Opinion
1-21-0728
03-31-2022
JUAN A. FERNANDEZ, Plaintiff-Appellee, v. SAMANTHA SMITH, ANTONIO BANKS, and ALL UNKNOWN OCCUPANTS, Defendants Samantha Smith, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 18 M1 700454, Honorable David A. Skryd Judge, presiding.
ROCHFORD JUSTICE delivered the judgment of the court. Presiding Justice Reyes and Justice Martin concurred in the judgment.
ORDER
ROCHFORD JUSTICE.
¶ 1 Held: We vacated the circuit court's denial of defendant's section 2-1401 petition, which attacked the underlying eviction order for lack of personal jurisdiction, without an evidentiary hearing where defendant's affidavit created an issue of fact as to whether she was properly served with process and the denial of defendant's motion to seal and remanded for further proceedings.
¶ 2 Defendant-appellant, Samantha Smith, appeals from the denial of her section 2-1401 petition (735 ILCS 5/2-1401 (West 2020)) to vacate an order entered in this eviction action brought by plaintiff-appellee, Juan A. Fernandez, seeking back rent and possession of an apartment located at 1135 N. Parkside Avenue, First Floor (the apartment) and from the denial of her motion to seal the record. We vacate the circuit court's order denying the petition and the motion and remand to the circuit court for further proceedings.
¶ 3 On January 10, 2018, Fernandez, filed a complaint for eviction against Smith, Antonio Banks, and any unknown occupants of the apartment (collectively, defendants). Fernandez alleged that he was the owner of the apartment and that defendants had breached the terms of the lease by failing to pay rent, were unlawfully withholding possession of the apartment, and were indebted to Fernandez in the amount of $3150.
¶ 4 Fernandez first attempted personal service on defendants through the Cook County Sheriff. According to the Sheriff's affidavit, the Sheriff attempted to serve defendants at the apartment on January 14 and January 17, 2018. The attempts at service were unsuccessful due to "no contact."
¶ 5 Subsequently, Fernandez sought to serve defendants using a special process server. The affidavit of the special process server asserted that he accomplished substitute service on defendants at the apartment by:
"leaving a copy of this process at his/her usual place of abode with: Rena Doughtry, (Relationship): Roommate, a family member or person residing therein who is the age of 13 years or upwards confirmed the defendant resides at the above address and informed that person of the contents there of and that further mailed a copy of this process in a sealed envelope with postage paid addressed to the defendant at his/her usual place of abode on [February 1, 2018]." (Emphasis omitted).
¶ 6 On February 16, 2018, the circuit court entered an "agreed eviction order," (eviction order) signed only by Banks. The eviction order consisted of an order for possession against defendants, which required them to move out of the apartment by February 23, 2018, and a money judgment against only Banks in the amount of $4743.
¶ 7 On May 7, 2021, Smith filed a combined pleading containing a petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401) requesting that the court vacate the eviction order (petition) and a motion to seal the eviction record pursuant to section 9-121(b) of the Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-121(b) (West 2020)) (motion).
¶ 8 In the petition, Smith alleged that the eviction order was void as to her for lack of personal jurisdiction. Smith argued that the 2018 substitute service upon Doughtry at the apartment was not valid as to her because the apartment was not Smith's usual place of abode at the time of service and she never resided with Doughtry. Smith also maintained that if she had been served properly, she would have asserted valid defenses to the eviction suit including that Fernandez had served her with a defective five-day notice and more importantly she had vacated the apartment and terminated the lease under the Safe Homes Act (SHA) (765 ILCS 750/1 et seq. (2020)).
¶ 9 As to the motion, Smith argued that she had met the three elements of section 9-121(b) of the Act for sealing of the eviction record. First, the eviction order as against her was without a basis in fact or law because she was not served with process and had valid defenses to the eviction action. Second, sealing the court file was in the best interest of justice because her ability to obtain alternative housing was affected by the eviction order. Finally, the interests of justice were not outweighed by the public's interest in knowing about the eviction record where she was a victim of domestic violence and invoked the protections of the SHA when she vacated the apartment.
