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    CHICAGO TRIBUNE COMPANY, Plaintiff-Appellee/Cross-Appellant, v. COOK COUNTY ASSESSOR'S OFFICE, Defendant-Appellant/Cross-Appellee.
    No. 1-17-0455
    Appellate Court of Illinois, First District, FIRST DIVISION.
    June 29, 2018
    Kimberly A. Jansen, of Hinshaw & Culbertson, LLP, of Chicago, for appellant.
    Eric Stephen Mattson, of Sidley Austin LLP, of Chicago, for appellee.
   JUSTICE GRIFFIN delivered the opinion of the court.

¶ 1 The Chicago Tribune requested records from the Cook County Assessor's Office under Illinois' Freedom of Information Act ( ( 5 ILCS 140/1.1 et seq. (West 2016) ). The Tribune requested records that pertain to the valuation of residential, commercial, and industrial property in Cook County for purposes of taxation. The Assessor's Office denied the FOIA request, maintaining that the information sought was exempt from disclosure under the Act (see 5 ILCS 140/7(1)(f) (West 2016) ). The Tribune filed this case, and the trial court ruled in its favor holding that the requested information was subject to disclosure under FOIA and not subject to any exemptions. The Assessor's Office appeals, and we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff the Chicago Tribune Company sent a Freedom of Information request to defendant the Cook County Assessor's Office seeking to compel the Assessor's Office to produce records regarding its valuation of properties in Cook County. Specifically, the Tribune requested that the Assessor's Office turn over the spreadsheets and other records it uses to determine the value of properties for taxation purposes. The Assessor's Office denied the Tribune's Freedom of Information request, claiming that the "deliberative process exemption," sometimes also called the "preliminary records exemption," allowed the government to withhold the documents.

¶ 4 The Assessor's Office is responsible for valuing approximately 1.8 million parcels of Cook County property each year for taxation purposes. The Tribune requested that the Assessor's Office produce the spreadsheets used in the assessment of commercial and industrial properties and also that it produce residential property valuation reports that, in the Assessor's Office, are known as 65D reports. Both the spreadsheets and the 65D reports include the Assessor's Office's value of properties in Cook County for taxation purposes.

¶ 5 The Tribune subsequently also requested 65A reports which are township-level summaries of the 65D reports. The 65D reports contain information about a parcel of property such as the type of residence (townhouse, etc.), the square footage, and various other characteristics. After an analysis is done by the Assessor's Office, a value is assigned to the property and that value is put into the 65D report. The 65A reports take a more macro-level view; providing a breakdown by neighborhood and by class. The Tribune maintains that the preliminary records exemption claimed by the Assessor's Office does not apply to any of the requested records and, thus, that the documents have been improperly withheld.

¶ 6 In denying the FOIA requests by letter, the Assessor's Office maintained that the records sought by the Tribune amounted to the Office's "opinion of value." The Assessor's Office also stated that the requests sought "essentially our Office's employees' thought processes."

¶ 7 The Assessor's Office has a multi-step process for calculating and arriving at a property valuation. The first step conducted by the valuation department is that it runs a computerized regression model that compares a subject property to similar properties that have recently been sold. The result of running the models is a spreadsheet-type record in which properties are broken down by individual characteristics-attributes such as square footage, number of bathrooms, number of fireplaces, and the property's prior market value. Using the compiled data of sales files and characteristic files, a multiple regression analysis is conducted. The sales data and the characteristic data are all ultimately merged and all of that information is used in the subsequent analytical steps to arrive at the final valuation.

¶ 8 The next step after aggregating all the data and running it through the regression model is to look for outliers. "Outliers," for purposes of the analysts' review, are comparative properties where something looks out of the ordinary for valuation purposes, where the comparative property does not fit with the characteristics of the home being evaluated. Only approximately three to five percent of the properties register some type of an outlier. But if the Assessor's Office compares a property with another like property that has the same relevant characteristics but twice the estimated value, the outliers are edited out. The regression analysis is then rerun without any outlier data in order to create what the Assessor's Office deems to be the property's market value for taxation purposes. The newly-calculated proposed market values are included in the 65D report.

¶ 9 The 65D reports, with all fields filled in at this point, are hand checked by an analyst. Changes are made by an analyst to roughly 20 or 25% of the properties, but once that analysis is completed, the 65D report and the newly-calculated current market value therein are considered final. The process for assessing the value of commercial and industrial properties is similar, and the results from assessing non-residential property are contained in spreadsheets that the Tribune also requested.

¶ 10 After its FOIA request was rejected, the Tribune filed its complaint alleging that the Assessor's Office was improperly withholding information that the public is entitled to view under FOIA. The Assessor's Office filed a motion to dismiss supported by the affidavits of two of its analysts, Alfonso Sarro and Mark Dwyer. Sarro and Dwyer were subsequently deposed about the processes for valuing property in Cook County. The deposition testimony and the affidavits generally describe the process set forth above regarding the Assessor's Office's valuation process. For both commercial and residential properties, the Assessor's Office maintains worksheets where data is contained about the character of the property. Recent sales data from nearby similar properties is also considered. Then, after an analyst reviews the proposed assessment and considers other factors such as appraisal tools, adjustments are made and a property value is set.

¶ 11 Based on the deponent-analysts' affidavits and deposition testimony and some other documentary evidence on file, cross-motions for summary judgment were presented to the trial court. The cross-motions called on the trial court to resolve the question of whether the spreadsheets valuing commercial and industrial property, the 65A reports, and the 65D reports are covered by the "deliberative process exemption" to FOIA.

¶ 12 The Assessor's Office took the position that, as one of its witnesses Mark Dwyer testified, the information requested by the Tribune is "the result of the analysts' research, data collection, thoughts, impressions and experience." The Tribune on the other hand stated that "far from revealing the give-and-take of a deliberative process, [the requested documents] reflect factual data."

¶ 13 In a detailed written order, the trial court held that the records were not exempt from disclosure. The trial court explained that, even in light of the affidavits and deposition testimony, the requested documents do not contain any information that supports that the documents fall within the deliberative process exemption. The trial court further explained that the requested documents "do not in any way reveal the subjective personal position or opinion of any individual in the [Assessor's Office]" such that the preliminary records exemption would apply. The trial court found, in fact, that none of the documents revealed "any debate" or "deliberation," but instead found that the documents "contain factual information and the results of the [Assessor's Office's] valuation which are not covered under the deliberative privilege."

¶ 14 The trial court also awarded attorney fees to the Tribune. FOIA provides that a party that prevails in court when challenging the government's denial of a FOIA request is entitled to reasonable attorney fees and costs. 5 ILCS 140/11(i) (West 2016).

¶ 15 In a final order, the trial court awarded the Tribune the full amount of attorney fees and costs that were sought. The trial court also ordered that the summary judgment briefing, the evidence submitted therewith, and the transcripts of the testimonial evidence remain sealed pending appeal. An order was entered by this court sealing the briefs and the record submitted on appeal.

¶ 16 The Assessor's Office appeals the entry of summary judgment in the Tribune's favor. It requests that we reverse that order and enter judgment in its favor. The Assessor's Office also argues that we should set aside the award of attorney fees and costs because the petition was not supported by sufficient evidence, and because the amount awarded was not calculated based on the prevailing market rate or the other factors that trial courts are required to consider. The Tribune filed a cross-appeal arguing that the files in this case should be unsealed.

¶ 17 ANALYSIS

¶ 18 We review a trial court's decision to grant summary judgment de novo . Illinois Tool Works Inc. v. Travelers Casualty & Surety Co. , 2015 IL App (1st) 132350, ¶ 8, 389 Ill.Dec. 331, 26 N.E.3d 421. Summary judgment is appropriate when the pleadings, depositions, admissions and affidavits, viewed in a light most favorable to the nonmovant, fail to establish that a genuine issue of material fact exists, thereby entitling the moving party to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2012) ; Fox v. Seiden , 2016 IL App (1st) 141984, ¶ 12, 403 Ill.Dec. 368, 53 N.E.3d 1005. However, when, as here, parties file cross-motions for summary judgment, they agree that no genuine issues of material fact exist and they invite the court to decide the case as a matter of law based on the record. Casey's Marketing Co. v. Hamer , 2016 IL App (1st) 143485, ¶ 11, 401 Ill.Dec. 842, 51 N.E.3d 35. The mere filing of cross-motions for summary judgment, however, does not obligate the court to grant the requested relief to either party. Hagen v. Distributed Solutions, Inc. , 328 Ill. App. 3d 132, 137, 262 Ill.Dec. 24, 764 N.E.2d 1141 (2002). When cross-motions for summary judgment are filed as to the same issues and the trial court grants one party's motion and denies the other party's motion, the resulting order is final and appealable because it entirely disposes of the litigation. Arangold Corp. v. Zehnder , 187 Ill. 2d 341, 358, 240 Ill.Dec. 710, 718 N.E.2d 191 (1999).

¶ 19 I. The Deliberative Process Exemption

¶ 20 The Assessor's Office maintains that the trial court erred in granting the Tribune's motion for summary judgment. Under FOIA, certain records and information are exempt from disclosure. See generally 5 ILCS 140/7 (West 2016). The Assessor's Office argues that the records that were requested were properly withheld under the "deliberative process exemption" to FOIA (see 5 ILCS 140/7(1)(f) (West 2016) ). Among the information exempt from inspection and copying is "[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated." 5 ILCS 140/7(1)(f) (West 2016). The deliberative process exemption is also sometimes referred to as the preliminary records exemption. Harwood v. McDonough , 344 Ill. App. 3d 242, 247, 279 Ill.Dec. 56, 799 N.E.2d 859 (2003).

¶ 21 The Freedom of Information Act's purpose is to open government records to the light of public scrutiny. Day v. City of Chicago , 388 Ill. App. 3d 70, 73, 327 Ill.Dec. 758, 902 N.E.2d 1144 (2009). Public records are presumed to be open and accessible. Id. Based on the legislature's clearly stated intent, FOIA's exemptions are to be read narrowly. Peoria Journal Star v. City of Peoria , 2016 IL App (3d) 140838, ¶ 11, 402 Ill.Dec. 790, 52 N.E.3d 711. So when a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions applies. Illinois Education Ass'n. v. Illinois State Board of Education, 204 Ill. 2d 456, 463, 274 Ill.Dec. 430, 791 N.E.2d 522 (2003).

