text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Erick MARTIN, Defendant-Appellant.
    No. 1-15-2249
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    June 22, 2018
    James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.
   PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Erick Martin was convicted of (1) armed habitual criminal, (2) unlawful use of a weapon by a felon, and (3) six counts of aggravated unlawful use of a weapon. These convictions were merged into the single offense of armed habitual criminal, and the trial court imposed the minimum six-year term of imprisonment. Defendant's sole contention on appeal is that the armed habitual criminal statute is unconstitutional as applied to him, where his underlying felony offenses were nonviolent and more than 20 years old. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with multiple offenses including armed habitual criminal ( 720 ILCS 5/24-1.7(a) (West 2012) ), unlawful use of a weapon by a felon (id. § 24-1.1(a) ) and six counts of aggravated unlawful use of a weapon (id. §§ 24-1.6(a)(1), (3)(A), (C); 24-1.6(a)(2), (3)(C) ) based, in part, on his possession of a .357 blue steel revolver without a firearm owner's identification (FOID) card. Defendant waived his right to a jury and elected to proceed by way of a bench trial.

¶ 4 At trial, two officers, Steve Jarosz and Ryan Harty of the Chicago Police Department, testified regarding their interaction with defendant and their recovery of a blue steel .357 revolver on April 24, 2013. According to Jarosz, while on patrol they observed defendant's vehicle turn into an alley without using a turn signal. Jarosz activated the siren and followed the vehicle into the alley, but the vehicle did not stop. The vehicle continued to travel through the alley, during which time Jarosz observed the driver open the driver's side door and drop a handgun onto the ground. Harty also observed the driver drop an object outside of the driver's side door, but he was unable to discern what the object was. The vehicle later stopped at the end of the alley, and defendant was removed from the driver's side of the vehicle. Jarosz recovered the handgun from where he had observed it fall. The handgun was loaded with six live rounds of ammunition. Jarosz further testified that defendant did not have a FOID card. A certified copy of a firearm service bureau report was entered into evidence which revealed that defendant did not possess a FOID card.

¶ 5 Certified copies of defendant's two prior felony convictions-a 1989 manufacture/delivery of a controlled substance offense and a 1992 unlawful use of a weapon by a felon offense-were entered into the record without objection.

¶ 6 Defendant testified that he was not in possession of a firearm that evening nor did he open his vehicle door while driving through the alley. According to defendant, after he was stopped by the officers he waited for 30 minutes while one of the officers walked down the alley and returned with a handgun and asked if it was his weapon. Defendant informed the officers at that time that it was not his weapon.

¶ 7 After considering the evidence presented, the trial court indicated it found the officers to be credible and thus found defendant guilty on all counts. The counts were then merged into a single armed habitual criminal conviction. At the sentencing hearing, defendant presented evidence in mitigation that he was employed, participated in church, volunteered as a disc jockey for neighborhood events, and had no criminal convictions since 1992. The trial court also reviewed defendant's presentence investigation report. This report indicated that defendant had been convicted of five felonies between 1989 and 1992. However, after 1992 defendant earned a vending machine operator's license, was employed at a mailing company, and then for the last 25 years worked as an independent professional disc jockey earning $3200 a week. The presentence investigation report further indicated that defendant had a "great" relationship with his family and provided financial support to his 18-year-old son. After hearing evidence offered in aggravation and mitigation, the trial court sentenced defendant to the minimum six years' imprisonment for the Class X offense of armed habitual criminal. This appeal followed.

¶ 8 ANALYSIS

¶ 9 Defendant's sole contention on appeal is that the Illinois armed habitual criminal statute is unconstitutional as applied to him because the statute's application to him was triggered by nonviolent offenses that were more than 20 years old. Defendant asserts that the statute violates his second amendment right to possess a firearm. U.S. Const., amend. II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."). Defendant does not challenge the sufficiency of the evidence.

¶ 10 In response, the State maintains that defendant's as-applied challenge fails both procedurally and substantively. The State asserts that the challenge fails procedurally because he did not raise the issue in the trial court and therefore there was no evidentiary hearing and no findings of fact regarding his as-applied challenge. Substantively, the State maintains that defendant's as-applied challenge fails because he has not established that his conduct was entitled to second amendment protection where he chose to possess a firearm knowing that his prior felony convictions had not been vacated or otherwise set aside. The State maintains defendant was not a "law abiding, responsible citizen" protected by the second amendment.

¶ 11 As relevant here, an individual commits the offense of armed habitual criminal when he or she

"receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses:
* * *
(2) unlawful use of a weapon by a felon; * * *
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher." 720 ILCS 5/241.7(a) (West 2012).

An as-applied challenge arises from a defendant's contention that the statute or law as it is applied to his particular situation is unconstitutional. People v. Campbell , 2014 IL App (1st) 112926, ¶ 57, 380 Ill.Dec. 687, 8 N.E.3d 1229. The facts that surround a defendant's particular circumstances are relevant to an as-applied challenge. Id. We review de novo whether the armed habitual criminal statute under section 24-1.7 of the Criminal Code of 2012 ( 720 ILCS 5/1-1 et seq. (West 2012) ), as applied to the defendant, was unconstitutional under the second amendment of the United States Constitution. See People v. Robinson , 2011 IL App (1st) 100078, ¶ 12, 357 Ill.Dec. 872, 964 N.E.2d 551 ; see also U.S. Const., amend. II.

¶ 12 We first address the State's contention that defendant's as-applied challenge fails procedurally due to a lack of an evidentiary hearing below. We decline to find the issue procedurally defaulted. We recognize that in People v. McFadden , 2016 IL 117424, ¶ 36, 406 Ill.Dec. 470, 61 N.E.3d 74, and People v. Mosley , 2015 IL 115872, ¶ 47, 392 Ill.Dec. 588, 33 N.E.3d 137, our supreme court declined to consider as-applied challenges that were raised for the first time on appeal. In so concluding, the Mosley court stated that

"A court is not capable of making an as applied determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional as applied is premature. [Citation.] Nor would it be appropriate for this court, sua sponte , to consider whether [a] statute has been constitutionally applied since we, as a reviewing court, are not arbiters of the facts." (Internal quotation marks omitted.) Id.

Our supreme court, however, has also held that where the evidentiary record developed below is sufficient, the constitutionality of a statute may be challenged on appeal. People v. Holman , 2017 IL 120655, ¶ 32, 418 Ill.Dec. 889, 91 N.E.3d 849 ; see People v. Gray , 2017 IL 120958, ¶¶ 55-67, 418 Ill.Dec. 916, 91 N.E.3d 876 (considering an as-applied constitutional challenge raised for the first time on appeal); Robinson , 2011 IL App (1st) 100078, ¶¶ 12, 17, 29, 357 Ill.Dec. 872, 964 N.E.2d 551 (considering facial and as-applied constitutional challenges that were raised for the first time on appeal).

¶ 13 On appeal, defendant's as-applied challenge is based on facts already in the record, i.e. , the age and nature of his felony convictions and his alleged rehabilitation since his last conviction. In the prosecution of defendant's current offenses, evidence was presented at trial as to defendant's possession of the firearm and his two prior felony convictions. Other relevant facts, such as defendant's age at the time of his prior felonies and his lack of criminal history after 1992 as well as his employment history, were presented during the sentencing hearing and in the court-ordered presentence investigation report. We fail to see what further facts would be necessary to adduce at an evidentiary hearing, and notably, the State fails to identify any additional facts not in the record that would preclude our review of this issue. Accordingly, we conclude that defendant's as-applied challenge to the armed habitual criminal statute is reviewable on appeal. See, e.g. , Gray , 2017 IL 120958, ¶¶ 55-67, 418 Ill.Dec. 916, 91 N.E.3d 876 ; Robinson , 2011 IL App (1st) 100078, ¶¶ 12, 17, 29, 357 Ill.Dec. 872, 964 N.E.2d 551.

¶ 14 Turning to the merits, while our supreme court has not expressly addressed the appropriate analysis of an as-applied challenge to the armed habitual criminal statute in circumstances such as this, we find the recent decision of People v. Chairez , 2018 IL 121417, 423 Ill.Dec. 69, 104 N.E.3d 1158, to be instructive. In that case, our supreme court considered the constitutionality of section 241(a)(4), (c)(1.5) of the unlawful use of a weapon statute (UUW) ( 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2012) ), which, in pertinent part, prohibits an individual from carrying or possessing a firearm within 1000 feet of a public park. Chairez , 2018 IL 121417, ¶ 1, 423 Ill.Dec. 69, 104 N.E.3d 1158. The defendant raised a facial challenge to this subsection of the UUW statute, arguing that an individual who is barred from carrying a firearm within 1000 feet of many locations listed in section 24-1(c) (1.5) of the UUW statute is essentially barred from carrying a firearm in public, and it is thus more closely akin to a blanket prohibition than a restriction on carrying a weapon in certain sensitive places. Id. ¶ 6. In examining the facial constitutionality of the statute, our supreme court set forth a two-part test:

"First, we conduct a textual and historical analysis of the second amendment 'to determine whether the challenged law imposes a burden on conduct that was understood to be within the scope of the second amendment's protection at the time of ratification.' [Citation.] If the conduct falls outside of the scope of the second amendment, then the regulated activity is 'categorically unprotected,' and the law is not subject to further second amendment review. [Citation.] But if the historical evidence is inconclusive or suggests that the regulated activity is not categorically unprotected, then we apply the appropriate level of heightened means-ends scrutiny and consider the strength of the government's justification for restricting or regulating the exercise of second amendment rights. [Citation.]" Id. ¶ 21.

