In re N.G., 2018 IL 121939 (August). Episode 524 (Duration 22:24)

McFadden is overruled.

First See

People v. McFadden, 2016 IL 117424 (June). Episode 187 (Duration 5:17) (Old UUW convictions don’t vacate themselves; you have to file a motion to get rid of them)

There we reaffirmed long-standing principles that a facially unconstitutional statute is void from the moment of its enactment and unenforceable, that a declaration that a statute is facially invalid must be given full retroactive effect, and that a conviction based on such a statute cannot stand, we held, based on the language of the UUWF statute, that where a defendant has not taken affirmative action to have a court set aside the initial conviction and therefore still has an extant, undisturbed felony conviction on his record at the time he engaged in the conduct on which the subsequent UUWF prosecution was predicated, the elements of the UUWF statute are satisfied and the UUWF conviction may stand, regardless of whether the initial conviction might be subject to vacatur later on the grounds that it was unconstitutional.

Gist

One of the three felony convictions on which DCFS’s claim of depravity depended on a conviction from a 2008 aggravated unlawful use of a weapon struck down as unconstitutional in Aguilar.

Issue

The dispositive question in this appeal, and the one we must therefore now address, is whether the trial court could rely on such a constitutionally invalid conviction in determining whether DCFS had met its burden of establishing that the father was unfit and, on that basis, terminate his constitutionally protected parental rights.

Holding

The answer to that question, as the appellate court correctly concluded, is that it could not.

Because section 24-1.6(a)(1), (a)(3)(A), (d) is facially unconstitutional under the second amendment to the United States Constitution (Aguilar, 2013 IL 112116, ¶ 22; People v. Burns, 2015 IL 117387, ¶ 21; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) and the existence of Floyd F.’s conviction under that facially unconstitutional statute was necessary to the trial court’s determination that he was depraved within the meaning of the Adoption Act, Floyd F.’s conviction under the statute must be vacated, and the circuit court’s finding of depravity must be reversed.

This may create sentencing advantages for the defendant and disadvantages for the state.

Parental Rights Fundamental

We begin our review of this case by recognizing the gravity of the interests at stake.

When the State secured Floyd F.’s conviction under the portion of the AUUW statute held unconstitutional in Aguilar, 2013 IL 112116, it violated his second amendment rights. Through this proceeding, the State seeks to use that unconstitutional conviction to secure an additional sanction: termination of Floyd F.’s parental rights.

Those parental rights are fundamental.

Montgomery v. Louisiana

The conviction must be treated by the courts as if it did not exist, and it cannot be used for any purpose under any circumstances. Undeniably, the state is barred from giving any legal recognition to a conviction based on a facially unconstitutional statute. See Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718, 730 (2016).

We thus have an affirmative duty to invalidate Floyd F.’s AUUW conviction and to treat the statute on which it was based as having never existed.

Court Could Vacate The Conviction

There is no merit to the argument that this proceeding is not an appropriate forum for Floyd F. to invoke Aguilar.

Our court has held that a judgment based on a statute that is facially unconstitutional is void. People v. Price, 2016 IL 118613, ¶ 31. Illinois law permits void judgments to be impeached at any time in any proceeding whenever a right is asserted by reason of that judgment, and it is immaterial whether or not the time for review by appeal has expired.

While Floyd F. has pursued a postconviction petition in his 2011 criminal case claiming that his 2008 conviction was a nullity that petition is not before us, nor was it before the appellate court. That, however, is of no consequence. In such circumstances, where there was a substantial denial of constitutional rights, we held that allowing nonstatutory remedies would be justified.

This, of course, is just such a case.

Accordingly, where a person has been convicted under an unconstitutional statute, he or she may obtain relief from any court that otherwise has jurisdiction. The person is not restricted to specific statutory methods for collaterally attacking a judgment. And it does not matter that the time for direct appeal may have passed. Simply put, under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.

Indeed, if the constitutional infirmity is put in issue during a proceeding that is pending before a court, the court has an independent duty to vacate the void judgment and may do so sua sponte.

McFadden Was Different

They did try to say that defendant in McFadden didn’t prove he was convicted under the unconstitutional provision and he never asked for the revocation.

First Sign Of Trouble

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist. No mention of Montgomery is made in the dissent either.

Oops.

McFadden Was A Mistake

What our decision in McFadden did not take into account is that the same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment, for even the use of impeccable fact finding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.

Our appellate court has struggled to reconcile McFadden with the line of United States Supreme Court authority culminating in Montgomery, often calling for a legislative solution in the absence of direction from our court. The appellate court’s unease is unsurprising and justified, especially given that the appellate court’s findings took the proper analytical approach.

In a footnote the court noted that this is clearly becoming a pressurized issue.

Simply put, the analysis in McFadden not only took the wrong analytical path, it failed to recognize that the other path existed.

Had our analysis in McFadden taken into account the distinction between a prior conviction resulting from a constitutionally deficient procedure and one based on a facially unconstitutional statute, the approach we took in that case would have been different. It is important that we acknowledge that now.

Fix This Now

“Our most important duty as justices of the Illinois Supreme Court, to which all other considerations are subordinate, is to reach the correct decision under the law.” People v. Mitchell, 189 Ill. 2d 312, 339 (2000). Courts are and should be reluctant to abandon their precedent in most circumstances, but considerations of “[s]tare decisis should not preclude us from admitting our mistake” when we have made one and interpreting the law correctly, for as Justice Frankfurter once observed, “ ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’ ”“[S]tare decisis is not so static a concept that it binds our hands to do justice when we have made a mistake.” Vitro v. Mihelcic, 209 Ill. 2d 76, 93 (2004).

Justice Calvo, a former member of this court, put the matter more bluntly: “When a thing is wrong, it is wrong. The longer we wait to right this wrong, the more difficult it will be to rectify the error, embedded in the case law through usage.” Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 495-96 (1990) (Calvo, J., dissenting, joined by Ward and Clark, JJ.).

McFadden Is Overruled

While we find this case distinguishable from McFadden, to the extent that this result and controlling United State’s Supreme Court precedent conflict with McFadden, McFadden is hereby overruled.

To Be Clear The Defendant In McFadden Was Wronged

McFadden is also problematic because of the line of United States Supreme Court authority on which it is based.

In upholding the use of defendant’s prior firearms conviction to establish an element of the subsequent firearms offense for which he had been convicted, our opinion in McFadden neither considered nor addressed Montgomery or the numerous earlier United States Supreme Court cases which have consistently held that convictions based on facially unconstitutional statutes are void, can be given no effect, and must be treated by the courts as if they do not exist.

No mention of Montgomery is made in the dissent either.

In McFadden, we found that Illinois’s UUWF statute was similar in purpose, structure, and operation to the federal firearms statute at issue in Lewis, 445 U.S. 55 (1980) and that it was therefore appropriate to follow the same reasoning in construing and applying the Illinois law. In focusing on the similarity of the statutory schemes, however, we failed to take into account a fundamental distinction between the constitutional flaws afflicting the two predicate offenses.

What our decision in McFadden did not take into account is that “[t]he same possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment,” for “ ‘[e]ven the use of impeccable factfinding procedures could not legitimate a verdict’ where ‘the conduct being penalized is constitutionally immune from punishment.’ ” Montgomery, 577 U.S. at ___, 136 S. Ct. at 718 (quoting United States Coin & Currency, 401 U.S. at 724). Convictions resulting from a facially unconstitutional statute fall directly within this category.

Holding

In sum, Floyd F.’s unconstitutional AUUW conviction is null and void, thus it cannot serve as a basis for finding him depraved under section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i) (West 2010)).