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In re Estate of Ivy

Court of Appeals of Illinois, First District, Third Division

June 26, 2019

In re ESTATE OF MARJORIE IVY Deceased
v.
Mordechai Faskowitz, Respondent-Appellant. Christopher Ivy, Independent Administrator, Petitioner-Appellee,

          Appeal from the Circuit Court of Cook County. No. 14 P 2200 Honorable Karen O'Malley, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

          OPINION

          HOWSE, JUSTICE.

         ¶ 1 The issue presented in this case is whether a person charged with first degree murder of a decedent and found not guilty by reason of insanity (NGRI) is barred by collateral estoppel from contesting that he "intentionally and unjustifiably" caused decedent's death under section 2-6 of the Probate Act of 1975, commonly known as the Slayer Statute (755 ILCS 5/2-6 (West 2012)). The Cook County probate court granted petitioner's motion for summary judgment, ruling that the criminal court's NGRI finding on two counts of first degree murder acts, by way of collateral estoppel, to establish that respondent "intentionally and unjustifiably" caused Marjorie Ivy's (Decedent) death, thereby prohibiting him from receiving from Decedent's estate under the Slayer Statute.

         ¶ 2 For the following reasons we reverse.

         ¶ 3 BACKGROUND

         ¶ 4 Relevant History Antecedent the Probate Proceeding at Issue

         ¶ 5 On June 7, 2016, respondent Mordechai Faskowitz was found NGRI for the death of his girlfriend of 32 years. The events leading up to Decedent's death are as follows.

         ¶ 6 Throughout respondent and Decedent's relationship, respondent suffered from schizophrenia, which had been controlled by medication until June 2013 when respondent stopped receiving his psychiatric medication. The pharmacy was unable to read the handwriting on his prescription, and despite efforts by respondent and others to obtain a new prescription, respondent was without medication until August 2013. Without his medication, respondent's mental health substantially deteriorated. Respondent believed he was in danger of being murdered by skinheads, Nazis, and the Mafia because God had chosen him to help and protect the helpless and homeless. He believed that Decedent wanted to kill him because she was the leader of the skinheads and Satan. At one time, respondent began eating raw rats believing it would spread a plague among evil doers. On September 12, 2013, respondent was arrested by the Chicago Police Department after he attacked a man walking a pit bull, believing the man was a skinhead stalking him. Respondent was placed in the psychiatric ward at MacNeal Hospital, where he attacked two people and was considered a danger to others. Despite the danger documented at MacNeal, on September 27, 2013, respondent was released without medication because he told a doctor that he would not attack anyone if no one attacked him.

         ¶ 7 On October 9, 2013, respondent went to Decedent's home with a knife that he had brought from his residence. He entered Decedent's home, called her a monster, threw her on the floor, and killed her by stabbing her more than 40 times with the knife. Respondent was arrested in connection with Decedent's death and charged with (1) one count of first degree murder pursuant to section 9-1(a)(1) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/9- 1(a)(1) (West 2012)), (2) one count of first degree murder pursuant to section 9-1(a)(2) of the Code (id. § 9-1(a)(2)), and (3) one count of concealment of a homicidal death (id. § 9-3.4(a)).

         ¶ 8 Criminal Trial

         ¶ 9 At his criminal trial, respondent asserted an insanity defense. During the trial, defense's expert, Dr. Roni Seltzberg, opined that, within a reasonable degree of medical and psychiatric certainty, respondent was suffering from acute psychotic mental illness, specifically, schizophrenia, at the time he killed Decedent, which impaired his judgment to the extent that he was not able to appreciate the criminality of his conduct. Dr. Seltzberg testified that respondent felt he had to kill Decedent because she was evil and trying to kill him, Orthodox Jews, homeless people, and others and God was directing him to do this because it was the right thing to do.

         ¶ 10 Dr. Christina Floreani's testimony was offered by stipulation. Dr. Floreani opined that respondent was legally insane at the time he killed Decedent and was suffering from a mental disease and/or defect that resulted in a substantial lack of capacity to appreciate the criminality of his conduct. She reported that when respondent was at MacNeal in September 2013 he was very psychotic, aggressive, delusional, and not adherent to his medication and was discharged without any psychotropic medication. She reported that respondent told her that at the point when he killed Decedent he "was already thinking that there were these people running around like demons, posing as people, and [he] thought Decedent might be one of these demons."