Accordingly, we first turn to consider whether the armed habitual criminal statute under these circumstances imposes a burden on conduct that was historically understood to be within the scope of the second amendment's protection at the time of ratification. Id. In other words, we examine whether the offense of armed habitual criminal as applied to defendant "impermissibly encroaches on conduct at the core of the second amendment." Id. ¶ 26.

¶ 15 In regard to the first step, defendant asserts that at the time of ratification of the second amendment there were no regulations prohibiting felons, particularly nonviolent ones, from possessing firearms and maintains that such regulations were not in existence until 150 years after ratification. With this in mind, defendant, citing District of Columbia v. Heller , 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), maintains that "the mere fact that he has long-past convictions does not mean that he is not one of Illinois's 'law-abiding, responsible citizens' today."

¶ 16 In Heller , the Supreme Court briefly discussed the historical implications of the second amendment, observing that, "[l]ike most rights, the right secured by the Second Amendment is not unlimited." Id. at 626, 128 S.Ct. 2783. The Court further stated that, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." Id. at 626-27, 128 S.Ct. 2783. The Court repeated its assurances in McDonald v. City of Chicago , 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), stating, "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.' " Id. at 786, 130 S.Ct. 3020 (quoting Heller , 554 U.S. at 626-27, 128 S.Ct. 2783 ).

¶ 17 The concept that the right to bear arms under the second amendment is not unlimited, particularly in regards to felons, has been reiterated by our supreme court in People v. Aguilar , 2013 IL 112116, ¶ 26, 377 Ill.Dec. 405, 2 N.E.3d 321, People v. Burns , 2015 IL 117387, ¶ 29, 413 Ill.Dec. 810, 79 N.E.3d 159, McFadden , 2016 IL 117424, ¶ 35, 406 Ill.Dec. 470, 61 N.E.3d 74, and most recently in Chairez , 2018 IL 121417, ¶ 24, 423 Ill.Dec. 69, 104 N.E.3d 1158. Specifically, in McFadden our supreme court stated that, with respect to the second amendment, the unlawful use of a weapon by a felon statute is a presumptively lawful, longstanding prohibition on the possession of firearms. McFadden , 2016 IL 117424, ¶ 35, 406 Ill.Dec. 470, 61 N.E.3d 74. Moreover, in Burns , our supreme court indicated that the legislature can constitutionally prohibit felons from carrying readily accessible firearms outside the home. Burns , 2015 IL 117387, ¶ 29, 413 Ill.Dec. 810, 79 N.E.3d 159.

¶ 18 The Illinois appellate court has also held that the imposition of a felon-based firearm ban does not fall within the scope of the second amendment. See People v. Montgomery , 2016 IL App (1st) 142143, ¶ 17, 403 Ill.Dec. 447, 53 N.E.3d 1084 ("Although the second amendment does not categorically exclude felons from its protection, this court has found that laws prohibiting felons from possessing firearms does [not] run afoul of the second amendment."); Campbell , 2014 IL App (1st) 112926, ¶ 60, 380 Ill.Dec. 687, 8 N.E.3d 1229 (holding "felon-based firearm bans, like the [unlawful use of a weapon by a felon] and [armed habitual criminal] statutes, do not impose a burden on conduct falling within the scope of the second amendment"); People v. Garvin , 2013 IL App (1st) 113095, ¶¶ 33, 40, 374 Ill.Dec. 139, 994 N.E.2d 1076 (considering the constitutionality of both the unlawful use of a weapon by a felon and armed habitual criminal statutes); People v. Black , 2012 IL App (1st) 110055, ¶ 13, 363 Ill.Dec. 680, 975 N.E.2d 706 (holding the armed habitual criminal statute could prohibit defendant felon from possessing a firearm in his own home); People v. Ross , 407 Ill. App. 3d 931, 942, 349 Ill.Dec. 762, 947 N.E.2d 776 (2011) (holding the armed habitual criminal statute is a constitutionally permissible restriction of the second amendment right to bear arms). The breadth of authority supports a conclusion that dispossessing felons from bearing arms is outside the scope of the second amendment.

¶ 19 However, our supreme court in Chairez agreed with other courts that "some level of scrutiny" should apply even to regulations which are "presumptively lawful." Chairez , 2018 IL 121417, ¶ 30, 423 Ill.Dec. 69, 104 N.E.3d 1158 (citing United States v. Williams , 616 F.3d 685, 692 (7th Cir. 2010) (explaining that courts should apply some level of scrutiny even to regulations identified in Heller as presumptively lawful); Woollard v. Gallagher , 712 F.3d 865, 875 (4th Cir. 2013) (stating that the court was not "obliged to impart a definitive ruling at the first step" but, rather, "deemed it prudent" to resolve some post- Heller challenges to firearm prohibitions at the second step); and National Rifle Ass'n of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives , 700 F.3d 185, 204 (5th Cir. 2012) ("Although we are inclined to uphold the challenged federal laws [banning the sale of firearms to persons under the age of 21] at step one of our analytical framework, in an abundance of caution, we proceed to step two.") ). Therefore, we will follow Chairez and proceed to step two of the analysis, which requires this court to apply "the appropriate level of heightened means-ends scrutiny and consider the strength of the government's justification for restricting or regulating the exercise of second amendment rights." Chairez , 2018 IL 121417, ¶ 21, 423 Ill.Dec. 69, 104 N.E.3d 1158 ; see Garvin , 2013 IL App (1st) 113095, ¶ 34, 374 Ill.Dec. 139, 994 N.E.2d 1076 (holding felon-based firearm bans do not impose a burden on conduct falling within the scope of the second amendment but also examining whether the unlawful use of a weapon by a felon statute passed constitutional scrutiny). Since defendant raises an as-applied challenge to the statute, our second-step analysis will include a consideration of defendant's particular circumstances, namely the age and nature of his prior felony convictions along with his potential for rehabilitation. See Chairez , 2018 IL 121417, ¶ 30, 423 Ill.Dec. 69, 104 N.E.3d 1158 ; Campbell , 2014 IL App (1st) 112926, ¶ 57, 380 Ill.Dec. 687, 8 N.E.3d 1229.

¶ 20 We, however, must first determine the appropriate level of scrutiny in this case. In Chairez , our supreme court examined Heller and relevant Seventh Circuit cases and found that the heightened means-end analysis involves a sliding-scale approach. Chairez , 2018 IL 121417, ¶ 35, 423 Ill.Dec. 69, 104 N.E.3d 1158. The court explained:

"[S]tep two of our second amendment analysis begins with a balance of considerations where the quantity and persuasiveness of the State's evidence required to justify the challenged restrictions varies depending on how much it affects the core second amendment right to armed self-defense and whose right it affects. [Citation.] The rigor of this means-end analysis 'depends on "how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right." ' [Citation.] The closer in proximity the restricted activity is to the core of the second amendment right and the more people affected by the restriction, the more rigorous the means-end review. If the State cannot proffer evidence establishing both the law's strong public-interest justification and its close fit to this end, the law must be held unconstitutional. [Citation.]" Id. ¶ 45.

See also Wilson v. County of Cook , 2012 IL 112026, ¶¶ 41-42, 360 Ill.Dec. 148, 968 N.E.2d 641.

¶ 21 To determine where on the sliding scale of intermediate scrutiny the armed habitual criminal statute should be analyzed, we must first determine the breadth of the statute and the severity of its burden on the second amendment. Chairez , 2018 IL 121417, ¶ 46, 423 Ill.Dec. 69, 104 N.E.3d 1158.

