Appellate Lawyers Association of Illinois Blog

Job Vacancy - Appellate Court Legal Research Director

Paul Coogan — Mon, 23 Mar 2026 15:28:44 GMT

The First District, Illinois Appellate Court, seeks an experienced and collaborative Legal Research Director to lead a talented staff of attorneys. This leadership role ensures the highest quality of legal analysis supporting the court’s decision-making. The ideal candidate brings both deep legal research expertise and a commitment to mentoring and innovation within the judicial system.

Annual Salary Range: $114,482-158,000

The Legal Research Director of the First District of the Illinois Appellate Court is an executive level position with a wide-range of responsibilities for the management of the First District’s Legal Research Department. The position is located in Chicago, Illinois. The Research Director assigns the tasks to be performed by the Appellate Court Research Attorneys in the Research Department. The Research Director is also responsible for supervising the work of the Appellate Court Research Attorneys and assuring that the work is completed in a correct, timely, and professional manner. The Research Director confers with justices and other members of the First District of the Appellate Court concerning matters before the court or issues relevant to the work of the court.

Interested persons should submit a resume, professional writing sample, three professional references, and a letter of interest stating how the candidate’s experiences and qualifications connect with the required and preferred credentials, characteristics, and priorities expressed in the position profile to: courtemployment@illinoiscourts.gov

Submissions must be received by Sunday, April 19, 2026

Job Vacancy - 4th District Appellate Court Clerk

Paul Coogan — Tue, 03 Mar 2026 16:54:50 GMT

Justice Eugene E. Doherty of the Illinois Appellate Court, Fourth District, is seeking candidates for a law clerk position. The law clerk will be expected to perform legal research, analysis, and writing, and to review and assist in the drafting of judicial opinions, orders, and other legal documents.

A Juris Doctor from an ABA-accredited law school and either licensed or eligible for admission to the Illinois bar. Applicant should possess excellent research, case analysis, and writing skills. Experience as a law clerk in a reviewing court is strongly preferred. Applicant must possess the ability to travel throughout the state, including overnight stays as required. This position requires a valid driver’s license, proof of automobile insurance to operate a personal vehicle on state business, and a safe driving record. Applicant may be required to submit additional materials and/or complete job-specific tests for the position. Substantial remote work attendance will be considered, but work on a totally remote basis is not preferred. The salary for this position is $111,899.

Interested candidates should submit a letter of interest, resume, professional writing sample, an official law school transcript, and three references to edoherty@illinoiscourts.gov. Applications received by Friday, March 20, 2026 will receive first consideration.

Job Vacancy - Supervising Senior Policy Attorney - Administrative Office of the Illinois Courts

Paul Coogan — Tue, 03 Mar 2026 16:49:34 GMT

The Access to Justice Division of the Administrative Office of the Illinois Courts is seeking candidates for a Supervising Senior Policy Attorney position.

The Access to Justice Division's (ATJ Division) objective is to improve access to the justice system for all users, particularly to those who are low-income or have difficulty accessing the courts, through creating standardized statewide court forms, improving language access and interpreter services, and developing training materials and educational programs for judges and court personnel, among other priorities. We share a vision of a community free from bias, systemic unfairness, and oppression, where everyone is treated with dignity and respect.

The Supervising Senior Policy Attorney a supervisory, professional position responsible for identifying ways for the Judicial Branch to address the growing numbers self-represented litigants (SRL) and limited English proficient (LEP) litigants coming to court with a focus on technology and elevation of resources through systematic outreach. Work is performed with considerable independence and with wide latitude for professional judgement under the general supervision of the Director of the Access to Justice Division.

A Juris Doctor degree and seven years of supervisory experience are required, along with a strong commitment to serving underserved and marginalized communities, self-represented litigants, and limited-English-proficient litigants. Preference will be given to candidates with experience in civil legal aid, marketing experience within the legal aid or non-profit context, extensive familiarity and comfort with adopting emerging technologies, regular court appearances within the Illinois court system, court or public administration involving project management, or substantial pro bono activities. More information regarding benefits for the position can be found here.

Interested candidates should submit a letter of interest, resume, and completed Judicial Branch Employment Application to courtemployment@illinoiscourts.gov.

The Appellate Court's Original Jurisdiction to Enforce ILRB Order

Walker Mondt — Thu, 26 Feb 2026 15:46:59 GMT

The Appellate Court is normally a court of review. But in some limited instances, the law requires parties to go straight to the Appellate Court, skipping the Circuit Court altogether. See Ill. Const. art. VI, § 6 (“The Appellate Court may exercise original jurisdiction when necessary to the complete determination of any case on review.”). One of those circumstances arises in the public labor relations context. When a public employer commits an unfair labor practice, and the Illinois Labor Relations Board (ILRB) issues a final order, the Appellate Court has original jurisdiction to enforce that order if any party violates it. 5 ILCS 315/11 (f)(g).

For context, the National Labor Relations Act (NLRA) governs labor relations between workers and private employers. 29 U.S.C. § 151, et seq. But that law does not cover government entities. 29 U.S.C. § 152 (excluding government entities from the NLRA’s protections). Relations between employees and local government entities in Illinois are governed by Illinois’s Public Labor Relations Act. 5 ILCS 315/1, et seq. So when a municipality commits an unfair labor practice, employees’ remedies lie with the Illinois Labor Relations Board. 5 ILCS 315/5. Unfair labor practices include refusing to collectively bargain, discriminating in hiring and retention to discourage participation in a labor organization, and preventing employees from participation in a labor organization, etc. 5 ILCS 315/10 (a).

Recently, the Fifth District of the Appellate Court for the Fifth District exercised its jurisdiction to compel the Village of Washington Park to comply with a final order of the ILRB. People ex. rel. ILRB v. Village of Washington Park, No. 5-25-0499. Washington Park, an impoverished town in Southern Illinois, was found to have committed unfair labor practices by failing to abide by its collective bargaining agreement (CBA) and by retaliating against city employees who participated in union activities. International Brotherhood of Teamsters, Local #50, Ill. Lab. Rel’s. Bd., No. S-CA-22-005-C (Administrative Law Judge’s Recommended Compliance Decision and Order). The ILRB ordered the Village to pay contributions to employee health insurance plans on which it had reneged, pay backpay owed to terminated employees, bargain in good faith with the Teamsters, and take other actions required by the CBA and the law. Id.

The Village did not comply. Although the Village agreed to bargain with the Teamsters, it did not fulfill its financial obligations. Id. In response, the Teamsters filed a petition for enforcement with the ILRB, which, in turn, filed a petition for enforcement with the Appellate Court.

The ILRB lacks inherent enforcement authority—like all administrative agencies—and cannot punish noncompliance with contempt. 73 C.J.S. Public Administrative Law and Procedure § 189 (2024). That is where the Appellate Court comes in. The ILRB’s petition for enforcement, filed by the Attorney General, essentially asks the Appellate Court to use its inherent contempt powers to compel the Village to comply.

The Appellate Court heard oral argument, in which the Village maintained its position that it was unable to pay the amounts ordered by the ILRB, but essentially conceded that an order enforcing compliance was proper under the law.

The Appellate Court agreed with the parties that an order was appropriate and issued an order requiring the parties to negotiate amongst themselves and submit a proposed joint order of enforcement. People ex. rel. ILRB v. Village of Washington Park, No. 5-25-0499.

This type of order is rare, and, at oral argument, the justices expressed some uncertainty about the Appellate Court’s role. Indeed, only three such orders have been entered since 1990. See Cnty. of DeKalb v. Ill. State Lab. Rel. Bd., No. 2-90-130; People ex rel. I.S.L.R.B. v. Cnty. of Macon, 3-93-0333; People ex rel. ILRB v. Harvey Park Dist., No. 1-15-0816. And given the Village’s arguments about its inability to pay, the Court was hesitant to enter an order that would require it to hear evidence. But the Court’s resolution was fair; it promoted respect for the ILRB’s orders and accommodated a struggling town.

Author: Shmuel Wyckoff is a 3L student at the Chicago-Kent College of Law with an interest in appellate practice.

Justice Mary Jane Theis Announces Retirement

Walker Mondt — Tue, 13 Jan 2026 21:49:17 GMT

Justice Mary Jane Theis announced her retirement from the Illinois Supreme Court, effective January 29, 2026. Justice Theis has served on the Supreme Court since 2010. She served as Chief Justice from 2022 to 2025.

Per the Illinois Constitution, the Illinois Supreme Court has authority to fill the vacancy, and it has appointed Justice Sanjay T. Tailor of the First District Appellate Court to fill Justice Theis' seat.

Justice Theis has had a long and distinguished career. We hope you will join us in wishing her a long and happy retirement.

If you want to read more, the Illinois Supreme Court's statement can be found here.

Supreme Court Clarifies Standards for Standing

Walker Mondt — Wed, 07 Jan 2026 15:57:33 GMT

The past few decades have witnessed an explosion of class action litigation in which putative class representatives—far from claiming that they actually lost money or suffered some type of physical or psychological harm—allege that their only injury consists of a risk that their private information might be disclosed to someone at some point in the future. Gigantic fortunes and the futures of global businesses sometimes depend on whether and under what circumstances such “no-injury plaintiffs” have standing to pursue their claims and represent a class of thousands or even millions of people whose private information could potentially be considered at some risk of some sort of wrongful disclosure.

Fortunately, a week before this past Thanksgiving, the Illinois Supreme Court issued its enormously anticipated opinion in Fausett v. Walgreen Co., 2025 IL 131444, which goes a long way toward clarifying which circumstances give someone the right to file a lawsuit in an Illinois state court. The Fausett opinion has far-reaching consequences for class action and privacy rights litigation in Illinois.

Calley Fausett could fairly be described as a “no-injury” plaintiff. At a Walgreens store in Arizona, she added money to a prepaid debit card. She later claimed that her receipt included the first six digits of her prepaid debit card number. Based solely on that fact, she filed a class action lawsuit against Walgreens in Illinois under the Fair and Accurate Credit Transactions Act of 2003 (FACTA). Fausett did not claim to have been the victim of identity theft. She identified no one who ever saw those six digits, except possibly the cashier.

A full discussion of the procedural history of the Fausett litigation would require a dozen newspaper columns. In the final analysis, the litigation boiled down to whether, under Illinois law, Walgreens could establish that Ms. Fausett lacked standing to pursue a claim. The answer is that Walgreens could and did establish that Ms. Fausett lacked standing—so the Supreme Court not only reversed the order granting class certification but ordered the dismissal of Ms. Fausett’s lawsuit.

The Supreme Court began its analysis by explaining that, although Ms. Fausett asserted a cause of action arising under a federal statute, her standing to pursue that cause of action in an Illinois state court was governed by Illinois law. Illinois law on standing, moreover, does not track federal law on standing. Illinois courts have, in fact, “expressly rejected federal principles of standing.” See 2025 IL 131444, ¶ 36. That might have been one of the reasons why Ms. Fausett filed suit in Illinois even though her fateful visit to a Walgreens store occurred in Arizona.

Returning to first principles, the Supreme Court explained that, under Illinois law, there are two kinds of standing: statutory standing and common law standing. See 2025 IL 131444, ¶ 37. Statutory standing can be extraordinarily broad, as demonstrated by the Supreme Court’s interpretation of standing requirements under the Illinois Biometric Information Privacy Act in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. But that did not aid Ms. Faucett. Unlike BIPA, FACTA is “silent as to who may bring the cause of action for damages.” See 2025 IL 131444, ¶ 44. It contained no language broadly allowing any consumer or aggrieved person to assert a cause of action.

“As such,” the Supreme Court held, “plaintiff’s FACTA claim does not implicate statutory standing principles, and thus common-law standing applies to plaintiff’s suit.” Id. That itself is a crucial point: Common-law standing principles apply by default as long as no statute says who has standing to sue, and that remains true even if the plaintiff’s claims are exclusively based on a statute.

Common-law standing principles, in turn, require three things: (1) the injury must be distinct and palpable; (2) the injury must be fairly traceable to the defendant’s actions; and (3) the injury must be substantially likely to be prevented or redressed by the relief requested. Petta v. Christie Business Holdings Co., P.C., 2025 IL 130337, ¶ 18 (quoting Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 492-93 (1988)). These three things are necessary to show an injury in fact to a legally cognizable interest—the heart of common law standing. Id.

The first of these three requirements is sometimes paraphrased as requiring a “concrete” injury, as opposed to a speculative injury. Ms. Fausett’s claim ran aground on that first requirement. She was a no-injury plaintiff. She was never the victim of identity theft. She showed, “at best . . . an increased risk of identity theft” and that is insufficient to establish a concrete injury. See 2025 IL 131444, ¶ 50. She therefore lacked standing under common law principles. The Supreme Court noted that, because it determined that common law standing principles governed Ms. Fausett’s standing, it did not need to “determine whether a concrete injury is also required with statutory standing.” Id., ¶ 46. The Court’s choice to flag that as an open issue suggests that broad interpretations of its opinion in Rosenbach on standing in BIPA cases may stand on shaky ground.

By: John Fitzgerald

John is an equity partner at Tabet DiVito & Rothstein. His practice includes complex litigation at both the trial and appellate court levels. He previously served as President of the Appellate Lawyers Association of Illinois from 2020-2021.

If interested in contributing to The Brief, please email: alabriefsubmissions@gmail.com. We'd be delighted to have your voice as part of our blog and to share your insights with our readership.

Passing of Judge William J. Bauer

Walker Mondt — Mon, 22 Dec 2025 15:06:55 GMT

Earlier this month, the Honorable Judge William J. Bauer passed away at age 99. He had a distinguished career in public service as he was previously the DuPage County States Attorney, Circuit Judge of the 18th Circuit, U.S. Attorney for the Northern District of Illinois, Federal District Judge, and Judge on the 7th Circuit Court of Appeals. Our thoughts are with him and his family at this time.

Formal arrangements likely to be held in January.

Job Vacancy - 5th District Appellate Court - Research Attorney

Paul Coogan — Fri, 05 Dec 2025 20:36:02 GMT

The Fifth District Appellate Court is seeking new graduates and experienced attorneys with a passion for legal writing and a strong interest in appellate law for the position of Appellate Court Research Attorney. A Fifth District Research Attorney provides necessary and valuable assistance to the Justices of the Fifth District Appellate Court. Please note, this is a full-time in-person position located at the Fifth District Courthouse in Mt. Vernon, IL.

The Appellate Court Research Attorney performs legal research, analysis, and writing and reviews and assists in the drafting of judicial orders, opinions, and other legal documents for the Justices in matters before the Fifth District Appellate Court.

Candidates must be graduates of law schools accredited by the American Bar Association. Candidates must possess superior research, analytical, and writing skills. Candidates must have strong information technology skills including proficiency with commonly used office software such as Microsoft Office, Microsoft Excel, and Adobe Acrobat. Competence in the use of web-based case management software and the ability to perform electronic legal research is also required. Practicing attorneys and recent graduates are encouraged to apply.

Interested individuals should submit – via email – a letter of interest, resume, law school transcript with GPA, three references (no letters of recommendation required), and three writing samples to: AC5@illinoiscourts.gov

This position will remain open until filled. However, those individual submitting materials by Wednesday, December 31, 2025, will be given first consideration.

