoption Act. 750 ILCS 50/1(D)(i) (West 2014).
Under the majority’s analysis then, there is no need to address whether the 2008
conviction, which has not yet been vacated, could be admissible in this proceeding.
Accordingly, based on the majority’s analysis, there is no need for it to address
People v. McFadden, 2016 IL 117424; the majority’s entire discussion is mere
dicta.
¶ 149 Nevertheless, because I would find that this is not a proper forum to vacate
respondent’s conviction, I will address whether the 2008 conviction was admissible
as evidence in the termination of parental rights proceeding to establish the
rebuttable presumption of depravity. The State and the minor maintain that
- 50 -
respondent could not be relieved of the presumption of depravity predicated on the
certified statements of conviction before that conviction was properly vacated in an
appropriate collateral proceeding. They rely for support on our decision in
McFadden.
¶ 150 In McFadden, this court was asked whether a prior conviction, which was
vulnerable to collateral attack based on an unconstitutional statute, could properly
serve as proof of the predicate felony conviction in a separate criminal prosecution
for UUW by a felon. Id. ¶ 21. Noting that our existing precedent had not addressed
this issue as presented in this framework, we turned to federal court precedent for
illustration and guidance. Id. ¶ 22. In Lewis v. United States, 445 U.S. 55 (1980),
the United States Supreme Court addressed the issue of whether a state felony
conviction, which was subject to collateral attack under Gideon v. Wainwright, 372
U.S. 335 (1963), but had not been vacated, could serve as a predicate offense to a
subsequent prosecution for a felon in possession of a firearm. Lewis held that the
defendant’s prior criminal conviction could properly be used as a predicate in his
subsequent conviction for possession of a firearm regardless of the fact that the
prior conviction might otherwise be subject to collateral attack on constitutional
grounds. Lewis, 445 U.S. at 65.
¶ 151 The Court had before it a statute under which the federal crime of being a felon
in possession of a firearm depended on the defendant being a person who “has been
convicted *** of a felony.” (Internal quotation marks omitted.) Id. at 60. The Court
characterized the language of the statute, “convicted by a court,” as
“unambiguous[ ]” and “sweeping.” Id. The Court held that the statute’s “plain
meaning is that the fact of a felony conviction imposes a firearm disability until the
conviction is vacated or the felon is relieved of his disability by some affirmative
action” Id. at 60-61. The Court viewed the statutory language as being consistent
“with the common-sense notion that a disability based upon one’s status as a
convicted felon should cease only when the conviction upon which that status
depends has been vacated.” Id. at 61 n.5. That the disabling conviction was
unconstitutionally obtained did not alter the fact that the defendant had been
convicted of a felony at the time he possessed the firearm. Id. at 60-61. The Court
found it immaterial whether the predicate conviction “ultimately might turn out to
be invalid for any reason.” Id. at 62. The Court emphasized that “a convicted felon
- 51 -
may challenge the validity of a prior conviction, or otherwise remove his disability,
before obtaining a firearm.” Id. at 67.
¶ 152 We viewed our own statute in concert with the federal statute, agreeing that,
like the federal statute, our own legislation is concerned with the role of that
conviction as a disqualifying condition for the purpose of obtaining firearms.
McFadden, 2016 IL 117424, ¶ 29. The UUW by a felon statute requires the State to
prove only the defendant’s felon status. Id. We found that the policy and purpose of
the statute “are served by requiring an individual to clear his felony record before
possessing a firearm, ‘no matter what infirmity infects his conviction.’ [Citation.]”
Id. ¶ 30. We also explained that
“[i]t is axiomatic that no judgment, including a judgment of conviction, is
deemed vacated until a court with reviewing authority has so declared. As with
any conviction, a conviction is treated as valid until the judicial process has
declared otherwise by direct appeal or collateral attack. Although Aguilar may
provide a basis for vacating defendant’s prior *** conviction, Aguilar did not
automatically overturn that judgment of conviction. Thus, at the time defendant
committed the UUW by a felon offense, defendant had a judgment of
conviction that had not been vacated ***.” Id. ¶ 31.
¶ 153 We further found that nothing prevented a defendant from seeking a remedy for
the deprivation of his constitutionally guaranteed right. The remedy was to
challenge the judgment and have the conviction set aside before deciding to possess
a firearm. Id. ¶ 34. We rejected the defendant’s undeveloped assertion that this
construction of the statute violated either due process or second amendment rights,
as UUW by a felon was a presumptively lawful “ ‘longstanding prohibition[ ] on
the possession of firearms.’ ” Id. ¶¶ 34-35 (quoting District of Columbia v. Heller,
554 U.S. 570, 626 (2008)).
¶ 154 The majority’s feeble attempts to distinguish this case from the procedural
posture of McFadden are meritless and mystifying. The majority posits that, unlike
the present case, in the case presented in McFadden, there was no indication in the
record as to either the particular provision of the AUUW statute to which the
defendant had pled guilty or the factual basis for the plea. Without the requisite
evidence, his claim was untenable. Supra ¶ 64.