¶ 22 The deliberative process exemption is designed to protect the communications process in government agencies and encourage frank and open discussion among agency employees before a final decision is made. State Journal-Register v. University of Illinois Springfield , 2013 IL App (4th) 120881, ¶ 26, 373 Ill.Dec. 936, 994 N.E.2d 705. The public body has the burden of proving that the records in question fall within the exemption that it has claimed. Stern v. Wheaton-Warrenville Community Unit School District 200 , 233 Ill. 2d 396, 406, 331 Ill.Dec. 12, 910 N.E.2d 85 (2009). When the government claims an exemption, it must prove that the exemption applies by clear and convincing evidence. 5 ILCS 140/11(f) (West 2016).

¶ 23 The General Assembly has set forth a clear public policy for the state of Illinois in consideration of the American constitutional form of government. That policy is that "all persons are entitled to full and complete information regarding the affairs of government." 5 ILCS 140/1 (West 2016). The General Assembly has concluded that access to governmental information is "necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest." Id. "It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act." Id.

¶ 24 The deliberative process exemption to the Illinois FOIA has been interpreted to be an equivalent to its corollary exemption in the federal Freedom of Information Act. Day v. City of Chicago , 388 Ill. App. 3d 70, 79, 327 Ill.Dec. 758, 902 N.E.2d 1144 (2009). Our court has determined that this exemption is the equivalent of the federal "deliberative process" exemption, which applies to predecisional materials used by a public body in its deliberative process. Id. Thus, Illinois courts have looked to case law construing the federal Freedom of Information Act ( 5 U.S.C. § 552 ) to interpret our state's FOIA. Harwood v. McDonough , 344 Ill. App. 3d 242, 248, 279 Ill.Dec. 56, 799 N.E.2d 859 (2003) ; Dumke v. City of Chicago , 2013 IL App (1st) 121668, ¶¶ 14-15, 373 Ill.Dec. 804, 994 N.E.2d 573.

¶ 25 The Assessor's Office argues that it is entitled to judgment as a matter of law because the undisputed facts demonstrate that the preliminary records exemption applies. It relies on the uncontradicted deposition testimony and cites the statute to argue that the information qualifies as exempt because it: (1) is preliminary; and (2) contains expressions of opinions or formulations of policies or actions. We disagree with the Assessor's Office's proffered characterizations of the information requested. The information requested does not fit within the scope of the deliberative process exemption.

¶ 26 Again, the deliberative process exemption states that the government is entitled to withhold preliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated. 5 ILCS 140/7(1)(f) (West 2016). In this case, the requested records are final-not preliminary. The requested records are also not ones in which opinions are expressed or in which policies or actions are formulated-they are factual. They are the results of the assessment process. So the Assessor's Office's denial cannot be squared with the plain language of the deliberative process exemption. In addition, the Assessor's Office's rejection of the FOIA request in this case does not square with the purpose of the deliberative process exemption, and withholding the requested information is antithetical to the purpose of FOIA as a whole.

¶ 27 Contrary to being preliminary records, the Tribune clearly seeks the disclosure of final documents. The word "preliminary" in the deliberative process exemption refers to predecisional intra-agency communications. See Harwood v. McDonough , 344 Ill. App. 3d 242, 248, 279 Ill.Dec. 56, 799 N.E.2d 859 (2003) ' N.L.R.B. v. Sears, Roebuck & Co. , 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). In deposition testimony and in other places in the record, the Assessor's Office has admitted that the spreadsheets, the 65D records, and the 65A records, all become finalized documents at some point that simply memorialize factual data. In fact, the record reflects that the predecisional assessments are almost always "saved over" so that only the final reports actually exist. In fact, the FOIA request submitted by the Tribune specifically seeks valuations from the 2002 to 2015 tax years. Those assessments and the reports that contain them are obviously finalized, are not changing, and cannot possibly be described as preliminary.

¶ 28 In order to qualify for the deliberative process exemption, a document must be both predecisional in the sense that it is actually antecedent to the adoption of an agency policy, and deliberative in the sense that it is actually related to the process by which policies are formulated. Enviro Tech International, Inc. v. U.S. E.P.A. , 371 F.3d 370, 374 (7th Cir. 2004). The records at issue here are not "preliminary" drafts, notes, recommendations or records, they are final factual findings. The Tribune is not asking for the blueprint on how the Assessor's Office makes decisions, it is asking for the documents that expressly show the decisions.

¶ 29 The policy reason for the deliberative process exemption is to encourage candid debates within agencies. Id. The government is entitled to withhold documents that reflect the agency's give-and-take leading up to its final decisions. Donham v. U.S. Forest Service , No. 07-CV-111MJR, 2008 WL 2157167, at *4 (S.D. Ill. May 21, 2008). The exemption is designed to protect the quality of the process leading up to the government agency's decision-not the disclosure of the final reports after significant time has passed. See N.L.R.B. v. Sears, Roebuck & Co. , 421 U.S. at 151, 95 S.Ct. 1504 ("it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached"). The Assessor's Office, the party that has the burden to show that the exemption applies, does not offer any explanation as to how internal discussions might be affected by the release of the requested information.

¶ 30 Documents reflecting data, like those at issue here, are not subject to exemption under the deliberative process exemption because they are not part of the predecisional, deliberative process. State Journal-Register v. University of Illinois Springfield , 2013 IL App (4th) 120881, ¶ 31, 373 Ill.Dec. 936, 994 N.E.2d 705. Just because adjustments are made to the property value assessments along the way does not mean that the information must fall within the exemption. Even if analysts make adjustments as the process continues, the data is the data. There is nothing in the record here that discloses the Assessor's Office's internal evaluations. The Tribune is not seeking the regression analysis's algorithmic code nor is it seeking the divulgement of how and why the analysts make the predecisions that they make-it just seeks the results of that process.

¶ 31 The evidence on file reveals that after the assessment process has run its course, the valuations are final; the valuations are not subject to further change. The valuations and the reports that contain them represent final agency decisions and contain no predecisional communications-only the finalized results of the analysis. Documents adopted as final agency policy are not protected from disclosure. Watkins v. McCarthy , 2012 IL App (1st) 100632, ¶ 36, 366 Ill.Dec. 640, 980 N.E.2d 733 (quoting Harwood , 344 Ill. App. 3d at 248, 279 Ill.Dec. 56, 799 N.E.2d 859 ). The documents sought by the Tribune here are final records, expressing final determinations, and do not reflect any predecisional deliberations so as to qualify as preliminary.

¶ 32 Moreover, the reports sought in this case contain purely factual assessment data, despite the Assessor's Office's protestations to the contrary. Purely factual material must be disclosed under FOIA once a final decision has been made, unless the factual material is inextricably intertwined with predecisional and deliberative discussions. State Journal-Register , 2013 IL App (4th) 120881, ¶ 27, 373 Ill.Dec. 936, 994 N.E.2d 705. In this case, all of the data at issue can be characterized as factual. Even when the Assessor's Office conducts its analysis and makes adjustments to property values based on the objective factual data, the ultimate result of that analysis produces another numerical fact-the property's taxable new market value.

¶ 33 The analysis starts with characteristics such as location, square footage, the number of bedrooms, the number of bathrooms-purely factual property characteristics. The information that is taken into account is all public and is gleaned from public records. The analysis proceeds by examining those purely factual characteristics which leads the Assessor's Office to produce another piece of factual data: the property's taxable market value. That information is discoverable under FOIA. See Public Employees for Environmental Responsibility v. Environmental Protection Agency , 288 F.Supp.3d 15, 26 (D.D.C. 2017) (a final position based on test results that is untethered to any decisionmaking process is insufficient by itself to demonstrate that these communications are predecisional); Reilly v. U.S. Environmental Protection Agency , 429 F.Supp.2d 335, 352 (D. Mass. 2006) (even when information sought under FOIA reveals the inputs of a computer modeling simulation and, thus, some extent of the agency's thought process, the results of that computer modeling are not exempt under the deliberative process exemption).

¶ 34 The Assessor's Office argues that the Tribune is "not seeking these records because it wants to review a set of objective, empirical data," but rather that the Tribune "hopes to scrutinize the opinions and deliberations" that led to that data. But the fact that some of the final data could potentially be reverse engineered to shed light on decisionmaking does not make the factual data exempt. See, e.g. , Reilly , 429 F.Supp.2d at 352 (it is true that, whenever facts are sought about an agency's activities, aspects of what the investigator deemed important are revealed in a way that everything could be considered deliberative. But lines must be drawn so that the narrow exemption does not overwhelm the presumption of disclosure). The purpose of FOIA is to give the public the information about which they have the right to know. 5 ILCS 140/1 (West 2016). We see no reason the factual data here should be exempt from disclosure under FOIA.

¶ 35 The deliberative process exemption does not justify the withholding of purely factual material, nor does it permit the government to withhold documents reflecting its final policy decisions. Enviro Tech , 371 F.3d at 374-75. Perhaps it is correct to say that the Tribune's FOIA requests seek the results of a deliberative process, but the Tribune asks for nothing other than the postdecisional final, factual product. The Assessor's Office does not point to anything in the requests or in the record that, if turned over, would demonstrate opinions or deliberations by its employees, as opposed to just data. No information relating to internal debates or discussions is requested by the Tribune at all. The Assessor's Office has failed to demonstrate how the deliberative process exemption would protect the factual data it seeks to withhold.

¶ 36 FOIA explicitly states that "[i]t is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible[.]" 5 ILCS 140/1 (West 2016). In furtherance of that ideal, the General Assembly has stated that access to governmental information is "necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interest." Id. With the policy issues presented in this case, the public has a strong right to know about how they are being taxed by their government as opposed to the government's fairly meek interest in secrecy. The balance in this case weighs in favor of the public, and in favor of disclosure.