¶ 10 Smith supported her pleading with her affidavit, a "five days' notice" signed by Fernandez dated September 6, 2017 (September notice), a September 13, 2017 letter from Smith to Fernandez (September letter), and the affidavit of the special process server.
¶ 11 In her affidavit, Smith averred that she and Banks signed a one-year lease for the apartment in February 2017. During her tenancy, Fernandez resided at the same address, in a different unit.
¶ 12 In August 2017, Banks "assaulted and battered" Smith. She contacted a legal aid organization for assistance.
¶ 13 During this same time period, Smith received the September notice, which did not provide any specific information, i.e., the amount of rent owed.
¶ 14 On September 13, 2017, Smith presented Fernandez with the September letter informing Fernandez that, pursuant to the SHA, she was ending her lease early due to a "credible imminent threat of domestic violence against [her] on the premises." Smith explained that she had been verbally abused by Banks, her "ex-boyfriend," and was leaving the apartment as of September 30, 2017. Smith acknowledged that she owed Fernandez $500. To make good on the rent, Smith enclosed a money order in the amount of $250 and said that she would give Fernandez the remaining $250 "as of September 22, 2017."
¶ 15 Fernandez accepted the September letter and the enclosed money order. On or about September 23, 2017, Fernandez drove to the residence of Smith's mother, where Smith was staying, and accepted a second money order of $250. According to Smith, Fernandez communicated to her that he understood that her tenancy was terminated and that her safety was more important. Smith fully vacated the apartment and returned her key to Fernandez by September 30, 2017. Smith averred that she did not reside at the apartment after September 2017 and Doughtry was never her roommate. Banks continued to reside at the apartment. Smith averred that Fernandez never attempted to contact her after he received the second money order. Fernandez was aware that Smith was living at her mother's home but did not attempt to serve her with the eviction complaint at that address. Smith was never served with process.
¶ 16 On May 17, 2021, the Governor of the State of Illinois signed Public Act 102-005 which took "effect upon becoming law." Pub. Act 102-005, § 99-99 (eff. May 17, 2021). Public Act 102-005 amended section 9-121 to add subsection d, stating "[t]his section is operative on and after August 1, 2022." 735 ILCS 5/9-121(d) (West Supp. 2021) (added by Pub. Act 102-005, § 10-5). Public Act 102-005 also introduced section 9-121.5 to the Act providing for the sealing of eviction records, which will be discussed below. Id. § 9-121.5. Subsection i to section 9-121.5 provides that "[t]his section is repealed on August 1, 2022." Id. § 9-121.5(i).
¶ 17 The petition and motion were noticed for presentment on May 27, 2021. The court proceedings on that date were conducted by video conference; counsel for both parties and Fernandez were present. Fernandez had not filed a written response to the petition, but the time to respond had not yet expired by May 27.
¶ 18 Counsel for Smith briefly summarized the reasons for the court date and the nature of the petition and the motion. Counsel informed the court that Smith was seeking to vacate the eviction order on the ground that she had not been served and explained that she first learned of the case when her subsequent rental application was denied because of the eviction order. Counsel further maintained that it was unclear whether there was a money judgment against Smith. Counsel explained Smith was asking that the petition and motion be granted.
¶ 19 When the circuit court asked for a response, Fernandez's counsel stated that Fernandez "object[ed] to their motion" maintaining that Smith's counsel did not have a complete understanding of the record. Fernandez's counsel stated that a money judgment was entered against only Banks, but the order of possession was entered against all occupants including Smith. Fernandez's counsel also maintained that the September notice which was attached to Smith's petition was not the correct notice. According to Fernandez's counsel, Fernandez served Smith personally with a November 17, 2018 "five days' notice" (November notice), which served as the basis of the eviction action. Counsel for Fernandez told the court that Fernandez could produce the November notice and testify to the November notice and his lack of knowledge that Smith had moved from the apartment and that he had not agreed to let her out of the lease. The court did not hear testimony and Fernandez did not present evidence.