- 52 -
¶ 155 That fact had no bearing on our holding in McFadden. We explained that, even
assuming the defendant could successfully vacate his conviction on the basis of
Aguilar, “that remedy would neither alter nor extinguish the requirement under
section 24-1.1(a) that defendant clear his felon status before obtaining a firearm.”
McFadden, 2016 IL 117424, ¶ 37. Nevertheless, we did note that “had defendant
properly sought to vacate his 2002 guilty plea before possessing a firearm, these
issues could have been adequately considered and resolved in an appropriate
proceeding.” Id. ¶ 33.
¶ 156 Remarkably, this case, like McFadden, also suffers from an evidentiary
deficiency in that there was nothing presented to the trial court in the termination
proceeding that would establish proof that respondent’s conviction was based on an
unconstitutional statute. There was no indication in the trial court as to either the
provision of the AUUW statute to which respondent had pleaded guilty or the
factual basis for the plea. As I already established, there is also no “supplemented
appellate record” from which “we can therefore say with certainty” that the
conviction was based on an unconstitutional statute.
¶ 157 Next, the majority inexplicably posits that, unlike the defendant in McFadden,
who never filed any pleading to vacate his prior felony conviction and did not seek
to vacate the prior conviction on appeal from the prosecution for UUW by a felon,
respondent “not only challenged the use of the prior AUUW conviction in this
subsequent proceeding, he sought to have the prior conviction itself nullified and
vacated.” Supra ¶ 66. For that proposition, the majority relies on paragraph 25 of
the appellate court opinion. 2017 IL App (3d) 160277, ¶ 25.
¶ 158 In reality, just like the defendant in McFadden, respondent has not filed a
pleading seeking to vacate his prior conviction on the basis of an unconstitutional
statute and did not seek to vacate it on appeal. Rather, exactly like McFadden,
respondent is seeking to challenge the admissibility of his conviction on the basis of
Aguilar for the first time on appeal, as respondent indeed acknowledged in his
appellate brief. To the extent he objected before the trial court in the termination
proceeding to the admissibility of the 2008 conviction, that objection was “based
on the fact that there [was] an ongoing appeal having been filed challenging the
constitutionality of the arrest.” Notably, the circuit court’s ruling overruling that
objection was correct. As we have explained, “the Adoption Act does not call for
- 53 -
courts to reserve ruling on findings of unfitness which are related to criminal
matters until the appellate process in the underlying cause has been exhausted.”
In re Donald A.G., 221 Ill. 2d 234, 254 (2006). Moreover, respondent could not
have sought to vacate the 2008 conviction on review from the termination
proceeding.
¶ 159 Next, the majority critiques our analysis in McFadden by stating that this court
failed to take into consideration a critical distinction between Lewis and
McFadden, which is purportedly confirmed by Montgomery. Supra ¶¶ 71-72. Of
course, at the outset, Lewis and McFadden are not cases with the same procedural
posture as Montgomery, which addressed retroactivity jurisprudence and state
collateral review.
¶ 160 To be sure, Lewis involved a constitutionally infirm conviction predicated on a
violation of the defendant’s sixth amendment right to counsel. In McFadden and in
this case, the constitutional infirmity was based on second amendment rights. The
majority emphasizes that the constitutional infirmity in Lewis was procedural,
while the infirmity in McFadden and this case is substantive. The majority finds
this to be a “fundamental distinction,” relying on Montgomery. Supra ¶¶ 71-72.
¶ 161 Even assuming that Teague’s procedural vs. substantive distinction is relevant
here, the majority overlooks that the constitutional infirmity in Lewis was a
watershed rule of criminal procedure, which pursuant to Teague is treated the same
way for retroactivity purposes as a new substantive constitutional rule. A Gideon
violation was such a watershed rule of procedure, which would be applied
retroactively. See Beard v. Banks, 542 U.S. 406, 417 (2004) (“[i]n providing
guidance as to what might fall within this exception, we have repeatedly referred to
the rule of Gideon [citation] and only to this rule”). In other words, Teague treats
substantive rules and watershed rules of criminal procedure the same.