         ¶ 11 Dr. Kristin Schoenback's testimony was also admitted by stipulation. Dr. Schoenback opined that to a reasonable degree of psychological and scientific certainty respondent was legally insane at the time of the offense and as a result lacked substantial capacity to appreciate the criminality of his conduct.

         ¶ 12 At the conclusion of the criminal trial, respondent was found not guilty on all counts by reason of insanity. During its ruling, the criminal trial judge made the following statements: "This case certainly is a tragedy. There's no question about it. As an aside, I guess it is not really relevant to my finding, but I sure hope someone is suing the c*** out of MacNeal Hospital. It seems like this could have been prevented. It is a horrible tragedy *** three experts telling us that Mr. Faskowitz was insane at the time, the system failed him, specifically, MacNeal Hospital failed him by sending him out without any medication and thinking that, that was just fine. I do find him not guilty by reason of insanity NGRI. *** I am finding him the same on all three counts not guilty by reason of insanity."

         ¶ 13 Procedural Posture in Probate Proceedings

         ¶ 14 Decedent died intestate leaving certain assets of which respondent was named beneficiary including an individual retirement account, an annuity, two investment accounts, and the "Mordechai Faskowitz Supplemental Care Trust." On August 1, 2016, petitioner Christopher Ivy, Decedent's nephew and independent administrator of Decedent's estate, filed a "Petition to Disqualify Mordechai Faskowitz From Receiving Benefits Under the Slayer Statute and Distribute Assets to Successor Beneficiaries to the Estate of Marjorie G. Ivy," which was subsequently amended on August 25, 2016 (Amended Petition). The Amended Petition and related filings seek to disqualify respondent from receiving benefits from Decedent's estate for reasons to include the Slayer Statute (755 ILCS 5/2-6 (West 2012)) because respondent "intentionally and unjustifiably" caused Decedent's death. The Slayer Statute prevents a person who intentionally and unjustifiably kills a decedent from receiving property from the decedent through inheritance laws or otherwise and states in relevant part as follows:

"A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing the death died before the decedent, provided that with respect to joint tenancy property the interest possessed prior to the death by the person causing the death shall not be diminished by the application of this Section. A determination under this Section may be made by any court of competent jurisdiction separate and apart from any criminal proceeding arising from the death, provided that no such civil proceeding shall proceed to trial nor shall the person be required to submit to discovery in such civil proceeding until such time as any criminal proceeding has been finally determined by the trial court or, in the event no criminal charge has been brought, prior to one year after the date of death. A person convicted of first degree murder or second degree murder of the decedent is conclusively presumed to have caused the death intentionally and unjustifiably for purposes of this Section." (Emphases added.) Id.

         ¶ 15 Respondent, through his agent pursuant to power of attorney, filed an answer to the Amended Petition on September 8, 2016.

         ¶ 16 On September 14, 2016, petitioner filed a reply to respondent's answer and motion for judgment on the pleadings pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2016)) arguing that as a matter of law respondent should be deemed to have predeceased Decedent under the Slayer Statute. Following a hearing on petitioner's section 2-615 motion, the trial court denied the motion, finding:

"only where a person is convicted of murdering the decedent in the first or second degree is it necessarily the case that he or she has also 'intentionally and justifiably' [sic] caused the death of the decedent for purposes of the Slayer Statute. [Citation.] In all other circumstances, including the instant one, a court must make the determination on the particular facts of the case-'separate and apart from [the] criminal proceeding arising from the death ***.' "

         The trial court further found that "whether Faskowitz 'intentionally and unjustifiably' caused the death of Decedent remains a question of material fact that may not be resolved on the pleadings; as such, Respondent is entitled to a hearing on the same."