¶ 20 The court denied both the petition and the motion stating:
"Okay. Just based on the facts of the case what counsel presented, sounds from his presentation he's missing facts when he starts talking about an order for possession when there's a money judgment. Well, the order for possession is a judgment. If there's a money order entered, you've got judgment that includes the money and the order for possession. We're not going to relitigate the case. Too late to bring that back based on what he's presented. He's missing the facts. He's missing the issue regarding the service of the notice and the documents that [Fernandez's counsel] ha[s].
And additionally for any other basis aside from the fact that there's a judgment any other discretionary remedy regarding sealing, that's going to be denied. They're public records. So the motion is denied."
The circuit court also entered a written order denying the petition and the motion (order). The court denied Smith's counsel's oral request to add language to the order that the decision was "final and appealable."
¶ 21 Smith has appealed from the denials of the petition and the motion.
¶ 22 On appeal, Smith argues that the circuit court erred in denying the petition in that the eviction order was void as to her for lack of personal jurisdiction and that in the event the court had jurisdiction, she had valid defenses to the eviction. Smith further seeks reversal of the denial of the motion in that she satisfied all of the elements of section 9-121(b) and argues that this court has the authority to seal the record under the recently enacted section 9-121.5(b). We allowed the Illinois Coalition Against Domestic Violence, Illinois Coalition Against Sexual Assault, Legal Aid Chicago, National Housing Law Project, Shriver Center on Poverty Law, and Housing Action Illinois to file a joint amicus curiae brief on behalf of Smith.
¶ 23 Fernandez has not filed an appellee brief; we may consider this appeal on the record and appellant's brief only. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133 (1976) (allowing consideration of appeal on appellant's brief only where the record is simple and errors can be considered without additional briefing).
¶ 24 This court has an independent duty to consider the issue of our jurisdiction. Palmolive Tower Condominiums, LLC v. Simon, 409 Ill.App.3d 539, 542 (2009).
¶ 25 In her brief, Smith asserts that that this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), which provides that all final orders in the circuit court are appealable as a matter of right. This court has jurisdiction over a final order where the notice of appeal is filed within 30 days after entry of that order (Ill. S.Ct. R. 303 (eff. Jan. 1, 2015)). The order here includes the denial of the petition and the denial of the motion.
¶ 26 Section 2-1401 of the Code "authorizes a party to seek relief from a final judgment, such as a default judgment, when brought more than 30 days after judgment has been entered." Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 101 (2002). The filing of a section 2- 1401 petition is not a continuation of the underlying litigation but rather a new proceeding. Id. at 102. A circuit court's decision on a petition is considered a final order and is immediately reviewable under Illinois Supreme Court Rule 304(b)(3) (eff. Mar. 8, 2016) which provides that an appeal may be taken from" [a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the [Code].". This court has jurisdiction over Smith's timely appeal from the denial of the petition under Rule 304(b) (3).
¶ 27 There is no supreme court rule addressing appellate jurisdiction over denials of motions to seal and thus we must determine whether the denial of the motion is final and appealable under Rules 301 and 303.
¶ 28" 'An order is final and thus appealable if it either terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate branch thereof.'" Habitat Company, LLC v. Peeples, 2018 IL App (1st) 171420, ¶ 28 (quoting BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, ¶ 18). An order denying a motion to seal that" dispose[s] of the rights of the parties as to the issue of sealing and [where] there [are] no pending claims or issues as to the underlying litigation" is a final and appealable order. Peeples, 2018 IL App (1st) 171420, ¶ 29 (citing Village of Bellwood v. American National Bank and Trusts Co., 2011 IL App (1st) 093115, ¶ 15)).
¶ 29 In Peeples, the eviction action was dismissed with leave to reinstate by a certain date pursuant to an agreed order. 2018 IL App (1st) 171420, ¶ 6. The defendant later filed a motion to seal under section 9-121(b) (735 ILCS 5/9-121(b) (West 2016)) more than 30 days after the dismissal order became final. Peeples, 2018 IL App (1st) 171420, ¶ 7. The circuit court denied the motion and the defendant appealed. Id. ¶ 10.
