In re Latesha Smith

OPINION

BIRNBAUM, J.

The above-captioned claims involve applications for benefits filed by parents of minor children who may be victims of crime as defined by the Crime Victim Compensation Act (“Act”). 740 ILCS 45/1 et seq. In each case, the parent failed to file the application for benefits within two years of the discovery of the crime against the child. The question before the Court is whether these applications are timely and whether, therefore the Court may consider them for benefits.

[*321] The Attorney General argues that these applications are not timely. Section 6.1(a) of the Act provides that a person is entitled to compensation if “[w]ithin two years of the occurrence of the crime upon which the claim is based, he files an application, under oath, with the Court of Claims and on a form prescribed in accordance with Section 7.1 furnished by the Attorney General.” 740 ILCS 45/6.1(a). The Claimants in the present claims have clearly not filed applications within two years of the occurrence of the crimes.

Nearly fifteen years ago, the Court considered the issue of late filings in In Re Application of A et al., (unassigned 3/8/1990). A copy of that unpublished opinion is attached to and incorporated with this opinion. Petitioners F, G and H of that opinion, like the present applicants, involve parents who did not file claims on behalf of their minor children within two years of the occurrence of the crime. In that opinion, the Court considered the applicability of tolling provisions for minors and concluded that the Crime Victims Compensation Act is not a remedy that existed at common law and therefore the Act’s provisions must be strictly construed. Since there was no provision to toll limitations periods for minors within the Act, the Court was compelled to deny the untimely petitions for extension of time.

The Court did not, however, deny the petitions for extension of time in that order because legislation was pending before the Illinois General Assembly that would toll the filing period for minors. This legislation was drafted by the Court of Claims and supported by the Office of the Attorney General. Attorney General Neil Hartigan took particular interest in this legislation and the effect it would have on children who were victims of sexual abuse.

P.A. 86-1221 became effective on August 30, 1990 and amended Section 6.1(a) of the Act to provide that “[i]f the person entitled to compensation is under 18 years of age or under other legal disability at the time of the occurrence or becomes legally disabled as a result of the occurrence, he may file the application required by this subsection within 2 years after [*322] he attains the age of 18 year or the disability is removed, as the case may be,” 740 ILCS 45/6.1.

Since P.A. 86-1221 became effective on August 30, 1990, the Court has routinely permitted late applications for benefits, but only insofar as they pertain to minors or other persons under a legal disability. See. In re Application of Thomas-Kopka, 00-CV-2031 (unpublished order 3/30/2000). The language contained in the amendment is permissive: it provides that minors may file applications within two years of their 18t h birthdays. The Office of the Attorney General attempts to change this permissive language into mandatory language by requiring the minor victims to wait until they are 18 years old to file their own claims. This interpretation is not supported by the clear language or the legislative intent of P.A. 86-1221.

Furthermore, in one of the present cases, the victim will not reach her 18t h birthday until 2011, when it may be very difficult to reconstruct information about the crime or the injuries she suffered.

IT IS HEREBY ORDERED that Respondent’s investigatory reports and proposed orders are rejected. It is further ordered that the Court will consider Claimants’ applications for benefits insofar as they concern minor children only. It is further ordered that Respondent shall file revised investigatory reports and proposed orders within 90 days of the date of this Order.

[*323] (Nos. Unassigned and Various)

In re PETITION OF PETITIONER A AND OTHER PETITIONERS NAMED AND

INCLUDED IN OPINION ENTERED MARCH 8, 1990.

Public or closed Hearings - Section 45/14.1(a) of the Crime Victim’s Compensation Act sets forth the conditions for which a hearing should be closed to the public and includes cases where the offense allegedly perpetrated against the victim is one defined in Section 12- 13 of 12-14 of the “Criminal Code of 1961” (Criminal Sexual Assault and Aggravated Criminal Sexual Assault) and the interest of the victim require that the public be excluded from the hearings; where the victim or the alleged assailant is a minor; or where the interests of justice would be frustrated, rather than furthered, if the hearing were open to the public.

Public or closed Hearings - Transcripts - Section 45/14.1(b) of the Crime Victim’s Compensation Act provides that where the interests of justice require, the Court of Claims may refuse to disclose the names of the victims or other material in the transcript by which the identity of the victim could be discovered.