¶ 22 One commits the offense of armed habitual criminal when he or she receives, sells, possesses, or transfers any firearm after having been twice convicted of certain felonies enumerated in the statute. 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). The core right protected by the second amendment is the right to self-defense, inside and outside the home. See Chairez , 2018 IL 121417, ¶ 48, 423 Ill.Dec. 69, 104 N.E.3d 1158. As applied to defendant in this case, the armed habitual criminal statute prohibits him from possessing a firearm, as he was a twice-convicted felon, with prior convictions of unlawful use of a weapon by a felon and manufacture/delivery of a controlled substance. See 720 ILCS 5/24-1.7(a)(2), (3) (West 2012). As discussed previously, prohibiting felons from possessing firearms falls outside the scope of the second amendment. See Campbell , 2014 IL App (1st) 112926, ¶ 60, 380 Ill.Dec. 687, 8 N.E.3d 1229. In addition, those individuals who can be classified as twice-convicted felons (i.e. , having two of the specific felonies as listed in the armed habitual criminal statute) constitute a relatively narrow group in relationship to the entire population. Therefore, because restricting felons from possessing firearms is not in close proximity to the core of the second amendment right and a narrow group of individuals is affected by the restriction, the intermediate scrutiny is less rigorous. See Chairez , 2018 IL 121417, ¶ 45, 423 Ill.Dec. 69, 104 N.E.3d 1158 ; Wilson , 2012 IL 112026, ¶ 42, 360 Ill.Dec. 148, 968 N.E.2d 641 (acknowledging that "courts generally recognize that Heller rejected rational-basis review [of second amendment claims] and requires some form of heightened scrutiny"); see also Montgomery , 2016 IL App (1st) 142143, ¶ 18, 403 Ill.Dec. 447, 53 N.E.3d 1084 (finding the armed habitual criminal statute to be constitutional under either rational basis or intermediate scrutiny); Ross , 407 Ill. App. 3d at 939, 349 Ill.Dec. 762, 947 N.E.2d 776 (applying intermediate scrutiny standard in upholding the constitutionality of the armed habitual criminal statute). "To withstand intermediate scrutiny, the legislative enactment must be substantially related to an important governmental interest." Napleton v. Village of Hinsdale , 229 Ill. 2d 296, 308, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008). To survive such intermediate scrutiny, the fit between the challenged regulation and the asserted governmental objective need only be reasonable. People v. Fields , 2014 IL App (1st) 130209, ¶ 60, 388 Ill.Dec. 418, 24 N.E.3d 326.

¶ 23 Applying the level of intermediate scrutiny discussed, we conclude that the restrictions of the armed habitual criminal statute are a tight fit with its public interest justification. It is well-settled that prohibitions on the possession of firearms by felons are a permissible restriction on the constitutional right to bear arms. Heller , 554 U.S. at 626, 128 S.Ct. 2783. The legislature enjoys wide latitude in prescribing criminal penalties under its police power and has an obligation to protect its citizens from known criminals. Robinson , 2011 IL App (1st) 100078, ¶ 31, 357 Ill.Dec. 872, 964 N.E.2d 551. Moreover, "[i]t is deeply rooted in our jurisprudence that the government inherently possesses and may lawfully exercise 'such power of restraint upon private rights as may be found to be necessary and appropriate to promote the health, comfort, safety and welfare of society and may enact prohibitions to promote the general welfare even though the prohibition invade[s]

the right of liberty or property of an individual.' " Ross , 407 Ill. App. 3d at 942, 349 Ill.Dec. 762, 947 N.E.2d 776 (quoting Napleton , 229 Ill. 2d at 310, 322 Ill.Dec. 548, 891 N.E.2d 839 ). The armed habitual criminal statute reflects the legitimate governmental interest in preventing the danger associated with repeat felons having firearms. Black , 2012 IL App (1st) 110055, ¶ 13, 363 Ill.Dec. 680, 975 N.E.2d 706 ; see Ross , 407 Ill. App. 3d at 942, 349 Ill.Dec. 762, 947 N.E.2d 776 ; Garvin , 2013 IL App (1st) 113095, ¶ 40, 374 Ill.Dec. 139, 994 N.E.2d 1076. Furthermore, the armed habitual criminal statute is not a comprehensive ban, but rather it affects only a certain limited class of people, namely those individuals who have been twice convicted of certain defined felonies. See 720 ILCS 5/24-1.7 (West 2012). We find the armed habitual criminal statute does not restrict activity that is at the core of the second amendment, addresses a significant government interest, and has restrictions closely related to that interest.

¶ 24 Defendant argues that the armed habitual criminal statute is unconstitutional as applied to him because (1) his prior felony convictions were nonviolent and occurred over 20 years ago and (2) he has been rehabilitated since his last felony conviction in 1992. Defendant cites to Binderup v. Attorney General , 836 F.3d 336, 356-57 (3d Cir. 2016) (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ.), Britt v. State , 363 N.C. 546, 681 S.E.2d 320 (2009), and Baysden v. State , 217 N.C.App. 20, 718 S.E.2d 699 (2011) in support of his position.

¶ 25 Defendant relies primarily on the case of Binderup to demonstrate that the armed habitual criminal statute must be held unconstitutional as applied to him. Binderup involved complaints for declaratory and injunctive relief filed in two separate Pennsylvania federal district courts by two plaintiffs, Daniel Binderup and Julio Suarez (the challengers). Binderup , 836 F.3d at 340 (majority opinion). Binderup had pled guilty in a Pennsylvania state court to corrupting a minor, a misdemeanor subject to possible imprisonment for up to five years. Id. His sentence, however, "was the colloquial slap on the wrist: probation (three years) and a $300 fine plus court costs and restitution." Id. Suarez, while in Maryland, pled guilty in state court to unlawfully carrying a handgun without a license, a misdemeanor subject to possible imprisonment for not less than 30 days and not more than three years or a specified fine. Id. Suarez received a suspended sentence of 180 days' imprisonment and a $500 fine, followed by a year of probation. Id. Pennsylvania law disqualified the challengers from possessing firearms due to their convictions, but in 2009 they successfully petitioned the Pennsylvania courts to remove that prohibition. Id. Federal law, however, continued to bar them from possessing firearms because their convictions had not been expunged or set aside, they had not been pardoned, and their civil rights had not been restored. Id. ; 18 U.S.C. § 922(g)(1) (2006) (prohibiting possession of firearms by any person convicted in any court of "a crime punishable by imprisonment for a term exceeding one year"); see 18 U.S.C. § 921(a)(20) (2006). They argued that, as a matter of statutory construction, the federal law ( id. § 922(g)(1) ) did not apply to their convictions and, if it did, the statute was unconstitutional as applied to them. Binderup , 836 F.3d at 340 (majority opinion).

¶ 26 The federal district court rejected their statutory argument, but held that section 922(g)(1) was unconstitutional as applied. Id. at 340-41. The Court of Appeals for the Third Circuit, en banc , considered the challengers' as-applied argument under a two-step test. Id. at 347 (opinion of Ambro, J., joined by Fuentes, Smith, Greenway Jr., Vanaskie, Krause, and Roth, JJ.). In considering the first step, the Binderup court observed that most "scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens." (Internal quotation marks omitted.) Id. at 348 (quoting United States v. Yancey , 621 F.3d 681, 684-85 (7th Cir. 2010) ). The court further observed that Heller "recognized 'longstanding prohibitions on the possession of firearms by felons,' not just violent felons" and therefore concluded that "[t]he category of 'unvirtuous citizens' is thus broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent." (Emphasis added.) Id. (quoting Heller , 554 U.S. at 626, 128 S.Ct. 2783 ).

¶ 27 Having found that only those convicted of "serious crimes" can forfeit their right to possess firearms, the Binderup court went on to step two and determined that there was "not a substantial fit between the continuing disarmament of the [c]hallengers and an important government interest." Id. at 356 (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ.). In so finding, the court discussed four defining factors that were unique to the challengers' prior felonies: (1) the state legislatures had enacted the offenses as misdemeanors, which "are, and traditionally have been, considered less serious than felonies"; (2) the lack of violence involved in the offense; (3) the minor sentences imposed; and (4) a lack of a "cross-jurisdictional consensus regarding the seriousness of the [c]hallengers' crimes." Id. at 351-52. In sum, the Binderup court concluded that "[t]he [c]hallengers' isolated, decades-old, non-violent misdemeanors do not permit the inference that disarming people like them will promote the responsible use of firearms." Id. at 356

¶ 28 In the present case, we find defendant's particular circumstances distinguish him from the challengers in Binderup . Our state legislature has classified defendant's prior offenses (manufacture/delivery of a controlled substance offense and unlawful use of a weapon by a felon) as felonies, not misdemeanors as in Binderup . See 720 ILCS 570/401 (West 2012) ; 720 ILCS 5/24-1.1 (West 2012). Even the Binderup court itself noted that a state-law felon's "burden would be extraordinarily high-and perhaps even insurmountable" to demonstrate that the crime was not serious. Binderup , 836 F.3d at 353 n.6 (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ.). Additionally, unlike the challengers in Binderup , defendant here waited until after he was convicted of being in possession of a firearm to challenge the constitutionality of the armed habitual criminal statute. While defendant was initially sentenced to probation for his manufacture/delivery of a controlled substance offense, he subsequently violated his probation and was sentenced to three years' imprisonment. Defendant was also sentenced to three years' imprisonment for the unlawful use of a weapon by a felon conviction. In contrast, the Binderup challengers were never imprisoned. Finally, we observe that our Illinois jurisprudence has consistently upheld the constitutionality of the armed habitual criminal statute against facial and as-applied challenges even where the underlying felony was nonviolent. See Montgomery , 2016 IL App (1st) 142143, ¶ 19, 403 Ill.Dec. 447, 53 N.E.3d 1084.