¶ 30 On appeal, the plaintiff first argued that the circuit court lacked jurisdiction to hear the motion to seal since it was filed more than 30 days after the dismissal order became final and therefore there was no appellate jurisdiction. Id. ¶ 14. This court concluded that the motion to seal was a free standing, collateral action that was not subject to the ordinary 30-day jurisdictional time limit and held that the circuit court had jurisdiction to consider the defendant's motion to seal. Id. ¶ 25-26 (analyzing the plain language of section 9-121(b) in light of People v. Mingo, 403 Ill.App.3d 968 (2010) (finding that the "plain language of section 5-9-2 [of the Unified Code of Corrections (730 ILCS 5/5-9-2 (West 2008))] does not impose any time limit on the filing of a petition to revoke fines" and therefore the circuit court had jurisdiction to hear the petition filed more than 30 days after the entry of the judgment)).
¶ 31 The plaintiff also argued that there was no appellate jurisdiction because the denial of the motion to seal was not a final and appealable order. Peeples, 2018 IL App (1st) 171420, ¶ 27. This court found that the order was final and appealable as the denial of the motion to seal disposed of the rights of the parties as to the issue of sealing the record and that there were no other pending claims or issues as to the underlying litigation. Id. ¶ 29-31.
¶ 32 Here, although the motion was filed more than 30 days after entry of the eviction order, it did not attack or contest that order. Smith's motion requested only that the court file be sealed. Therefore, the circuit court had jurisdiction to consider the motion as it was a freestanding, collateral action. The circuit court's denial of the motion disposed of all issues as to the sealing of the eviction record. And there were no more pending issues; the underlying eviction action was resolved by the eviction order and the petition was resolved by the order. Thus, we also have appellate jurisdiction to consider the denial of the motion.
¶ 33 Finding we have jurisdiction over the denial of both the petition and motion, we turn to consider Smith's appeal as to the denial of the petition.
¶ 34 Initially, we will address whether the circuit court's denial of the petition was premature.
¶ 35 A section 2-1401 petition is the initial pleading in a new proceeding, rather than a continuation of the underlying case. Sarkissian, 201 Ill.2d at 102. Therefore, a respondent may answer or move to dismiss the petition either under section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)) for failure to state a claim or under section 2-619 of the Code (Id. § 2-619) based on an affirmative defense. Blazyk v. Daman Express, Inc., 406 Ill.App.3d 203, 207 (2010).
¶ 36 A circuit court may sua sponte dismiss a section 2-1401 petition without notice or an opportunity to be heard when the petition does not, as a matter of law, warrant relief. People v. Vincent, 226 Ill.2d 1, 7 (2007). However, a circuit court is precluded from dismissing a petition sua sponte before the 30-day period in which the respondent is entitled to respond has expired. People v. Laugharn, 233 Ill.2d 318, 323 (2009). Sua sponte means "without prompting or suggestion; on its own motion." Wells Fargo Bank, N.A. v. Sanders, 2015 IL App (1st) 141272, ¶ 25 (quoting Black's Law Dictionary (9th ed. 2009)). "The only exceptions to the 30-day requirement are a responsive pleading filed by the [respondent] [citation] or an express indication on the record of the [respondent's] intent to waive the time allotted for a response and consent to the court's early decision on the merits *** [citation]." People v. Dalton, 2017 IL App (3d) 150213, ¶ 35; see also Sanders, 2015 IL App (1st) 141272 (acknowledging that a court may rule on a 2-1401 petition within the 30-day response period if it is not acting sua sponte).
¶ 37 Here, the circuit court denied the petition before the expiration of the 30-day response period and without a written response from Fernandez. On the date noticed only for presentment of the petition, counsel for both sides gave perfunctory overviews of the issues raised by the petition. Although Fernandez's counsel did not seek time to file a written response, he did assert that Fernandez would be able to produce the November notice and testify that Smith did not give him confirmation that she vacated the apartment and that he had not agreed to let her out of the lease. Fernandez did not testify and did not submit any evidence. Neither party objected to the court ruling on the petition on that day and in that manner. Neither party requested to brief the petition. Further, Smith does not argue on appeal that the circuit court's decision was sua sponte.