Join the Illinois Juvenile Abuse & Neglect Appellate Counsel Registry

Walker Mondt — Fri, 31 Oct 2025 18:30:16 GMT

The Administrative Office of the Illinois Courts is seeking qualified attorneys to join a statewide Appellate Registry for juvenile abuse and neglect cases. This registry addresses critical attorney shortages and ensures parents have qualified representation in appeals, including termination of parental rights cases.

Attorney Requirements

License: Must be an attorney in good standing, licensed to practice in Illinois

Competency: Working knowledge of the Juvenile Court Act, Illinois Appellate rules and procedures, and related statutes/regulations

Training: Must complete "Effective Appellate Advocacy in Termination of Parental Rights Cases, Part I & II" trainings (free with CLE credits, available on Illinois Judicial College PATH LMS). You can apply before completing the training.

How to Apply

Complete the Appellate Counsel Registry Application
Submit application materials and certificates to: jaappeals@illinoiscourts.gov

What to Know

Counsel may be appointed in any appellate district statewide
Most proceedings are remote
Attorney fees are paid by the appointing court according to local rules (rates vary by circuit)
Case assignments are distributed equitably

Questions?

Edward Siemer, Child Welfare Attorney
Administrative Office of the Illinois Courts – Courts, Children and Families Division
Phone: (217) 557-9748
Email: esiemer@IllinoisCourts.gov

Fifth District Appellate Court - Judicial Clerk Job Opportunity

Walker Mondt — Thu, 18 Sep 2025 16:16:46 GMT

Justice Robert C. Bollinger is seeking two Appellate Court Law Clerks for his chambers in Decatur, Illinois. The Appellate Court Law Clerk performs legal research, analysis, and writing, and reviews and assists in the drafting of judicial opinions, orders, and other legal documents.

Interested individuals can find more information on the IL Supreme Court's website here.

Celebration of Life In Honor of the Late Justice Hoffman

Walker Mondt — Wed, 17 Sep 2025 14:21:56 GMT

A celebration of life in honor of Justice Thomas E. Hoffman will be held on Thursday, September 25, 2025, at 4:00 p.m. at the Ridgemoor Country Club, 6601 W. Gunnison St., Harwood Heights, IL 60706 (parking available). ALA members are invited to attend.

Supreme Court Assigns Hon. Robert C. Bollinger to the Fifth District

Walker Mondt — Fri, 12 Sep 2025 16:14:13 GMT

Justice David K. Overstreet and the Illinois Supreme Court have announced the assignment of the Honorable Robert C. “R.C.” Bollinger to the Fifth District Appellate Court. Judge Bollinger is being assigned to fill a newly created vacancy on the Fifth District Appellate Court. The assignment is effective September 29, 2025, and will continue until further order of the Court.

Judge Bollinger was first selected as an Associate Judge for the Sixth Judicial Circuit, Macon County, in 2008. In 2014, he was elected as a Resident Circuit Judge in the Sixth Judicial Circuit and has gone on to serve as Deputy Presiding Circuit Judge for Macon County. Prior to joining the bench, Judge Bollinger was an attorney for 12 years at Erickson, Davis, Murphy, Johnson, Griffith & Walsh, Ltd., in Decatur.

Judge Bollinger earned his bachelor’s degree, cum laude, from Illinois State University and his Juris Doctor, magna cum laude, from the Southern Illinois University School of Law. He currently serves on the Board of Trustees for the Illinois Judicial College and is the past Chair of the Illinois Supreme Court Committee on Judicial Education and the Illinois Civil Law Benchbook, as well as a past Director of the Illinois Judges Association.

Fourth District Appellate Court - Judicial Clerk/Secretary Job Opportunity

Walker Mondt — Mon, 08 Sep 2025 19:22:34 GMT

Justice David L. Vancil is seeking a Law Clerk to perform legal research, analysis, and writing, and to review and assist in the drafting of judicial opinions, orders, and other legal documents.

Applicant must be a licensed attorney and admitted to the Illinois bar, as well as possess excellent research, case analysis, and writing skills. Experience as a law clerk in a reviewing court is preferred but not required.

Applicant must possess the ability to travel within the state. This position requires a valid driver’s license, proof of automobile insurance to operate a personal vehicle on state business, and a safe driving record.

Applicants should submit a cover letter, resume, writing sample, and three (3) references to: Honorable David L. Vancil, Jr. at earthur@IllinoisCourts.gov

This position will remain open until filled. However, applications submitted by September 22, 2025 will be given first consideration.

U.S. Magistrate Position Vacancy, Northern District of Illinois

Walker Mondt — Thu, 04 Sep 2025 18:09:22 GMT

The United States District Court for the Northern District of Illinois is accepting applications for a full-time United States Magistrate Judge in the Eastern Division, with the duty station at the Everett McKinley Dirksen United States Courthouse in Chicago, Illinois.

The deadline to submit completed applications is 5:00 p.m. on September 26, 2025. Appointment is contingent upon approval by the Judicial Conference Committee on the Administration of the Magistrate Judges System. The selected candidate will only be appointed after successfully completing background checks by the Federal Bureau of Investigation and the Internal Revenue Service. Please see the link below for more information.

Announcement

Honorable Judge James Hackett Appointed to Fifth District

Walker Mondt — Mon, 28 Jul 2025 17:22:44 GMT

The Illinois Supreme Court announced the appointment of the Honorable James Hackett to the Fifth District Appellate Court to fill the vacancy left by the passing of Justice Welch.

Judge Hackett was first selected as an Associate Judge for the Third Judicial Circuit in Madison County in 1995 and served four successive 4-year terms. In 2013, he was appointed as a Circuit Judge in the Third Judicial Circuit before retiring from the bench to return to private practice in 2014. In addition to a long career in private practice, his previous experience includes serving as city attorney for the City of Edwardsville and as special public defender for Madison County.

You can read more about the announcement on the Illinois Courts website.

Honorable Judge Clare J. Quish Assigned to Appellate Court

Walker Mondt — Wed, 16 Jul 2025 16:47:23 GMT

The Illinois Supreme Court announced the assignment of Cook County Circuit Judge Clare J. Quish to the First District Appellate Court. Judge Quish is being assigned to fill the vacancy created by the reassignment of Justice LeRoy K. Martin Jr. to the vacancy created by the death of Justice Thomas Hoffman. Judge Quish will be assigned all matters previously assigned to Justice Hoffman.

For more information see the Supreme Court's announcement on the Illinois Courts website or the ISBA's article here.

Appellate Court Justices Pass Away

Walker Mondt — Mon, 14 Jul 2025 17:06:16 GMT

This month, the Illinois Appellate Court lost two long-serving justices: Justice Thomas E. Hoffman and Justice Thomas M. Welch. Both justices had distinguished careers serving the public and upholding the Illinois and United States Constitutions.

Justice Hoffman passed away on July 4, 2025. He served on the First District bench since 1993. Justice Hoffman was first appointed as an associate judge of the Circuit Court of Cook County in 1984, and before that, was a City of Chicago attorney and worked in private practice.

Justice Welch passed away on July 7, 2025. He served on the Fifth District bench since 1980. Justice Welch first served as a Circuit Court Magistrate from 1965 to 1971, then as the Madison County Assistant State's Attorney from 1971 to 1972, and also worked in private practice.

You can read more on these two men's distinguished careers and funeral arrangements on the Supreme Court's website:

First District Appellate Court Justice Thomas E. Hoffman Passes Away

Fifth District Appellate Court Justice Thomas M. Welch Passes Away

ALA Advocates for Clarity in Proposed Changes to Illinois Supreme Court Rule 13

Walker Mondt — Fri, 02 May 2025 19:56:35 GMT

On Wednesday, April 30, 2025, the Illinois Supreme Court Rules Committee hosted a public hearing regarding proposals for various rule changes. ALA Vice President Seth Horvath spoke to the committee to advocate for additional clarity in the language of the proposed changes to Rule 13 regarding when an attorney’s representation ends if the attorney decides to terminate the relationship with a client before an appeal.

In particular, Mr. Horvath, on behalf of the ALA, suggested adding language to state that if a notice of appeal is filed and there’s still time within the 30-day filing deadline, the filing of the notice itself terminates representation. This language would clarify that once the notice of appeal is filed, there is no ongoing obligation to file a docketing statement or take any other action related to the appeal. The Committee stated that it saw merit in the ALA’s proposal and expressed its willingness to consider it and continue the discussion.

Read a more in-depth article in the Chicago Daily Law Bulletin here.

New Modifications to Circuit Rules 46 and 51 and the Creation of Circuit Rule 46.1

Walker Mondt — Mon, 06 Jan 2025 17:54:20 GMT

On June 18, 2024, the Seventh Circuit issued a notice that it proposed modifications to Circuit Rules 46 and 51, and the creation of Circuit Rule 46.1.

The new modifications can now be seen on the Seventh Circuit's website here.

Passing of Circuit Judge Joel M. Flaum

Walker Mondt — Thu, 05 Dec 2024 18:47:05 GMT

Today, the Seventh Circuit Court of Appeals announced the passing of Judge Joel M. Flaum. He passed away on December 4, 2024, having served nearly 50 years on the federal bench. He was 88 years old.

A native of Hudson, New York, Judge Flaum graduated from Union College and moved to Chicago, where he eventually enrolled at Northwestern University School of Law, earning a J.D. degree in 1963 and an LL.M. in 1964. He worked for several years as an Assistant State’s Attorney in Cook County before moving to the Illinois Attorney General’s Office, starting as an Assistant Attorney General and rising to the position of First Assistant. In 1972, he became a federal prosecutor, serving as First Assistant United States Attorney in Chicago until 1975.

In December 1974, President Ford appointed him to the United States District Court for the Northern District of Illinois. He began his service at the age of 38—at the time the youngest federal judge in the nation. Judge Flaum served on the district court until President Reagan elevated him to the Seventh Circuit on June 1, 1983. Judge Flaum was an active-duty circuit judge for more than 37 years. He assumed senior status in November 2020 and continued to serve the court of appeals as a senior judge until his death. In his 41 years as an appellate judge, he authored more than 2,000 published opinions covering virtually every subject within the jurisdiction of the federal courts.

Judge Flaum also held many leadership positions within the federal judiciary. He served as Chief Judge of the Seventh Circuit from August 2000 to November 2006. In connection with that position, he held a seat on the Judicial Conference of the United States and was also a member of the Conference’s Executive Committee. Later he served on the Conference’s Judicial Conduct and Disability Committee.

In addition to his judicial work, Judge Flaum taught law students for many years as an adjunct professor at Northwestern. He also served for 11 years as a commissioned officer in the Judge Advocate General’s Corp in the United States Naval Reserve.

For his many contributions to the federal justice system, last month Judge Flaum received the Opperman Foundation’s Edward J. Devi Distinguished Service to Justice Award, which annually recognizes an Article III judge for lifetime achievement in service to the nation’s courts. Judge Flaum’s other awards include the Order of Lincoln, Illinois’s highest honor for outstanding individual achievement; the Chicago Bar Association’s Justice John Paul Stevens Award; and the American Inns of Court Seventh Circuit Professionalism Award.

The court will hold a formal memorial service in the coming months.

Notice of Rescission of 7th Circuit Rule 35 and Modification of Circuit Rule 26.1

Paul Coogan — Tue, 03 Dec 2024 03:35:23 GMT

On October 15, 2024, the United States Court of Appeals for the Seventh Circuit issued notice that it proposed the rescission of Circuit Rule 35 and modification of Circuit Rule 26.1(c) to remove the cross-reference to Circuit Rule 35, in anticipation of the elimination of Federal Rule of Appellate Procedure 35.

Today, the Court provided formal notice of the adoption of those changes to the Circuit Rules, effective December 1, 2024.

Job Vacancy - Justice Jesse G. Reyes - First District Appellate Court

Paul Coogan — Thu, 14 Nov 2024 21:11:51 GMT

Justice Jesse G. Reyes, First District, Illinois Appellate Court (Cook County) is seeking a judicial law clerk/secretary for his chambers. The annual salary is $96,349.

ESSENTIAL DUTIES: The judicial law clerk/secretary conducts legal research and assists in drafting memoranda, opinions, and orders. This position also requires performing various administrative duties.

EDUCATION AND EXPERIENCE: Applicants must be licensed to practice law in Illinois. Prior appellate writing and research experience is considered highly preferred. Attention to detail, organizing skills, basic computer skills, and interpersonal skills are essential.

PHYSICAL REQUIREMENTS: This position requires the ability to sit for extended periods of time. This is a professional office working environment requiring telephone usage and the ability to process and read large volumes of written documents in electronic formats. Illinois residency is required or willingness to obtain upon job offer.

Applications with resumes, writing samples, and references should be emailed to courtemployment@illinoiscourts.gov. The position will remain open until filled, but applications submitted by November 26, 2024 will be given first consideration.

Seventh Circuit - Notice of Proposed Circuit Rule Changes and Opportunity for Comment

Walker Mondt — Wed, 16 Oct 2024 16:59:18 GMT

October 15, 2024

Notice of Proposed Circuit Rule Changes and Opportunity for Comment

Notice is hereby given that the United States Court of Appeals for the Seventh Circuit, pursuant to 28 U.S.C. § 2071, proposes the rescission of Circuit Rule 35 in anticipation of the elimination of Federal Rule of Appellate Procedure 35. The Court of Appeals also proposes modifications to Circuit Rule 26.1(c) to remove the cross-reference to Circuit Rule 35.

A redline version of the proposed rescission of Circuit Rule 35 and modifications to Circuit Rule 26.1(c) are provided below. Written comments on the proposed rule changes should be sent by October 29, 2024, to:

Advisory Committee on Circuit Rules

c/o Clerk of Court

United States Court of Appeals

For the Seventh Circuit

219 South Dearborn Street, Room 2722

Chicago, IL 60604

Comments can also be made via e-mail at:

USCA7_Clerk@ca7.uscourts.gov

Circuit Court Child Protection Division Seeking Appellate Attorneys

Paul Coogan — Fri, 04 Oct 2024 14:55:57 GMT

The Child Protection Division of the Circuit Court is looking for attorneys to represent indigent parties on appeal. The fees are $150 per hour.

Appellate cases are entirely electronic. Appellate attorney reviews are electronic and when hearings are held, very very rarely, they are via Zoom. You should never need to come to Chicago.

Mentors are provided for attorneys who do not have experience representing parents and children in Child Protection Division.

If interested, contact the Presiding Judge Robert Balanoff at robert.balanoff@cookcountyil.gov for more information.

New Statewide Standardized Forms for Filing an Appeal with the Illinois Supreme Court

Walker Mondt — Fri, 27 Sep 2024 20:50:58 GMT

The Illinois Supreme Court Commission on Access to Justice is pleased to announce that six Illinois Supreme Court form sets have been published today. The following statewide forms are now available for filing an appeal with the Illinois Supreme Court:

You can also find these forms at ilcourts.info/forms under the “Supreme Court Forms” tab.

Job Vacancy - Fourth District Appellate Court Research Attorney

Walker Mondt — Wed, 11 Sep 2024 21:22:53 GMT

Fourth District, Illinois Appellate Court

201 West Monroe Street

Springfield, IL 62704

Applicants may be required to submit additional materials and/or complete job specific tests for the position.