ORDER

MONTANA, C.J.

THESE CAUSES comes on to be heard on the Court’s own motion and pursuant to §14.1 OF THE Crime Victims Compensation Act, Ill.Rev.Stat., ch. 70, par. 84.1;

On March 8, 1990 an Opinion was entered whereby the Court held its decisions on the petitions herein in abeyance pending possible consideration of the issued by the legislature. The Court, in anticipation of the dissemination and eventual publication of the Opinion, and out of concern for the welfare of the alleged victims of the crimes, has determined that the petitioners and victims should be granted anonymity to the extent possible.

[*324] Section 14.1 of the Crime Victims Compensation Act provides in pertinent part as follows:

§14.1(a) Hearings shall be open to the public unless the Court of Claims

determines that a closed hearing should be held because:

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(2) the offense allegedly perpetrated against the victim is one defined in Section

12-13 of 12-14 of the “Criminal Code of 1961” (Criminal Sexual Assault and

Aggravated Criminal Sexual Assault) and the interest of the victim … require(s) that

the public be excluded from the hearings;

(3) the victim … is a minor; or

(4) The interests of justice would be frustrated, rather than furthered, if the

hearing were open to the public.

(b) …. Where the interests of justice require, the Court of Claims may refuse

to disclose the names of the victims or other material in the transcript by which

the identity of the victim could be discovered.

Each of the claims come within one or more of subsections two, three, and four of §14.1(a) and the Court has determined that any hearings on these claims shall be closed and any transcript to be provided to a nonparty shall be void of any material by which the identity of the victims could be discovered.

Further, consistent with the purpose of the statute cited above, the Court finds that the interests of justice require that the names of the petitioners and the victims should be deleted from any decision in any of these cases, including the Opinion of March 8, 1990, which is published or distributed to a nonparty.

Accordingly, it is hereby ordered as follows:

1. Any hearings to be held in these claims shall be closed to the public and the

names and other materials which may identify the petitioners, applicants, and

victims in any transcript of such hearings shall be expunged from any copy

provided to a nonparty.

2. The Office of the Attorney General and the Clerk’s Office shall take steps

reasonable and necessary to maintain the anonymity of the parties to the

extent possible.

3. For purposes of publication of the March 8, 1990 Order and any other Orders

to be entered in these cases, the names of the petitioners shall be deleted and [*325]

identified only as Petitioners A through V; the names of any minors shall be

deleted and identified by a number following the letter which identifies the

petitioner, e.g. Petitioner A has filed on behalf of A1 and A2.

(Nos. Unassigned, 90-CV-0151, 90-CV-0484, 89-CV-0809, 90-CV-0407, 89-CV-0662) In re PETITION OF PETITIONERS A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T,

U, and V.

Opinion filed March 8, 1990.

Time for Filing - Because the Crime Victim’s Compensation Act creates a right to relief that did not exist at common law the limitation provisions are a condition precedent to the right of recovery which must be adhered to strictly.

OPINION

MONTANA, C.J.

With two exceptions, these claims are before the Court on petitions by claimants for an extension of time to file necessary documents in submission of their application for benefits under the Crime Victims Compensation Act (Ill.Rev.Stat., ch. 70, par. 71 et seq.), hereinafter referred to as the Act. Each claim presents the issue of whether or not a commonly recognized disability, such as minority and incapacity, tolls the running of the time limitations for filing provided in Section 6.1 of the Act. In two of the claims, the issue is present but petitions are not on file. In pertinent part, that Section reads as follows:

A person is entitled to compensation under this Act if:

(A) within 6 months of the occurrence of the crime he files a notice of intent to file

a claim with the Attorney General and, within one year of the occurrence of

the crime upon which the claim is based, he files an application, under oath,

with the Court of Claims and on a form prescribed in accordance with Section

7.1 furnished by the Attorney General. Upon good cause shown, the Court of

Claims may extend the time for filing the notice of intent to file a claim and

application for a period not exceeding one year; [*326]

None of the petitions at bar were filed within the time period in which the Court is authorized by the statute to grant extensions of time.