¶ 162 Furthermore, the nature of the constitutional infirmity, the sixth amendment
violation, was not ultimately dispositive of the holding in Lewis. All that mattered
in Lewis was the fact of defendant’s conviction as a disqualifying condition for the
purpose of obtaining firearms. The defendant’s status as a felon at the time he
possessed a firearm imposed upon him a civil disability prohibiting him from
possessing firearms before vacating the disability. Similarly, in McFadden, the fact
of defendant’s status as a felon remained, not because we refused to give
- 54 -
retroactive effect to Aguilar in a collateral review proceeding, but because the
defendant had a disability and had not properly vacated his prior conviction before
obtaining a firearm. Thus, contrary to the majority’s assertion, this court took the
correct analytical path in McFadden. There is no reason to abandon our precedent
by following the majority’s confused and conflated analysis.
¶ 163 Our rationale for our decision in McFadden has not been undermined by any
controlling precedent. The dissent in McFadden relied on essentially the same line
of reasoning as the majority here, and it was rejected by this court. The defendant’s
certiorari petition was denied by the United States Supreme Court. McFadden,
2016 IL 117424, cert. denied, ___ U.S. ___, 137 S. Ct. 2291 (2017).
¶ 164 As we explained in McFadden, lower federal courts have consistently applied
the federal statute in this way, regardless of the nature of the constitutional
infirmity. See, e.g., United States v. Mayfield, 810 F.2d 943, 945-46 (10th Cir.
1987) (affirming conviction where predicate felony conviction may have been void
under state law for lack of jurisdiction); United States v. Chambers, 922 F.2d 228,
238-40 (5th Cir. 1991) (upholding conviction where predicate felony was subject to
nullification on collateral attack); United States v. Wallace, 280 F.3d 781, 784 n.1
(7th Cir. 2002) (affirming conviction where predicate conviction was pursuant to a
statute declared void ab initio by Illinois court under single subject rule); United
States v. Padilla, 387 F.3d 1087, 1092 (9th Cir. 2004) (upholding conviction where
predicate felony was subsequently vacated nunc pro tunc but was not yet
invalidated when defendant possessed firearm); United States v. Leuschen, 395
F.3d 155, 157-59 (3d Cir. 2005) (upholding conviction where predicate felony
conviction was based on a statute that had been amended prior to trial).
¶ 165 There is no merit to the majority’s implication that this court’s decision in
McFadden was somehow erroneous based on the number of certiorari petitions
filed and denied. Supra ¶ 74 n.3. It is illogical to conclude that the Supreme Court’s
denial of certiorari in McFadden and its repeated denial in cases relying on
McFadden meant the case was wrongly decided. Rather, as the Supreme Court has
explained, “[t]he denial of a writ of certiorari imports no expression of opinion
upon the merits of the case” and has no precedential value. United States v. Carver,
260 U.S. 482, 490 (1923).
- 55 -
¶ 166 Furthermore, any suggestion by the majority that applying McFadden to the
present case would implicate procreative rights and would somehow be akin to
forced sterilization is simply ludicrous and merely displays the majority’s lack of
discipline and outcome-determinative decision-making.
¶ 167 Of course, the proceeding squarely before us is not a criminal proceeding, and
we are not being called upon to construe a felon-in-possession statute. Rather, we
are being called upon to construe the Adoption Act. I agree there are different
statutes at play here that should be individually addressed. Under section 1(D)(i) of
the Adoption Act, a parent can be found unfit based on a finding of depravity. 750
ILCS 50/1(D)(i) (West 2014). Although the statute does not define depravity, this
court has defined it as “ ‘ “an inherent deficiency of moral sense and rectitude.” ’ ”
In re Abdullah, 85 Ill. 2d 300, 305 (1981) (quoting Stalder v. Stone, 412 Ill. 488,
498 (1952)). It has been similarly described as a course of conduct that indicates a
deficiency in a moral sense and shows either an inability or an unwillingness to
conform to accepted moral standards. In re Keyon R., 2017 IL App (2d) 160657,
¶ 22. Under this section, there is a rebuttable presumption that a parent is depraved
if he “has been criminally convicted” of at least three felonies and at least one of
these convictions occurred within five years of the filing of the petition seeking to
terminate parental rights. 750 ILCS 50/1(D)(i) (West 2014).
¶ 168 Under the plain language of the statute, the legislature has determined that the
fact of having had three felony convictions within a certain time period is enough to
create a rebuttable presumption of depravity. Id. The statute evidences a
presumptive correlation between repeated felony convictions, which frequently
result in incarceration, and the ability to carry out parental responsibilities. The
whole focus of the statute is and must be on the operative facts existing at the time
of the termination proceedings. When the fundamental parental relationship with a
child is at stake, historical facts must matter.