¶ 29 Defendant maintains that, like the challengers in Binderup , his prior felony offenses were nonviolent. In response, the State disagrees and posits that defendant's drug conviction is equivalent to a violent offense, citing United States v. Torres-Rosario , 658 F.3d 110, 113 (1st Cir. 2011) ("drug dealing is notoriously linked to violence" and "[a]ssuming arguendo that the Supreme Court might find some felonies so tame and technical as to be insufficient to justify the ban, drug dealing is not likely to be among them"). We observe that the armed habitual criminal statute does not provide any exceptions for a person convicted of nonviolent felonies. Moreover, unlike the statutes involved in Binderup , our state legislature expressly included within the armed habitual criminal statute that "any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that is punishable as a Class 3 felony or higher" is a qualifying felony. 720 ILCS 5/24-1.7(a)(3) (West 2012). Thus, our legislature already contemplated what was discussed in Binderup -that only those convicted of "serious crimes" can forfeit their right to possess firearms. See Binderup , 836 F.3d at 351 (opinion of Ambro, J., joined by Smith and Greenway Jr., JJ,). Accordingly, we decline to find that the armed habitual criminal statute is unconstitutional as applied to defendant even if his previous felonies could be considered nonviolent.

¶ 30 In so concluding, we find Montgomery to be instructive. In Montgomery , the defendant was found guilty of being an armed habitual criminal and unlawful use of a weapon by a felon after police seized firearms and ammunition from his home during the execution of a search warrant. Montgomery , 2016 IL App (1st) 142143, ¶ 1, 403 Ill.Dec. 447, 53 N.E.3d 1084. On appeal, the defendant argued that the statutes were unconstitutional as applied to him because his prior felony convictions were nonviolent and he kept the firearms for protection. Id. ¶ 8. The Montgomery court first concluded that neither statute implicated the second amendment where the Supreme Court in Heller "noted that its decision does not cast doubt on the longstanding prohibitions on, inter alia , the possession of firearms by felons" and "our [Illinois] [S]upreme [C]ourt [has] expressed its approval of felon-based bans on firearm possession." Id. ¶¶ 14-15 (citing Heller , 554 U.S. at 626-27, 128 S.Ct. 2783, and Aguilar , 2013 IL 112116, ¶ 26, 377 Ill.Dec. 405, 2 N.E.3d 321 ). The reviewing court further observed that "this court has consistently rejected constitutional challenges to the statutes at issue here" and thus declined to depart from these holdings. Id. ¶ 16 (citing, in pertinent part, Campbell , 2014 IL App (1st) 112926, ¶ 60, 380 Ill.Dec. 687, 8 N.E.3d 1229 (holding "felon-based firearm bans, like the [unlawful use of a weapon by a felon] and [armed habitual criminal] statutes, do not impose a burden on conduct falling within the scope of the second amendment") ); see Garvin , 2013 IL App (1st) 113095, ¶ 40, 374 Ill.Dec. 139, 994 N.E.2d 1076 (finding the unlawful use of a weapon by a felon statute, like the armed habitual criminal statute, is a valid exercise of Illinois's right to protect the health, safety, and general welfare of its citizens of the potential danger posed by convicted felons in possession of firearms or firearm ammunition); Black , 2012 IL App (1st) 110055, ¶ 13, 363 Ill.Dec. 680, 975 N.E.2d 706 (holding armed habitual criminal statute could prohibit the defendant-felon from possessing a firearm in his own home); Ross , 407 Ill. App. 3d at 942, 349 Ill.Dec. 762, 947 N.E.2d 776 (holding the armed habitual criminal statute is a constitutionally permitted restriction of the second amendment right to bear arms).

¶ 31 Second, the Montgomery court rejected defendant's as-applied challenge to the unlawful use of a weapon by a felon statute, observing (as we have here) that the unlawful use of a weapon by a felon statute "does not provide any exceptions for persons convicted of nonviolent felonies" and that no such exception was recognized by the Supreme Court in Heller and McDonald. Montgomery , 2016 IL App (1st) 142143, ¶ 19, 403 Ill.Dec. 447, 53 N.E.3d 1084 (citing 720 ILCS 5/24-1.1(a) (West 2012) and People v. Spencer , 2012 IL App (1st) 102094, ¶ 32, 358 Ill.Dec. 656, 965 N.E.2d 1135 (finding even if the defendant had made a procedurally proper as-applied constitutional challenge to the unlawful use of a weapon by a felon statute, the court would still reject his claims where the unlawful use of a weapon by a felon statute does not include an exception for persons convicted of nonviolent felonies and neither Heller nor McDonald recognized such an exception) ). The Montgomery court thus concluded that the statute is not unconstitutional as applied to the defendant even though his previous felonies were nonviolent. Id.

¶ 32 Defendant cites no relevant authority in support of his additional claims that the age of his felony convictions and his rehabilitation since completing those sentences render the armed habitual criminal statute unconstitutional as applied to him. Defendant cites two cases having no precedential value in this court, Britt and Baysden , to support these claims. Britt and Baysden involve similar sets of facts. The plaintiffs in each case had been convicted of nonviolent felonies in the 1970s. Britt , 681 S.E.2d at 321 ; Baysden , 718 S.E.2d at 701. After completing their respective sentences, their civil rights were fully restored by operation of law, including their right to possess a firearm. Britt , 681 S.E.2d at 321 ; Baysden , 718 S.E.2d at 701. Both plaintiffs owned firearms for 17 years or more without any incident until the North Carolina General Assembly changed the law in 2004 and prohibited the possession of all firearms by any person convicted of any felony. Britt , 681 S.E.2d at 321 ; Baysden , 718 S.E.2d at 701-02. Thereafter, the plaintiffs intentionally divested themselves of their firearms and filed suits in North Carolina state courts challenging the law as unconstitutional. In undertaking a rational basis review, the North Carolina courts ultimately concluded that the law was unconstitutional as applied to the plaintiffs. Britt , 681 S.E.2d at 323 ; Baysden , 718 S.E.2d at 703-04. As stated in Britt ,

"[p]laintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety." Britt , 681 S.E.2d at 323.

See Baysden , 718 S.E.2d at 704.

¶ 33 We decline to consider these cases as persuasive authority as the plaintiffs in those cases conclusively demonstrated their respect for the law by divesting themselves of their weapons when the law changed and sought redress through the judicial system. Unlike the Britt and Baysden plaintiffs, defendant here possessed a firearm knowing that he was a twice-convicted felon and only sought to challenge the law regarding his possession of a firearm after he was charged with the weapons-related offenses. These facts cut against defendant's argument that he has been rehabilitated. Moreover, we observe the courts in Britt and Baysden applied a rational basis inquiry.

Britt , 681 S.E.2d at 323 ; Baysden , 718 S.E.2d at 703-04. Furthermore, it is notable that the North Carolina plaintiffs were legally allowed to possess weapons for 17 years prior to the change in the law that made their possession of firearms illegal. Britt , 681 S.E.2d at 321 ; Baysden , 718 S.E.2d at 701-02.

¶ 34 Defendant also asserts that the fact his first felony conviction for manufacture/delivery of a controlled substance, which occurred when he was age 17, is now no longer punishable as an adult offense supports his conclusion that the armed habitual criminal statute is unconstitutional as applied. Defendant, however, cites no relevant authority that a subsequent change in the law has any bearing on the nature of his first felony conviction or his status as a felon. Accordingly, we find this argument to be forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017); People v. Hunt , 234 Ill. 2d 49, 67, 333 Ill.Dec. 58, 914 N.E.2d 477 (2009) (points not argued with citation to authority are forfeited).

¶ 35 In sum, the armed habitual criminal statute "is a valid exercise of Illinois's right to protect the health, safety, and general welfare of its citizens from the potential danger posed by convicted felons in possession of firearms" and survives intermediate scrutiny. Garvin , 2013 IL App (1st) 113095, ¶ 40, 374 Ill.Dec. 139, 994 N.E.2d 1076. The application of the armed habitual criminal statute is not unconstitutional as applied to defendant, who committed two prior felonies, despite his assertions that these were older, nonviolent felonies and that he has since been rehabilitated. Accordingly, we hold that the judgment of the circuit court is affirmed.

¶ 36 CONCLUSION

¶ 37 For the reasons stated above, the armed habitual criminal statute is not unconstitutional as applied to defendant. Therefore, we affirm the judgment of the circuit court of Cook County.

¶ 38 Affirmed.

Justices Lampkin and Rochford concurred in the judgment and opinion.

      During oral argument, defense counsel declined to argue an as-applied challenge under our Illinois Constitution, indicating the main thrust of his argument was in regards to the federal second amendment.