Although the facts sometimes overlap, the petitions can generally be categorized in

four different groups:

(1) where the alleged victim was an adult and compensation is sought on behalf of a

minor dependent

(2) where the alleged victim was a minor at the time of the incident

(3) where the alleged victim was a minor and the alleged crime was not discovered

until the limitations had expired, and

(4) where the victim was physically or mentally incapacitated during the running of

the time limits

The first group includes the first five captioned claims. In the claim by Petitioner A, compensation is sought on behalf of her grandchildren, minors A1 and A2. The claim arose out of the alleged rape, robbery, and murder of the minors’ mother. The crime was said to have occurred on or about January 24, 1978. The notice of intent was filed January 3, 1985, almost seven years later. The petition for an extension of time was filed on January 30, 1985.

In her petition Petitioner A’s explanation for late filing was that she was a widow in poor health with various disabilities and on public aid. Further she stated she had no prior knowledge of the Act and no money with which to hire an attorney.

In the claim by Petitioner B, compensation is sought on behalf of her nephew, B1, the minor son of a victim who was alleged to have been murdered on October 21, 1978. The notice of intent was filed over six and one-half years later on June 27, 1985. The petition for extension of time was filed on July 9, 1985. Her explanation for late filing was that she knew nothing about the Act.

Petitioner C alleged she was a minor at the time her mother was murdered on December 4, 1979. She filed her notice of intent on November 6, 1987 when she was eighteen and one-half years old. Her petition for extension of time was filed seven months later. Her explanation for late filing was that she was a minor and that she was under the impression that the claim was being handled by attorneys retained by her grandmother.

[*327] Petitioner D filed for an extension on behalf of his minor son, D1. The claim arose out of the alleged murder of the minor’s mother on December 20, 1976. The notice of intent was filed on July 19, 1988, eleven and one-half years after the crime was said to have occurred. The petition for extension of time was filed a week later. Petitioner D stated that his son was a minor for his explanation of late filing.

Petitioner E filed for compensation on her own behalf and on behalf of her minor son, E1, and her minor daughter, E2. A separate Order will address the petition relative to her own claim. She alleged that her husband, who was also the children’s father, was murdered on March 19, 1986. Her notice of intent does not bear a date stamp from the Office of the Attorney General so we are unable to determine when or if it was filed. Her application and petition for extension of time were filed on July 24, 1989. For the explanation of late filing she stated that on July 7, 1989 she called the Office of the Attorney General and was informed that her original application, allegedly dated ten days after the crime was said to have occurred, was never filed. She attached numerous documents which she says show correspondence with the Office of the Attorney General over a four year period. One of the documents is a letter from the Office of the Attorney General dated May 6, 1986 acknowledging recent receipt of her notice of intent.

The second group of claims consists of the next three captioned cases. Petitioner F filed for compensation on behalf of herself and her ten month old son. She stated they were victims of a beating which occurred sometime in June of 1986. No notice of intent is in the Court’s file but a petition for extension of time was filed over three years later on August 10, 1989. Her explanation for late filing was that she was unaware of the Act. This Opinion only relates to the filing for her minor son. A separate Order will be filed relative to her own claim.

Petitioner G filed for compensation on behalf of her son who was said to have been fifteen years old when he was stabbed in a school parking lot on November 7, 1986. The [*328] notice of intent was filed on June 8, 1988 and the petition for extension of time was filed on July 12, 1988. Her explanation for late filing was that she was never informed of the Act.

Petitioner H filed on behalf of her minor daughter, H1. She stated that her daughter had been abused from 1980 through 1985, that she knew of the abuse at the time, but (apparently) did not report it because of threats made by the alleged perpetrator. No notice of intent is on file with the Court but the petition for extension of time was filed June 6, 1989.

The next twelve captioned claims comprise the third group of cases described above. In each instance the victim was a minor who was allegedly abused, some of them sexually, and the crimes were not discovered until after the time limit for filing had expired.

Petitioner I brought her action on behalf of her minor daughters, I1 and I2. The claim arose out of alleged abuse occurring during the months August and September of 1983. The notice of intent was filed six years later on October 13, 1989 and the petition for extension of time was filed on October 18, 1989. In her explanation of late filing she stated that the minors did not report the incidents immediately for fear of their lives. She added that the case was prosecuted in 1986 but she was not informed of the Act.