POSITION:	Appellate Court Research Attorney
DIVISION:	Fourth District, Illinois Appellate Court
BENEFITS:	The Judicial Branch offers an attractive benefits package that includes pension, medical, dental, vision, life insurance, deferred compensation, and generous leave time.
MINIMUM SALARY:	$83,528
REPORTING RELATIONSHIP:	Legal Research Director

DESCRIPTION: The Fourth District Appellate Court is seeking new graduates and experienced attorneys with a passion for legal writing and a strong interest in appellate law for the position of Appellate Court Research Attorney. A Fourth District Research Attorney provides necessary and valuable assistance to the Justices of the Fourth District Appellate Court.

ESSENTIAL RESPONSIBILITIES: The Appellate Court Research Attorney performs legal research, analysis, and writing and reviews and assists in the drafting of judicial orders, opinions, and other legal documents for the Justices in matters before the Fourth District Appellate Court.

FUNCTIONS INCLUDE:

Analyze issues raised by the parties on appeal.
Review briefs and appellate records, verify appellate jurisdiction, and research applicable law.
Draft proposed dispositions, memoranda, and other legal documents.
Confer on a regular basis with Justices, Law Clerks, and other Appellate Court Research Attorneys on assignments and corresponding analysis.
Make recommendations to the Research Director and Justices.
Edit final draft orders, opinions, dissents, and special concurrences.
Remain current on recent opinions of the Illinois Supreme and Appellate Courts, other relevant state and federal cases.
Perform other duties as assigned.

EDUCATION AND EXPERIENCE: Candidates must be graduates of law schools accredited by the American Bar Association. Candidates must possess superior research, analytical, and writing skills. Candidates must have strong information technology skills including proficiency with commonly used office software such as Microsoft Office, Microsoft Excel, and Adobe Acrobat. Competence in the use of web-based case management software and the ability to perform electronic legal research is also required. Practicing attorneys and recent graduates are encouraged to apply. Currently, fully remote work is possible for Illinois residents with prior appellate court research attorney or judicial clerking experience.

PHYSICAL REQUIREMENTS: This position requires the ability to sit for extended periods of time.

Interested individuals should submit a letter of interest, a resume, a self-edited professional writing sample, a law school transcript, and three references, via e-mail, to:

AC_District4_Clerk@illinoiscourts.gov

This position will remain open until filled.

However, those individuals submitting materials by Tuesday, October 15, 2024, will be given first consideration.

EQUAL OPPORTUNITY EMPLOYER

Job Opening - Fifth District Appellate Attorney

Paul Coogan — Mon, 19 Aug 2024 16:26:20 GMT

The Fifth District of the Illinois Appellate Court's Legal Research Division is seeking to hire an Appellate Attorney to assist the justices and the Clerk of the Appellate Court with a variety of legal and procedural issues relating to the appeals filed with the Court. This position assists the Clerk of the Appellate Court and Chief Deputy Clerk with overseeing the management and day-to-day operations of the Clerk’s Office. Work is performed with considerable independence and latitude for professional judgment under the direction of the Clerk of the Appellate Court and is evaluated through conferences, observation of work in progress, and work completed. Please note, this is a full-time in-person position and does not allow for remote work.

EDUCATION AND EXPERIENCE: Candidates must be graduates of a law school accredited by the American Bar Association. Candidates must possess superior research, case analysis, and writing skills. Candidates must have strong information technology skills including proficiency with commonly used office software such as Microsoft Office, Microsoft Excel, and Adobe Acrobat. Competence in the use of web-based case management software and the ability to perform electronic legal research is also required. Practicing attorneys and recent graduates are encouraged to apply.

PHYSICAL REQUIREMENTS: This position requires the ability to sit for extended periods of time. This is a professional office working environment requiring telephone and computer usage and the ability to process written documents.

Interested individuals are asked to submit a resume, letter of interest, professional writing sample, law school transcript, and three references, via e-mail, to AC5@illinoiscourts.gov by August 30, 2024.

US Magistrate Judge Vacancy - Northern District of Illinois

Paul Coogan — Fri, 09 Aug 2024 15:24:11 GMT

The United States District Court for the Northern District of Illinois is accepting applications for a full-time United States Magistrate Judge position in the Eastern Division, stationed at the Everett McKinley Dirksen courthouse. The deadline for submission of completed applications is 5:00 pm on September 5, 2024. To be qualified for appointment as a Magistrate Judge, an applicant must be, and have been for at least five years, a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and have been engaged in the active practice of law for at least five years, be less than 70 years of age, and not be related to a judge of the district court.

The present annual salary is $223,836. A US Magistrate Judge who retires after attaining the age of 65 years and serving at least 14 years, whether continuously or not, shall be entitled to receive an annuity equal to the salary being received at the time the Magistrate leaves office.

All applications must be submitted through the US District Court's application website at: US Magistrate Judge Application.

U.S. Court of Appeals - Seventh Circuit - Notice of Adoption of Modifications to Rules

Walker Mondt — Wed, 17 Jul 2024 16:45:40 GMT

July 16, 2024

Notice of Adoption of Modifications to Circuit Rules 31, 34, 40, 47, and 60

On April 12, 2024, this court issued notice that it proposed modifications to Circuit Rules 31, 34, 40, 47, and 60. The court carefully considered the comments received and made an additional modification to Circuit Rule 34. The court hereby provides notice of adoption of the attached modifications, effective immediately.

Seventh Circuit - Notice of Proposed Circuit Rule

Walker Mondt — Mon, 24 Jun 2024 17:24:57 GMT

Notice is hereby given that the United States Court of Appeals for the Seventh Circuit, pursuant to 28 U.S.C. § 2071, proposes modifications to Circuit Rules 46 and 51, and the creation of Circuit Rule 46.1. Proposed versions of each rule and current and redline versions, where applicable, are provided below. Written comments on the proposed rule changes should be sent by July 18, 2024, to:

Advisory Committee on Circuit Rules

c/o Clerk of Court

United States Court of Appeals

For the Seventh Circuit

219 South Dearborn Street, Room 2722

Chicago, IL 60604

Comments can also be made via e-mail at: USCA7_Clerk@ca7.uscourts.gov

Job Vacancy - Judicial Secretary/Law Clerk - Justice Mikva (First District)

Paul Coogan — Tue, 28 May 2024 19:47:44 GMT

Justice Mary L. Mikva of the Illinois Appellate Court, First District, is seeking a Judicial Secretary/Law Clerk for an opening in her chambers in Chicago. This is an in-person position. Illinois residency is required or willingness to obtain upon job offer. The salary for this position is $91,761 per year.

ESSENTIAL DUTIES: The Judicial Secretary/Law Clerk will conduct legal research and draft memoranda, orders, and opinions for the Justice. Duties also include reviewing and editing the work of fellow clerks and administrative duties. Work will not include significant secretarial or administrative duties.

EDUCATION AND EXPERIENCE: Justice Mikva generally considers applicants who graduated in the top 20% of their class from an ABA-accredited law school. Individuals who have practiced law for a year or two after law school or have other significant litigation experience are strongly preferred for this position. The ideal person will be motivated to tackle complex legal issues, skilled in legal analysis, and able to produce clear, concise writing in a collaborative environment.

PHYSICAL REQUIREMENTS: This position requires the ability to sit for extended periods of time. This is a professional office working environment requiring telephone usage and the ability to process and read large volumes of written documents in electronic formats.

To apply, submit a cover letter, resume, writing sample, law school transcript, and references to dgoulet@illinoiscourts.gov.

Job Vacancy - Judicial Secretary/Law Clerk - Justice Mikva (First District)

Paul Coogan — Tue, 28 May 2024 19:47:44 GMT

To apply, submit a cover letter, resume, writing sample, law school transcript, and references to dgoulet@illinoiscourts.gov.

Appellate Attorney Vacancy

Walker Mondt — Wed, 22 May 2024 17:28:23 GMT

NORTHERN DISTRICT OF INDIANA FEDERAL COMMUNITY DEFENDERS, INC.

The NORTHERN DISTRICT OF INDIANA FEDERAL COMMUNITY DEFENDERS, INC. (NDIFCD), is accepting applications for a full-time appellate attorney. The NDIFCD provides legal representation to individuals charged with federal crimes and related matters who are financially unable to retain counsel. The organization is funded by the Administrative Office of the U.S. Courts.

The appellate attorney will draft briefs, present oral arguments in the Seventh Circuit, seek certiorari when appropriate, and provide advanced research and writing assistance to the trial attorneys in select cases. In addition to being a skilled appellate advocate, this attorney will proactively assist trial attorneys in developing legal strategies and occasionally appear in district court for proceedings relating to pretrial motions. However, the attorney’s primary employment responsibilities will involve appeals. The successful candidate must have the experience and ability to work independently. However, collaboration with the trial attorneys will be required at times. The appellate attorney will also give continuing legal education presentations on developments in the law.

Applicants with significant appellate experience and/or judicial clerkship are encouraged to apply. The NDIFCD offers a competitive salary and benefit package. A lawyer applying for this position must be admitted to practice law of any state or the District of Columbia and be willing to apply for admission in the Northern District of Indiana and Seventh Circuit Court of Appeals. The successful candidate will not be permitted to engage in the private practice of law.

The NDIFCD has offices in the Hammond, South Bend, and Fort Wayne Divisions of the United Stated District Court for the Northern District of Indiana. This position is located in the Hammond Division which is approximately 30 miles from downtown Chicago. However, partial remote work may be available for the successful candidate under specified, negotiable parameters.

Application for this position is made by sending a cover letter, resume, references, and a writing sample, compiled in a single PDF, in that order, to: Sherrie_Horan@fd.org. This position will remain open until filled.

NDIFCD IS AN EQUAL OPPORTUNITY EMPLOYER

Notice of Proposed Seventh Circuit Rule Changes and Opportunity for Comment

Paul Coogan — Wed, 17 Apr 2024 21:28:02 GMT

The US Court of Appeals for the Seventh Circuit has issued notice of proposed modifications to Circuit Rules 31, 34, 40, 47, and 60. It is also providing an opportunity to comment on the proposed changes until May 13, 2024. Any comments should be sent to:

Advisory Committee on Circuit Rules, c/o Clerk of Court

219 South Dearborn Street, Room 2722, Chicago, IL 60604

USCA7_Clerk@ca7.uscourts.gov

A redlined draft of the proposed rules changes can be viewed here.

Illinois Supreme Court Commission on Professionalism - Annual Legal Services Conference

Paul Coogan — Thu, 04 Apr 2024 16:06:50 GMT

The Illinois Supreme Court Commission on Professionalism is hosting its annual "Future Is Now: Legal Services Conference" on April 18, 2024. The conference will be held virtually from 12-4:30 p.m.

Through speaker talks and interactive town hall discussions, the conference will explore issues of access to justice, allyship, attorney mental health and well-being, the practical and ethical use of AI, incivility in the courtroom, and more.

The speaker lineup includes:

Illinois Supreme Court Justice Elizabeth Rochford
Legal entrepreneur Jazz Hampton (of TurnSignl)
Cook County Circuit Court Judge Barbara Flores
Sixth Judicial Circuit Court Judge Matthew Lee
Legal technologist Damien Riehl (of vLex)
Legal ethicist Trish Rich
Best selling author on diversity and inclusion Michelle Silverthorn

Four hours of professional responsibility CLE credit is available, including one hour of diversity and inclusion and one hour of mental health and substance abuse CLE.

To register visit: thefutureisnow.2civility.org

Job Posting - Appellate Court Research Attorney - First District

Paul Coogan — Tue, 19 Mar 2024 15:20:14 GMT

The First District of the Illinois Appellate Court's Legal Research Division is seeking new graduates and experienced attorneys with a passion for legal writing and a strong interest in appellate and criminal law for the position of Appellate Court Research Attorneys provide necessary and crucial assistance to the justices of the First District of the Illinois Appellate Court. Responsibilities in general include researching and analyzing applicable law and preparing draft orders, and other legal documents in matters before the First District of the Illinois Appellate Court.

EDUCATION AND EXPERIENCE: Applicants must be graduates of a law school accredited by the American Bar Association. Applicants must possess excellent research, case analysis, and writing skills. Practicing attorneys and recent graduates are encouraged to apply.

Interested individuals are asked to submit a resume, writing sample, an official or unofficial law school transcript (initially to be used as an assessment of the types of classes taken by candidates), and a letter of interest stating how the candidate’s experience and qualifications connect with the required and preferred credentials, characteristics and priorities expressed in the position profile, via e-mail, to courtemployment@illinoiscourts.gov no later than April 5, 2024.

IL Supreme Court Standardized Forms Posted for Public Comment

Paul Coogan — Mon, 04 Mar 2024 17:09:44 GMT

The Illinois Supreme Court Commission on Access to Justice is pleased to announce that six Illinois Supreme Court form sets have been posted for public comment. We ask for your feedback and suggestions to improve these draft forms, which are available on the IL Courts’ website. The draft forms are:

Petition for Leave to Appeal
Answer to Petition for Leave to Appeal
Notice of Election
Appellant’s Brief
Appellee’s Brief
Appellant’s Reply Brief

All form sets are available for public comment for 21 days which ends on March 22, 2024. Your input is invaluable in refining these draft forms. You may submit comments through the website or directly to forms@illinoiscourts.gov. After the public comment period ends, the feedback or suggestions received will be reviewed and necessary revisions made by the Appellate Forms Subcommittee before the forms are formally approved and published on the IL Courts’ website.

Position Vacancy - US Magistrate Judge NDIL

Paul Coogan — Fri, 16 Feb 2024 20:54:06 GMT

The United States District Court for the Northern District of Illinois is accepting applications for a full-time United States Magistrate Judge position in the Eastern Division, with the Everett McKinley Dirksen United States Courthouse at Chicago, Illinois as the duty station. The deadline for the submission of completed applications is 5:00 p.m. on March 6, 2024. Applicants that applied to the recent U.S. Magistrate Judge position that closed on February 2, 2024, will be automatically considered for this vacancy. Filling this U.S. Magistrate Judge position is contingent upon the confirmation of a current U.S. Magistrate Judge as a U.S. District Judge and approval of the Seventh Circuit Judicial Council and of the Judicial Conference Committee on the Administration of the Magistrate Judges System. The candidate selected will be appointed only upon the successful completion of a Federal Bureau Investigation and Internal Revenue Service background check.

Job Vacancy - Law Clerk/Administrative Assistant, Third District Appellate Court

Walker Mondt — Wed, 07 Feb 2024 17:32:42 GMT

Justice William E. Holdridge of the Illinois Appellate Court, Third District, is seeking a Judicial Law Clerk/Administrative Assistant for an opening in his chambers in Peoria, Illinois. This is a remote position with in-chambers presence only as needed. Applicant must be able to work independently. Illinois residency is required or willingness to obtain upon job offer.

ESSENTIAL DUTIES: The Judicial Law Clerk/Administrative Assistant will conduct legal research and draft memoranda, orders, and opinions for the Justice. Duties also include reviewing and editing the work of fellow clerks and administrative duties.

EDUCATION AND EXPERIENCE: Graduation from an ABA-accredited law school and licensed to practice law. Law review/journal experience and prior experience as a judicial law clerk and/or appellate lawyer is strongly preferred. Applicants with an outstanding academic record in core courses and superior research, analytical, and writing skills preferred.

To apply, submit a cover letter, resume, one writing sample, law school transcript, and two references to holdridgeoffice@illinoiscourts.gov. The position will remain open until filled.