¶ 169 Here, the majority would like us to just simply ignore the fact that respondent
has been imprisoned based on the choices respondent has made for nearly this
child’s entire life. The historical facts, which cannot simply be erased, are that
respondent was convicted in 2008 of a felony and was sentenced to 18 months in
prison. Approximately one year later, in 2009 he was again convicted of a felony
and had other charges dismissed in a plea agreement. Respondent was sentenced to
- 56 -
another five years in prison. Just two years later, in 2011, while N.G.’s mother was
pregnant with N.G., respondent was charged with additional felonies. One month
after N.G. was born, respondent was convicted of his third felony after a plea
agreement to dismiss another felony charge. He was sentenced to over nine years in
prison. Those three convictions have not been overturned.
¶ 170 The hard facts of the matter are that respondent has spent most of his child’s
seven years of life, from 2011 to the present, incarcerated and unable to carry out
parental responsibilities. His pattern of choices at the time negatively affected his
ability to provide for N.G. physically, emotionally, and financially. That history
cannot be swept away or ignored. See People v. Holmes, 2017 IL 120407, ¶ 32
(“ ‘[t]he past cannot always be erased by a new judicial declaration’ ” (quoting
People v. Blair, 2013 IL 114122, ¶¶ 29-30)).
¶ 171 Under the statute, despite three felony convictions, a parent retains the right to
offer evidence of parental fitness in rebuttal. 750 ILCS 50/1(D)(i) (West 2014).
Here, respondent, who had counsel, exercised that right when he testified regarding
his fitness to parent N.G. The trial court heard and considered that testimony. And
respondent had ample opportunity to collaterally attack his 2008 conviction in an
appropriate proceeding and seek to vacate his conviction well before the
termination of parental rights proceeding. His failure to rebut the presumption of
depravity is not a reason to find that the circuit court erred. Nor, as I explained,
where a respondent has a remedy to collaterally attack his conviction, does the
depravity statute in any way violate a respondent’s constitutional due process
rights.
¶ 172 Accordingly, I would reverse the judgment of the appellate court and affirm the
judgment of the circuit court.
¶ 173 For all of these reasons, I dissent.
¶ 174 JUSTICES THOMAS and GARMAN join in this dissent.
- 57 -
¶ 175 DISSENT UPON DENIAL OF REHEARING
¶ 176 JUSTICE THEIS, dissenting:
¶ 177 This court held, in a fractured 4 to 3 opinion, that federal and state law
mandated that the court vacate a criminal conviction on appeal from a civil action
to terminate parental rights. In doing so, the majority overruled this court’s recent
decision in People v. McFadden, 2016 IL 117424, “to the extent that” (supra ¶ 84)
it conflicts with United States Supreme Court precedent.
¶ 178 I continue to strenuously object to the majority’s flawed rationale for its novel
belief that, despite a lack of appellate jurisdiction, a defendant may now, for the
first time on appeal from a judgment in a civil proceeding, obtain relief from a final
judgment in a separate criminal proceeding.
¶ 179 As I explained in my dissent and as the State maintains in its petition for
rehearing, the majority reaches its errant conclusions by contorting the procedural
posture of this case, by misapprehending the Supreme Court’s holding in
Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), and the scope of its
application in state court proceedings, and by erroneously perverting the concept of
collateral attack. Indeed, the majority opinion mandates that we create new
unprecedented ad hoc methods of collateral attack where several uniform and fair
mechanisms already exist for handling relief from final judgments but were simply
not properly followed here.
¶ 180 Furthermore, for the reasons stated in my dissent and as argued by the State,
this court should excise the portion of the opinion calling McFadden’s continued
validity into question or at least grant rehearing on the issue.
¶ 181 No legitimate or principled reason exists in this case to warrant this court’s
reconsideration of the continued validity of our recent decision in McFadden. As
the State argues, the majority’s sua sponte treatment of this issue was pure dicta,
which should be excised from its opinion given the court’s conclusion that this case
could be distinguished from McFadden on “evidentiary and procedural” grounds.
(see supra ¶ 64).
- 58 -
¶ 182 Even if ruling on the continued validity of McFadden was necessary to the
court’s opinion—which it clearly was not—the majority’s decision to place
McFadden in doubt is contrary to the doctrine of stare decisis.
¶ 183 Stare decisis expresses the policy of the courts to stand by precedent to allow
the law to develop in a principled, intelligent manner and not to disturb settled
points without a compelling reason. People v. Colon, 225 Ill. 2d 125, 145-46
(2007). Stare decisis is “essential to the respect accorded to the judgments of [a
reviewing court] and to the stability of the law.” Lawrence v. Texas, 539 U.S. 558,
577 (2003).
