Does “no” mean “no”?
In a recent decision, the Illinois Supreme Court majority’s answer to that question was “no.”
In a case that has nothing to do with sex, dissenting Chief Justice Lloyd Karmeier rebuked his colleagues for their conclusion.
“‘No’ means ‘no,’ and Illinois long ago rejected the notion that ‘voluntary submission by a female who still has the power to resist, no matter how reluctantly yielded, amounts to her consent to the act.’ The majority’s opinion takes us backward to a time when some thought otherwise. I will not go there with them. The owner acquiesced. She did not consent,” Karmeier wrote.
The case involved forfeiture law, and this specific dispute concerns a motorcycle that belonged — with emphasis on the word “belonged” — to Petra Henderson. If the high court’s ruling stands, the Robinson Police Department will sell it and pocket the proceeds.
Here are the facts.
Petra Henderson owned a 2010 Harley-Davidson “trike” motorcycle bought for $35,000 (to be made in payments of $160 every two weeks) in 2010.
One day in April 2014, Mark Henderson, her “chronic drunk” of a husband, whose driver’s license was suspended for drunken driving, suggested they go for a ride. She drove, as she always did, and their circuitous trek eventually led them to the Corner Place bar in Robinson.
They went in, and he got drunk. When they left, Mark Henderson jumped on the motorcycle, insisted on driving, repeatedly revved up the engine and told her to either get on or walk home.
His revving of the engine drew the attention of police officers, who followed Mark Henderson’s wild drive home and then arrested him for driving under the influence.
Using forfeiture law, whose recent modifications do not take effect until this summer, the state seized the motorcycle, even though it belonged to Petra Henderson, not her husband.
She objected, losing in the trial court. At the appellate court, Petra Henderson won a unanimous victory, the appeals court ruling that the forfeiture violated the U.S. Constitution clause barring excessive fines.
The Supreme Court agreed to hear the case, and overturned the appellate court by finding the trial court acted properly.
In a bloodless 13-page decision, the majority found that Petra Henderson should have known better than to let her husband drive.
Writing for the majority, Justice Thomas Kilbride wrote that Petra Henderson “bore more than marginal culpability” because she “consented to her husband driving the motorcycle,” she “knowingly (granted) her husband consent,” she “knowingly gave her husband consent” to drive the motorcycle.
In an animated, angry 29-page dissent, Karmeier put some flesh on the bare bones of what he viewed as the majority’s preposterous decision.
“Standing alone outside the Corner Place sports bar in the middle of the night along an empty street in her small, rural town, Petra Henderson had to make a decision, and she had to make it fast. Her husband, who had no driver’s license, was drunk again,” he wrote.
Readers who have had the experience of dealing with drunks know where this is headed.
Petra Henderson had two choices — one bad and the other worse, although one could certainly argue about which was which.
The drunk husband was insisting on driving, and, Karmeier wrote, “Petra was powerless physically to stop him, and they both knew it.”
Karmeier concluded the excessive-fines argument simply did not apply because the case never should have gotten that far. Under state law, he found, Petra Henderson was blameless, and the court’s majority made repeated errors of judgment and law to find otherwise.
He asserted — later addressing each point in fine detail — that the five-member majority (Justices Kilbride, Mary Jane Theis, Rita Garman, Robert Thomas and Charles Freeman) interpreted the state’s forfeiture law “incorrectly” and in a way that “yields an absurd result,” upheld a trial-court decision that is “contrary to the manifest weight of the evidence,” “employs erroneous presumptions,” “fails to follow the proper legal framework regarding the excessive fines clause,” “cites erroneous authority” and “ultimately reaches a conclusion that is opposite the ones commanded by the standards adopted by this court and consistently followed by the courts of Illinois.”
“For all these reasons, I respectfully dissent,” he wrote.
Karmeier wrote that Petra Henderson broke no law and expressed shock at “the disparity between what the wife had done, ‘acquiescing to (her husband’s) use of the motorcycle,’ and the penalty she suffered, loss of the vehicle.”
In a sarcastic footnote, Karmeier ridiculed the state’s argument that “upholding the forfeiture of the owner’s vehicle … is necessary to insure the wealthy are not treated more favorably under the law than persons of more modest means.”
“So far as can be ascertained from the record, she is a regular working person. I, for one, have difficulty understanding how confiscating what is probably a working person’s most valuable piece of property serves to prevent preferential treatment for the rich,” Karmeier wrote.
Readers get the point. Karmeier is angry over the ruling and disgusted his colleagues could be so blind to the facts as he saw them.
But since two is fewer than five, Karmeier’s loud dissent — which was joined by Justice Anne Burke — is of no more value than a loud foul ball in a baseball game.
Although Petra Henderson still has the privilege of making the required payments, her motorcycle is no longer hers.
Jim Dey, a member of The News-Gazette staff, can be reached by email at [email protected] or by phone at 217-351-5369.