Petitioner J filed on behalf of his minor daughter, J1, who was allegedly abused periodically from 1979 to 1982. The notice of intent on file with the Court does not bear a time stamp from the Attorney General’s Office so we are unable to determine from the face of it whether it was ever filed, and the petition for extension of time was filed December 4, 1989.

Petitioner J explained his later filing was due to hysterical amnesia brought on by the events and that the facts were not known until August of 1989.

Petitioner K seeks compensation on behalf of her minor daughter, K1. The daughter was said to have been abused during November and December of 1987. Although the petition for extension of time was filed within time for us to grant it as to the application (October 10, 1989), the notice of intent was filed on September 6, 1989, at least four months [*329] beyond the time allowed by the statute for an extension. Petitioner K stated that the reason for her late filing was that the alleged perpetrator was not charged with the crime until June of 1988 and she thought he should have to pay for the damages suffered.

Petitioner L filed for compensation on behalf of her minor daughter, L1, who was allegedly abused at a day care center on September 30, 1983 and during October of 1986.

The Court’s file does not contain a notice of intent but an application and a petition for extension of time was filed on October 6, 1989. Petitioner L explained that her late filing was due to unavailability of forms.

Applicant M filed for compensation on behalf of her minor daughter, M1.

Applicant M did not file a petition for an extension of time. We have included her claim in this Opinion due to the similarity of circumstances and will treat it the same as the others at this procedural stage. Applicant M filed a notice of intent with the Office of the Attorney General on an indeterminable date. We are unable to read the date stamp and under such circumstances it is this Court’s policy to deem such filings timely. In re Application of: Lourdene Johnson, No. (unassigned), Order filed July 28, 1989. Her applicant was filed on February 10, 1989. The date of the alleged crime as stated in those documents is ambiguous however. In the notice of intent, May 19, 1988 was the stated date of the incident. In the application the crime was said to have occurred from 1984 to 1986. Further, medical treatment was stated to have been provided prior to the date of the crime as stated on the notice.

Petitioner N filed for compensation on behalf of her minor daughters, N1 and N2.

Petitioner N did not state when the alleged abuse occurred; she only stated that she found out about it February 25, 1988. Her petition for extension of time and her application were filed on September 21, 1989. The Court has no record of a notice of intent having been filed. She explained that her late filing was due to her not knowing about the Act.

Applicant O also did not file a petition for an extension of time when she made her claim for compensation on behalf of her minor daughter, O1, who was allegedly abused during [*330] the period of September of 1984 through May of 1986 at a day care center. Again, due to the similarity of circumstances, we will treat her claim the same as the others. Just as in the claim brought by Applicant M, we are unable to determine when she filed her notice of intent because the Attorney General’s date stamp is illegible. However, the application was not filed until January 9, 1989.

Petitioners P filed for compensation on behalf of their minor daughter, P1. They also stated that their daughter was abused at a day care facility from May of 1985 to May of 1986. Their notice of intent was also filed on an undeterminable date. Their petition for extension of time was filed on December 12, 1988. Their explanation for late filing was “We were misinformed by the investigators of the Department of Criminal Investigation of Illinois and by the Marshall County State’s Attorney’s Office that this program exists”.

Petitioner Q filed for compensation on behalf of his minor daughter, Q1. Petitioner Q stated he did not discover that his daughter had been abused until August 19, 1987. He filed a petition for an extension of time on March 30, 1989. He attached a six page explanation for the late filing which included, among other reasons, that he was unaware of the Act.

Petitioner R filed for compensation on behalf of his minor daughter, R1, who was allegedly abused at a day care center in October of 1986. Petitioner R filed his not ice of intent on December 13, 1988 and his petition for extension of time on December 16, 1988.

He stated that he filed an application at the time of the incident “only to find stumbling blocks and red tape”. The Court has no record of an application having been filed at anytime under that name.

Petitioner S filed notices of intent and petitions for extensions of time on behalf of his minor son, S1, and his minor daughter, S2, on December 5, 1988 and December 12, 1988, respectively. He stated they were abused at a day care center from June of 1983 to [*331] October of 1986. His explanation for late filing was that his children did not inform him of the incidents until later and he had a hard time organizing all the paper work.