      We observe that Binderup was a fractured, plurality decision. See Binderup , 836 F.3d at 338.


source: Caselaw Access Project

license: Public Domain

text:
    Reverend Charles ORR, Plaintiff-Appellant, v. The FOURTH EPISCOPAL DISTRICT AFRICAN METHODIST EPISCOPAL CHURCH, an Illinois Corporation; Bishop John R. Bryant, Individually and as Bishop of the African Methodist Episcopal Church, Illinois Conference; Tamara Henderson-Hightower, Individually; and Reverend Tyson J. Parks, Individually and as Presiding Elder of the African Methodist Episcopal Church, Illinois Conference, Defendants
    (The Fourth Episcopal District African Methodist Episcopal Church, an Illinois Corporation; Bishop John R. Bryant, Individually and as Bishop of the African Methodist Episcopal Church, Illinois Conference; and Reverend Tyson J. Parks, Individually and as Presiding Elder of the African Methodist Episcopal Church, Illinois Conference, Defendants-Appellees).
    NO. 4-17-0469
    Appellate Court of Illinois, Fourth District.
    Filed August 14, 2018
    Donald R. Jackson, of Peoria, for appellant.
    Barbara Snow Mirdo, of Thielen, Foley & Mirdo, LLC, of Bloomington, for appellees.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In May 2013, plaintiff, Reverend Charles Orr, filed a four-count complaint against the Fourth Episcopal District African Methodist Episcopal Church (Fourth District AME Church), Bishop John R. Bryant (John), Tamara Henderson-Hightower (Tamara), and Reverend Tyson J. Parks (Tyson). The claims raised in the complaint were (1) defamation, (2) defamation per se , (3) false light, and (4) intentional infliction of emotional distress. Plaintiff's complaint arose over allegations of sexual misconduct and how the church handled those allegations.

¶ 2 In June 2013, Tyson, John, and the Fourth District AME Church (collectively, the defendants) filed an answer. The answer alleged the ecclesiastic abstention doctrine as a defense, specifically asserting that any republication of the allegedly defamatory statements occurred within the internal disciplinary process of the church.

¶ 3 In November 2016, defendants filed a motion for summary judgment, arguing that the ecclesiastic abstention doctrine prohibited the trial court from adjudicating this matter. In March 2017, plaintiff filed a response, arguing that the doctrine was not an automatic bar to the court adjudicating this case. Instead, plaintiff argued that this case could be decided under neutral principles of law.

¶ 4 In April 2017, the trial court granted defendants' motion for summary judgment. The court concluded that (1) the ecclesiastic abstention doctrine applied and (2) insufficient admissible evidence had been offered to establish plaintiff's causes of action.

¶ 5 Plaintiff appeals, arguing that (1) the ecclesiastic abstention doctrine does not apply, (2) the case can be decided under neutral principles of law, and (3) sufficient evidence was presented to establish his causes of action. We conclude that because the ecclesiastic abstention doctrine applies, this case cannot be decided under neutral principles of law. Accordingly, we affirm the trial court's grant of summary judgment.

¶ 6 I. BACKGROUND

¶ 7 We glean the following information from the extensive factual record of this case, which includes depositions and internal church documents.

¶ 8 A. The African Methodist Episcopal Church

¶ 9 Before discussing the allegations of this case, we will discuss the structure of the African Methodist Episcopal Church (AME Church), the applicable rules proscribing sexual misconduct, and the ecclesiastic tribunals established to adjudicate claims of sexual misconduct. We will also mention the various positions that the plaintiff, defendants, and other individuals occupied within this organization.

¶ 10 1. The Structure of the AME Church

¶ 11 The AME Church is an international religious organization with a hierarchical structure. The AME Church is divided into 20 districts. A bishop presides over each district. A district is further divided into conferences. Conferences are further divided into regional districts. A presiding elder manages each regional district and reports to the respective bishop. Individual AME Churches are within regional districts. A pastor manages an individual AME church and reports to the local presiding elder.

¶ 12 John is the bishop for the Fourth District AME Church. The Fourth District AME Church is divided into five conferences. One such conference is the Illinois Conference. The Illinois Conference is divided into the North District and the South District. Tyson is the presiding elder for the North District. Plaintiff was the pastor of the Wayman AME Church, which is located in the North District of the Illinois Conference. The following graph summarizes this information.

?

¶ 13 2. The Book of Discipline and Sexual Harassment

¶ 14 The Doctrine and Discipline of the African Methodist Episcopal Church (Book of Discipline) governs the internal discipline of the AME Church. The Book of Discipline is applicable to church doctrine, church membership, the clergy, and methods of worship.

¶ 15 The Book of Discipline prohibits sexual harassment by AME Church ministers, stating that sexual harassment "by representatives of the Church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate." Generally speaking, the Book of Discipline defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or non-verbal conduct of a sexually offensive nature" that occurs in a workplace setting.

¶ 16 The Book of Discipline also establishes a complex system for reporting and adjudicating claims of sexual misconduct against members of the clergy. A victim of sexual harassment may report the allegation to his or her local minister. The person receiving this information must then make a written record of the complaint within 48 hours. The accuser then has seven days to submit a written complaint. The complaint must be in writing, sworn under penalty of perjury, and sent via certified mail to the Judicial Committee. The complaint should contain a description of the facts giving rise to the claim.

¶ 17 The Judicial Committee, which acts like a grand jury, serves as the investigative body of the AME Church. This committee gathers evidence and investigates claims. While performing its role, the Judicial Committee must act confidentially and can discuss the matter only with other individuals responsible for adjudicating the case. Breach of confidentiality "shall be charged and tried pursuant to the relevant provisions" of the Book of Discipline.

¶ 18 The Judicial Committee determines whether there is sufficient evidence to support the allegations of sexual misconduct. If the Judicial Committee finds that the allegations are unfounded, the case is dismissed. If the Judicial Committee finds there is sufficient evidence to support the allegation, the matter is referred to the Trial Committee for a hearing.

¶ 19 The Trial Committee, which acts as the trier of fact, determines whether the allegations in the complaint are "sustained, unsustained, or neither sustained nor unsustained." If the Trial Committee determines that the allegations are sustained, the Book of Discipline provides for a range of punishments ranging from a six-month suspension to permanent termination.

¶ 20 The Book of Discipline also established an appeals system. The Triers of Appeals, which serves as an appellate court, examines the charges, specifications, and the judgment of the "lower" courts. The Triers of Appeals also determines whether defendant's "due process" has been "violated." This court may also consider new evidence if this evidence "will have a bearing on the outcome."

¶ 21 Finally, the Book of Discipline created a Ministerial Efficiency Committee. This committee decides the "efficiency and moral conduct of such ministers as may be referred to it." Under prior versions of the Book of Discipline, the Ministerial Efficiency Committee heard allegations of sexual misconduct. However, under the Book of Discipline that was applicable during this case, the Judicial Committee, Trial Committee, and the Triers of Appeals had exclusive jurisdiction over allegations of sexual misconduct.

¶ 22 B. The Complaint

¶ 23 In May 2013, plaintiff filed a four-count complaint against the Fourth District AME Church, John, Tamara, and Tyson. The claims raised in the complaint were (1) defamation, (2) defamation per se , (3) false light, and (4) intentional infliction of emotional distress.

¶ 24 Plaintiff's complaint arose over allegations of sexual misconduct. Plaintiff's complaint stated that he was the chairperson of a committee responsible for screening candidates for admission to the ministry within the AME Church. Tamara was one of these candidates. Plaintiff's complaint stated that in April 2012, he told Tamara that she would need additional counseling before her application could proceed. Plaintiff's complaint stated that this "was the extent" of the private statements he made to Tamara.

¶ 25 The complaint further stated that in May 2012, Tamara sent an e-mail to the Reverend Elaine Walters, pastor of the AME Church in Peoria, Illinois. In this e-mail, Tamara accused plaintiff of sexual harassment. A copy of this e-mail was forwarded to Tyson, who was the presiding elder of the North District. The complaint alleged that Tyson "republished the allegations to other pastors within the AME Conference."

¶ 26 The complaint further stated that Tyson repeated the allegations to John, who was the Bishop of the Fourth District AME Church. The complaint further stated that John then "replaced" plaintiff from the committee designated to select new ministers. The complaint alleged that the allegations of sexual misconduct and repeating the allegations of sexual misconduct brought him into "public disgrace and scandal."

¶ 27 C. The Answers

¶ 28 In June 2013, Tyson, John, and the Fourth District AME Church (collectively, the defendants) filed an answer. The answer denied plaintiff's allegations.

¶ 29 The answer also asserted the ecclesiastic abstention doctrine as a defense, arguing that "Illinois courts have long recognized * * * the power and autonomy [of religious organizations] to govern and discipline their own clergy free from secular court interference." The answer argued that plaintiff, as a minister in the AME Church, is governed by the Book of Discipline.

¶ 30 The answer further argued that the Book of Discipline prohibited sexual harassment and established an internal adjudication system for resolving claims of sexual harassment against the clergy. The answer further stated that "information regarding the sexual misconduct allegation was provided only to those persons necessary to comply with the sexual misconduct policy" of the AME Church.

¶ 31 In August 2013, Tamara filed a pro se answer that "re-states and incorporates by reference" defendants' answer. We note that the trial court entered default judgment against Tamara in November 2016, and she is not a party to this appeal.