¶ 38 It is arguable that the denial of the petition was not made sua sponte if we view the court's denial of the petition as being "prompted" or "suggested" by Fernandez's counsel's representations. Sanders, 2015 IL App (1st) 141272, ¶ 25. On the other hand, the parties did not expressly waive or consent to the waiver of a written response to the petition or to the circuit court deciding the merits of the petition on the initial presentment of the petition. See Dalton, 2017 IL App (3d) 150213, ¶ 35 (recognizing that an express indication on the record to waive the time allotted for a response and consent to the court's early decision is an exception to the 30-day requirement). In fact, Fernandez's counsel suggested that Fernandez could testify and present evidence to support his objections to the petition. And due process would have been better served if Fernandez had filed a written response to the petition and been allowed to present his evidence and arguments. Additionally, in this way, Smith would have been given notice of Fernandez's objections and a chance to address those objections in writing and present her evidence at a hearing. See People v. Bradley, 2017 IL App (4th) 150527, ¶ 19 (holding that "due process bars a [circuit] court from granting an opposing party's motion to dismiss a section 2-1401 petition without allowing the petitioner notice and a meaningful opportunity to respond").
¶ 39 We need not decide whether the petition was denied sua sponte. As will be discussed, the circuit court's denial of the petition must be vacated and the matter remanded on other grounds.
¶ 40 As to the merits of the appeal from the denial of the petition, Smith first argues that the circuit court erred in finding that the petition was untimely filed as she was attacking the eviction order as void. We agree.
¶ 41 Generally, a section 2-1401 petition must be brought within two years of the judgment. 735 ILCS 5/2-1401(c). However, when a section 2-1401 petition is brought on voidness grounds, "the general rules pertaining to section 2-1401 petitions-that they must be filed within two years of the order or judgment, that the petitioner must allege a meritorious defense to the original action, and that the petitioner must show that the petition was brought with due diligence-do not apply." Sarkissian, 201 Ill.2d at 104. An order entered by a court lacking jurisdiction is void and may be attacked at any time, either directly or collaterally. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17.
¶ 42 Plaintiff's petition charged that the circuit court did not have personal jurisdiction over her when it entered the eviction order and therefore the eviction order was void as to her. The two-year filing requirement did not apply to the petition. We find that the petition was not untimely filed, and the circuit court erred in denying the petition for the reason it was "too late."
¶ 43 Smith also contends that the circuit court erred in denying the petition without an evidentiary hearing as to the jurisdictional issue. We agree.
¶ 44 We review de novo a circuit court's decision on a section 2-1401 petition claiming voidness due to lack of personal jurisdiction. Warren County Soil Conservation District v. Walters, 2015 IL 117783, ¶ 47 (citing Vincent, 226 Ill.2d at 5).
¶ 45 In order to enter a valid judgment, a circuit court must possess both subject-matter jurisdiction and personal jurisdiction over the parties. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 308 (1986); Mitchell, 2014 IL 116311, ¶ 17. If a defendant is not properly served, the order entered against that defendant is void regardless of whether they had knowledge of the proceedings. Thill, 113 Ill.2d at 308. A section 2-1401 petition is the appropriate pleading to vacate a void judgment. Sarkissian, 201 Ill.2d at 103.
¶ 46 A circuit court acquires personal jurisdiction over a defendant either through the filing of an appearance or by service of process as directed by statute. Thill, 113 Ill.2d at 308; Mitchell, 2014 IL 116311, ¶ 17. Section 2-203(a)(2) of the Code provides the procedure required to attain abode or substitute service:
"service of summons upon an individual defendant shall be made ***by leaving a copy at the defendant's usual abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at her or her usual place of abode***. The certificate of the officer or affidavit of the person that he or she has sent the copy in pursuance of this Section is evidence that he or she has done so." 735 ILCS 5/2-203 (a) (West 2018).
A return of service based on substitute service must show strict compliance with every requirement of the statute. Thill, 113 Ill.2d at 309.