Petitioner T filed for benefits on behalf of her minor daughter, T1, who was allegedly a victim of a crime which occurred on or about October 31, 1987. Her notice of intent was filed on October 26, 1989 and her petition for extension of time was filed November 7, 1989. She explained her late filing was due to threats made against her daughter if the crime was reported and thus its occurrence was not discovered until later.

The final two captioned claims comprise the fourth category. Petitioner U, an adult, filed a notice of intent which bears no date stamp from the Attorney General’s Office and a petition for an extension of time on June 6, 1988. She alleged she was a victim of severe violent crimes which took place on July 20, 1986. On August 17, 1988 the Court denied her petition because the time within which the Court could grant it had expired. She filed a timely request for a hearing and a hearing was held. At the hearing a question arose as to when, if ever, the notice of intent was filed with the Office of the Attorney General. The petitioner testified it was filed in April of 1987 but the notice in the record bears an April, 1988 signature and notarization date, a point in time beyond which we would be authorized to grant an extension. The evidence further showed that as a result of the crimes she was hospitalized for treatment, surgery, and psychiatric care. She suffered from post-traumatic stress syndrome and bowel syndrome. She has been under the care of physicians at Mayo Clinic in Rochester, Minnesota, and elsewhere, as well as psychiatrists in the Chicago area, including the University of Chicago. The attending physicians indicated that court appearances or legal proceedings should be avoided. Her exhibits indicate continuous medical attention and treatment to September of 1988. She further suffered spells of blindness and marked difficulty in reading. The general behavior of the petitioner at the hearing, her testimony, and the statements of attending physicians and hospitals submitted into evidence, [*332] lead us to conclude that the severity of the injuries and her mental trauma caused by her state of shock definitely resulted in a state of mental incompetence.

Petitioner V filed for compensation on behalf of her daughter, V1, who was a passenger in a vehicle which was hit by a drunk driver on July 20, 1986. A notice of intent was filed on October 19, 1988 and a petition for an extension of time was filed on December 16, 1988. In the explanation of late filing, Petitioner V stated that at the time of the incident her daughter was a minor. She suffered a closed head injury which left her unable to speak and to walk without assistance. She is permanently disabled. Further, she stated that upon reaching majority her daughter was found to be totally incapable of handling her affairs by a court. She added that a previous notice was mailed to the Attorney General’s Office but that she was told it had been misplaced.

In the first two captioned cases, those of Petitioner A and Petitioner B, the petitions for extensions of time were previously denied by Court Order due to the failure of compliance with the time limitations quoted above in Section 6.1(a) of the Act. These petitioners sought review of the denials and the cases were assigned to Commissioner Joseph P. Griffin for hearings. The parties filed their briefs and Commissioner Griffin filed his report. Oral argument has been held before the Judges of the Court of Claims sitting en banc. At this point the Court wishes to commend the attorneys for the parties for their presentation of the issue and arguments which apply not only to their own cases but to all the others contained in this decision. Our decision on the issue is as follows.

The Act was created and approved by the legislature in 1973 to provide a remedy to victims of crimes of violence and the dependents of such victims. It provides a remedy that did not exist at common law and expressly provides specific time limits for the filing of documents necessary to seek compensation. The Supreme Court of Illinois stated in Smith v.

Toman (1983), 368 Ill. 414, 420, 14 N.E.2d 478, 483, that:

[*333] [T]his court has given consistent recognition to the principle that where the statute

creates a right that did not exist at common law and restricts the time within which

the right may be availed of, or otherwise imposes conditions, such statute is not a

statute of limitation but the time element is an integral part of the enactment.

Illinois courts and federal courts applying Illinois law have continued to recognize the integrity of limitations imposed upon the exercise of statutorily created rights. See:

Kalmich v. Bruno (1977), 553 F.2d 549, cert. Denied 434 U.S. 940, on demand 450 F. Supp.

227; Shelton v. Woolsey (1959), 20 Ill. App. 2d 401, 156 N.E. 2d 241; Lowrey v. Malkowski (1960), 20 Ill. 2d 280, 170 N.E.2d 147; Demchuck v. Duplancich (1982), 92 Ill. 2d 1, 440 N.E. 2d 112.