¶ 37 Property valuation, which results in the direct taxation of the citizenry, is a critical government purpose. "The fundamental theory of our tax structure is that all taxable property should bear its fair share of the cost and expense of government." Mid-American Growers, Inc. v. Department of Revenue , 143 Ill. App. 3d 600, 602, 98 Ill.Dec. 76, 493 N.E.2d 1097 (1986). Property taxation is a function of the government that the public has a right to scrutinize because, as even the Assessor's Office concedes, the process must be uniform and fair.

¶ 38 The information requested by the Tribune in this case is critical in order for the public to understand how they are being taxed. To hold that the government can withhold would be antithetical to the overarching purpose of FOIA-that public records deserve the light of public scrutiny and they are presumed to be open and accessible. Day , 388 Ill. App. 3d at 73, 327 Ill.Dec. 758, 902 N.E.2d 1144. Because the Assessor's Office has failed to demonstrate how the requested records fall within the scope of the deliberative process exemption, we find no error in the trial court's ruling that the requested records must be turned over under FOIA. To the contrary, it is apparent that the evidence on file affirmatively shows that the Assessor's Office is not entitled to the relief it seeks-the shield of the deliberative process exemption.

¶ 39 II. 65A reports

¶ 40 As the prior analysis makes clear, the Assessor's Office's reports do not come within the exemption under which it rejected the Tribune's FOIA request. However, the Assessor's Office argues that it should not be ordered to turn over what are known as 65A reports because the Tribune did not specifically request those reports in the FOIA request it transmitted.

¶ 41 65A reports are township-level synopses of 65D reports. The Tribune learned about the existence of 65A reports during the process of trying to get the other information subject to this appeal. In the trial court, the parties briefed and argued whether 65A reports were exempt from FOIA disclosure. The Assessor's Office relied on the same exemption, the deliberative process exemption, to argue that it was not required to produce 65A reports. It produced a 65A report for in camera review before the trial court's ruling.

¶ 42 The Assessor's Office has waived any objection to producing 65A reports on the basis that the Tribune failed to file a FOIA request for them or demand them in the complaint. Waiver can result from conduct inconsistent with an intent to enforce a legal right. Phillips v. Elrod , 135 Ill. App. 3d 70, 74, 88 Ill.Dec. 470, 478 N.E.2d 1078 (1985). Also, arguments not raised in the trial court are waived for purposes of appeal. Robinson v. Toyota Motor Credit Corp. , 201 Ill. 2d 403, 413, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002). The Assessor's Office did not object in the trial court to producing 65A reports on the basis that they were not specifically requested in the FOIA request. Much to the contrary, the parties litigated whether the reports were exempt, the trial court considered the parties' arguments, and it ruled on the merits of the issue. The trial court's decision to order the production of 65A reports stands.

¶ 43 III. Attorney Fees

¶ 44 FOIA contains a fee-shifting provision that requires the court to award attorney fees and costs to a party that prevails in an action to obtain a wrongfully withheld record.

"If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs. In determining what amount of attorney's fees is reasonable, the court shall consider the degree to which the relief obtained relates to the relief sought." 5 ILCS 140/11(i) (West 2016).

¶ 45 The Assessor's Office argues that the Tribune's petition for attorney fees was insufficient because it simply set out that the attorney on the case spent 40.4 hours on the case and a paralegal spent 5.8 hours, but the assertions were not supported with any evidence. The Assessor's Office argues that the attorney fees awarded are in excess of the prevailing market rate and, instead of the goal of removing the burden of attorney fees on FOIA plaintiffs, the award here serves to punish the government.

¶ 46 Like other statutory attorney fee provisions, the award of attorney fees under FOIA will not be disturbed absent an abuse of discretion. Chicago Alliance for Neighborhood Safety v. City of Chicago , 348 Ill. App. 3d 188, 216, 283 Ill.Dec. 506, 808 N.E.2d 56 (2004). Here, although the Assessor's Office argues that the evidentiary support for the petition is insufficient, it has failed to demonstrate that the trial court abused its discretion in awarding the reasonable fees requested.

¶ 47 The Act states that the trial court "shall" award attorney fees and costs to a prevailing plaintiff. 5 ILCS 140/11(i) (West 2016). The Act requires the court to consider "the degree to which the relief obtained relates to the relief sought." Id. Obviously, in this case, the degree of the relief that the Tribune received is perfectly in line with the relief it sought. The Assessor's Office has done nothing to show that the 40.4 hours of attorney time and 5.8 hours of paralegal time in this case were unreasonable. It is an important case with difficult issues that was litigated skillfully by both sides.

¶ 48 The record makes clear that the trial court scrutinized the Tribune's requested fees and costs and found them to be reasonable. In ruling on the fee petition, the trial court stated its finding on the record that "with regard to the bills, it was perfect, in terms of time spent." In evaluating all of the considerations for awarding attorney fees, the trial court may and should rely on its own knowledge and experience when determining the reasonableness of the fees sought. McHenry Savings Bank v. Autoworks of Wauconda, Inc. , 399 Ill. App. 3d 104, 113, 338 Ill.Dec. 671, 924 N.E.2d 1197 (2010). The Tribune met its burden and convinced the trial court that the requested fees were reasonable. The Assessor's Office did nothing in the trial court or on appeal to demonstrate that the awarded fees are objectively unreasonable or that the trial court otherwise erred. The Assessor's Office has failed to demonstrate that trial court abused its discretion in awarding attorney fees and costs to the Tribune.

¶ 49 IV. Cross-Appeal

¶ 50 The Tribune filed a cross-appeal arguing that the trial court erred when it ordered the court records in this case to be held under seal. At this point, in light of our judgment set forth above, there is no legitimate justification for keeping the court records under seal. There is no longer any concern that the Tribune or the public might gain backdoor access to the documents while judicial proceedings remain ongoing. The briefs, affidavits, and deposition testimony all reflect information that is not covered by the deliberative process exemption.

¶ 51 Customarily, there is a presumption of openness in judicial proceedings in Illinois. Doe v. Doe , 282 Ill. App. 3d 1078, 1084, 218 Ill.Dec. 328, 668 N.E.2d 1160 (1996). In this case, the trial court smartly limited the depositions to the subject matter of the affidavits. Because the Assessor's Office, however, has no statutory basis to withhold the subject documents, there is no longer any reason that the Tribune or the public be deprived of the records involved in this case. There is no compelling reason to keep the information sealed.

¶ 52 CONCLUSION

¶ 53 Accordingly, we affirm. All orders sealing documents in this case are vacated.

¶ 54 Affirmed.

Justices Harris and Mikva concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Respondent-Appellee, v. Dustin INGRAM, Petitioner-Appellant.
    NO. 4-16-0099
    Appellate Court of Illinois, Fourth District.
    Filed July 19, 2018
    James E. Chadd, Patricia Mysza, and Sean Collins-Stapleton, of State Appellate Defender's Office, of Chicago, for appellant.
    Katherine D. Watson, State's Attorney, of Tuscola (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In March 2006, the State charged defendant, Dustin Ingram, with one count of armed robbery with a firearm. 720 ILCS 5/18-2(a)(4) (West 2006). At the time of the alleged crime, defendant was 16 years old. The armed robbery with a firearm count excluded defendant from juvenile court. 705 ILCS 405/5-130(1)(a) (West 2006).

¶ 2 In May 2006, the parties asked the trial court to approve a negotiated plea agreement. In exchange for his guilty plea and a sentence of 18 years in prison, the State agreed to amend the charge to armed robbery with a dangerous weapon. 720 ILCS 5/18-2(a)(1) (West 2006). Standing alone, armed robbery with a dangerous weapon could have been adjudicated in juvenile court. See 705 ILCS 405/5-130(1)(a) (West 2006). The trial court accepted the plea agreement.

¶ 3 In August 2015, defendant filed a petition for relief from judgment and a motion to vacate a void judgment, arguing that the trial court did not have jurisdiction because the State (1) dismissed the armed robbery with a firearm count and (2) failed to request a hearing to sentence him as an adult. In September 2015, the State filed a motion to dismiss. In March 2016, the trial court granted the State's motion to dismiss.

¶ 4 Defendant appeals, arguing his "adult conviction and sentence are void because the amendment of the charging instrument from * * * armed robbery with a firearm to armed robbery with a dangerous weapon extinguished criminal court jurisdiction and effectively transferred [the] case to juvenile court." Likewise, defendant argues his sentence is void because the State did not request a hearing to sentence him as an adult. We disagree, concluding that (1) the trial court had jurisdiction and (2) the State was not required to request a hearing to sentence defendant as an adult.

¶ 5 I. BACKGROUND

¶ 6 A. The Original Information

¶ 7 In March 2006 the State charged defendant with one count of armed robbery with a firearm. 720 ILCS 5/18-2(a)(4) (West 2006). At the time of the alleged crime, defendant was 16 years old. The armed robbery with a firearm count excluded defendant from juvenile court. 705 ILCS 405/5-130(1)(a) (West 2006). The original information stated as follows:

"That on March 13, 2006, * * * [defendant] committed the offense of ARMED ROBBERY in that the said defendant, while armed with a firearm, knowingly took property * * * from the presence of [the victim] by use of force; further, said defendant, during the course of this offense, personally discharged a firearm, proximately causing great bodily harm to [the victim]."

¶ 8 B. The Guilty Plea

¶ 9 1. The Amended Information

¶ 10 In May 2006, the parties asked the trial court to approve a negotiated plea agreement. In exchange for his guilty plea, the State agreed to reduce the charge to armed robbery with a dangerous weapon. 720 ILCS 5/18-2(a)(1) (West 2006). Standing alone, armed robbery with a dangerous weapon could have been adjudicated in juvenile court. See 705 ILCS 405/5-130(1)(a) (West 2006). Pursuant to the plea agreement, defendant agreed to be sentenced to 18 years in prison.

¶ 11 The State, by oral motion, asked to amend the information. Defense counsel stated on the record that he had no objection. The State did not add an additional count or file a new information. Instead, the prosecutor modified the original information by crossing out and adding new terms. The amended information is below. Italicized words represent the State's handwritten modifications. Words with strikethrough typeface represent words that the State physically crossed out.