¶ 32 D. The Depositions

¶ 33 1. Tamara's Deposition

¶ 34 Tamara testified that in April 2012, she traveled to the AME Church in Quincy, Illinois, as a part of her journey to become a minister within the AME Church. She stated that plaintiff was the dean of the board of examiners, which was responsible for selecting candidates for admission into the ministry of the AME Church.

¶ 35 She said plaintiff requested to speak to her privately in the sanctuary. She testified that plaintiff called her a "beautiful woman" and that he was "turned on" by her. She further claimed that plaintiff said that "if I was younger, the things that I could do to you."

¶ 36 In May 2012, Tamara notified Reverend Elaine Walters, her pastor, of the alleged incident by e-mail. Elaine then notified Tyson, the presiding elder, of the alleged incident. Tyson then discussed the matter with Tamara and Elaine. Tyson directed Elaine to help Tamara revise her complaint because it was difficult to read and contained grammatical errors. Tamara maintained that Elaine only helped with editing the complaint. Tamara testified that she also told her counselor about the alleged sexual harassment.

¶ 37 2. Tyson's Deposition

¶ 38 Tyson testified that at the time of the allegation, plaintiff was the pastor of the Wayman AME Church and was dean of the board of examiners. In that latter role, plaintiff oversaw a committee that was responsible for screening candidates for admission into the ministry of the AME Church. Tamara was one of these candidates.

¶ 39 Tyson testified that he became aware of the allegations of sexual harassment in May 2012. Tyson asked Elaine to help Tamara revise her complaint for clarity and grammar. Tyson admitted that the revised complaint did not comply with the requirements set forth in the Book of Discipline, such as being signed under penalty of perjury.

¶ 40 After receiving the complaint, Tyson alerted John of the allegation. Tyson said that all Tamara wanted was a formal apology. John said that an apology would not be sufficient and that the AME Church needed to conduct an internal investigation. John instructed Tyson to convene the Ministerial Efficiency Committee to investigate the matter.

¶ 41 Tyson then contacted Reverend Larry Lewis, who was the chair of the Ministerial Efficiency Committee. Tyson told Larry there was an allegation of sexual misconduct and that Larry needed to convene the Ministerial Efficiency Committee. Tyson stated that he did not divulge the facts of the allegation or the names of the relevant parties to Larry. Larry told Tyson that the Ministerial Efficiency Committee no longer handles allegations of sexual misconduct and that the matter should be forwarded to the Judicial Committee. Tyson admitted that the Book of Discipline requires that the Judicial Committee, rather than the Ministerial Efficiency Committee, adjudicate allegations of sexual misconduct.

¶ 42 Tyson then contacted Reverend Vivian Clarington, who was the chair of the Judicial Committee. Tyson did not discuss the allegations with Vivian. Rather, Tyson merely forwarded a copy of the complaint to her. Tyson testified that he has no personal knowledge of what occurred at the Judicial Committee.

¶ 43 Tyson testified that the Judicial Committee first issued a finding that the allegations were unfounded. Nonetheless, Tyson stated that the Judicial Committee later reversed those findings. This time, the Judicial Committee found that sufficient evidence existed to support the allegations and the matter should be referred to the Trial Committee. Tyson stated that the ecclesiastic courts have not resolved this issue because of plaintiff's litigation.

¶ 44 Tyson further stated that plaintiff was moved from the Wayman AME Church to a church in Des Moines, Iowa. Tyson stated that plaintiff's move was not related to the allegations of sexual misconduct.

¶ 45 3. Plaintiff's Deposition

¶ 46 Plaintiff admitted that he was alone with Tamara in the sanctuary of the AME Church in Quincy, Illinois. However, plaintiff denied Tamara's accusation that he made inappropriate comments to her. Plaintiff insisted that he only spoke with her privately so that he could tell her that her application could not proceed further until she received additional psychological training.

¶ 47 Plaintiff testified that he first became aware of the allegations of sexual misconduct in May 2012. Plaintiff stated that Tyson told him that Tamara only wanted an apology. Plaintiff said he would apologize if it was not seen as an admission of guilt. Plaintiff stated that Tamara's statements were false and maintained that he acted appropriately.

¶ 48 Plaintiff testified that he sued Tamara and defendants for failing to follow the Book of Discipline. Plaintiff believed that Tamara made a false statement and failed to follow the Book of Discipline's procedural requirements for drafting and filing a complaint. Plaintiff stated that defendants failed to follow the Book of Discipline's procedural requirements for adjudicating claims of sexual misconduct.

¶ 49 Plaintiff further argued that Tyson and John repeated Tamara's allegedly false allegations to other individuals in the AME Church. According to plaintiff, Tyson divulged confidential information to Larry when Tyson requested that the Ministerial Efficiency Committee be convened. However, when pressed further, the following questions were asked and answers given:

"Q. Other than Vivian Clarington and Reverend Larry Lewis * * * do you know of anyone who claims to have heard statements by Tyson Parks or John Bryant regarding the allegations by Ms. [Tamara] Henderson accusing you of sexual misconduct?
A. Personally heard?
Q. Correct.
A. No.
* * *
Q. Do you know of anybody specifically telling you that Reverend Parks said you were guilty of the allegations of sexual misconduct?
A. Specifically saying it, no."

¶ 50 Plaintiff testified that John removed him from his church and sent him to a church in Iowa because of the allegations of sexual misconduct. Plaintiff claimed his reputation has been damaged and that he has suffered damages as a result of the alleged defamatory statements. Plaintiff also admitted that he told his entire congregation about this matter after the Judicial Committee found that there was a factual basis to support the allegations of sexual harassment.

¶ 51 E. The Defendants' Motion for Summary Judgment

¶ 52 In November 2016, defendants filed a motion for summary judgment, arguing that the ecclesiastic abstention doctrine prohibited the trial court from adjudicating this matter.

¶ 53 In March 2017, plaintiff filed a response, arguing that the ecclesiastic abstention doctrine was not an automatic bar to adjudicating this case. Instead, plaintiff argued that this case could be decided under neutral principles of law. Likewise, plaintiff argued that summary judgment was improper because there was a dispute of material fact on whether (1) plaintiff sexually harassed Tamara, (2) whether the defendants properly followed the Book of Discipline, and (3) whether plaintiff was damaged.

¶ 54 F. The Trial Court's Ruling

¶ 55 In April 2017, the trial court granted defendants' motion for summary judgment. The court concluded that (1) the ecclesiastic abstention doctrine applied and (2) insufficient admissible evidence had been offered to establish plaintiff's causes of action.

¶ 56 This appeal followed.

¶ 57 II. ANALYSIS

¶ 58 Plaintiff appeals, arguing that (1) the ecclesiastic abstention doctrine does not apply, (2) the case can be decided under neutral principles of law, and (3) sufficient evidence was admitted to establish his causes of action. We conclude that the ecclesiastic abstention doctrine applies in this case. Accordingly, we affirm the trial court's grant of summary judgment.

¶ 59 A. Summary Judgment and the Standard of Review

¶ 60 Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). The purpose of summary judgment is not to try a question of fact, but to determine whether any genuine issue of fact exists to be tried. Thompson v. Gordon , 241 Ill. 2d 428, 438, 349 Ill.Dec. 936, 948 N.E.2d 39, 45 (2011). In determining this, the court must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the opponent. Williams v. Manchester , 228 Ill. 2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1, 9 (2008). Summary judgment should be granted only if the right of the moving party is clear and free from doubt. Colburn v. Mario Tricoci Hair Salons & Day Spas, Inc. , 2012 IL App (2d) 110624, ¶ 32, 361 Ill.Dec. 781, 972 N.E.2d 266.

¶ 61 Evidence, such as hearsay, which is inadmissible at trial, is not admissible in support of or in opposition to a motion for summary judgment. People ex rel. Madigan v. Kole , 2012 IL App (2d) 110245, ¶ 47, 360 Ill.Dec. 355, 968 N.E.2d 1108. Unsupported conclusions, opinions, or speculation is insufficient to raise a genuine issue of material fact for purposes of summary judgment. Argueta v. Krivickas , 2011 IL App (1st) 102166, ¶ 8, 352 Ill.Dec. 12, 952 N.E.2d 1238. A trial court's entry of summary judgment is reviewed de novo . Evans v. Brown , 399 Ill. App. 3d 238, 244, 339 Ill.Dec. 144, 925 N.E.2d 1265, 1271 (2010).

¶ 62 B. Statements Made During Ecclesiastic Proceedings

¶ 63 Plaintiff argues that the ecclesiastic abstention doctrine does not apply because "[a]n objective consideration of these facts * * * does not require an inquiry into ecclesiastical matters[,] such as theological or doctrinal matters." We disagree.

¶ 64 1. The Applicable Law

¶ 65 The first amendment to the Constitution of the United States provides, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" U.S. Const., amend. I. The first amendment applies to state governments by incorporation through the fourteenth amendment. U.S. Const., amend. XIV.