Job Vacancy - Judicial Secretary/Law Clerk to Justice Mark M. Boie

Paul Coogan — Fri, 26 Jan 2024 21:52:26 GMT

Justice Mark M. Boie of the Illinois Appellate Court, Fifth District, is seeking a Judicial Secretary/Law Clerk for an opening in his chambers in Anna, Illinois. This is a remote position with in-chambers presence as needed. Illinois residency is required or willingness to obtain upon job offer. The salary for this position is $91,761 per year.

EDUCATION AND EXPERIENCE: Graduation from an ABA-accredited law school and licensed to practice law. Law review/journal experience and prior experience as a judicial law clerk and/or appellate lawyer is welcomed. Will consider all applicants with an excellent academic record in and superior research and writing skills.

To apply, submit a cover letter, resume, writing sample, law school and undergraduate transcripts, and two references to courtemployment@illinoiscourts.gov. The position will remain open until filled.

Illinois Supreme Court Offers Guidance On E-Filing Rejections

Paul Coogan — Fri, 26 Jan 2024 21:18:45 GMT

This post was authored by Carson Griffis. Carson is counsel in the Litigation and Investigations group at Croke Fairchild Duarte & Beres, where his practice focuses on complex commercial litigation in both trial and appellate courts.

In the age of e-filing, the Illinois Supreme Court’s recent decision in Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corp., 2024 IL 129277, offers appellate practitioners several crucial lessons. First, it is important to confirm that a notice of appeal is being e-filed in the correct format under the local rules to reduce the likelihood that it will be rejected. Second, practitioners may want to consider submitting a notice of appeal for e-filing with enough time to resubmit the notice of appeal before the deadline in case it is rejected. Finally, if a notice of appeal is rejected after the deadline, practitioners should follow the appropriate procedures to create a record showing good cause or a reasonable excuse for the late filing.

Waukegan Hospitality Group, LLC, initiated an eviction action in the Lake County circuit court. After a bench trial, the circuit court entered judgment in favor of the tenant on March 1, 2021. According to Waukegan Hospitality, it submitted a notice of appeal for e-filing on April 1, 2021, which the clerk rejected on April 6, 2021. Waukegan Hospitality resubmitted the notice of appeal the same day, which the circuit court clerk accepted.

The appellate court dismissed Waukegan Hospitality’s appeal for lack of jurisdiction because its notice of appeal was untimely, and the Illinois Supreme Court affirmed. The Court emphasized that two potential avenues for relief exist if a notice of appeal submitted for e-filing is rejected after the relevant deadline has passed. First, under Illinois Supreme Court Rule 9(d)(2), “[i]f a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the [circuit] court, upon good cause shown.” Second, under Illinois Supreme Court Rule 303(d), a reviewing court “may grant leave to appeal” on “motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in the reviewing court within 30 days after the expiration of the time for filing a notice of appeal.”

Although the Court did not lay out a specific test for what may constitute a “reasonable excuse” or “good cause,” it offered two examples of situations that might satisfy those standards. First, citing Bank of Herrin v. Peoples Bank of Marion, 105 Ill. 2d 305 (1985), the Court stated that it had found a “reasonable excuse” under Rule 303(d) when an attorney recorded the incorrect date of a final judgment and, after discovering the honest mistake, immediately did everything possible to correct the error. Second, the Court stated that the circuit court clerk’s erroneous application of local rules in rejecting a notice of appeal likely would be a “compelling case” of “good cause” or “reasonable excuse.”

In Waukegan Hospitality’s case, however, it did not seek relief under Rules 9(d)(2) or 303(d), so the documents supporting its position were not in the record on appeal. Instead, Waukegan Hospitality simply included them in the appendix to its opening brief. Because they were not in the record, the Court disregarded them under the longstanding principle that materials outside the record may not be placed before a reviewing court in an appendix.

Finally, the Court left open the question of whether Rule 9(d)(2) is a proper method of establishing appellate jurisdiction, noting the split of authority on that issue. Compare O’Gara v. O’Gara, 2022 IL App (1st) 210013, ¶¶ 46-47 (Rule 9(d)(2) may be used establish appellate jurisdiction) with Waukegan Hospitality Grp., LLC v. Stretch’s Sports Bar & Grill Corp., 2022 IL App (2d) 210179, ¶ 15 aff’d 2024 IL 129277 (Rule 9(d)(2) “may not apply to a notice of appeal” because circuit court loses jurisdiction 30 days after final judgment). Because Waukegan Hospitality had not sought relief under Rule 9(d)(2), its applicability to a notice of appeal was not before the Court.

SAFE-T Act Appeals Require Proper Argument - By Kimberly Glasford

Paul Coogan — Thu, 25 Jan 2024 15:54:15 GMT

This post was authored by by ALA Board Member Kimberly Glasford.

When the trial court denies a defendant pretrial release under the Safety, Accountability, Fairness and Equity-Today Act (SAFE-T ACT), he may appeal under Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023). Additionally, “[t]he appellant may file, but is not required to file, a memorandum” in support of the appeal. Id.

In People v. Duckworth, 2024 IL App (5th) 230911, the defendant appealed the denial of pretrial release by filing the notice of appeal form approved by the Illinois Supreme Court. The defendant checked the boxes setting forth issues for appeal. He did not, however, elaborate on the grounds for relief in the spaces provided for that purpose. The Office of the State Appellate Defender (OSAD), which was appointed to represent the defendant, subsequently filed a notice indicating that he did not intend to file a memorandum under Rule 604(h).

The State moved to dismiss the appeal, arguing that the notice of appeal was deficient given that defendant had merely checked the boxes. In response, the defendant, through OSAD, argued that checking the boxes was sufficient to show his desire to appeal and the notice itself conferred jurisdiction on the appellate court. OSAD further argued that the defendant’s arguments could be ascertained in a matter of minutes by reading the transcript.

The appellate court found that the timely-filed notice of appeal was sufficient to invoke the court’s jurisdiction. Id. ¶ 5. That being said, the court rejected OSAD’s argument that the defendant was not required to provide arguments supporting the issues raised on appeal. Id.

The reviewing court observed that Rule 604(h) requires a defendant’s notice of appeal to describe the relief requested and the grounds for that relief. Thus, some form of argument was required. Additionally, the reviewing court is not a depository into which the defendant may dump the burden of research and argument. Duckworth, 2024 IL App (5th) 230911, ¶ 6. “To presume, as contended by OSAD, that this court would present arguments on behalf of the appellant and then issue a ruling on those same arguments is both incredulous and contrary to well-established Illinois Supreme Court rules governing appeals.” Id. ¶ 7.

The reviewing court found that the defendant failed to comply with Rule 604(h)’s requirement that the notice of appeal describe the grounds for the relief requested. Id. ¶¶ 6, 8. The defendant had also failed to cite evidence in the record or make any legal argument to support his claims. Id. ¶ 8. Furthermore, OSAD had declined to rectify these deficiencies. Id. Accordingly, the appellate court concluded that the defendant forfeited the issues raised on appeal, warranting dismissal. Id.

Duckworth shows that while Rule 604(h) does not itself require a defendant to file a supporting memorandum, a defendant’s duty to present a proper argument nonetheless does require him to file one if his notice of appeal did not otherwise adequately develop his claims.

Illinois Supreme Court Assigns Hon. Amy Sholar to Fifth District Appellate Court

Walker Mondt — Thu, 18 Jan 2024 20:53:19 GMT

Today, the Supreme Court assigned the Honorable Amy E. Sholar, Circuit Judge of the Third Judicial Circuit, to the Fifth District Appellate Court.

Judge Sholar was first appointed to the bench as a Third Circuit Judge on April 30, 2021, and won election as a Resident Circuit Judge for Madison County in 2022. She has served as the Presiding Judge of the Family Division and was appointed by the Illinois Supreme Court to serve on the Judicial Inquiry Board in May 2023.

Judge Sholar earned her Bachelor of Arts degree from Southern Illinois University and her Juris Doctor from the St. Louis University School of Law.

Job Vacancy - Law Clerk First District Appellate Court

Walker Mondt — Tue, 02 Jan 2024 16:47:58 GMT

December 26, 2023

JOB VACANCY ANNOUNCEMENT

Chambers of the Honorable Freddrenna M. Lyle

First District Appellate Court

Chicago, IL

Justice Freddrenna M. Lyle, of the First District Illinois Appellate Court, is seeking a full-time judicial secretary/law clerk for her chambers in Chicago, Illinois. The judicial secretary/law clerk conducts legal research and assists in drafting memoranda, opinions, and orders. This position also requires performing various administrative duties.

DUTIES INCLUDE:

· Assist in drafting opinions, orders, and memoranda.

· Edit and cite check final draft orders, opinions, dissents and/or special concurrences.

· Advise the Justice on research of court rules and points of law on pending appeals.

· Research the law regarding issues identified by the parties or the court.

· Study current legal publications, recent opinions of the Illinois Supreme and Appellate Courts, and other relevant state and federal cases; interpret new statutes according to legislative intent and review recent legislation.

· The position also requires secretarial duties, including but not limited to, corresponding with the Springfield courthouse and other chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date. The successful applicant must have the ability to comport oneself in a manner which is cognizant of the Court’s ethical responsibilities.

· Perform other duties as assigned.

KNOWLEDGE AND SKILLS:

1. Working knowledge of, and ability to apply, federal and state laws and court decisions to pending legal cases.
2. Working knowledge of, and ability to apply, court procedures and rules of evidence.
3. Skill in analyzing legal issues and writing persuasively.
4. Skill in applying legal principles and specialized knowledge to individual cases and problems.
5. Ability to communicate effectively.
6. Ability to apprise the Justice of new statutes and recent legislation changes.

EDUCATION AND EXPERIENCE:

Applicants must have a JD from an accredited law school. It is also preferred that the applicant be licensed or registered for a state bar exam. Law Review/journal experience is preferred. Applicant should possess excellent research, case analysis, and writing skills. Experience as a law clerk in a reviewing court is strongly preferred. Excellent computer and technology skills required.

PHYSICAL REQUIREMENTS:

This position requires the ability to sit or stand for extended periods of time. This is a professional office working environment requiring telephone usage and the ability to process and read large volumes of written documents in electronic formats.

OTHER REQUIREMENTS:

Applicant must possess the ability to travel throughout the state, including overnight stays as required for educational conferences. Applicant may be required to submit additional materials for the position.

Interested individuals should send a resume and short professional writing sample (5 page maximum) by email to courtemployment@illinoiscourts.gov.

This position will remain open until filled. However, those individuals submitting materials by Tuesday, January 9, 2024, will be given first consideration.

EQUAL OPPORTUNITY EMPLOYER

Illinois Judicial Ethics Committee Guidance on Illinois Code of Judicial Conduct

Paul Coogan — Thu, 16 Nov 2023 20:58:45 GMT

The Illinois Judicial Ethics Committee has revised and updated its Judicial Election/Campaign FAQs in light of the recently promulgated Illinois Code of Judicial Conduct. The FAQs provide guidance on applying the Illinois Code to real-world scenarios that judicial candidates often encounter. Aspiring judges or incumbents running for election or retention may benefit from a review of the FAQs.

The FAQs are posted on the Illinois Judges Association's website, here.

CLE Opportunity - Basics of Administrative Appeals

Paul Coogan — Mon, 13 Nov 2023 15:35:41 GMT

The Public Interest Law Initiative will be hosting a virtual CLE program on the Basics of Administrative Appeals, which will feature speaker Nadine Wichern of the Illinois Attorney General's Office.

The program will take place on Zoom on December 12, 2023 from 12:00pm to 1:00pm. The program is free for volunteers and legal aid attorneys. Advance registration is required.

Illinois Supreme Court November Term Information and Notable Cases

Paul Coogan — Wed, 08 Nov 2023 18:17:32 GMT

The Illinois Supreme Court returns to session for the November Term, with oral arguments scheduled for November 14-16 and November 21. A total of 11 cases will be heard this Term: 4 criminal and 7 civil. The civil cases will be heard on the following dates:

November 15, 2023

127464, 127487 (cons.) – Kopf v. Kelly

128763 – The State of Illinois v. Elite Staffing, Inc.

128767 – The State of Illinois v. Colony Display LLC

November 16, 2023

129155 – In re Marriage of Arjmand

129164 – City of Rock Falls v. Aims Industrial Services, LLC

November 21, 2023

129263 – Cammacho v. City of Joliet

129471 – Arlington Heights Police Pension Fund v. Pritzker

The Court will hear several cases of interest this term, including In re Marriage of Arjmand and The State of Illinois v. Elite Staffing and Colony Display, which will be argued separately. Below are abbreviated summaries for these cases. Full summaries for these cases, as well as criminal and disciplinary cases pending before the Court, can be accessed by ALA members on our website: www.applawyers.org/casespending.

In re Marriage of Arjmand

This Petition raises the question of whether the denial of a petition for substitution of judge for cause can be reviewed on Rule 304(a) interlocutory appeal from another judgment. This matter arises out of lengthy dissolution of marriage proceedings in which the Petitioner brought claims against certain financial institutions, claiming he suffered damages as a result of their alleged violations of certain orders previously entered in that case. During the pendency of those claims, the Petitioner sought to substitute his trial judge for cause and later sought his recusal, both of which were denied. The trial court subsequently dismissed the Petitioner’s claims against the financial institutions and he appealed that dismissal pursuant to Supreme Court Rule 304(a). On appeal, the Petitioner challenged not only the dismissal of his claims, but also the propriety of court denying his requests for substitution and recusal. The Second District reversed the dismissal of the Petitioner’s claims, but it declined to consider the denial of his petition for substitution of judge and motion for recusal, finding that it lacked jurisdiction to consider such rulings. The Petitioner sought leave to appeal this finding. In his Petition, he argues that the Second District’s ruling creates a split among the appellate districts, noting that both the First and Fourth Districts reached the propriety of the denial of a motion for substitution of judge on interlocutory review in Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184 (4th Dist. 1994) and Partipilo v. Partipilo, 331 Ill. App. 3d 394 (1st Dist. 2002).

State of Illinois v. Elite Staffing and Colony Display

The Illinois Attorney General filed this action against three staffing agencies, Elite Staffing, Inc., Metro Staff, Inc., and Midway Staffing, Inc. (the “Agency Defendants”), and their mutual client Colony Display, LLC (“Colony”), alleging that the defendants entered into unlawful conspiracies in violation of the Illinois Antitrust Act (the “Act”) (740 ILCS 10/1 et seq.). The State alleged that Colony hired all three Agency Defendants to recruit, select, hire, supervise, assign and fire employees at its display manufacturing and installation company. The State further alleged that the Agency Defendants “agreed with each other to not recruit, solicit, hire, or ‘poach’ temporary employees from one another at Colony’s facilities,” and that “Colony facilitated the Agency Defendants’ agreement by acting as a go-between to communicate about the agreement among the Agency Defendants and by assisting in enforcing the Agency Defendants’ no-poach conspiracy.” The State also alleged that, at Colony’s request and with its facilitation, the Agency Defendants agreed to fix the wages of their temporary employees at a below-market rate determined by Colony.

The defendants separately moved to dismiss. The Agency Defendants argued that their business of “supplying labor,” which they refer to as “labor services,” is exempt from the Act’s coverage. Colony argued that the alleged facilitation of conspiracies by a vertical non-competitor (Colony) removes them from the ambit of subsection 3(1) of the Act. The circuit court denied their motions to dismiss, but certified two questions for interlocutory appeal under Supreme Court Rule 308:

1. Whether the definition of “Service” under Section 4 of the [Act,] which states that Service “shall not be deemed to include labor which is performed 60 by natural persons as employees of others,” applies to the Act as a whole and thus excludes all labor services from the Act’s coverage.