         ¶ 17 Thereafter, discovery was undertaken to include the deposition of Dr. Seltzberg wherein she recounted statements made to her by respondent as follows: that he brought the knife that he used to kill Decedent from his home and let himself into Decedent's home; that he stabbed Decedent repeatedly and cut her neck to make sure she was dead; that prior to the day he killed Decedent, respondent thought about killing her; that he killed Decedent because he believed that he received a sign from the Lord that killing Decedent was the right thing to do; that he killed Decedent believing God wanted him to because Decedent was making his life not worth living and because she was teaching skinheads to kill Orthodox Jews; that he killed Decedent because he thought she was the leading skinhead and that she was trying to have him killed because he recognized a gay rabbi; and that he believed when he heard the air conditioning go on while killing Decedent it was a message from God that what he was doing was right and he was basically saving the world.

         ¶ 18 On October 25, 2017, petitioner filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (id. § 2-1005). A response was filed on respondent's behalf on December 7, 2017.

         ¶ 19 On June 22, 2018, the probate court entered an order granting petitioner's summary judgment motion. In its order, the probate court noted that Illinois Rule of Evidence 201 (eff. Jan. 1, 2011) allowed the court to take judicial notice of two facts. The first fact was that respondent was charged in the prior criminal case with two counts of first degree murder pursuant to sections 9-1(a)(1) and 9-1(a)(2) of the Criminal Code and one count of concealment of homicide pursuant to section 9-3.4(a) of the Criminal Code. The second fact the court took judicial notice of was the criminal trial judge's adjudication of respondent as NGRI on all three counts.

         ¶ 20 The trial court set forth the language in section 9-1(a) of the Criminal Code, which states that:

"(a) A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) he knows that such acts create a strong probability of death or great bodily harm to that individual or another ***." 720 ILCS 5/9-1(a)(1), (2) (West 2012).

         ¶ 21 The probate court noted that for the criminal trial judge to find respondent NGRI on each count of first degree murder, the prosecution had to prove every element of the offenses beyond a reasonable doubt. In finding respondent NGRI, the criminal trial judge made a determination as to respondent's mental state in the criminal proceeding, which the trial court concluded constituted an adjudication sufficient to satisfy the Slayer Statute's requirement that respondent "intentionally and unjustifiably" caused Decedent's death. The probate court further concluded that there was a final judgment on the merits in the criminal litigation to which respondent was a party and that respondent had a full and fair opportunity to litigate all the relevant issues in the criminal trial. Accordingly, the probate court found that collateral estoppel applied to bar respondent from relitigating the issue of whether he intentionally and unjustifiably caused Decedent's death, thus preventing respondent from inheriting from Decedent's estate under the Slayer Statute. The probate court entered summary judgment in favor of petitioner.

         ¶ 22 Respondent timely appealed pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016).

         ¶ 23 This appeal followed.

         ¶ 24 ANALYSIS

         ¶ 25 On appeal, respondent argues that the trial court erred in applying the doctrine of collateral estoppel to find that a NGRI verdict against a defendant effectively creates an irrebuttable presumption that the defendant is barred from taking as a beneficiary of a decedent under the Slayer Statute. In support of his position, respondent argues that (1) the plain language of the statute limits an irrebuttable presumption of intentionally and unjustifiably causing death only to convictions of first or second degree murder, (2) the Illinois legislature did not intend for a finding of NGRI to be an automatic bar to taking under the Slayer Statute, (3) the trial court's application of the doctrine of collateral estoppel was misplaced, and (4) public policy dictates against punishing an individual found to be NGRI.

         ¶ 26 In response, petitioner argues that (1) the trial court correctly found respondent intentionally and unjustifiably caused Decedent's death, preventing him from receiving under the Slayer Statute because (a collateral estoppel applies as a bar to relitigation of the issues of respondent's "intent and justification," those issues having been resolved in the criminal trial; (b) public policy does not prohibit application of the Slayer Statute to persons found NGRI; and (c) the Slayer Statute does not require a separate hearing. Petitioner further argues that (2) the Slayer Statute should be interpreted as a per se bar against persons found NGRI from receiving from their victims. In the alternative, petitioner argues that, (3) even if ...


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