"That on March 13, 2006, * * * [defendant] committed the offense of ARMED ROBBERY in that the said defendant, while armed with a firearm dangerous weapon , knowingly took property * * * from the presence of [the victim] by use of force; further, said defendant, during the course of this offense, personally discharged a firearm, proximately causing great bodily harm to [the victim]."

¶ 12 2. The Factual Basis for the Plea

¶ 13 The State asserted that if the matter were to proceed to trial, the victim would testify that defendant and another man, both of whom were armed with dangerous weapons, entered a gas station on March 13, 2006. The victim would testify that defendant used the weapon to injure his leg and that the men took money from the cash register.

¶ 14 3. The Trial Court's Actions

¶ 15 The trial court found that a factual basis existed for the guilty plea. The court appropriately admonished defendant and accepted his guilty plea to armed robbery with a dangerous weapon. The court sentenced defendant pursuant to the terms of his plea agreement. Defendant did not timely file a motion to withdraw his plea nor directly appeal his plea or sentence.

¶ 16 C. The Defendant's First Appeal

¶ 17 In August 2012, defendant, who was then over the age of 21, filed a petition for habeas corpus relief. Defendant argued that, as an adult, he was entitled to immediate release because (1) he was a minor when he committed the offense, (2) the juvenile court had exclusive jurisdiction over his case, and (3) he should have been sentenced as a juvenile. The State filed a motion to dismiss, arguing that defendant failed to show that the trial court lacked jurisdiction or that a postconviction occurrence entitled him to immediate release. The trial court granted the State's motion to dismiss, and this court affirmed. Ingram v. Pfister , 2014 IL App (4th) 130518-U, ¶¶ 23, 29, 2014 WL 1165835.

¶ 18 D. This Appeal

¶ 19 In August 2015, defendant filed a petition for relief from judgment and a motion to vacate a void judgment. Defendant argued that the trial court did not have jurisdiction because the State (1) dismissed the armed robbery with a firearm count and (2) failed to request a hearing to sentence him as an adult.

¶ 20 In September 2015, the State filed a motion to dismiss, arguing (1) the petitions were untimely, (2) the claims were barred by res judicata , and (3) the conviction and sentence were proper. In March 2016, the trial court granted the State's motion to dismiss.

¶ 21 This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant appeals, arguing his "adult conviction and sentence are void because the amendment of the charging instrument from * * * armed robbery with a firearm to armed robbery with a dangerous weapon extinguished criminal court jurisdiction and effectively transferred [the] case to juvenile court." Likewise, defendant argues his sentence is void because the State did not request a hearing to sentence him as an adult. We address these issues in turn.

¶ 24 A. The Standard of Review and the Juvenile Court Act of 1987

¶ 25 The dispositive issues on appeal involve statutory construction, which is a question of law reviewed de novo . People v. King , 241 Ill.2d 374, 378, 948 N.E.2d 1035, 1037, 350 Ill.Dec. 528 (2011). Our primary objective when interpreting a statute is to ascertain and effectuate the intent of the legislature. Id. The best indicator of such intent is the plain language of the statute. Id. In determining the plain language of the statute, we consider the statute in its entirety, the subject the statute addresses, and the apparent intent of the legislature in enacting the statute. Id.

¶ 26 As it existed at the time of defendant's offense, the Juvenile Court Act of 1987 (Act) stated as follows:

"§ 5-120. Exclusive jurisdiction. Proceedings may be instituted under the provisions of this Article concerning any minor who prior to the minor's 17th birthday has violated or attempted to violate * * * any federal or State law or municipal or county ordinance. Except as provided in Sections 5-125, 5-130, 5-805, and 5-810 of this Article, no minor who was under 17 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State." 705 ILCS 405/5-120 (West 2006).
" § 5-130. Excluded jurisdiction.
(1)(a) The definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with: (i) first degree murder, (ii) aggravated criminal sexual assault, (iii) aggravated battery with a firearm where the minor personally discharged a firearm as defined in Section 2-15.5 of the Criminal Code of 1961, (iv) armed robbery when the armed robbery was committed with a firearm, or (v) aggravated vehicular hijacking when the hijacking was committed with a firearm.
These charges and all other charges arising out of the same incident shall be prosecuted under the criminal laws of this State." (Emphasis added.) Id. § 5-130(1)(a).

¶ 27 B. The Trial Court's Jurisdiction

¶ 28 Defendant argues his sentence is void because the trial court did not have jurisdiction. He argues the trial court did not have jurisdiction because "the amendment of the charging instrument from * * * armed robbery with a firearm to armed robbery with a dangerous weapon extinguished criminal court jurisdiction and effectively transferred [the] case to juvenile court." We disagree.

¶ 29 The Act states that armed robbery with a firearm and all other charges arising out of the same incident "shall be prosecuted under the criminal laws of this State." Id. The Act explicitly divests the juvenile court of jurisdiction over such criminal matters. Id. ; see Megan M. Sulok, Comment, Extended Jurisdiction Juvenile Prosecutions: To Revoke or Not to Revoke , 39 Loy. U. Chi. L.J. 215, 234-35 (2007).

¶ 30 The record clearly demonstrates, and defendant concedes, that the State originally charged defendant with armed robbery with a firearm. 720 ILCS 5/18-2(a)(4) (West 2006). This charge, under the plain language of the statute, divested the juvenile court of jurisdiction and gave exclusive jurisdiction to the trial court. 705 ILCS 405/5-130(1)(a) (West 2006).

¶ 31 Likewise, the subsequent modification of the information did not "divest" the trial court of jurisdiction. The amended charge of armed robbery with a dangerous weapon arose out of the same incident from which defendant was originally charged with armed robbery with a firearm. See King , 241 Ill.2d at 386, 350 Ill.Dec. 528, 948 N.E.2d 1035. The State's subsequent modification of the information had no legal effect on the trial court's jurisdiction. Id. Accordingly, we reject defendant's argument that the trial court lacked jurisdiction merely because the State amended the information pursuant to their plea agreement.

¶ 32 C. The Defendant's Adult Sentence

¶ 33 Assuming that his adult conviction was proper, defendant argues his sentence is void because the State was required to request a hearing to sentence him as an adult. See 705 ILCS 405/5-130(1)(c)(ii) (West 2006). We disagree.

¶ 34 The Act, in pertinent part, reads as follows:

"(ii) If after trial or plea the court finds that the minor committed an offense not covered by paragraph (a) of this subsection (1), that finding shall not invalidate the verdict or the prosecution of the minor under the criminal laws of the State; however, unless the State requests a hearing for the purpose of sentencing the minor [as an adult], the Court must proceed under Sections 5-705 and 5-710 of this Article. To request a hearing, the State must file a written motion within 10 days following the entry of a finding or the return of a verdict." Id.

¶ 35 In King , 241 Ill.2d at 376, 350 Ill.Dec. 528, 948 N.E.2d 1035, the defendant was a minor charged with five counts of first degree murder. The juvenile court did not have jurisdiction over first degree murder. See 705 ILCS 405/5-130(1)(a) (West 2000). Later, the State filed an additional count of attempt (first degree murder). 720 ILCS 5/8-4(a), 9-1(a) (West 2000). Standing alone, attempt (first degree murder) could have been adjudicated in juvenile court. See 705 ILCS 405/5-120 (West 2000) ; see also 705 ILCS 405/5-130(1)(a) (West 2000). In exchange for dropping the five counts of first degree murder, the defendant pleaded guilty to attempt (first degree murder) and agreed to be sentenced to 15 years in prison. King , 241 Ill.2d at 376, 350 Ill.Dec. 528, 948 N.E.2d 1035. On appeal, the defendant argued that his sentence was void because the State failed to request a hearing under section 5-130(1)(c)(ii) to determine whether he should be sentenced as an adult. Id. at 376-77, 948 N.E.2d 1035, 1037, 350 Ill.Dec. 528. The Illinois Supreme Court rejected this argument, reasoning that the "defendant was properly sentenced without a hearing" because he accepted a plea agreement with a predetermined sentence. See id. at 376, 386-87, 948 N.E.2d 1035, 1037, 350 Ill.Dec. 528.

¶ 36 In this case, defendant pleaded guilty to armed robbery with a dangerous weapon in exchange for dismissing the charge of armed robbery with a firearm. Likewise, pursuant to the plea agreement, defendant agreed to be sentenced to 18 years in prison. Similar to King , we conclude that the State was not required to request a hearing for adult sentencing when both parties already agreed upon the exact sentence to be imposed. See id. at 378, 948 N.E.2d 1035, 1037, 350 Ill.Dec. 528.

¶ 37 III. CONCLUSION

¶ 38 For the foregoing reasons, we affirm the trial court's judgment.

¶ 39 Affirmed.

Presiding Justice Harris and Justice Holder White concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Katie Lin STOCKTON, Defendant-Appellant.
    No. 2-16-0353
    Appellate Court of Illinois, Second District.
    Opinion filed July 20, 2018
    James E. Chadd, Patricia Mysza, and Miriam Sierig, of State Appellate Defender's Office, of Chicago, for appellant.
    Joseph P. Bruscato, State's Attorney, of Rockford (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Defendant, Katie Lin Stockton, appeals from an order of the circuit court of Winnebago County summarily dismissing her petition under the Post-Conviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016) ) seeking relief from her conviction of first-degree murder ( 720 ILCS 5/9-1(a)(2) (West 2004) ). We affirm.

¶ 2 The victim of defendant's crime was her newborn daughter. Defendant entered a nonnegotiated guilty plea and was sentenced to a 50-year prison term. The body of defendant's daughter was discovered in December 2004 on property owned by defendant's mother and stepfather. The child, who had been born alive, was wrapped in clothing and had been placed in a plastic bag. Either hypothermia or suffocation from the clothing or plastic had caused the child's death. Evidence at defendant's sentencing hearing established that she was questioned by police and that she denied that the child was hers. It was not until 2009 that police obtained a DNA sample from defendant showing that she was the child's mother. DNA testing showed that John Craig was the father. In the course of the investigation, police discovered the decomposed remains of two infants in bags in the trunk of defendant's car. Genetic testing established that defendant was the mother of the two infants and that Craig was the father of one of them. Both were full term at birth, but it could not be determined whether they were born alive. Several witnesses testified that the bags in which the infants were found contained liquid from decomposition, as well as maggots and insects.