¶ 66 The United States Supreme Court has held that freedom of religion is guaranteed not only to individuals but also to churches in their collective capacities, which must have the "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North America , 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952). Religious organizations are free to establish their own rules, regulations, and tribunals for disciplining clergy and adjudicating religious disputes. Serbian Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich , 426 U.S. 696, 724, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). When religious organizations establish such tribunals, their decisions are binding upon civil courts on matters of internal discipline, faith, internal organization, ecclesiastical rule, custom, or law. Stepek v. Doe , 392 Ill. App. 3d 739, 746, 331 Ill.Dec. 246, 910 N.E.2d 655, 662 (2009) (citing Milivojevich , 426 U.S. at 713, 96 S.Ct. 2372 ).

¶ 67 2. The First District's Analysis

¶ 68 In Stepek , two brothers accused the plaintiff, a Catholic priest, of sexual molestation.

Stepek , 392 Ill. App. 3d at 743, 331 Ill.Dec. 246, 910 N.E.2d 655. The Catholic Church had an intricate and detailed policy for addressing, investigating, and adjudicating claims of child molestation. See id. at 741-43, 331 Ill.Dec. 246, 910 N.E.2d 655, 662. As the internal investigation was pending, the plaintiff sued the brothers and the Catholic Church for defamation and intentional infliction of emotional distress. Id. at 740, 331 Ill.Dec. 246, 910 N.E.2d 655, 662.

¶ 69 The Catholic Church filed a motion to dismiss, arguing that plaintiff's claims were barred under the first amendment. Id. The trial court denied the motion, but the question of whether the trial court had subject-matter jurisdiction was certified for appeal. Id. at 740-41, 331 Ill.Dec. 246, 910 N.E.2d 655, 662. The First District concluded that the plaintiff's claims were barred by the first amendment, reasoning as follows:

"[P]laintiff, as an ordained priest, and the Does, as parishioners, acceded to the Policies of the Archdiocese of Chicago and are bound by them. [Citation.] Plaintiff's defamation claim concerns the core of the church-minister relationship. While the Catholic Church's interest is not exclusive, the Church does have a strong interest in protecting minors from sexual abuse at the hands of clergy. For purposes of the first amendment, parishioner victims, such as the Does, who invoke the Catholic Church's internal disciplinary process may also invoke their belief in the Church's right to be free from State court interference in that process. As the Hiles court noted, 'The First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation that was used to initiate those proceedings could be tested in civil court.' [ Hiles v. Episcopal Diocese of Massachusetts , 437 Mass. 505, 773 N.E.2d 929, 937 (2002).] Indeed, 'a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion.' [ Cimijotti v. Paulsen , 230 F.Supp. 39, 41 (N.D. Iowa 1964).] Since the only defamatory publication allegedly made by the Does was made to the Church itself within internal disciplinary proceedings, the absolute first amendment protection for statements made by Church members in an internal church disciplinary proceeding precludes the circuit court from exercising jurisdiction in this matter ." (Emphasis added.) Stepek , 392 Ill. App. 3d at 752-53, 910 N.E.2d 655, 331 Ill.Dec. 246.

¶ 70 3. This Case

¶ 71 The facts of our case are striking similar to those in Stepek . Here, plaintiff was a minister in the AME Church. Tamara was a member of the AME Church and was seeking to become a minister. Both of these individuals were bound by the Book of Discipline.

¶ 72 The Book of Discipline prohibited sexual harassment by the clergy, reasoning that sexual harassment "by representatives of the Church is a betrayal of a sacred trust, and a sinful abuse of power for which consequences are necessary and appropriate." To effectuate this goal, the Book of Discipline established methods of reporting sexual harassment, created tribunals to investigate and adjudicate claims of sexual harassment, provided a range of punishments for the guilty, and established an appellate system to secure the rights of the accused.

¶ 73 After the incident alleged in this case, Tamara filed a complaint with her minister. Tamara's minister then forwarded this complaint to Tyson, who was the presiding elder of the North District. Tyson then communicated this information to John, who was the bishop of the Fourth District AME Church. John then directed Tyson, incorrectly, to convene the Ministerial Efficiency Committee to investigate this matter.

¶ 74 Tyson then contacted Larry, who was the chair of the Ministerial Efficiency Committee. Larry told Tyson that the Judicial Committee, rather than his committee, now handles allegations of sexual misconduct. Tyson then contacted Vivian, who was chair of the Judicial Committee. Tyson instructed Vivian to convene the Judicial Committee to investigate this matter.

¶ 75 All of these communications occurred within the internal disciplinary proceedings of the AME Church. The first amendment's protection of internal religious disciplinary proceedings would be meaningless if republishing allegations of sexual abuse within those proceedings could be tested in civil court. Id. at 752, 331 Ill.Dec. 246, 910 N.E.2d 655, 662.

¶ 76 Moreover, plaintiff's claim that Tyson incorrectly alerted the chair of the Ministerial Efficiency Committee and allegedly reported the underlying facts of the investigation to him makes no difference. Even if true, the chair of the Ministerial Efficiency Committee is still a part of the AME Church's internal disciplinary process. Accordingly, these statements were constitutionally protected as well. See id. at 753, 331 Ill.Dec. 246, 910 N.E.2d 655, 662.

¶ 77 We note that in plaintiff's deposition, he admitted he was suing the defendants for "failing to follow the guidelines [in the Book of Discipline]." Similarly, in his appellate brief, plaintiff goes into exhaustive detail about how the defendants failed to follow the Book of Discipline. However, this is not relevant to our analysis because this occurred within the internal disciplinary procedures of the church. Compare Stepek , 392 Ill. App. 3d at 753, 331 Ill.Dec. 246, 910 N.E.2d 655 (ecclesiastic abstention doctrine applied when statements were made within a church's internal disciplinary process), with Duncan v. Peterson , 359 Ill. App. 3d 1034, 1045-46, 296 Ill.Dec. 377, 835 N.E.2d 411, 421-22 (2005) (evaluating a defamation claim under neutral principles of law when a pastor alleged that his former church sent false and misleading letters throughout the local community).

¶ 78 Plaintiff failed to present evidence that defendants published Tamara's statements to anyone outside of the internal disciplinary procedures of the AME Church. The statements made pursuant to the internal disciplinary procedures come within the ecclesiastic abstention doctrine and, accordingly, are protected by the first amendment. Stepek , 392 Ill. App. 3d at 753, 331 Ill.Dec. 246, 910 N.E.2d 655.

¶ 79 Plaintiff's claims in this case are based on inadmissible hearsay, rumor, and speculation; they are not supported by any admissible evidence. Kole , 2012 IL App (2d) 110245, ¶ 47, 360 Ill.Dec. 355, 968 N.E.2d 1108 ; Krivickas , 2011 IL App (1st) 102166, ¶ 8, 352 Ill.Dec. 12, 952 N.E.2d 1238. For instance, plaintiff admitted that, except for the internal investigation, he has not personally heard anyone claim that Tyson or John spoke of the allegations of sexual misconduct.

¶ 80 In passing, we note that plaintiff argues in his reply brief that a publication occurred outside of the church disciplinary proceedings because Tamara discussed the alleged sexual harassment with her counselor. We also note that plaintiff does not allege that the defendants republished what Tamara told her counselor. However, we need not decide this issue because plaintiff raised this argument for the first time in his reply brief. Accordingly, this issue is waived. People v. Polk , 2014 IL App (1st) 122017, ¶ 49, 382 Ill.Dec. 290, 12 N.E.3d 569 ; Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 81 C. Neutral Principles of Law

¶ 82 Plaintiff argues we can evaluate his claims under neutral principles of law. Essentially, notwithstanding any underlying ecclesiastic matter, plaintiff contends that we can determine (1) whether the AME Church followed its own disciplinary proceedings and (2) whether the alleged statements were defamatory under neutral principles of law. We disagree.

¶ 83 Illinois courts will not resolve cases that require interpretation of religious doctrine. Stepek , 392 Ill. App. 3d at 754, 331 Ill.Dec. 246, 910 N.E.2d 655. Nonetheless, when doctrinal issues are not involved, the court may evaluate the dispute under neutral principles of law. Id. at 754-55, 331 Ill.Dec. 246, 910 N.E.2d 655, 662 ; Jones v. Wolf , 443 U.S. 595, 603, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979). Under the neutral principles of law approach, a court objectively examines pertinent church characteristics, constitutions, bylaws, deeds, state statutes, and other evidence to resolve the matter as it would a secular dispute. Diocese of Quincy v. Episcopal Church , 2014 IL App (4th) 130901, ¶ 44, 383 Ill.Dec. 634, 14 N.E.3d 1245. Traditionally, the neutral principles of law approach is applied to allocate disputed church property under objective, well-established concepts of trust and property law. Id. ; Jones , 443 U.S. at 603, 99 S.Ct. 3020.