¶ 47 When service is accomplished by substitute service, unlike personal service, there is no presumption of validity as to the return of service. Id. Facts not within the process server's knowledge, such as the defendant's usual place of abode and whether a person is a member of defendant's home, may be rebutted by the defendant's own affidavit. Nibco, Inc. v. Johnson, 98 Ill.2d 166, 172-73 (1983). If the defendant's affidavit is not contradicted, it should be taken as true. Id. at 173. Where a defendant meets their burden to rebut the affidavit of substitute service, an evidentiary hearing on the issue of service is warranted. Thill, 113 Ill.2d at 312.
¶ 48 Here, Smith, was in the best position to describe the location of her usual place of abode and state whether any person resided with her at the time of the claimed abode service. In her affidavit, Smith averred that in September 2017, she fully vacated the apartment, five months prior to service of process, and did not live there again. She also averred that Doughtry was never her roommate. Fernandez did not file a written response to the petition or a counteraffidavit and did not present any contradictory evidence during the court proceeding. Thus, the facts in Smith's affidavit should have been taken as true and those facts rebutted the special process server's affidavit of abode service.
¶ 49 Because Smith created issues of fact as to whether she was properly served, the circuit court was obligated to hold an evidentiary hearing to resolve those issues. Thill, 113 Ill.2d at 312 (finding that the appellate court properly remanded case to the circuit court for an evidentiary hearing on the issue of service). We vacate the denial of Smith's section 2-1401 petition and remand the petition for an evidentiary hearing after Fernandez is given an opportunity to file a written response and both sides have been allowed to fully brief the petition.
¶ 50 We next turn to Smith's argument that the circuit court abused its discretion in denying the motion where it failed to consider the elements of section 9-121(b). Smith further argues that this court has the authority to seal the eviction record under section 9-121.5(b), which became effective during the pendency of the motion.
¶ 51 Smith, on May 7, 2021, filed the motion under subsection b of section 9-121. 735 ILCS 5/9-121(b) (West 2020). As we have stated, on May 17, 2021, prior to the entry of the order, Public Act 102-005 went into effect, which amended section 9-121 and introduced section 9-121.5.
¶ 52 The only change made to section 9-121 was the addition of subsection d. 735 ILCS 5/9-121(d) (West Supp. 2021) (added by Pub. Act 102-005 (eff. May 17, 2021)). The amended version of section 9-121 provides:
"Sealing of court file.
(a) Definition. As used in this Section, "court file" means the court file created when an eviction action is filed with the court.
(b) Discretionary sealing of court file. The court may order that a court file in an eviction action be placed under seal if the court finds that the plaintiff's action is sufficiently without a basis in law or fact, which may include lack of jurisdiction, that placing the court file under seal is clearly in the interests of justice, and that those interests are not outweighed by the public's interest in knowing the record.
(c) Mandatory sealing of court file. The court file relating to an eviction action brought against a tenant under Section 9-207.5 of this Code or as set forth in subdivision (h) (6) of Section 15-1701 of this Code shall be place under seal.
(d) This section is operative on and after August 1, 2022." Id. § 9-121.
Under section 9-121(b), a circuit court in determining whether to seal an eviction record must render findings regarding the "three distinct elements" of the statue. Peeples, 2018 IL App (1st) 171420, ¶ 38. A court may deny a section 9-121(b) motion to seal if it finds one of the elements is not met. Id. ¶ 47 (finding the circuit court did not abuse its discretion in denying a motion to seal where the underlying eviction action had a sufficient legal and factual basis).
¶ 53 Public Act 102-005 also introduced section 9-121.5 providing:
"Sealing of court file.
(a) As used in this Section, "court file" means the court filed created when an eviction action is filed with the court.
(b) The court shall order the sealing of any court file in a residential eviction action if:
(1) the interests of justice in the sealing the court file outweighs the public interest in maintaining the public record;
(2) the parties to the eviction action agree to seal the court file;
(3) there was no material violation of the terms of the tenancy by the tenant; or
(4) the case was dismissed without prejudice.
(c) The court file relating to an eviction action brought against a tenant under Section 9-207.5 of this Code or as set forth in subdivision (h)(6) of Section 15-1701 of this Code shall be placed under seal.