¶ 184 The majority offers no compelling reason to revisit McFadden. Not only does
McFadden not conflict with any United States Supreme Court precedent, two
weeks after this opinion was filed, the Seventh Circuit reconfirmed in United States
v. Thompson, 901 F.3d 785, 786 (7th Cir. 2018), that McFadden was indeed
correctly decided based on the Supreme Court’s decision in Lewis v. United States,
445 U.S. 55 (1980). In Thompson, the defendant pleaded guilty to being a felon in
possession of a firearm pursuant to federal law. His prior felony conviction was
premised on the state statutory provision found unconstitutional in Aguilar. The
defendant argued that his prior conviction, which was based on a statute that has
been declared void ab initio, could not serve as the predicate felony. The defendant
raised the very same purportedly dispositive distinction the majority attempts to
rely on to overturn McFadden—that Lewis is limited in scope to an uncounseled
conviction as opposed to a facially unconstitutional statute.
¶ 185 The Seventh Circuit rejected the defendant’s argument, holding that a prior
conviction based on a statute that has been declared void ab initio can serve as the
predicate felony for a violation of the federal felon in possession statute, relying on
the Supreme Court’s decision in Lewis. Thompson, 901 F.3d at 787. The court
continued to adhere to the absolutely sound position it had taken previously in
United States v. Lee, 72 F.3d 55 (7th Cir. 1995), that the felon in possession statute
represents a considered and deliberate decision to require that a prior felony
conviction be vacated or expunged before a firearm is possessed. Thompson, 901
F.3d at 786.
¶ 186 I am deeply troubled by the majority’s about-face that a defendant in
McFadden’s position may now resort to self-help by encouraging a person who has
- 59 -
formerly been convicted of a felony to gamble by possessing a firearm, believing
that, if arrested, that conviction will be later set aside. The majority’s
determination, at best, creates legal ambiguity after Thompson, which warrants this
court’s immediate attention.
¶ 187 Abandoning stare decisis—a critical aspect of our jurisprudence—was not only
wrong, it was fundamentally unfair given that neither party asked the court to
revisit the validity of that precedent in this case. I strongly agree with the State that,
at a minimum, it should be given an opportunity for supplemental briefing to
address the continued validity of McFadden where it was clearly blindsided by the
majority’s redefining of the issues in this case. The majority was comfortable going
outside the record to reach its desired result, but it did not even consider requesting
supplemental briefing to overturn precedent that was only decided by this court two
years ago. See, e.g., Stone Street Partners, LLC v. City of Chicago Department of
Administrative Hearings, 2017 IL 117720 (ordering supplemental briefing after the
case was taken under advisement); Bartlow v. Costigan, 2014 IL 115152 (directing
the parties to file supplemental briefing following oral argument); In re Marriage
of Donald B., 2014 IL 115463 (requesting the parties address an issue through
supplemental briefing); People v. Boeckmann, 238 Ill. 2d 1, 32 (2010) (Freeman, J.,
dissenting, joined by Burke, J.) (recognizing that, where no one asked for the case
to be overruled, the court did not have the benefit of any developed argument by the
parties to warrant a showing of good cause).
¶ 188 Compounding the majority’s errors, serious problems are created by the
majority’s abandonment of basic presumptions on how courts function. The State
has now informed us that during the pendency of these proceedings Floyd indeed
obtained a proper vacatur of his 2008 conviction under an appropriate section
2-1401 petition in the circuit court. Thus, the majority’s entire discussion of the
reviewing court’s authority and duty regarding vacatur only adds to the confusion
created by the majority’s unworkable and impractical precedent. Now we have a
circuit court judgment vacating Floyd’s conviction and a simultaneous opinion
from the reviewing court vacating that same conviction. This just confirms once
more that the proper forum to address these issues is in the circuit court with an
appropriate pleading and not for the first time on appeal from a termination of
parental rights proceeding.
- 60 -
¶ 189 Lastly, above all else, what is clearly apparent from this case is that the majority
has completely lost sight of the undeniable state interest in protecting children from
abuse and neglect, and it has effectively erased the historical facts of N.G.’s life that
led to these proceedings in the first place.
¶ 190 For all of these reasons and the reasons set forth in my initial dissent, I would
grant the State’s request to excise the portion of the opinion calling McFadden’s
continued validity into question and otherwise grant its petition for rehearing.
¶ 191 JUSTICES THOMAS and GARMAN join in this dissent.
- 61 -