2. Whether the per se rule under Section 3(a) of the Act, which states that it applies to conspiracies among “competitor[s],” extends to alleged horizontal agreements facilitated by a vertical non-competitor.

The First District Appellate Court answered the two certified questions as follows:

1. Services provided by staffing agencies are generally not excluded from the Act’s coverage. Modifying the question, the appellate court held that the “Service” exclusion in the Act allows individuals to engage in otherwise anticompetitive behavior regarding their own labor, including by participating in collective bargaining and related conduct, but does not permit temporary staffing agencies to engage in anticompetitive conduct in providing their services.

2. Yes, the per se rule can apply to horizontal agreements facilitated by vertical non-competitors when such agreements demonstrate naked restraint of competition. The appellate court held that the nature of an agreement and the conduct at issue must be analyzed to determine whether the violation of the Act can be deemed a per se offense, rather than simply considering the horizontal (i.e. competitors) or vertical (i.e. a non-competitor at a different level of distribution) parties to the agreement.

In their petition for leave to appeal, the Agency Defendants argue that the Act does not apply to alleged wage and hiring coordination because the Act excludes “labor which is performed by natural persons as employees of others” from the “services” it regulates. The Agency Defendants argue that federal courts applying Illinois law have reached that conclusion, which the circuit court declined to follow and the appellate court improperly distinguished. The Agency Defendants also argue that the appellate court improperly changed the focus of the certified question, from whether labor services are excluded from the Act’s coverage to whether the Act applies to labor-related services provided by temporary staffing agencies.

In its petition for leave to appeal, Colony argues that Section 3(1) of the Act does not apply to non-competitors as a matter of law, such that an alleged vertical agreement between and/or among non-competitors cannot constitute a per se violation of the Act. As such, Colony argues that the State’s claim against Colony under Section 3(1) of the Act must be dismissed as a matter of law, as only a claim under Section 3(2) of the Act could be filed against a vertical non-competitor co-conspirator. Section 3(2), under which the State did not bring a claim against the defendants, applies a more stringent rule of reason analysis, taking into consideration facts peculiar to the business and weighing alleged anticompetitive effects against their procompetitive justifications.

When A "Final an Appealable" Order Is Not Actually Appealable

Walker Mondt — Tue, 07 Nov 2023 16:10:02 GMT

By: Carson Griffis

When it comes to appellate jurisdiction, labels may not tell the whole story. That is the lesson from the Illinois Appellate Court’s recent decision in Gateway Auto, Inc. v. Commercial Pallet, Inc., 2023 IL App (1st) 230185, which held that, although an order was characterized as “final and appealable” by the circuit court, it was not immediately appealable under Illinois Supreme Court Rule 304(a).

The plaintiff, Gateway Auto, Inc., leased a building in Chicago from Les Hagan. The building next door was owned by 1300-08 W. Randolph, LLC (“Randolph”), which began negotiating with Hagan about purchasing the building that Gateway was renting. Gateway filed suit, eventually amending its complaint to assert a single claim of tortious interference with prospective business relations against Hagan, Randolph, and one of Randolph’s agents. While Gateway’s action was pending, it was evicted from the building. Hagan and Randolph then filed counterclaims against Gateway for its failure to pay rent and removal of fixtures from the building prior to its eviction. Randolph also filed a motion to dismiss Gateway’s claim against it, which the circuit court granted, disposing of the only claim against Randolph with prejudice. Gateway filed a motion to reconsider the grant of Randolph’s motion to dismiss, which the circuit court denied, adding, “This is a final and appealable order.” Gateway then filed a notice of appeal from the orders granting Randolph’s motion to dismiss and denying its motion to reconsider.

Randolph argued that the appellate court lacked jurisdiction because the counterclaims remained pending, so there was no final judgment disposing of all claims against all parties. In response, Gateway argued that the court had jurisdiction under Rule 304(a), which allows for appeals from “a final judgment as to one or more but fewer than all of the parties,” because the grant of Randolph’s motion to dismiss finally disposed of all claims against Randolph. Ill. Sup. Ct. R. 304(a). And, Randolph argued, the circuit court’s statement that its order was “final and appealable” satisfied Rule 304(a)’s requirement that the circuit court make “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Id.

The appellate court dismissed Gateway’s appeal for lack of jurisdiction. The court recognized that the order granting Randolph’s motion to dismiss was final because it disposed of the only claim against Randolph. But, the court explained, that order was not appealable under Illinois Supreme Court Rule 301 because the counterclaims remained pending in the circuit court. And although the circuit court’s order denying the motion to reconsider said that it was “final and appealable,” it did not refer to immediate appealability, the justness of delaying an appeal, or Rule 304(a) itself. Accordingly, the circuit court’s statement did not satisfy Rule 304(a)’s express written finding requirement.

In reaching that conclusion, the appellate court agreed with the reasoning of Palmolive Tower Condominiums v. Simon, 409 Ill. App. 3d 539 (1st Dist. 2011), which also held that a finding that an order was “final and appealable” was insufficient to invoke Rule 304(a). And the court declined to follow Com-Co Insurance Agency v. Service Insurance Agency, 321 Ill. App. 3d 816 (1st Dist. 2001), which held that a statement that an order was “final and appealable” implicitly recognized that an immediate appeal was proper under Rule 304(a).

Gateway Auto is a reminder that a lack of clarity can be the difference between the existence and absence of appellate jurisdiction. Requesting and drafting circuit court orders that strictly follow the language and requirements of the Illinois Supreme Court Rules is thus critically important.

Carson is counsel in the Litigation & Investigations group at Croke Fairchild Duarte & Beres, where his practice focuses on complex commercial litigation in both trial and appellate courts.

Job Vacancy - Appellate Court Law Clerk to Justice Moore

Paul Coogan — Mon, 09 Oct 2023 14:41:06 GMT

Justice James R. Moore of the Fifth District Appellate Court in Marion, Illinois is seeking an Appellate Court Law Clerk/Administrative Assistant. Approximately 80% of the work will be as a law clerk, and approximately 20% of the work will be performing administrative tasks. The salary for this position is $91,761.

To qualify for this position, the applicant must have graduated from a law school accredited by the American Bar Association and passed the Illinois Bar Exam or its equivalent. A minimum of one year of appellate practice experience as an appellate court clerk or attorney at a private firm or government office is preferred, but will consider all applicants with an excellent academic record.

This position requires the ability to sit or stand for extended periods of time in a professional office working environment requiring telephone usage and the ability to process written documents.

Interested individuals should submit a letter of interest, resume, professional writing sample, a transcript, official or unofficial, of law school grades, and two (2) references to Megan Orso at: morso@illinoiscourts.gov.

This position will remain open until filled. However, those individuals submitting materials by October 20, 2023, will be given first consideration.

Job Vacancy - Appellate Court Judicial Law Clerk to Justice Holdridge

Paul Coogan — Mon, 09 Oct 2023 14:35:17 GMT

Justice William E. Holdridge of the Illinois Appellate Court, Third District, is seeking a Judicial Law Clerk/Administrative Assistant for an opening in his chambers in Peoria, Illinois. This is a remote position with in-chambers presence as needed. Illinois residency is required or willingness to obtain upon job offer. The salary for this position is $91,761 per year.

ESSENTIAL DUTIES: The Judicial Law Clerk/Administrative Assistant will conduct legal research and draft memoranda, orders, and opinions for the Justice. Duties also include reviewing and editing the work of fellow clerks and administrative duties.

EDUCATION AND EXPERIENCE: Graduation from an ABA-accredited law school and licensed to practice law. Law review/journal experience and prior experience as a judicial law clerk and/or appellate lawyer is strongly preferred. Applicants with an outstanding academic record in core courses and superior research, analytical, and writing skills preferred.

To apply, submit a cover letter, resume, one writing sample, law school transcript, and two references to holdridgeoffice@illinoiscourts.gov. The position will remain open until filled.

Cook County Child Protection Division Seeking Attorneys To Represent Indigent Parties

Walker Mondt — Wed, 27 Sep 2023 13:16:16 GMT

The Child Protection Division of the Cook County Circuit Court is looking for attorneys to represent indigent parties at both the trial and appellate level. There are two panels - one for trial work and one for appellate work. You can be on one or both. The fees are $112.50 for in court hours and $75 for out of court work.

If you don't have experience in this area, the Child Protection Division will provide mentors. Most cases are conducted entirely by Zoom with occasional hearings/trials in person. Appellate cases are entirely electronic. Orders in both are electronically filed.

If you are interested, contact Presiding Judge Robert Balanoff at robert.balanoff@cookcountyil.gov

The Child Protection Division is also seeking a Court Coordinator. The annual salary is $59,828 and includes benefits. Individuals must have an Illinois Law License or J.D. and taking the bar exam. Qualified persons are invited to submit, via USPS or email, a letter of interest and a resume outlining their skills and experience to:

Cristina Borjon (cristina.borjon@cookcountyil.gov), Supervisor of the Court Coordinators, Cook County Juvenile Court, Child Protection Division, 2245 W. Ogden Avenue, Rm. C23AW, Chicago, IL 60612.

Illinois Supreme Court Back In Session

Walker Mondt — Wed, 13 Sep 2023 18:40:44 GMT

The Illinois Supreme Court returns to session for the September Term, with oral arguments scheduled for September 12-14 and September 19-21. A total of 24 cases will be heard this Term: 13 criminal and 11 civil. The civil cases will be heard on the following dates:

September 19, 2023

128275 - Hart v. The Illinois State Police

128575 - Pinkston v. The City of Chicago

128602 - Alave v. The City of Chicago

September 20, 2023

128731 - Shawnee Community Unit School District No. 84 v. Illinois Property Tax Appeal Board

128841 - Muhammad v. Abbott Laboratories, Inc.

128867 - In re Estate of Mark A. Coffman

128935 - M.U. v. Team Illinois Hockey Club, Inc.

September 21, 2023

129031 - Direct Auto Ins. Co. v. Guiracocha

129081 - Mosby v. Ingalls Memorial Hospital

129087 - Acuity v. M/I Homes of Chicago, LLC

129097 - Doe v. Burke Wise Morrissey & Kaveny, LLC

The Court will hear several cases of interest this term, including M.U. v. Team Illinois Hockey Club and Mosby v. Ingalls Memorial Hospital. Below are abbreviated summaries for these two cases. Full summaries for these cases, as well as criminal and disciplinary cases pending before the Court, can be accessed by ALA members on our website: www.applawyers.org/casespending.

M.U. v. Team Illinois Hockey Club raises the question of whether section 5 of the Illinois Human Rights Act (“IHRA”) applies to a youth hockey club that is not itself a “place of public accommodation,” but rents time at an ice rink that is, such that the club’s exclusion of a team member for a mental health condition would violate the IHRA.

The minor plaintiff joined a girls’ hockey team operated by defendants Team Illinois Hockey Club and the Amateur Hockey Association of Illinois. Defendants lease and operate a public ice rink which is generally open to the public and at which the team holds practices and games. In late 2019, defendants suspended plaintiff from participating in any team activities upon her disclosure of certain mental health conditions. Two weeks later, defendants lifted plaintiff’s suspension.

Plaintiff sued defendants, alleging they violated article 5 of the IHRA, which states “[i]t is a civil rights violation for any person on the basis of unlawful discrimination to *** [d]eny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation.” 775 ILCS 5/5-102(A). Defendants moved to dismiss her complaint, arguing that the team did not constitute a “place of public accommodation” under the IHRA, and the trial court agreed. The Second District Appellate Court reversed. It held that defendants, as entities, are not places of public accommodation, but the ice rink is, and defendants “may nevertheless be subject to civil rights laws if they exercise sufficient control over a place of public accommodation by, for example, leasing or operating the venue where its public sporting events are held.”

Defendants sought leave to appeal, primarily arguing that the Second District’s ruling subjects private organizations to liability under the IHRA simply by virtue of conducting private activities in public places (i.e. social clubs, political organizations, and church groups holding monthly meetings at a restaurant), without providing any parameters for how frequently or how pervasively a private organization must frequent a place of public accommodation before triggering liability under article 5 of the IHRA.

* * * * *

Mosby v. Ingalls Memorial Hospital addresses whether healthcare workers who are required to scan their fingerprints to use medication dispensing systems have their biometric information collected without consent in violation of BIPA. The employers moved to dismiss lawsuits brought by these health care workers based on section 10 of BIPA, which provides that biometric information does not include “information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under” HIPAA. They argued that dispensing medication fell within the definitions of “treatment” and “operations” under HIPAA and the collection of fingerprints for this purpose was exempt under section 10.

The trial court denied the motions to dismiss, but certified a question under Illinois Supreme Court Rule 308 regarding whether section 10’s exemption applied to the collection of healthcare workers’ fingerprints for healthcare treatment or operations. The appellate court answered the certified question in the negative. The court interpreted the exemption to apply only to patient information that is already protected by HIPAA. And because information collected from healthcare workers is not protected by HIPAA, the exemption was inapplicable. The appellate court modified the opinion on rehearing, noting that section 10 made no mention of employee information; it applied to information collected “under HIPAA,” not information collected for treatment and operations “as defined by HIPAA.” Justice Mikva dissented, observing that section 10 exempted two distinct types of information: (1) information captured from patients; and (2) any other information collected for healthcare treatment, payment, or operations as those terms are defined under HIPAA. Justice Mikva believed that the majority’s reading of section 10 disregarded the General Assembly’s use of the word “information” twice, which suggested that it intended to exempt two distinct categories of information.

In their petition for leave to appeal, the employers argued that Justice Mikva correctly interpreted section 10 and that the majority’s reading of that section conflicted with U.S. Department of Health and Human Services guidance directing healthcare facilities to use biometric scanners on medication dispensers. In their answer to the petition for leave to appeal, the employees argued that the employers’ reading of section 10 would amount to creating a BIPA exemption for the entire healthcare industry.

Illinois Appellate Court, First District - Updated Rules

Paul Coogan — Thu, 07 Sep 2023 18:42:24 GMT

The Illinois Appellate Court, First District, has adopted updated rules, effective August 31, 2023. The updated rules reflect changes to Rules 2, 3, and 5 in order to address and comply with the requirements and effects of the Illinois Pretrial Fairness Act.

The updated Rules will be available on the First District's website in the coming days.

Northern District of Illinois Judicial Vacancy Applications

Paul Coogan — Wed, 23 Aug 2023 01:45:03 GMT

U.S. Senators Dick Durbin and Tammy Duckworth have announced that they will begin accepting applications from those interested in serving as a U.S. District Judge for the Northern District of Illinois.

A copy of the announcement can be found at this link.

Applicants must submit a cover letter, resume, and a completed copy of this questionnaire to applications@durbin.senate.gov by 5:00 p.m. CT on Monday September 11, 2023. Applicants are requested to incorporate their cover letter, resume, completed questionnaire, and any attachments to the questionnaire into a single PDF document if possible.

The Senators will be assisted by a screening committee, which will review candidates and advise the Senators, who will make recommendations on potential nominees to the President.