¶ 84 In Stepek , the First District refused to apply the neutral principles of law approach to determine the veracity of plaintiff's defamation claim. Stepek , 392 Ill. App. 3d at 755, 331 Ill.Dec. 246, 910 N.E.2d 655. The court explained, as follows:

"While it is possible that resolution of plaintiff's claims would not require any interpretation of the Catholic Church's doctrine, resolving this dispute would involve the secular court interfering with the Church's internal disciplinary proceedings where plaintiff's claims are based on the Does' statements, which were provided solely within the Church's proceedings. Irrespective of the fact that a court or jury could apply 'neutral principles of law' to the Does' alleged statements to determine whether they were defamatory, those statements were published exclusively within the context of the Church's disciplinary proceedings. Therefore, as previously discussed, this court is bound to step aside and permit the Church to consider the veracity of the Does' charges of sexual abuse through the Church's process." Id.

¶ 85 We agree with the First District and conclude that resolving this dispute under neutral principles of law would interfere with the AME Church's internal disciplinary proceedings. Id. at 753, 331 Ill.Dec. 246, 910 N.E.2d 655, 662. Accordingly, we are bound to step aside and permit the church to consider the authenticity of Tamara's claims of sexual harassment.

¶ 86 D. Failure to Allege Sufficient Admissible Evidence

¶ 87 Because we conclude that the trial court correctly granted summary judgment under the ecclesiastic abstention doctrine, we need not resolve whether the trial court correctly determined that plaintiff failed to allege sufficient admissible evidence to support his claims, which was an alternative ground cited by the trial court for granting defendants' motion for summary judgment. Nonetheless, we will observe that the trial court's assessment on this point appears to be soundly based.

¶ 88 III. CONCLUSION

¶ 89 For the preceding reasons, we affirm the trial court's order.

¶ 90 Affirmed.

Presiding Justice Harris and Justice Cavanagh concurred in the judgment and opinion.


author: All Justices concur.

text:
    In the MATTER OF: Timothy E. VOJSLAVEK, Respondent
    Supreme Court Case No. 18S-DI-414
    Supreme Court of Indiana.
    FILED November 28, 2018
    Published Order Suspending Respondent from the Practice of Law in Indiana for Noncooperation
    On August 15, 2018, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance, No. 19-0021 , filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On October 16, 2018, the Commission filed a "Request for Ruling and to Tax Costs" asserting that Respondent still has not cooperated, to which Respondent has not responded.
    Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23 (10.1)(c)(3), this suspension shall continue until the Executive Director of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation or until further order of this Court, provided there are no other suspensions then in effect.
    Respondent is already under a suspension for continuing legal education noncompliance. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26).
    IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23 (10.1)(d), that Respondent reimburse the Disciplinary Commission $526.74 for the costs of prosecuting this proceeding
   All Justices concur.


text:
    In the MATTER OF: Jill N. HOLTZCLAW, Respondent
    Supreme Court Case No. 18S-DI-490
    Supreme Court of Indiana.
    FILED November 28, 2018
    Published Order Suspending Respondent from the Practice of Law in Indiana for Noncooperation
    On October 4, 2018, this Court ordered Respondent to show cause why Respondent should not be immediately suspended from the practice of law in this state for failure to cooperate with the Commission's investigation of a grievance, No. 18-1019 , filed against Respondent. The order required that Respondent show cause in writing within ten days of service of the order. Respondent has not submitted a response to the Court's order to show cause. On October 23, 2018, the Commission filed a "Request for Ruling and to Tax Costs" asserting that Respondent still has not cooperated, to which Respondent has not responded.
    Being duly advised, the Court ORDERS that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. Pursuant to Admission and Discipline Rule 23 (10.1)(c)(3), this suspension shall continue until the Executive Director of the Disciplinary Commission certifies to the Court that Respondent has cooperated fully with the investigation or until further order of this Court, provided there are no other suspensions then in effect.
    Respondent is already under suspension as ordered in Case Nos. 18S-DI-373 and 18S-DI-382, and also is under suspension for continuing legal education noncompliance. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26).
    IT IS FURTHER ORDERED, pursuant to Admission and Discipline Rule 23 (10.1)(d), that Respondent reimburse the Disciplinary Commission $513.34 for the costs of prosecuting this proceeding.
   All Justices concur.


text:
    Zachariah J. MARSHALL, Appellee v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
    Transfer granted.


author: Transfer denied. All Justices concur.

text:
    Michael D. TERRY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Kevin MARTIN, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Tyrone GRAYSON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Mark A. PETRY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
    Transfer denied. All Justices concur, except Rush, C.J., who votes to grant the petition to transfer.


text:
    CHINS: K.H., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES, et al.
    Supreme Court of Indiana.
    September 13, 2018
    Transfer Denied.
   All Justices concur.

Altice, J., Najam, J., Robb, J.


text:
    Jennifer COX, et al., Appellee v. The CITY OF EVANSVILLE, et al.
    Supreme Court of Indiana.
    September 13, 2018
    Transfer granted.


text:
    Brenda A. KYLE, Appellant v. CEDARVIEW MANAGEMENT
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Frank DANGERFIELD, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Joseph Harold DRIVER, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Scottie EDWARDS, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Robert L. WILLIAMS, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Matthew K. SUMMERSETT, et al., Appellee v. BANK OF GENEVA
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Kathleen SPREHE, Appellee v. CVP HOLDING CORP.
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Jeffery CERTA, Appellee v. ALLSTATE PROPERTY AND CASUALTY INSURANCE CO., et al.
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Alonzo R. WEEKLY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Angela BREWER, Appellee v. PETERBILT MOTORS CO.-PACCAR, INC.
    Supreme Court of Indiana.
    September 13, 2018
    Transfer granted.


text:
    Wayne KIRCHGESSNER, et al., Appellants v. Betty KIRCHGESSNER, et al.
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Troy BELL, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Brenda A. KYLE, Appellant v. DISQUE, INC.
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    Thomas BOOKER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    P.P., Appellant v. A.O.
    Supreme Court of Indiana.
    September 13, 2018
   Transfer denied. All Justices concur.


text:
    James Dawayne MCDUFFY, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    Michael A. MILLER, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    Jermaine JACKSON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    CHINS: C.Q., et al., Appellant v. INDIANA DEPARTMENT OF CHILD SERVICES
    Supreme Court of Indiana.
    September 27, 2018
    Transfer Denied.
   All Justices concur.

Vaidik, C.J., Pyle, J., Barnes, Sr., J.


text:
    STATE of Indiana, Appellee v. Beth A. NEFF
    Supreme Court of Indiana.
    September 27, 2018
    Transfer granted.


text:
    Kevin MARTIN, Appellant v. Officer MCCLOUD
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    Kevin MARTIN, Appellant v. PRISON GUARDS WABASH VALLEY CORRECTIONAL FACILITY
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    NIPSCO INDUSTRIAL GROUP, Appellees v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, et al.
    Supreme Court of Indiana.
    September 27, 2018
    Transfer granted.


text:
    Michael D. HICKINGBOTTOM, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    R.L., et al., Appellant v. C.M., et al.
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    John Henry MEANS, IV, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    M.D., Appellant v. M.B.
    Supreme Court of Indiana.
    September 27, 2018
   Transfer denied. All Justices concur.


text:
    S.B., Appellant v. SEYMOUR COMMUNITY SCHOOLS, et al.
    Supreme Court of Indiana.
    September 27, 2018
    Transfer denied. All Justices concur, except Rush, C.J., and Slaughter, J. who vote to grant the petition to transfer.


text:
    ALCOA FUELS, INC., et al., Appellants v. CITY OF BOONVILLE, Indiana, et al.
    Supreme Court of Indiana.
    September 21, 2018
   56(A) Transfer denied. All Justices concur.


text:
    Antwoin RICHMOND, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Corey BULLOCK, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Charles E. JUSTISE, Sr., Appellant v. David LIEBEL, et al.
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Darrell BIRGE, Appellant v. Barton MAXWELL, Jr., et al.
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Robert A. MASTERS, Appellant v. Leah MASTERS
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Charles Anthony MCMICHAEL, Jr., Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Stevonta D. HILL, Appellee v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    COMMISSIONER, INDIANA DEPARTMENT OF INSURANCE, Appellee v. Alvin C. PUTMAN
    Supreme Court of Indiana.
    September 20, 2018
    Transfer denied. All Justices concur, except Slaughter, J., who votes to grant the petition to transfer.


text:
    Robert Weldon CARR, III, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
   Transfer denied. All Justices concur.


text:
    Dion CANNON, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 20, 2018
    Transfer denied. All Justices concur, except Rush, C.J., who votes to grant the petition to transfer.


text:
    Corey Lamont SPURLOCK, Appellant v. STATE of Indiana
    Supreme Court of Indiana.
    September 27, 2018
    Transfer denied. All Justices concur, except Massa, J., who did not participate in the decision of this matter.


text:
    CITY OF WASHINGTON, Indiana, Appellant v. DAVIESS COUNTY RURAL WATER SYSTEM, INC.
    Supreme Court of Indiana.
    September 27, 2018
    Transfer denied. All Justices concur, except Rush, C.J., who votes to grant the petition to transfer.