¶ 3 Winnebago County Coroner Elizabeth Fiduccia testified that she and the sheriff of Winnebago County gave the child found in 2004 the name Crystal. She explained that the child was found near Christmas on a crystal-clear night. They took the child's handprints and footprints so that, when the child's family was identified, they would have "something to hold onto because they knew this child was real and it would make it more real if they saw it." Craig testified that defendant told him that she was carrying his child. She later told him that she had a miscarriage. When Craig learned that the child had been born alive, he named her Mariah Renee.

¶ 4 The State presented numerous photographs of (1) the child at the site where her body was discovered in 2004, (2) the child's autopsy, (3) the child in an open casket with stuffed animals, (4) the child's headstone, and (5) the decomposed remains of the infants later found in the trunk of defendant's car. The State introduced evidence that there were places such as hospitals, police stations, and fire stations where defendant could have left a newborn without fear of punishment.

¶ 5 According to the presentence investigation report, defendant had been convicted of forgery in 2008 and was sentenced to probation. In addition, the State presented evidence that defendant had been dismissed from a job due to suspicion that she was stealing money from her employer.

¶ 6 Defendant's mother, Lisa Landsee, testified for defendant. According to Landsee, defendant had a son when she was in her early twenties. In 2004 or 2005, Landsee suspected that defendant was abusing drugs and alcohol. In 2008, defendant was incarcerated. After her release, defendant lived with Landsee. Defendant helped around the house, took care of her son, and had three jobs. In her statement in allocution, defendant apologized for what she had done and asked for forgiveness.

¶ 7 In imposing sentence, the trial court noted that there was no evidence that the children whose remains were found in the trunk of defendant's car had been born alive. Accordingly, the court stated that it would not consider the remains as evidence of an uncharged crime. However, the court indicated that concealing the remains in her car was arguably the act of a "deranged individual." As noted, the court sentenced defendant to a 50-year prison term.

¶ 8 Defendant moved to reconsider her sentence. The trial court denied the motion, and defendant appealed. Because trial counsel failed to properly comply with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), we remanded for proceedings in compliance with that rule. On remand, the trial court again denied defendant's motion to reconsider her sentence. On appeal, defendant's attorney moved to withdraw as counsel pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and People v. Jones , 38 Ill.2d 384, 231 N.E.2d 390 (1967). We granted the motion and affirmed the trial court's judgment, noting that "there is no indication that, in any respect, the trial court erred in what it did or did not consider" at sentencing. People v. Stockton , No. 2-14-1259 (2015) (unpublished summary order under Illinois Supreme Court Rule 23(c) ). Defendant subsequently filed the pro se postconviction petition giving rise to this appeal.

¶ 9 We begin our analysis with a brief summary of the general principles governing proceedings under the Act. In People v. Meeks , 2016 IL App (2d) 140509, ¶ 3, 402 Ill.Dec. 357, 51 N.E.3d 1109, we observed as follows:

"Under the Act, a person imprisoned for a crime may mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. [Citation.] Within 90 days after a petition for relief under the Act is filed and docketed, the trial court must examine the petition and either summarily dismiss it or docket it for further proceedings. [Citation.] If the trial court finds that the petition is 'frivolous or is patently without merit,' the petition will be summarily dismissed. [Citation.] Summary dismissal is proper if the petition 'is based on an indisputably meritless legal theory or a fanciful factual allegation.' [Citation.]"

Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is forfeited. 725 ILCS 5/122-3 (West 2016). We review a summary dismissal de novo . People v. Hodges , 234 Ill.2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009).

¶ 10 Defendant's pro se petition ostensibly raised three claims, the second of which was as follows:

"PETITIONER'S 6TH AMENDENDMENT [sic ] RIGHT TO THE UNITED STATE[S] CONSTITUTION WHICH GUARANTEES A FAIR AND IMPARTIAL TRIAL WAS VIOLATED. TO WIT:
1. The Trial Judge erred in allowing the State's Attorney to introduce evidence in that had nothing to do with the case at hand.
* The Trial Judge allowed evidence that was illegally obtained from a search of the defendant's vehicle while it was in impound for an unrelated charge. There was no warrant and no probable cause to search the vehicle either time it was in impound.
* The Trial Judge allowed the State's Attorney to put a person on the witness stand to testify against defendant claiming that he was the father of one of the infants found in the trunk of defendant's vehicle.
* There was no way to determine if a crime even happened when the skeletal remains were found, and it was never explained how the State knew how this man was father to the infant.
2. The Trial Judge erred un [sic ] taking into consideration evidence in this case where the defendant was never connected to an actual crime.
* The Trial Judge considered the two bags with skeletal remains to be used as a 'character witness' as to the defendant's guilt in the case at hand.
* The remains have never been linked to a crime or that the defendant committed a crime.
* The Trial Judge should never have allowed the remains or the alleged father into evidence against defendant.
3. The Trial Judge made 'off colored' remarks about the defendant before he handed down his sentence.
* Trial Judge allowed his emotions to get involved when he sentenced defendant and by considering the evidence that never should have been allowed."

¶ 11 Defendant contends that the constitutional theory underlying this claim was that she did not receive the effective assistance of counsel on direct appeal. Defendant argues that a considerable amount of irrelevant and inflammatory evidence was erroneously admitted at sentencing, depriving her of a fair sentencing hearing. According to defendant, although trial counsel carefully preserved the errors for appeal, appellate counsel failed to raise them, thereby failing to provide effective assistance.

¶ 12 Although defendant did not use the words "ineffective assistance of appellate counsel" or equivalent language in her pro se petition, she contends that, at the first stage of the proceedings, the reference to the sixth amendment was sufficient. According to defendant, she "placed her claim under the umbrella of the Sixth Amendment." Defendant further argues that "because of the Sixth Amendment's direct association with the right to the effective assistance of counsel, when [defendant] wrote that she was denied her right to a fair and impartial trial under the Sixth Amendment , she sufficiently framed her allegation as a claim of ineffective assistance of counsel." (Emphasis in original.)

¶ 13 In her reply brief, defendant acknowledges that her petition did not say "whether she invoke[d] her right to [the] effective assistance of trial counsel or appellate counsel." She notes, however, that her petition asked for review of "an issue that trial counsel vigorously litigated and diligently preserved for review." According to defendant, because appellate counsel did nothing on appeal, "[i]t is * * * a reasonable conclusion that [defendant] referred to appellate counsel's performance when invoking the Sixth Amendment." Defendant maintains that, in view of these circumstances, reading the petition as stating a claim of ineffective assistance of appellate counsel gives meaning to "all words and concepts used by [defendant]."

¶ 14 Defendant's argument is unpersuasive. As discussed below, the sixth amendment guarantees the right to the effective assistance of trial counsel, not appellate counsel. Thus, contrary to defendant's argument, a claim of ineffective assistance of appellate counsel is not under the "umbrella" of the sixth amendment, and reading the petition to state such a claim does not give meaning to the petition's reference to the sixth amendment.

¶ 15 The sixth amendment provides, "In all criminal prosecutions , the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." (Emphasis added.) U.S. Const., amend. VI. "Once started, the Sixth Amendment's 'criminal prosecution' continues through to the end of the basic trial stage, including sentencing." 3 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr, Criminal Procedure § 11.2(b), at 710-11 (4th ed. 2015). Thus, "the 'criminal prosecution' has ended where the defendant is pursuing an appeal from his conviction." Id. at 711. Although there is a right to the effective assistance of counsel in a criminal defendant's first appeal as of right, that right to counsel arises from the fourteenth amendment.

See Douglas v. California , 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ("There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent * * * is forced to shift for himself."); see also Evitts v. Lucey , 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) ("A first appeal as of right * * * is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.").

¶ 16 In view of the foregoing, we conclude that, although a petition must be "given a liberal construction" ( Hodges , 234 Ill.2d at 21, 332 Ill.Dec. 318, 912 N.E.2d 1204 ), the reference in defendant's petition to the sixth amendment did not transform her claim into one of ineffective assistance of appellate counsel. Because defendant's petition did not raise a claim of ineffective assistance of appellate counsel, the claim is forfeited. 725 ILCS 5/122-3 (West 2016).

¶ 17 For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago County. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls , 71 Ill.2d 166, 178, 15 Ill.Dec. 759, 374 N.E.2d 194 (1978).

¶ 18 Affirmed.

Justices Zenoff and Jorgensen concurred in the judgment and opinion.

      We do not hold that, if a claim of ineffective assistance of appellate counsel is adequately raised, merely referring to the sixth amendment would invalidate the claim. However, a sixth-amendment claim that does not contain any reference to appellate counsel is insufficient to raise a claim of ineffective assistance of appellate counsel.


text:
    ALLSTATE INDEMNITY COMPANY, Plaintiff-Appellee, v. Alejandra CONTRERAS, Adan Contreras, Jasmine's Day Care, and Jane Doe, as Mother and Next Friend of Janie Doe and Janet Doe, Minors, Defendants
    (Jane Doe, as Mother and Next Friend of Janie Doe and Janet Doe, Minors, Defendant-Appellant).
    No. 2-17-0964
    Appellate Court of Illinois, Second District.
    Opinion filed July 20, 2018
    Bridget C. Duignan, of Latherow & Duignan, of Chicago, for appellant.
    Dean Haritos, Cynthia Ramirez, and Peter C. Morse, of Morse Bolduc & Dinos, LLC, of Chicago, for appellee.
   JUSTICE ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Allstate Indemnity Company (Allstate) filed a complaint for declaratory judgment (see 735 ILCS 5/2-701 (West 2016) ) in the circuit court of Lake County against Alejandra Contreras, Adan Contreras, Jasmine's Day Care, and Jane Doe, as mother and next friend of Janie Doe and Janet Doe. Allstate claimed that it owes no duty to defend or indemnify Jasmine's Day Care or Alejandra in connection with a lawsuit filed against them by Jane. The court granted Allstate's motion for judgment on the pleadings, agreeing with Allstate that an "expected injury" exclusion in the applicable homeowner's insurance policy precludes coverage. Jane appeals. For the reasons that follow, we reverse and remand.