(i) This section is repealed on August 1, 2022." 735 ILCS 5/9-121.5(a)-(c), (i) (West Supp. 2021) (added by Pub. Act 102-005).
Section 9-121.5(b) uses mandatory language and states that a court "shall" seal the eviction record if any of the specified elements has been met. See In re M.I., 2013 IL 113776, ¶¶ 16, 21 (" 'shall' usually *** indicate[s] the legislature intended to impose a mandatory obligation").
¶ 54 Although Smith does not directly address this issue, we first consider whether section 9-121.5(b) or section 9-121(b) applied to the motion as the two sections contain different standards.
¶ 55 In determining whether to apply a change in law to a pending cause of action, courts must first consider the legislative intent. Perry v. Department of Financial & Professional Regulation, 2018 IL 122349, ¶ 39. "If the legislature has clearly indicated the temporal reach, then such temporal reach must be given effect unless to do so would be constitutionally prohibited." Id. ¶ 40.
¶ 56 Our reading of Public Act 102-005 leads to a conclusion that the legislature intended to substitute section 9-121.5 for section 9-121 during a specific time period, from the effective date of Public Act 102-005, May 17, 2021, to August 1, 2022. First, the sections are both titled "sealing of court records" and have the same purpose as evidenced by the similarity in language. Second, the expressed operative date of each section indicates that they are not operative during the same time period. The addition of subsection d to section 9-121 and the new section 9-121.5, pursuant to Public Act 102-005, went into effect on the same day. The new subsection d specifically provided that section 9-121 would not be operative until August 1, 2022 and subsection i of section 9-121.5 specifically provided that section 9-121.5 would be repealed on August 1, 2022. Therefore, the import of Public Act 102-005 is that section 9-121.5 is operative from May 17, 2021 to August 1, 2022, the exact time period that section 9-121 is not operative.
¶ 57 Further, after examining section 9-121.5, we conclude that this section governed the motion which was pending at the time the changes of Public Act 102-005 became effective. Section 9- 121.5 states that it applies to "any court file in a residential eviction act." This language exhibits a clear intent that section 9-121.5 governed all motions to seal eviction records pending at the time of its enactment through the time it is repealed.
¶ 58 We find that the legislature clearly indicated the temporal reach of both section 9-121 and section 9-121.5 with section 9-121.5 being the operative sealing provision at the time the motion was decided and by its express language, section 9-121.5 applied to the motion as a pending request to seal a court file in an eviction action.
¶ 59 We review a circuit court's determination as to whether court records should be sealed for an abuse of discretion. Peeples, 2018 IL App (1st) 171420, ¶ 46 (citing Skolnick v. Altheimer & Gray, 191 Ill. 214, 233 (2000)). A court abuses its discretion where its ruling is "arbitrary, fanciful, or unreasonable, or where no reasonable person would adopt the court's view." TruServ Corp. v. Ernst & Young, LLP, 376 Ill.App.3d 218, 227 (2007).
¶ 60 The circuit court denied the motion with no analysis of section 9-121.5(b) or even of section 9-121(b) and without considering the circumstances of the case or Smith's assertions that she was protected by the SHA. The court merely denied the motion with vague references to its discretion and the public nature of the eviction record.
¶ 61 In considering a motion to seal under section 9-121.5(b), a court must undergo an analysis of the movant's request, the interests raised by the motion and the facts, and the circumstances of the case in light of the statutory elements. Because that was not done here, the circuit court erred in denying the motion and we are without a sufficient record to determine whether the eviction case should be sealed under section 9-121.5(b). We vacate the order denying the motion and remand this issue for full consideration of the motion by the circuit court under the standards of section 9-121.5(b), which require sealing if one of the statutory elements is met.
¶ 62 We need not consider the remaining arguments presented by Smith and the amici curiae in light of our decision to vacate the denials of the petition and the motion.
¶ 63 For the reasons stated above, we vacate the circuit court's order and its denials of the petition and the motion and remand for further proceedings consistent with this decision.
¶ 64 Vacated and remanded.