Appellate Court Judicial Law Clerk/Administrative Assistant Vacancy

Paul Coogan — Thu, 08 Jun 2023 14:00:41 GMT

Justice Eugene G. Doherty of the Illinois Appellate Court, Fourth District, seeks a judicial law clerk/administrative assistant for an opening in his chambers in Rockford, Illinois. This position may be considered on a limited term or an indefinite basis depending on the strength of the application.

The judicial law clerk/administrative assistant conducts legal research and drafts memoranda, orders, and opinions for the justice, and may be asked to review and edit the work of other clerks. The position also requires sharing administrative duties with the other clerks, including paying bills, submitting reimbursement requests, etc. The administrative aspects of the position represent a very small part of overall clerking responsibilities. The successful applicant must have the ability to act in a manner consistent with the Court’s ethical responsibilities.

Graduation from an ABA-accredited law school is required. Law Review/journal experience is preferred. Preference will be given to those with prior experience as a judicial law clerk and/or appellate lawyer or as a legal practitioner, but all applicants with an outstanding academic record and superior research and writing skills will be considered. Excellent computer and technology skills required.

To apply, submit a cover letter, resume, official law school transcript, class rank, writing sample and three references to edoherty@illinoiscourts.gov . The position will remain open until filled; submissions received by Friday, June 16, 2023, will be given first consideration.

Retired Appellate Court Justice Tom M. Lytton Passes Away

Carson Griffis — Fri, 19 May 2023 22:38:55 GMT

Justice Tom M. Lytton of the Illinois Appellate Court, Third Judicial District, passed away Wednesday, May 17, 2023. Justice Lytton retired from the bench in July 2022 after 30 years of service on the appellate court.

After graduating from Northwestern University's School of Law, Justice Lytton began his legal career volunteering for VISTA in West Virginia and working at Legal Services in Pittsburgh, Pennsylvania. He then practiced law with his father in East Moline, Illinois, for 19 years.

In 1992, Justice Lytton was elected to the appellate court, where he served the People of the State of Illinois for the rest of his career. While on the bench, he served on the Illinois Continuing Education Committee, the Law and Literature Committee, and as president of the Council of Chief Judges of State Appellate Courts. In 2018, he received the Honorable Richard J. Elrod Public Service Award from the Jewish Judges Association of Illinois.

Funeral services will be at held at 10:30 AM on Monday, May 22, 2023, at Wheelan-Pressly Funeral Home and Crematory, Rock Island, Illinois. Services also will be livestreamed at www.wheelanpressly.com/live-stream.

Justice Lytton's full obituary, which includes additional details on funeral services, how to send flowers or plant a tree in Justice Lytton's honor, and where to post memories of Justice Lytton, may be found here.

On behalf of its membership, the Appellate Lawyers Association expresses its deepest condolences to Justice Lytton's family, friends, and colleagues.

The Honorable Margaret Mullen Assigned To Appellate Court, Second Judicial District

Carson Griffis — Sun, 14 May 2023 16:10:53 GMT

Effective May 11, 2023, the Illinois Supreme Court assigned Justice Margaret J. Mullen to the Illinois Appellate Court, Second Judicial District. Justice Mullen is filling the vacancy created by the passing of Justice Donald C. Hudson. The assignment will continue until June 1, 2027, or until further order of the Illinois Supreme Court.

Justice Mullen was first appointed to the bench in 1992 as an Associate Judge in the 19th Judicial Circuit. She was appointed by the Supreme Court as a 19th Judicial Circuit Judge in 1997 and won election in 1998. She served as Chief Judge of the 19th Judicial Circuit from 2002 to 2004, and served as Presiding Judge of the Law, Juvenile, and Consolidated Family Divisions. She retired from the circuit court in 2017.

Before serving on the bench, Justice Mullen worked in private practice at Tressler, Soderstrom, Maloney & Priess (now Tressler LLP) and served as an Assistant State’s Attorney in Lake and DuPage Counties. She earned a Bachelor of Arts degree from Illinois State University and her juris doctor from The John Marshall Law School.

The Illinois Supreme Court's announcement of Justice Mullen's assignment may be found here. The Appellate Lawyers Association congratulates Justice Mullen on her assignment to the appellate court.

Job Posting: Justice Kathryn Zenoff Seeking Law Clerk/Secretary

Carson Griffis — Sun, 07 May 2023 15:22:08 GMT

Justice Kathryn Zenoff of the Illinois Appellate Court, Fourth Judicial District, is seeking a judicial law clerk/secretary for an opening in early August in her Rockford, Illinois, chambers. Reasonable remote work options, along with in-chambers work when needed, will be considered. The annual salary for the position is $87,391.

The judicial law clerk/secretary conducts legal research and drafts memoranda, orders, and opinions for the justice. Duties also include reviewing and editing the work of other clerks. The position also requires sharing administrative duties with the other clerks, including but not limited to corresponding with the Springfield courthouse and other chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date.

Graduation from an ABA-accredited law school. Law review or journal experience strongly desired. Prior experience as a judicial law clerk and/or
appellate lawyer is strongly preferred, but all applicants with an outstanding academic record in core courses and superior research, analytical and writing skills will be considered. Excellent computer skills required.

To apply, submit (1) a cover letter, (2) resume, (3) law school transcript, (4) class rank, (5) LSAT score, (6) one independent, self-edited writing sample and (7) three references to cnorberg@illinoiscourts.gov. The position will remain open until filled.

More information about the position may be found here.

Justice Donald C. Hudson Passes Away

Carson Griffis — Tue, 11 Apr 2023 21:45:50 GMT

Early today, Justice Donald C. Hudson of the Illinois Appellate Court, Second Judicial District, passed away following a courageous battle with cancer.

Justice Hudson began his service on the bench in 1993, when he was appointed as an associate judge in the Circuit Court for the Sixteenth Judicial Circuit in Kane County. In 2000, he was elected as a circuit judge and was twice elected as Chief Judge in 2004 and 2006. He served on the appellate court since 2009.

While on the bench, Justice Hudson was appointed as Chair of the Illinois Supreme Court's Statewide Committee on Criminal Law and Probation Administration, served as a faculty member on the the Illinois Education Conference, was appointed to the Judicial Inquiry Board, and served as Chair of a Special Supreme Court Committee established to codify the law of evidence in the State of Illinois.

The Illinois Supreme Court's announcement of Justice Hudson's passing may be found here. Services are pending.

On behalf of its membership, the Appellate Lawyers Association extends its deepest condolences to Justice Hudson's family, colleagues, and friends.

Job Posting - PFA Panel Attorney

Paul Coogan — Mon, 27 Mar 2023 15:16:26 GMT

The Office of the State Appellate Defender (OSAD) is establishing a panel program to use private attorneys licensed in Illinois to represent clients in appeals under the Pre-Trial Fairness Act (PFA). Appeals will typically challenge the trial court's decision to either detain a defendant before trial or to impose conditions of pre-trial release. Contract attorneys will be responsible for reading the record on appeal and filing a memorandum in the appellate court making any necessary arguments on behalf of the client. OSAD will remain counsel of record and will provide guidance and clerical support in preparing and filing these appeals. Compensation will be $1000.00 per case. If the appellate court requests oral argument, which we expect will be very rare, additional compensation on an hourly basis will be available. Minority law firms are strongly encouraged to apply. If you are interested in participating in the panel program and would like further information, please email your contact information to PFAPanelAttorneys@osad.state.il.us.

Job Vacancy - Appellate Court Research Attorney, Third District

Paul Coogan — Thu, 09 Mar 2023 16:48:41 GMT

The Third District Appellate Court has posted a job vacancy announcement for an Appellate Court Research Attorney position in Ottawa, IL. The information contained in the posting can be found below:

Salary: $71,737 per year

Benefits: An attractive judicial branch benefits package is offered, including pension, medical, dental, vision, and life insurance, as well as deferred compensation and generous leave time.

Essential Duties: This position involves legal research and drafting of appellate opinions for seven justices.

Experience, Education, and Training Requirements: Graduation from a law school accredited by the American Bar Association is required. Candidates must have excellent writing and analytical ability. License to practice law in the State of Illinois is preferred but not required.

Physical Requirements: Ability to sit for extended time periods. Professional office working environment requiring telephone usage and the ability to process written documents.

Interested individuals should submit, via email, a letter of interest, resume with GPA, and a writing sample to: ldonahue@illinoiscourts.gov.

Applicants' information should be submitted as soon as possible but must be received by April 3, 2023.

Job Vacancy - Appellate Court Research Attorney, Fourth District

Paul Coogan — Thu, 09 Mar 2023 16:42:31 GMT

The Fourth District Appellate Court has posted a job vacancy announcement for an Appellate Court Research Attorney position. The information contained in the posting can be found below:

Salary: $71,737 per year

Benefits: An attractive judicial branch benefits package is offered, including pension, medical, dental, vision, and life insurance, as well as deferred compensation and earned leave time.

Essential Duties: This position involves legal research, analysis, and writing, reviewing, and assisting in the drafting of judicial orders and opinions.

Experience, Education, and Training Requirements: Graduation from a law school accredited by the American Bar Association is required. Candidates must possess superior research, analytical, and writing skills. Candidates must have strong information technology skills including proficiency with commonly used office software such as Microsoft Office, Microsoft Excel, and Adobe Acrobat. Competence in the use of web-based case management software and the ability to perform electronic legal research is also required. Practicing attorneys and recent graduates are encouraged to apply. Fully remote work is possible for candidates with comparable experience.

Physical Requirements: Ability to sit for extended time periods.

Interested individuals should submit, via email, a letter of interest, resume, professional writing sample, and official or unofficial law school transcript, and three references to: ac_district4_clerk@illinoiscourts.gov.

This position will remain open until filled. However, those individuals submitting materials by March 30, 2023 will be given first consideration.

Job Vacancy - Law Clerk/Judicial Secretary for Justice Mathias Delort

Carson Griffis — Thu, 16 Feb 2023 03:01:48 GMT

Justice Mathias W. Delort of the Illinois Appellate Court, First District, is seeking a Law Clerk/Judicial Secretary to serve in his chambers in Chicago, Illinois. This appointment is for a term that expires September 1, 2023. The annual salary for the position is $87,391.

The Law Clerk/Judicial Secretary conducts legal research and drafts memoranda, orders, and opinions for the justice. Duties also include reviewing and editing the work of other clerks. The position also requires sharing administrative duties with the other clerks, including but not limited to, corresponding with other courts and chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date.

Applicants must be licensed attorneys admitted to the Illinois bar. Law Review/journal experience is preferred. Preference will be given to those with prior experience as a judicial law clerk and/or appellate lawyer or as a legal practitioner, but all applicants with an outstanding academic record and superior research and writing skills will be considered. Excellent computer and technology skills are required.

Applications will be accepted until March 8, 2023. Those interested should submit a resume, cover letter, writing sample, and references to Frank Dermody at fdermody@illinoiscourts.gov.

Additional details regarding the position may be found here.

Job Vacancy - First District Research Attorney

Carson Griffis — Thu, 16 Feb 2023 02:53:25 GMT

The Illinois Appellate Court, First Judicial District, is accepting applications for a Research Attorney position. Research Attorneys research and analyze applicable law and prepare draft orders and memoranda in matters before the appellate court.

Applicants must be graduates of an ABA-accredited law school and possess excellent research, case analysis, and writing skills. Practicing attorneys and recent graduates with a passion for legal writing and an interest in appellate practice and criminal law are encouraged to apply.

Interested individuals should submit a resume, writing sample, an official or unofficial law school transcript, and a letter of interest stating how the candidate’s experience and qualifications connect with the position, via e-mail, to courtemployment@illinoiscourts.gov no later than March 20, 2023.

Additional details regarding the position may be found here.

Seventh Circuit Panel Discussion

Paul Coogan — Fri, 10 Feb 2023 18:46:33 GMT

Chief Judge Diane Sykes will be moderating a Panel Discussion with the Seventh Circuit's Newest Judges: Judge Thomas L. Kirsch, II, Judge Candace Jackson-Akiwumi, Judge John Z. Lee, and Judge Doris L. Pryor.

The program will take place at the Dirksen Federal Courthouse, 219 S. Dearborn, Chicago, IL at 3:00 p.m. on March 2, 2023.

Interested individuals must register by February 15, 2023, using this link: Registration Link

Job Vacancy - First District Appellate Court Law Clerk

Paul Coogan — Fri, 10 Feb 2023 18:32:53 GMT

The First District Appellate Court is seeking a judicial law clerk to perform legal research, analysis and writing and to review and assist in drafting of judicial opinions, orders, and other legal documents. The annual salary is $96,754.

Eligible applicants should have a working knowledge of, and ability to apply, federal and state laws and court decisions to pending legal cases; working knowledge of, and ability to apply, court procedures and rules of evidence; skill in providing legal research and preparing memorandum of law providing legal and procedural advice; skill in analyzing legal issues and writing persuasively; ability to communicate effectively; ability to apprise the Justice of new statutes and recent legislation changes.

To qualify for this position, the applicant must have graduated from a law school accredited by the American Bar Association, be admitted to the Illinois Bar, and have a minimum of one year of appellate practice experience as an appellate court clerk or attorney at a private firm or government office. Preference will be given to those individuals with either three or more years’ experience of appellate court brief writing or a criminal appellate background.

This position requires the ability to sit or stand for extended periods of time. This is a professional office working environment requiring telephone usage and the ability to process written documents. Applicant must possess the ability to travel throughout the state, including overnight stays as required.

Interested individuals should submit a letter of interest, resume, professional writing sample, a transcript of law school grades and 2 references to:

Justice Bertina E. Lampkin, First District Appellate Court, Attn: Noreen Beirne

160 North LaSalle Street, Suite N1509, Chicago, IL 60601

This position will remain open until filled. However, those individuals submitting materials by March 2, 2023 will be given first consideration.

Jessup International Law Moot Court Competition - Judges Needed

Paul Coogan — Tue, 24 Jan 2023 20:15:35 GMT

The Jessup International Law Moot Court Competition is seeking volunteer judges for its Midwest Regional competition on February 10-12, 2023. The competition will take place at Loyola University School of Law Chicago. The Jessup International Moot Court Competition is a simulation of a case before the International Court of Justice.

Please email midwest@ilsa.org if you are available and interested in volunteering.

Job Vacancy - Illinois Appellate Court, Third Judicial District, Seeking Clerk of Court

Carson Griffis — Fri, 20 Jan 2023 01:35:49 GMT

The Illinois Appellate Court, Third Judicial District, is accepting applications for the position of Clerk of the Court. This is a highly responsible professional, supervisory, and administrative position.

The Clerk is responsible for administering all phases of work in docketing case flow management and other areas of operations necessary to execute the responsibilities of the office. Duties include supervising the filing and intake of court documents, overseeing the oral argument calendar, managing budget expenditures and procurement, supervising and managing staff, coordinating the administrative functions of the court, and conferring with court justices about court policy and planning. This position requires an on-site presence at the courthouse in Ottawa, Illinois, Monday through Friday, and on weekends as duties may require.

Applicants must have a J.D. and a minimum of five years' progressively responsible experience or training in the processing of litigating either trial or appellate court cases.

Additional details about the position, including how to apply, may be found in the following vacancy announcement. Applications must be received on or before February 7, 2023.