¶ 2 I. BACKGROUND

¶ 3 Jane filed a two-count complaint in the circuit court of Lake County on behalf of Janie and Janet against Jasmine's Day Care and Alejandra. That underlying action was docketed in the circuit court as No. 16-L-178. Count I of the complaint pertained to Janie's injuries, and count II pertained to Janet's injuries. Jane alleged as follows. Alejandra owned and operated Jasmine's Day Care, which was a licensed "day care home" in Park City, Illinois. Alejandra was responsible for caring for the children who were enrolled in the day care. In September 2012, Jane enrolled Janie and Janet in Jasmine's Day Care. On or about December 21, 2012, Jane learned that Janie had been repeatedly sexually abused by Alejandra's spouse, Adan, while at the day care. Although Adan resided at the address where the day care operated, he was not an "assistant" of the day care as defined by section 406.10 of title 89 of the Illinois Administrative Code ( 89 Ill. Adm. Code 406.10 (2016) ). Upon discovering that Janie had been abused, Jane removed both of her daughters from the day care. Shortly thereafter, she learned that Janet had also been the victim of sexual abuse by Adan while enrolled at the day care.

¶ 4 According to Jane's complaint, as the owner and operator of Jasmine's Day Care, Alejandra was obligated to supervise Janie and Janet while they were under her care. Alejandra was also obligated to protect the children from "exploitation, neglect, and abuse while under her care." Both counts of the complaint alleged that Jasmine's Day Care, through Alejandra, was negligent in the following ways:

"a. Failed to provide adequate supervision while Janie Doe was in her care;
b. Allowed her spouse, Adam [sic ] Contreras, who was not an assistant, to be alone with Janie Doe, in violation of 89 Ill. Adm. Code 406.14(k) ;
c. Failed to adequately protect Janie Doe from exploitation, neglect and abuse while under her care; and
d. Was otherwise careless and negligent."

Janie and Janet were allegedly "emotionally and physically injured" as a result of these negligent acts and omissions.

¶ 5 Allstate subsequently filed a two-count complaint for declaratory judgment against Alejandra, Adan, Jasmine's Day Care, and Jane. This action was docketed in the circuit court as No. 17-MR-709. Only count I of the complaint for declaratory judgment is relevant to this appeal. Allstate alleged that it issued a homeowner's insurance policy to Alejandra and Adan, which was in effect at the time of the misconduct detailed in the complaint in the underlying action. The policy contained an endorsement for home-day-care coverage. Coverage X of the policy also provided family liability protection as follows:

"Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy." (Emphases in original.)

Coverage X contained the following "expected injury" exclusion:

"Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
(a) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or
(b) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime." (Emphases in original.)

¶ 6 According to Allstate's complaint for declaratory judgment, the injuries that Janie and Janet suffered did not arise out of an accident but were instead the reasonably expected result of the repeated sexual abuse by Adan. Citing multiple cases, Allstate alleged that, "[i]n Illinois, where an adult is accused of sexually abusing a minor[,] an intent to injure is inferred as a matter of law and an insurer has no duty to defend." Allstate thus maintained that it is not obligated to defend or indemnify Jasmine's Day Care or Alejandra in connection with the claims asserted against them in the underlying action.

¶ 7 Allstate subsequently filed a motion for judgment on the pleadings, arguing that the "expected injury" exclusion in the policy bars coverage in connection with the allegations of the underlying action. Jane filed a memorandum opposing Allstate's motion. She emphasized that Adan is not a named defendant in the underlying action and that Jasmine's Day Care and Alejandra are alleged to have acted negligently, not intentionally. In its reply brief, Allstate cited, for the first time, the following "joint obligations" clause from the general definitions section of the policy:

"The terms of this policy impose joint obligations on the person named on the Policy Declarations as the insured and on that person's resident spouse. These persons are defined as you or your . This means that the responsibilities, acts and omissions of a person defined as you or your will be binding upon any other person defined as you or your .
The terms of this policy impose joint obligations on persons defined as an insured person . This means that the responsibilities, acts and failures to act of a person defined as an insured person will be binding upon another person defined as an insured person ." (Emphases in original.)

¶ 8 The court granted Allstate's motion for judgment on the pleadings. The court's written order indicates that (1) "no liability insurance coverage is available to any insured under Allstate's policy with respect to the bodily injury claims being asserted against them in [the underlying action]" and (2) "Allstate is not obligated to defend or indemnify Alejandra Contreras or Jasmine's Day Care with respect to [the underlying action]." Jane filed a timely notice of appeal.

¶ 9 II. ANALYSIS

¶ 10 Jane argues that Allstate must defend and indemnify Jasmine's Day Care and Alejandra in connection with the claims asserted against them in the underlying action. Jane concedes that Allstate would have no duty to defend or indemnify Adan for his intentional acts of sexually abusing Janie and Janet. She emphasizes, however, that she did not name Adan as a defendant in the underlying action. To that end, Jane proposes that it is necessary to distinguish between Adan's intentional acts and the "independent" negligent acts of Jasmine's Day Care and Alejandra. Relying principally on Continental Casualty Co. v. McDowell & Colantoni, Ltd. , 282 Ill.App.3d 236, 217 Ill.Dec. 874, 668 N.E.2d 59 (1996), Jane posits that "courts are careful to separate which insureds committed what acts in determining which insured, if any, are entitled to a defense under potentially covered claims." Anticipating Allstate's argument premised on the "joint obligations" clause in the policy, Jane notes that this court rejected a similar argument in Wasik v. Allstate Insurance Co. , 351 Ill.App.3d 260, 286 Ill.Dec. 459, 813 N.E.2d 1152 (2004).

¶ 11 Allstate responds that Adan's intent to harm Janie and Janet is inferred as a matter of law, given the allegations of sexual abuse. According to Allstate, "the basis of the tort" was Adan's intentional abuse, and the negligence allegations in Jane's complaint amounted to a "transparent attempt to trigger insurance coverage." Furthermore, Allstate argues, given that Janie's and Janet's injuries arose out of Adan's intentional or criminal acts, and given that the policy excludes coverage for bodily injury that results from the intentional or criminal acts of "any insured person," there is no coverage for the claims asserted against the other insured parties (Jasmine's Day Care and Alejandra) for those same injuries. Allstate also disagrees with Janet's claim that the negligent acts of Jasmine's Day Care and Alejandra were independent of Adan's intentional acts. Allstate instead maintains that the minors' injuries "arose from, are related to, and are dependent on" Adan's excluded acts, insofar as the minors would not have been injured by the alleged negligent supervision in the absence of the sexual abuse by Adan.

¶ 12 To the extent that McDowell & Colantoni supports Jane's position, Allstate submits that the case is factually distinguishable from the present case and was incorrectly decided. Allstate further maintains that it is improper for Jane to focus on the fact that Jasmine's Day Care and Alejandra did not commit intentional or criminal acts, given the policy's "joint obligations" clause. Allstate argues that this court's analysis of an identical "joint obligations" clause in Wasik does not apply to the present case, given that " Wasik dealt with a first party fire insurance claim and has only been cited in first party insurance claim situations."

¶ 13 As noted above, the trial court granted Allstate's motion for judgment on the pleadings. When ruling on such a motion, the court must consider any judicial admissions in the record, any matters that are subject to judicial notice, and the facts that are apparent from the face of the pleadings. St. Paul Fire & Marine Insurance Co. v. City of Waukegan , 2017 IL App (2d) 160381, ¶ 25, 415 Ill.Dec. 619, 82 N.E.3d 823. The court should enter judgment on the pleadings only where "the pleadings disclose no genuine issue of material fact and the movant is entitled to judgment as a matter of law." St. Paul , 2017 IL App (2d) 160381, ¶ 25, 415 Ill.Dec. 619, 82 N.E.3d 823. Our review is de novo . St. Paul , 2017 IL App (2d) 160381, ¶ 25, 415 Ill.Dec. 619, 82 N.E.3d 823.

¶ 14 To determine whether Allstate owes a duty to defend Jasmine's Day Care and Alejandra with respect to the claims asserted against them in the underlying action, we must compare the allegations of the underlying complaint to the relevant provisions of the insurance policy. Outboard Marine Corp. v. Liberty Mutual Insurance Co. , 154 Ill.2d 90, 107-08, 180 Ill.Dec. 691, 607 N.E.2d 1204 (1992). "If the facts alleged in the underlying complaint fall within, or potentially within, the policy's coverage, the insurer's duty to defend arises." Outboard Marine Corp. , 154 Ill.2d at 108, 180 Ill.Dec. 691, 607 N.E.2d 1204. When interpreting an insurance policy, we must ascertain the parties' intent by construing the policy as a whole in light of the risks undertaken, the purposes of the entire contract, and the subject matter that is insured. Empire Indemnity Insurance Co. v. Chicago Province of the Society of Jesus , 2013 IL App (1st) 112346, ¶ 33, 371 Ill.Dec. 657, 990 N.E.2d 845. If the terms are clear and unambiguous, we must afford them their plain, ordinary, and popular meaning. Empire Indemnity , 2013 IL App (1st) 112346, ¶ 33, 371 Ill.Dec. 657, 990 N.E.2d 845. If the terms are ambiguous and susceptible to more than one reasonable interpretation, however, we will construe them against the insurer as the party that drafted the policy. Empire Indemnity , 2013 IL App (1st) 112346, ¶ 33, 371 Ill.Dec. 657, 990 N.E.2d 845. We construe policy exclusions narrowly, in favor of coverage. Robert R. McCormick Foundation v. Arthur J. Gallagher Risk Management Services, Inc. , 2016 IL App (2d) 150303, ¶ 9, 402 Ill.Dec. 728, 52 N.E.3d 649.