The Lowery and Demchuck cases presented situations similar to those which exit in the claims at bar. In both cases the Supreme Court of Illinois was asked to determine whether the one year limitation period for filing an action under the Dram Shop Act (Ill.Rev.Stat. ch.

43, par. 135) should be tolled for minors. The Supreme Court determined in Lowery that the limitation period in the Dram Shop Act, a purely statutory cause of action like the Crime Victims Act, should not be tolled for minority. Twenty-two years later in Demchuck the Supreme Court adhered to its original holding in Lowery. While discussing prior appellate court cases which held that the limitation period in the Dram Shop Act should not be tolled for minority, the Supreme Court in Demchuck stated at 92 Ill.2d 6, 440 N.E.2d 114, 115:

The holdings in those cases were predicated upon the well-recognized rule that a

special limitation in a purely statutory cause of action, unlike a general statute of

limitations, operates as a limitation of the liability itself and not the remedy alone. It

is a condition attached to the right to bring the action, and plaintiffs must allege or

state facts showing that the action is brought within the time prescribed or they

have failed to bring themselves within the compass of the Act.

In reaching the result in Demchuck the Supreme Court noted at 92 Ill.2d 8, 440 N.E.2d 115, that despite several subsequent amendments to the Dram Shop Act, the legislature had not changed the language of the statute to provide for tolling due to generally recognized disabilities such as minority or incompetency.

[*334] The Crime Victims Act did not provide a tolling provisions for minority or any other incompetency when it was originally enacted. Though the legislature has amended the Act over the years it has not changed the Act to provide for tolling due to minority or other incompetency. The only change in the Act made by the legislature in regard to time limitations has been to restrict the time period in which the Court of Claims could grant extensions. The Act originally provided, in Section 3 (Ill.Rev.Stat. 1975, ch. 70, §73), in relevant part, that:

A person is entitled to compensation under this Act if:

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(g) his application for compensation under this Act is filed with the Court of Claims

within 2 years of the date of the injury to the victim or within such further extension

of time as the Court of Claims for good cause shown, allows provided, that, notice of

intent to file a claim is filed in the Office of the Attorney General within 6 months

of the date of injury, or within such further extension as the Court of Claims, for

good cause shown, allows.

The Act was amended by Public Act 81-1013, eff. Sept. 22, 1979. Section 3(g) was repealed and was replaced by the time limitations for filing that currently exist in Section 6.1(a). The Court of Claims no longer has discretion to grant extensions of time to file beyond one year from the time the notice of intent and application are to be filed.

It is the opinion of this Court that because the Crime Victims Compensation Act creates a right to relief that did not exist at common law the limitation provisions are a condition precedent to the right of recovery which must be adhered to strictly. Since the legislature did not provide a provisions in the Act to toll the limitations and has not done so when subsequently amending the Act, we regretfully feel constrained to conclude that claimants’ petitions for extensions of time must be denied due to the failure to timely file the documents necessary to seek compensation.

However, we have been advised that the legislature may consider addressing the issue during the spring of 1990. In deference to the legislature we will hold our final decision on these petitions in abeyance until September 30, 1990.

[*335] For purposes of possible legislative consideration, we point out that in addition to the various policy arguments for and against the tolling of a limitations period for minors, the facts in some of the cases in the last two groups lend themselves to arguments unique to the Crime Victims Compensation Act. In the third group are several cases where the adult parent or law enforcement authorities did not discover that a crime may have occurred until the limitations had expired. Due to the nature of child sexual abuse, the crime often goes undetected for a considerable length of time. A parent or guardian obviously could not begin the application process on behalf of a minor victim until aware that a crime may be been committed.

In the fourth group was the petition filed by Jenean McGuigan on behalf of her daughter who was severely injured in an accident involving drunken driving. The Act at Section 2(c) expressly conditions recovery of compensation for victims of this type of crime on the conviction of the perpetrator for driving under the influence. Ms. McGuigan stated that the accident occurred on July 20, 1986, but that the driver was not convicted until October 2, 1987. Under the present statutory limitations, no provision is made for tolling on account of the time required to obtain a conviction.

For the foregoing reasons, it is hereby ordered that our decisions on the cases at bar are held in abeyance until September 30, 1990 pending possible consideration of the issue by the legislature.