Job Vacancy - Appellate Court Judicial Secretary/Law Clerk for Justice Judy Cates

Carson Griffis — Tue, 17 Jan 2023 18:02:03 GMT

Justice Judy Cates of the Illinois Appellate Court, Fifth Judicial District, is accepting applications for an in-chambers appellate court judicial secretary/law clerk in St. Clair County, Illinois. The duties include legal research and analysis, and the drafting of judicial opinions, orders, and memoranda. The position also requires performance of administrative duties, including correspondence with the courthouse and other chambers, maintenance of court files, tracking of motions and cases, and other duties as assigned. The annual salary is $87,391.

Applicants must be graduates of an ABA-accredited law school with strong academic records; superior skills in legal research, analysis, and writing; the ability to work independently; familiarity with Microsoft Office programs; outstanding communication, computer, and organizational skills; and the ability to utilize electronic platforms, including videoconferencing, and related technology. Writing experience, such as Law Review, or similar journal experience, is preferred, but not required. Preference will be given to those with an Illinois law license, and prior experience as a judicial law clerk or research attorney.

The position will be available on March 13, 2023, and will remain open until filled, although those submitting applications before February 3, 2023, will be given first consideration. Interested individuals should submit - via e-mail - a cover letter, resume (including the applicant's GPA, class rank and bar status), one complex writing sample (not just a simple motion), and three references to: mmurphy@illinoiscourts.gov.

Additional information about the position may be found here.

Job Vacancy - Chambers of Justice Ann Brackley Jorgenson

Paul Coogan — Tue, 03 Jan 2023 03:38:35 GMT

Justice Ann Brackley Jorgensen of the Illinois Appellate Court, Second District, seeks a Judicial Secretary/Law Clerk for an opening in her chambers in Wheaton, Illinois.

BENEFITS: An attractive judicial branch employee benefits package is offered, including pension; medical, dental, vision, and life insurance, deferred compensation; and vacation.

SALARY: $87,391 per year

ESSENTIAL DUTIES: The Judicial Secretary/Law Clerk conducts legal research and drafts memoranda, orders, and opinions for the justice. The position additionally requires administrative duties, including corresponding with the courthouse and other chambers, tracking the status of motions and cases, paying bills, and maintaining case files. Applicants must have exceptional organization skills.

EDUCATION AND EXPERIENCE: Graduation from an ABA-accredited law school and licensed in Illinois or pending bar examination in Illinois. Prefer prior experience as a judicial law clerk and/or legal practitioner but will consider all applicants with an excellent academic record and superior research/writing skills.

To apply, submit a cover letter, resume, one writing sample, law school transcript, and two references to justiceannjorgensen@gmail.com. The position will remain open until filled.

Job Vacancy - Third District Appellate Court Research Attorney

Paul Coogan — Mon, 26 Dec 2022 17:04:59 GMT

The Third District Appellate Court has posted a job vacancy announcement for an Appellate Court Research Attorney position. The job is located in Ottawa, Illinois. The information contained in the posting can be found below:

Salary: $71,737 per year

Benefits: An attractive judicial branch benefits package is offered, including pension, medical, dental, vision, and life insurance, as well as deferred compensation and generous leave time.

Essential Duties: This position involves research and drafting of appellate opinions for seven justices.

Experience, Education, and Training Requirements: Graduation from a law school accredited by the American Bar Association is required. Candidate must have excellent writing and analytical ability. License to practice law in the State of Illinois is preferred but not required.

Physical Requirements: Ability to sit for extended time periods. Professional office working environment requiring telephone usage and the ability to process written documents.

Interested individuals should submit, via email, a letter of interest, resume with GPA, and a writing sample to: ldonahue@illinoiscourts.gov. Applicants may be required to submit additional material or complete job specific tests for this position.

Applicants' information should be submitted as soon as possible, but must be received by January 18, 2023.

Judge Linda Davenport Appointed to Illinois Appellate Court, Third Judicial District

Carson Griffis — Fri, 16 Dec 2022 19:44:39 GMT

The Illinois Supreme Court has announced that Judge Linda Davenport has been appointed to the Illinois Appellate Court, Third Judicial District, effective December 21, 2022. Judge Davenport will fill the vacancy created by Justice Mary K. O'Brien's election to the Illinois Supreme Court.

In 2006, Judge Davenport was first appointed as an Associate Judge in the Eighteenth Judicial Circuit. She was reappointed in 2011 and 2015, and in 2018 won election as a Circuit Court Judge in the Eighteenth Circuit.

Before joining the bench, Judge Davenport spent 28 years in private practice. During that time, she also served as a hearing officer for the Attorney Registration and Disciplinary Commission and a City Council Member in Wheaton, Illinois. Judge Davenport earned her Bachelor of Arts from the University of Colorado and earned her Juris Doctor from the DePaul University College of Law.

The Illinois Supreme Court's announcement of Judge Davenport's appointment may be found here. The ALA congratulates Judge Davenport on her appointment to the Third District.

Justice Eugene Daugherity Retires; Retired Circuit Judge Adrienne Albrecht Assigned to Illinois Appellate Court, Third Judicial District

Carson Griffis — Fri, 16 Dec 2022 19:07:30 GMT

Justice Eugene Daugherity of the Illinois Appellate Court, Third Judicial District, has retired, and the Illinois Supreme Court has assigned Justice Adrienne Albrecht to the Third District to fill that vacancy. Justice Albrecht's assignment took effect December 12, 2022.

Justice Daugherity had been appointed to the Third District to fill the vacancy created by Justice Robert E. Carter's appointment to the Illinois Supreme Court in 2020. Justice Daugherity was first appointed to the bench in 2001 in the Circuit Court for Thirteenth Judicial Circuit. He was elected to the circuit court in November 2002 and was retained in 2008, 2014, and 2020. Justice Daugherity served as the Presiding Judge of the Civil Division in LaSalle County from January 2010 to his appointment to the appellate court.

Before joining the bench, Justice Daugherity worked in private practice in Ottawa, Illinois, since 1982. Justice Daugherity earned his Bachelor of Arts from Loyola University and his Juris Doctor from the DePaul University College of Law, where he graduated with honors.

Justice Albrecht served as a resident circuit judge on the Circuit Court for the Twenty-First Judicial Circuit in Kankakee County from 2006 until her retirement in 2022. She won election in 2008 and retention in 2014.

Before serving on the bench, Justice Albrecht worked for 26 years in private practice. She earned her Bachelor of Arts from the University of Illinois Urbana-Champaign and her Juris Doctor from the University of Illinois College of Law.

The Illinois Supreme Court's announcement of Justice Albrecht's assignment to the Third District can be found here. The ALA congratulates Justice Daugherity on his retirement and distinguished career, and congratulates Justice Albrecht on her assignment to the Third District.

Justice Maureen Connors Retiring; Judge David Navarro Appointed to Fill Vacancy

Carson Griffis — Tue, 13 Dec 2022 21:47:40 GMT

The Illinois Supreme Court has announced that it is assigning Cook County Circuit Judge David R. Navarro to the Illinois Appellate Court, First Judicial District, effective February 6, 2023. Judge Navarro is being assigned to fill the
vacancy created by the assignment of Justice Mary Mikva to the vacancy created by the retirement of Justice Maureen Connors. The assignment is will continue until further order of the Court.

Justice Connors has served on the bench since 1988, when she was selected to serve as an associate judge in the Circuit Court of Cook County. As an associate judge, Justice Connors served in Traffic Court, Domestic Violence Court, the First Municipal District Court, and the Fifth Municipal District Court in Bridgeview, Illinois. She was elected as a circuit judge in 1994 and assigned to the Probate Division, where she served until her appointment to the appellate court in October 2010.

Judge Navarro was appointed to the Cook County Circuit Court in May 2017 and won election in 2018. He was named Supervising Judge of the
Pretrial Division in January 2020, and was named Acting Presiding Judge of the Pretrial Division in November 2021. He currently sits on the Illinois Supreme Court Rules Committee as well as several Illinois Supreme Court Subcommittees.

Before joining the bench, Judge Navarro served as the Chief of the Public Integrity Bureau for the Office of the Illinois Attorney General from 2009 to 2017, and previously served in the Cook County State's Attorney's Office as an Assistant State's Attorney and Supervisor of the Professional Standards Unit.

Judge Navarro earned his Bachelor of Arts from the University of Chicago and earned his juris doctor from the University of Iowa College of Law.

The Illinois Supreme Court's announcement of Judge Navarro's appointment may be found here.

The ALA congratulates Justice Connors on her retirement and Judge Navarro on his appointment to the appellate court.

Judge Doris Pryor Appointed to U.S. Court of Appeals for the Seventh Circuit

Carson Griffis — Tue, 06 Dec 2022 15:44:34 GMT

Judge Doris Pryor has been appointed to the U.S. Court of Appeals for the Seventh Circuit after being confirmed by the Senate on December 5, 2022. President Biden nominated Judge Pryor to the Seventh Circuit in May 2022 to fill the vacancy created by Judge David Hamilton's taking senior status.

Judge Pryor has served as a magistrate judge on the U.S. District Court for the Southern District of Indiana since 2018. She received her J.D. from Indiana University's Maurer School of Law in 2003, served as a law clerk for Chief Judge Lavenski Smith on the U.S. Court of Appeals for the Eighth Circuit from 2003 to 2004, and served as a law clerk for Judge J. Leon Holmes on the U.S. District Court for the Eastern District of Arkansas from 2004 to 2005. After her clerkships, Judge Pryor served as a Deputy Public Defender for the Arkansas Public Defender's Commission and an Assistant United States Attorney in the U.S. Attorney's Office for the Southern District of Indiana., where she served as its National Security Chief from 2014 to 2018.

The Appellate Lawyers Association congratulates Judge Pryor on her appointment to the Seventh Circuit.

Illinois Appellate Court, Third Judicial District, Seeking Clerk of the Court

Carson Griffis — Fri, 02 Dec 2022 18:13:31 GMT

The Illinois Appellate Court, Third Judicial District, is accepting applications for the position of Clerk of the Court with a projected start date of January 19, 2023. This is a highly responsible professional, supervisory and administrative position. The Clerk of the Appellate Court is appointed by the Appellate Court Justices within one of the five Appellate Districts.

Applicants must have a J.D. and a minimum of five years' progressively responsible experience or training in the processing of litigating either trial or appellate court cases. Applicants must live within the boundaries of the Third District (Bureau, DuPage, Grundy, Iroquois, Kankakee, LaSalle, or Will County).

Additional details about the position, including how to apply, may be found in the following vacancy announcement. The position will remain open until filled, but applications received on or before December 26, 2022, will be given first consideration.

Judge Amy Lannerd Seeking Law Clerk and Law Clerk/Judicial Secretary for Upcoming Appointment to Appellate Court

Carson Griffis — Wed, 02 Nov 2022 12:11:02 GMT

Judge Amy Lannerd, who has been assigned to the Illinois Appellate Court, Fourth Judicial District, effective December 5, 2022, is seeking to fill two positions in her chambers in Quincy, Illinois.

Judge Lannerd is seeking a Law Clerk to perform legal research, analysis, and writing, to review and assist in the drafting of judicial opinions, orders, and other legal documents, and to perform other duties as needed. Applicants should possess excellent research, case analysis, and writing skills, and experience as a law clerk in a reviewing court is strongly preferred. The annual salary for this position is $96,754. Instructions on how to apply, as well as other details about the position, may be found here.

Judge Lannerd also is seeking a Law Clerk/Judicial Secretary to conduct legal research and assist in drafting memoranda, orders, and opinions, as well as perform administrative duties such as corresponding with the Springfield courthouse and other chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date. Applicants should have outstanding academic records and superior research and writing skills, and those with prior experience as a judicial law clerk or in appellate practice will be given preference. The annual salary for this position is $87,391. Instructions on how to apply, as well as other details about the position, may be found here.

Both positions will remain open until filled, but applicants submitting their materials by November 14, 2022, will be given first consideration.

Northern District of Illinois Magistrate Judge Vacancy

Paul Coogan — Mon, 31 Oct 2022 14:09:52 GMT

The United States District Court for the Northern District of Illinois is accepting applications for a full-time United States Magistrate Judge position in the Eastern Division, with the Everett McKinley Dirksen United States Courthouse at Chicago, Illinois as the duty station. The deadline for the submission of completed applications is 5:00 p.m. on November 23, 2022. Filling this U.S. Magistrate Judge position is contingent upon approval of the Seventh Circuit Judicial Council and of the Judicial Conference Committee on the Administration of the Magistrate Judges System. The candidate selected will be appointed only upon the successful completion of a Federal Bureau Investigation and Internal Revenue Service background check.

For more information, see the PDF at the following link: Magistrate_Judge_Announcement

Judge Amy C. Lannerd Appointed to Illinois Appellate Court, Fourth District

Carson Griffis — Sat, 29 Oct 2022 13:10:20 GMT

The Illinois Supreme Court announced that, effective December 5, 2022, Judge Amy Lannerd of the Circuit Court for the Eighth Judicial Circuit, will be appointed to the Illinois Appellate Court, Fourth Judicial District. Judge Lannerd will fill the vacancy created by Justice John W. Turner's decision not to seek retention. Her term on the appellate court will run through December 2, 2024.

Judge Lannerd was appointed to the circuit court in 2016 and won election in 2018. Before serving on the bench, Judge Lannerd worked in private practice in Quincy, Illinois.

Judge Lannerd is a member of the Illinois Supreme Court Pretrial Implementation Task Force Communications Subcommittee and has served presenter for the Judicial Education Conference on the topics of Bankruptcy for Civil and Family Law Judges, Virtual Court Proceedings, and Strategies for Improving Court Performance.

The Appellate Lawyers Association congratulates Judge Lannerd on her appointment to the appellate court.

Hon. Judge Dow to Become Counselor to Chief Justice

Paul Coogan — Thu, 06 Oct 2022 16:04:33 GMT

Judge Robert M. Dow, Jr. of the Federal District Court for the Northern District of Illinois has been appointed by Chief Justice John G. Roberts, Jr. to serve as the Counselor to the Chief Justice. Judge Dow will leave the Northern District bench and begin his new role at the Supreme Court on December 5, 2022. As Counselor to the Chief Justice, Judge Dow will serve as the Chief Justice’s chief of staff, work in partnership with court executives and judges on matters of judicial administration, and represent the Chief Justice in relations with judicial organizations, foreign courts, and visiting dignitaries.

Judge Dow was appointed to the District Court in December 2007, and he has served as the Chair of the Judicial Conference’s Advisory Committee on Civil Rules since 2013. Judge Dow also served as a member of the Advisory Committee on Appellate Rules from 2010 to 2013, and the Chair of the Advisory Committee on Circuit Rules for the Seventh Circuit.

The Chief Justice said the following of Judge Dow’s appointment as Counselor: “I am pleased that Judge Dow has accepted my invitation to assist this Court and courts across the country in their important work. He is well prepared to take on these new responsibilities, and I look forward to a long and productive relationship.” Chief Judge of the Northern District Rebecca Pallmeyer said: “We are proud that Judge Dow’s talents have been recognized, and will miss him as he takes on this new challenge and fulfills an important service to our nation.” For his part, Judge Dow said: “I am grateful to Chief Justice Roberts for the opportunity to serve him, the Supreme Court, and the judicial branch in this new role. It is an honor and privilege to succeed Jeffrey Minear following his long and highly successful tenure as Counselor.”