¶ 15 Jane's complaint in the underlying action alleged that Adan repeatedly sexually abused Janie and Janet. Due to the nature of those allegations, Allstate is correct that Adan's intent to injure the children is presumed as a matter of law. See Pekin Insurance Co. v. Dial , 355 Ill.App.3d 516, 521, 291 Ill.Dec. 400, 823 N.E.2d 986 (2005) ("An insurance company is under no duty to defend or indemnify an insured who sexually abuses a minor, because the nature of the conduct itself establishes as a matter of law that the insured expected or intended to injure the victim."); Hartford Insurance Co. of Illinois v. Kelly , 309 Ill.App.3d 800, 804-05, 243 Ill.Dec. 256, 723 N.E.2d 288 (1999) ("[W]here an underlying complaint sets forth factual allegations of sexual misconduct, specific intent to harm is inferred as a matter of law, especially when the victims are minors."). Jane does not dispute this.

¶ 16 In their briefs, the parties discuss a number of cases addressing whether an insurance company must defend its insured in a civil action when that insured is accused of personally committing sexual abuse. Those cases do not answer the more specific question that is the subject of this appeal: Does Adan's intent to injure Janie and Janet preclude coverage for his co-insureds, Jasmine's Day Care and Alejandra, where they were allegedly negligent for failing to prevent the sexual abuse? Only one of the Illinois cases discussed in the parties' briefs, State Farm Fire & Casualty Co. v. Watters , 268 Ill.App.3d 501, 502, 205 Ill.Dec. 936, 644 N.E.2d 492 (1994), actually involved allegations that one insured party (a mother) negligently failed to prevent another insured party (her son) from committing sexual abuse. Unfortunately, there was no issue raised on appeal in Watters as to whether the insurer owed a duty to defend the mother, and the court "decline[d] to discuss and rule on [that] issue sua sponte ." Watters , 268 Ill.App.3d at 512, 205 Ill.Dec. 936, 644 N.E.2d 492.

¶ 17 Nevertheless, Westfield National Insurance Co. v. Continental Community Bank & Trust Co. , 346 Ill.App.3d 113, 281 Ill.Dec. 636, 804 N.E.2d 601 (2003), squarely addressed the issue presented in this appeal, and it guides our analysis. In accordance with our directions, the parties discussed Westfield National during oral argument in this matter.

¶ 18 A. Westfield National

¶ 19 In Westfield National , two minors were allegedly sexually abused by their aunt's husband, Librado Valdez, during visits to his home. Westfield National , 346 Ill.App.3d at 115, 281 Ill.Dec. 636, 804 N.E.2d 601. Continental Community Bank and Trust Company (Continental), which was the minors' next friend as well as the guardian of their estates, filed a lawsuit against the minors' aunt, alleging that she "owed 'a duty to protect each child from harm and danger which she knew or should have known existed.' " Westfield National , 346 Ill.App.3d at 115, 281 Ill.Dec. 636, 804 N.E.2d 601. Continental alleged that the aunt breached this duty by failing to:

" '(a) Report to the parents of [the minors] the sexual molesting of [the minors] which she knew or should have known because of the conduct of her husband * * *[;]
(b) Advise[ ] the parents of [the minors] of the prior criminal involvement with minors involving * * * Valdez in the State of Florida;
(c) Report to the parents of [the minors] inappropriate physical encounters which were occurring involving [the minors] and * * * Valdez;
(d) Desist from bringing [the minors] to sit on the lap of * * * Valdez;
(e) Desist from creating a sexually charged atmosphere by promoting a collective viewing of movies which involved naked actors and actresses;
(f) Desist during said movie viewings the encouragement of comments involving the naked bodies of actresses applicable to the pubescent and pre-pubescent [minors];
(g) Ascertain the activities of * * * Valdez at such times as he would leave the marital bedroom and visit the bed of [the minors];
(h) Desist from directing * * * [the minors] to sit on the lap of the partially clad * * * Valdez for the purposes of keeping him warm;
(i) Investigate [the] reason why she discovered [one of the minors] locked in the bathroom and crying after an encounter with * * * Valdez;
(j) Desist from providing and encouraging [the minors] from wearing minimal and provocative clothing when interacting with * * * Valdez; [and]
(k) Desist from the isolating of [the minors] from each other so as to secure a one-on-one intimacy with * * * Valdez.' " Westfield National , 346 Ill.App.3d at 115, 281 Ill.Dec. 636, 804 N.E.2d 601.

According to the underlying complaint, " 'As a direct and proximate result of one or more of the aforesaid enabling acts or omissions, * * * [the minors] were exposed to and submitted to * * * Valdez, at which time, each of them was molested and suffered injuries of a personal and pecuniary nature.' " Westfield National , 346 Ill.App.3d at 116, 281 Ill.Dec. 636, 804 N.E.2d 601.

¶ 20 The aunt tendered the defense to her homeowner's insurance carrier, Westfield National Insurance Company (Westfield National). Westfield National , 346 Ill.App.3d at 116, 281 Ill.Dec. 636, 804 N.E.2d 601. Westfield National filed a declaratory judgment action claiming that it owed no duty to defend or indemnify the aunt, due to an "expected or intended" injury exclusion in the policy. Westfield National , 346 Ill.App.3d at 116, 281 Ill.Dec. 636, 804 N.E.2d 601. Specifically, the policy excluded coverage for bodily injury or property damage " 'which is expected or intended by the Insured' "; it also excluded coverage for " 'injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured.' " Westfield National , 346 Ill.App.3d at 117, 281 Ill.Dec. 636, 804 N.E.2d 601. The trial court granted Westfield National's motion for summary judgment, and Continental appealed. Westfield National , 346 Ill.App.3d at 116, 281 Ill.Dec. 636, 804 N.E.2d 601.

¶ 21 On appeal, we explained that "Illinois courts have adopted an 'inferred-intent' rule," whereby it is presumed that a person who sexually abuses a minor intends to injure the minor. Westfield National , 346 Ill.App.3d at 118, 281 Ill.Dec. 636, 804 N.E.2d 601. We noted, however, that no Illinois court had yet considered whether an insurance company would owe a duty to defend or indemnify the abuser's spouse. Westfield National , 346 Ill.App.3d at 120, 281 Ill.Dec. 636, 804 N.E.2d 601. We found guidance in a line of cases involving the "innocent-insured doctrine"-cases in which courts had refused to impute the intent of one insured to another where, for example, one spouse intentionally caused a home fire. Westfield National , 346 Ill.App.3d at 120-21, 281 Ill.Dec. 636, 804 N.E.2d 601. Based on the reasoning of those cases, we declined to impute Valdez's intent to his wife, and we "instead focus[ed] on the provisions of the policy and the allegations of the underlying complaint in determining whether the intentional-acts exclusion applie[d] to preclude Westfield from having a duty to defend or indemnify the aunt." Westfield National , 346 Ill.App.3d at 121, 281 Ill.Dec. 636, 804 N.E.2d 601.

¶ 22 Looking to the specific factual allegations of the complaint, we concluded that "the aunt should have been cognizant of her own conduct toward the minors and vis-à-vis her husband, Valdez." Westfield National , 346 Ill.App.3d at 122, 281 Ill.Dec. 636, 804 N.E.2d 601. We explained that the allegations showed that the aunt reasonably should have anticipated or expected the injuries to the minors as "a natural and probable result of her enabling acts, regardless of whether she could anticipate the precise injury the minors would actually suffer." Westfield National , 346 Ill.App.3d at 122, 281 Ill.Dec. 636, 804 N.E.2d 601. Although the complaint claimed that the aunt was merely negligent, the supporting facts more accurately detailed "intentional conduct on the part of the aunt, and the minors' cause of action based on negligence [was] 'a transparent attempt to trigger insurance coverage.' " Westfield National , 346 Ill.App.3d at 122, 281 Ill.Dec. 636, 804 N.E.2d 601 (quoting Watters , 268 Ill.App.3d at 510, 205 Ill.Dec. 936, 644 N.E.2d 492 ). In other words, to say that the aunt was "an 'innocent' spouse" would have required us to ignore the facts alleged in the complaint. Westfield National , 346 Ill.App.3d at 123, 281 Ill.Dec. 636, 804 N.E.2d 601. Accordingly, we determined that, "[b]ecause the underlying complaint seeks recovery from the aunt for her participatory conduct resulting in the sexual abuse of the minors, * * * the trial court properly held that Westfield had no duty to defend or, therefore, to indemnify the aunt in the underlying suit." Westfield National , 346 Ill.App.3d at 124, 281 Ill.Dec. 636, 804 N.E.2d 601.

¶ 23 B. The Allstate Policy

¶ 24 Westfield National establishes that we cannot simply impute Adan's intentional conduct to Jasmine's Day Care and Alejandra for purposes of the "expected injury" exclusion. We must instead consider the specific policy language in light of the facts alleged in the underlying complaint. We turn to the relevant language of Allstate's policy.

¶ 25 The policy that Allstate issued to Alejandra and Adan contained the following "expected injury" exclusion:

"1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:
(a) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or
(b) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.
This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime." (Emphases in original.)

¶ 26 As Allstate notes, the use of the phrase "any insured person" in this exclusion is arguably broader than if the provision had said "the insured person." See Allstate Insurance Co. v. Smiley , 276 Ill.App.3d 971, 979, 213 Ill.Dec. 698, 659 N.E.2d 1345 (1995) (determining that the use of the words "an" and "any" broadened a certain policy exclusion). During oral argument, Allstate attempted to distinguish Westfield National on the basis that the policy at issue in that case used "the insured" language as opposed to "any insured" language. According to Allstate, given that Janie's and Janet's injuries arose out of Adan's intentional or criminal acts, and given that the policy excludes coverage for bodily injury that results from the intentional or criminal acts of "any insured person," there is no coverage for the claims asserted against Jasmine's Day Care and Alejandra for those same injuries. In further support of its position, Allstate relies on the "joint obligations" clause found in the general definitions section of the policy.

¶ 27 Although Allstate is correct that the "expected or intended" injury exclusion at issue in Westfield National "excluded from coverage bodily injury or property damage 'which is expected or intended by the Insured ,' " in the very next sentence of the opinion we noted that the policy "also stated that personal injury insurance did not apply to 'injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of an insured .' " (Emphases added.) Westfield National , 346 Ill.App.3d at 117, 281 Ill.Dec. 636, 804 N.E.2d 601. We did not articulate a distinction between "the insured" language and "an" or "any insured" language.

¶ 28 Moreover, Allstate's interpretation of the "any insured" language in its policy, along with its interpretation of the "joint obligations" clause, is at odds with our decision in Wasik . In that case, the plaintiff made a claim under his homeowner's insurance policy after a fire destroyed his garage. Wasik , 351 Ill.App.3d at 261, 286 Ill.Dec. 459, 813 N.E.2d 1152. Allstate denied the claim because the plaintiff's stepson, who was also insured under the policy, intentionally started the fire. Wasik , 351 Ill.App.3d at 261, 264, 286 Ill.Dec. 459, 813 N.E.2d 1152. The policy provided that Allstate would " 'not cover any loss or occurrence in which any insured person has concealed or misrepresented any material fact or circumstance.' " (Emphases in original.) Wasik , 351 Ill.App.3d at 265, 286 Ill.Dec. 459, 813 N.E.2d 1152. The policy also contained the following exclusion with respect to coverage for property damage:

" 'We do not cover loss to the property described in Coverage A-Dwelling Protection [,] * * * Coverage B-Other Structures Protection [or Coverage C-Personal Property Protection ] consisting of or caused by:
* * *
7. The failure by any insured person to take all reasonable steps to preserve property when the property is endangered by a cause of loss we cover.
8. Any substantial change or increase in hazard, if changed or increased by any means within the control or knowledge of an insured person .
9. Intentional or criminal acts of or at the direction of any insured person , if the loss that occurs:
a) may be reasonably expected to result from such acts; or
b) is the intended result of such acts.
This exclusion applies regardless of whether or not the insured person is actually charged with, or convicted of a crime.' " (Emphases in original.) Wasik , 351 Ill.App.3d at 265, 286 Ill.Dec. 459, 813 N.E.2d 1152.

The trial court granted summary judgment in favor of Allstate based on these exclusions, even though the court believed that the plaintiff was an "innocent insured" in the sense that he was not involved with his stepson's misconduct. Wasik , 351 Ill.App.3d at 261, 286 Ill.Dec. 459, 813 N.E.2d 1152.

¶ 29 On appeal, after reviewing several cases analyzing the innocent-insured doctrine, we reversed the trial court's judgment. We explained:

"Although the [exclusionary] clauses could be read as entirely prohibiting coverage for a loss caused by the act or failure to act of 'any' insured, they do not clearly state that the policy will be void or coverage will be excluded as to all insureds in the event of some improper behavior by 'any' insured." Wasik , 351 Ill.App.3d at 266, 286 Ill.Dec. 459, 813 N.E.2d 1152.

Nor were we impressed by Allstate's reliance on the "joint obligations" clause in the policy:

"The 'joint obligations' language is not a part of any of the exclusionary clauses but is instead found among the general policy declarations. We agree with plaintiff that one plausible construction of the joint obligations clause is that it refers to the general obligations to pay premiums and to take certain actions before and after a loss and that a reasonable insured would not understand the clause to exclude coverage for all insureds when coverage is excluded for one insured. * * * The joint obligations clause is, at best, ambiguous. Therefore, we will not interpret it broadly enough to exclude coverage for an innocent insured when another insured has intentionally or criminally caused a loss." Wasik , 351 Ill.App.3d at 267, 286 Ill.Dec. 459, 813 N.E.2d 1152.

¶ 30 Allstate attempts to distinguish Wasik on the basis that that case involved a claim by an insured arising out of property damage, as opposed to a third-party claim against an insured . According to Allstate, unlike a first-party claim for property damage, there is no truly "innocent insured" in the third-party-liability-insurance context, given that there is a claim asserted against the insured for his or her own alleged wrongful acts or omissions.

¶ 31 Allstate fails to account for the fact that in Westfield National we relied on property-claim cases that had analyzed the innocent-insured doctrine. Additionally, in a relatively recent opinion addressing the innocent-insured doctrine, our supreme court suggested that the doctrine could apply where an insured tenders the defense of a tort claim to his or her insurer. See Illinois State Bar Ass'n Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas , 2015 IL 117096, ¶ 30, 389 Ill.Dec. 575, 27 N.E.3d 67 ("[T]he innocence of an insured matters a great deal when another insured's wrongdoing triggers a policy exclusion, and a dispute arises over whether the insurer has a duty to defend the innocent insured under a policy that undisputably was in effect."). Allstate's attempt to distinguish Wasik on the basis that it involved an insured's claim for property damage thus fails.

¶ 32 In light of Wasik , although the "expected injury" clause here uses the words "any insured," and although the policy also contains a "joint obligations" clause, we decline Allstate's invitation to hold that Adan's intent to injure Janie and Janet categorically precludes a defense for the other insureds relating to claims for the same injuries. Instead, as in Westfield National , we must look to the specific factual allegations asserted against Jasmine's Day Care and Alejandra in the underlying action to determine whether the "expected injury" exclusion applies to their particular conduct.

¶ 33 C. The Allegations of the Underlying Complaint

¶ 34 Turning to the allegations of the underlying complaint, we find a critical distinction between Westfield National and the present case. In the underlying complaint in Westfield National , the aunt was alleged to have engaged in "participatory conduct resulting in the sexual abuse of the minors" by her husband. Westfield National , 346 Ill.App.3d at 124, 281 Ill.Dec. 636, 804 N.E.2d 601. Examples of such "participatory conduct" included directing the minors to sit on her husband's lap while he was partially clad, creating a sexually charged atmosphere by showing inappropriate movies, and encouraging the minors to wear minimal and provocative clothing when interacting with her husband. Westfield National , 346 Ill.App.3d at 115, 281 Ill.Dec. 636, 804 N.E.2d 601. Despite the underlying plaintiff's attempts in Westfield National to characterize the aunt's actions and omissions as mere negligence, we emphasized that her conduct demonstrated that the minors' injuries were expected as a "natural and probable result of her enabling acts." Westfield National , 346 Ill.App.3d at 122, 281 Ill.Dec. 636, 804 N.E.2d 601.

¶ 35 Unlike the underlying plaintiff in Westfield National , Jane did not allege that Jasmine's Day Care or Alejandra engaged in participatory conduct that resulted in Adan's sexual abuse of Janie and Janet. Nor did Jane allege that Jasmine's Day Care or Alejandra knew (or even should have known) that Adan would abuse the children. Cf. Empire Indemnity , 2013 IL App (1st) 112346, ¶ 40, 371 Ill.Dec. 657, 990 N.E.2d 845 (insurers owed no duty to defend a Jesuit society against lawsuits claiming that one of its priests committed sexual abuse, because the underlying complaints alleged that the society had prior knowledge that this particular priest had abused other minors). Jane merely alleged that Jasmine's Day Care and Alejandra (1) failed to adequately supervise the children; (2) failed to protect them from exploitation, neglect, and abuse; and (3) improperly allowed Adan to be alone with them.

¶ 36 According to Allstate, to hold Jasmine's Day Care or Alejandra liable for negligent supervision, Jane will ultimately have to prove that they expected the injuries to Janie and Janet, which would preclude insurance coverage. In her complaint, however, Jane invokes the Illinois Administrative Code, not just the common law, as the source of the legal duty. Allstate does not direct our attention to any authority construing the particular administrative regulation that Jane claims Jasmine's Day Care and Alejandra violated. Allstate merely assumes, without providing supporting authority, that Jane will be required to plead and prove more specific facts that will exclude insurance coverage for Jasmine's Day Care and Alejandra.

¶ 37 Moreover, the legal sufficiency of the underlying complaint is not before us in this appeal. Instead, to determine whether Allstate owes a duty to defend Jasmine's Day Care and Alejandra, we must consider whether "the facts alleged in the underlying complaint fall within, or potentially within, the policy's coverage." Outboard Marine Corp. , 154 Ill.2d at 108, 180 Ill.Dec. 691, 607 N.E.2d 1204. A duty to defend may exist even if Jane's allegations ultimately prove to be groundless, false, or fraudulent. Country Mutual Insurance Co. v. Dahms , 2016 IL App (1st) 141392, ¶ 38, 405 Ill.Dec. 311, 58 N.E.3d 118. Given the absence of any specific factual allegations in the underlying complaint that would trigger the "expected injury" exclusion with respect to Jasmine's Day Care or Alejandra, Allstate has not met its burden to demonstrate that it owes no duty to defend its insureds. Accordingly, Allstate is not entitled to judgment on the pleadings.

¶ 38 In closing, we note that Jane relies heavily in her brief on McDowell & Colantoni in support of her argument that Jasmine's Day Care's and Alejandra's negligent conduct was independent of Adan's intentional conduct. Relying primarily on Northbrook Property & Casualty Co. v. Transportation Joint Agreement , 194 Ill.2d 96, 251 Ill.Dec. 659, 741 N.E.2d 253 (2000), Allstate responds that McDowell & Colantoni was incorrectly decided and that the claims asserted against Jasmine's Day Care and Alejandra were related to and dependent on Adan's excluded acts. Neither McDowell & Colantoni nor Northbrook involved allegations that an insured party sexually abused a minor. As our analysis has been guided by the more directly relevant authority in Westfield National , which the parties addressed thoroughly at oral argument, we need not comment on the parties' dispute in their briefs as to whether McDowell & Colantoni was correctly decided. Similarly, as there is Illinois case law on point, we decline to comment on the foreign authority that Allstate cites throughout its brief. See Kostal v. Pinkus Dermatopathology Laboratory, P.C. , 357 Ill.App.3d 381, 395, 293 Ill.Dec. 150, 827 N.E.2d 1031 (2005) ("When there is Illinois case law directly on point, we need not look to case law from other states for guidance.").

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we reverse the judgment of the circuit court of Lake County and remand for further proceedings.

¶ 41 Reversed and remanded.

Justices Jorgensen and Schostok concurred in the judgment and opinion.

      The complaint erroneously referred to Adan as "Adam."

      Some of the listed "qualifications for assistants" are that they pass a background check and be "free of reportable communicable disease and physical or mental conditions that could interfere with child care responsibilities." 89 Ill. Adm. Code 406.10(a), (e) (2016).