Justice Daniel J. Pierce to Retire; Judge Sanjay Tailor Appointed to Fill Vacancy

Carson Griffis — Sun, 18 Sep 2022 14:57:21 GMT

Justice Daniel J. Pierce of the Illinois Appellate Court, First Judicial District, will retire from the court effective September 30, 2022. The Illinois Supreme Court has announced that Judge Sanjay Tailor of the Circuit Court of Cook County will fill the vacancy left by Justice Pierce's retirement effective October 3, 2022. Judge Tailor will be the first Indian American to serve on the appellate court.

Justice Pierce has served on the appellate court since 2013. Before then, he served on the Circuit Court of Cook County from 2008 to 2013. Justice Pierce received his undergraduate and law degrees from DePaul University in Chicago.

Judge Tailor was first appointed to the bench in 2003 as an associate judge, and was appointed as a circuit judge in 2021. He has served in the Domestic Relations, Law, and Chancery Divisions of the circuit court. Before his appointment to the bench, Judge Tailor served in the Civil Actions Bureau of the Cook County State's Attorney's Office and worked in private practice. He received his undergraduate degree from the University of Delaware and his Juris Doctor with honors from Loyola University of Chicago School of Law.

The Illinois Supreme Court's announcement of Judge Tailor's appointment may be found here.

The Appellate Lawyers Association thanks Justice Pierce for his dedicated service on the appellate court and congratulates Judge Tailor on his historic appointment to the appellate court.

Justice Mary Jane Theis Selected As Next Chief Justice Of The Illinois Supreme Court

Carson Griffis — Mon, 12 Sep 2022 22:16:26 GMT

The Appellate Lawyers Association extends its congratulations to Justice Mary Jane Theis, who has been selected to serve as the next Chief Justice of the Illinois Supreme Court. Her three-year term will begin on October 26, 2022. Justice Theis will be the fourth woman to serve as the Court’s Chief Justice, following the late Justice Mary Ann McMorrow, Justice Rita B. Garman, and current Chief Justice Anne M. Burke.

Justice Theis has served on the Illinois Supreme Court since 2010. From 1983 to 1993, she served as an associate judge and circuit judge in the Circuit Court of Cook County, when she was assigned to the Illinois Appellate Court, First Judicial District. Justice Theis was elected to the appellate court in 1994 and served there until her appointment to the State’s highest court. Before serving on the bench, Justice Theis served as an Assistant Public Defender in the Cook County Public Defender’s Office. She earned her Juris Doctor from the University of San Francisco School of Law in 1974 and Bachelor of Arts Degree from Loyola University in 1971.

While on the bench, Justice Theis has chaired both the Committee on Judicial Education and the Committee on Judicial Conduct of the Illinois Judicial Conference, and was a member of the Supreme Court Rules Committee. She also previously served as the Supreme Court liaison to the Illinois Judicial College, President of the Illinois Judges Association, President and founding member of the Illinois Judges Foundation, and President of the Appellate Lawyers Association. Justice Theis has also served on the Board of Governors of the Illinois State Bar Association and the Board of Managers of the Chicago Bar Association, and is a member of the Women's Bar Association of Illinois.

The Illinois Supreme Court’s announcement regarding Justice Theis’s selection may be found here.

Justice Joy V. Cunningham Appointed to Illinois Supreme Court

Carson Griffis — Mon, 12 Sep 2022 21:58:22 GMT

The Illinois Supreme Court has announced that it is appointing Justice Joy V. Cunningham, currently serving on the Illinois Appellate Court, First Judicial District, to the Court effective December 1, 2022, filling the vacancy that will be created by Chief Justice Anne M. Burke’s retirement. Justice Cunningham will be the second Black woman to serve on the Illinois Supreme Court, following Justice Lisa Holder White’s appointment to the Court earlier this year.

Justice Cunningham began her legal career in 1982 as an Assistant Attorney General in the Office of the Illinois Attorney General. She went on to serve as a law clerk to Justice Glenn T. Johnson in the appellate court and later worked as Associate General Counsel and Chief Counsel for HealthCare at Loyola University.

In 1996, Justice Cunningham was sworn in as an Associate Judge in Cook County Circuit Court, where she was assigned to the civil trial division. Four years later, she left the bench to serve as Senior Vice President, General Counsel and Corporate Secretary at Northwestern Memorial Healthcare, returning to the bench in December 2006 as an elected Appellate Court Justice in the First District. She was retained by voters in 2016.

Justice Cunningham was the first African American woman elected President of the Chicago Bar Association, the nation’s largest municipal bar association. She currently serves on the Board of Trustees of Loyola University Health System, the Chicago Bar Association’s Strategic Planning Committee, the Governor’s Commission for Eradicating Poverty, the Board of Directors of the James R. Jordan Foundation, the Board of Directors of the Chicago Bar Association Media Organization, and as the Chair of the Associate Commissioners of the Illinois Supreme Court Historic Preservation Commission. She also is a member of the Chicago Bar Association, the American Bar Association, the Illinois State Bar Association, the Cook County Bar Association, the Women’s Bar Association of Illinois, the Black Women Lawyers Association, the Illinois Judicial Council, the Illinois Judges Association, the Economic Club of Chicago, the Chicago Network, the CBA Past Presidents’ Council, the American Law Institute, and the American Bar Foundation.

The Illinois Supreme Court's full announcement regarding Justice Cunningham’s appointment may be found here.

The Appellate Lawyers Association congratulates Justice Cunningham on her historic appointment to the Illinois Supreme Court.

Illinois Supreme Court Chief Justice Anne M. Burke Announces Retirement

Carson Griffis — Mon, 12 Sep 2022 21:24:52 GMT

Illinois Supreme Court Chief Justice Anne M. Burke has announced that she is retiring from the bench, effective December 1, 2022. Chief Justice Burke has served on the State’s highest court since 2006 and has served as its Chief Justice since 2019, guiding the Court and the Illinois judiciary through the COVID-19 pandemic.

Chief Justice Burke’s judicial career began in 1987, when she was appointed as the first female judge on the Court of Claims. In 1994, she served as the Governor’s Special Counsel for Child Welfare Services and, the next year, was appointed to the Illinois Appellate Court, First Judicial District. In 1996, Chief Justice Burke was elected to the appellate court for a full term and served there until her appointment to the Illinois Supreme Court in 2006. She was elected to the Illinois Supreme Court for a full term in 2008 and retained in 2018.

Before serving on the bench, Chief Justice Burke practiced law on the South Side of Chicago, frequently representing families and serving as a guardian ad litem for children. She received her Juris Doctor from the Illinois Institute of Technology, Chicago-Kent College of Law in 1983, and her undergraduate degree in education from DePaul University.

Before attending law school, Chief Justice Burke taught physical education at the Chicago Park District and was instrumental in the creation of the first Chicago Special Olympics in 1968, which later grew to become the International Special Olympics. She later served as the Director of the International Special Olympics and, to this day, remains involved in the Chicago Special Olympics.

Chief Justice Burke’s full statement announcing her retirement may be found here.

The Appellate Lawyers Association thanks Chief Justice Burke for her distinguished, groundbreaking career and tireless commitment to public service, and wishes her the best in her retirement.

Not Every Ruling on a Motion to Transfer Venue Is Immediately Appealable

Carson Griffis — Sat, 27 Aug 2022 13:56:14 GMT

By: Carson R. Griffis*

In Highland Management Group, LLC v. Society Insurance, 2022 IL App (5th) 210348, the Illinois Appellate Court, Fifth Judicial District, clarified the scope of Illinois Supreme Court Rule 306(a)(4), which allows for interlocutory appeals from the grant or denial of a motion to transfer venue.

The plaintiff in Highland brought a declaratory judgment action against its insurer and insurance broker in the circuit court of Madison County, Illinois, seeking coverage for business income losses caused by the Covid-19 pandemic. The plaintiff alleged that venue was proper in Madison County because its president and sole member resided there, and section 2-103(e) of the Code of Civil Procedure, 735 ILCS 5/2-103(e), allows actions to be brought against an insurance company "in any county in which the plaintiff or one of the plaintiffs may reside." The defendants filed a motion to transfer venue, arguing that Madison County was not the plaintiff's county of residence, which the circuit court denied. The defendants then filed a petition for leave to appeal under Rule 306(a)(4).

The appellate court dismissed the defendants' interlocutory appeal because it lacked jurisdiction. The court noted that Rule 306(a)(4) only allows for interlocutory appeals of the grant or denial of a motion to transfer venue "based on the assertion that the defendant is not a resident of the county in which the action was commenced." That language tracks the language of section 2-101 of the Code of Civil Procedure, 735 ILCS 5/2-101, which states that venue is generally proper "in the county of residence of any defendant."

But, the appellate court explained, the plaintiff brought its action in Madison County under section 2-103(e), which allows an action against an insurance company to be brought in the county of the plaintiff's residence, rather than section 2-101. And the defendants argued that venue was improper because the plaintiff did not reside in Madison County, not because they were residents of a different county. Because the defendants' motion was not based on the assertion that they were not residents of Madison County, the appellate court lacked jurisdiction over their interlocutory appeal under Rule 306(a)(4).

*Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General. No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

Justice Eugene Doherty Seeking Law Clerk and Law Clerk/Judicial Secretary

Carson Griffis — Fri, 29 Jul 2022 21:30:00 GMT

Justice Eugene Doherty of the Illinois Appellate Court, Fourth Judicial District, is seeking to fill two positions in his chambers in Rockford, Illinois.

Justice Doherty is seeking a Law Clerk to perform legal research, analysis, and writing, to review and assist in the drafting of judicial opinions, orders, and other legal documents, and to perform other duties as needed. Applicants should possess excellent research, case analysis, and writing skills, and experience as a law clerk in a reviewing court is strongly preferred. The annual salary for this position is $96,754. Instructions on how to apply, as well as other details about the position, may be found here.

Justice Doherty also is seeking a Law Clerk/Judicial Secretary to conduct legal research and assist in drafting memoranda, orders, and opinions, as well as perform administrative duties such as corresponding with the Springfield courthouse and other chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date. Applicants should have outstanding academic records and superior research and writing skills, and those with prior experience as a judicial law clerk or in appellate practice will be given preference. The annual salary for this position is $87,391. Instructions on how to apply, as well as other details about the position, may be found here.

Both positions will remain open until filled, but applicants submitting their materials by August 5, 2022, will be given first consideration.

Judge Eugene Doherty Appointed to Illinois Appellate Court, Fourth District

Carson Griffis — Thu, 14 Jul 2022 03:29:36 GMT

The Illinois Supreme Court has appointed Judge Eugene Doherty to the Illinois Appellate Court, Fourth Judicial District, effective July 14, 2022.

Judge Doherty has served on the bench in the circuit court for the Seventeenth Judicial Circuit since 2007. He won election in 2008, retention in 2014 and 2020, and served as Chief Judge from 2018 to 2021.

Before joining the bench, Judge Doherty practiced with a law firm in Rockford for 16 years and served as a law clerk to Justice Philip G. Reinhard on the Appellate Court, Second District. Judge Doherty earned his Juris Doctor from Northern Illinois University College of Law.

Judge Doherty has served on several Illinois Supreme Court Committees, including as the current Chair of the e-Business Policy Board, as Vice-Chair of Court Operations During COVID-19 Task Force and Chairman of the Task Force’s Evictions Subcommittee, and as a member of the Weighted Caseload Task Force and the Statutory Court Fees Task Force. During his time as Chief Judge in the Seventeenth Judicial Circuit, he served as Chairman for the Technology Committee and the Supreme Court Article V Committee of the Conference of Chief Judges.

The Illinois Supreme Court's announcement of Judge Doherty's appointment may be found here.

Judge Lance Peterson Appointed to Illinois Appellate Court, Third District

Carson Griffis — Thu, 14 Jul 2022 03:22:54 GMT

The Illinois Supreme Court has appointed Judge Lance Peterson, who is currently serving on the circuit court for the Thirteenth Judicial Circuit, to the Illinois Appellate Court, Third Judicial District, effective August 1, 2022.

Judge Peterson earned his Juris Doctor from The John Marshall Law School in Chicago, where he served as Editor-in-Chief of The John Marshall Law Review. Before joining the bench, Judge Peterson served as Grundy County State's Attorney from 1996 to 2001 and as a clerk for Justice Mary Ann McMorrow of the Illinois Supreme Court and Justice Tobias Barry of the Third District.

Judge Peterson began his service on the bench as an Associate Judge from 2001 to 2010. Since 2010, he has served as a Circuit Judge. Judge Peterson is a member of the Illinois Courts Commission and the Illinois Supreme Court Committee on Jury Instructions in Civil Cases, as well as a past member and Chairman of the Alternative Dispute Resolution Coordinating Committee of the Illinois Judicial Conference.

The Illinois Supreme Court's announcement of Judge Peterson's appointment may be found here.

Justice Daniel L. Schmidt Passes Away

Carson Griffis — Mon, 11 Jul 2022 23:21:04 GMT

Justice Daniel Schmidt of the Illinois Appellate Court, Third Judicial District, passed away Tuesday, July 5, 2022, after a two-and-a-half battle with ALS. He was 71.

After receiving his bachelor's degree from the University of Illinois in 1974, Justice Schmidt served as a police officer in Peoria, Illinois, for nine years. He received his Juris Doctor from Washington University in St. Louis and practiced as a trial attorney for 19 years, trying cases to verdict across Illinois. He was elected to the appellate court in 2002 and retained in 2012. Justice Schmidt also was an avid sportsman and conversationist.

Information on the services honoring Justice Schmidt may be found here. The Appellate Lawyers Association expresses its deepest condolences to Justice Schmidt's colleagues and family.

Judge Michael S. Kanne Passes Away

Carson Griffis — Fri, 17 Jun 2022 22:55:24 GMT

Yesterday, Judge Michael S. Kanne of the United States Court of Appeals for the Seventh Circuit passed away. He was 83 years old.

Judge Kanne earned his bachelor's degree in 1962 from Indiana University and, after his graduation, served as a lieutenant in the United States Air Force. Following his military service, he attended Indiana University's Maurer School of Law, where he received his Juris Doctor in 1968.

From 1968 to 1982, Judge Kanne worked in private practice, served as a City Attorney for the city of Rensselaer, Indiana, and served as a judge on the Indiana Circuit Court, Thirtieth Judicial Circuit.

In 1982, President Reagan appointed Judge Kanne to the United States District Court for the Northern District of Indiana and, five years later, to the Seventh Circuit. During his tenure on the Seventh Circuit, Judge Kanne held several important positions in federal-court administration and governance, including as chair of the Judicial Conference Committee on Space and Facilities and the Committee on Judicial Security.

The ALA extends its deepest condolences to Judge Kanne's family and colleagues.

Rule 651(c): One Certificate Is Enough

Carson Griffis — Wed, 25 May 2022 02:32:00 GMT

By: Kimberly Glasford

Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) generally requires postconviction trial counsel to file a certificate stating that she has fulfilled her duties to the defendant under that rule. In People v. Smith, 2022 IL 126940, the supreme court considered whether substitute counsel in a postconviction proceeding must show Rule 651(c) compliance where the defendant’s original counsel in the same proceeding has already filed a certificate. The answer is no.

The right to counsel in postconviction proceedings is statutory (725 ILCS 5/122-4 (West 2018)), not constitutional, and a defendant is entitled to only reasonable assistance. To further the reasonable assistance of counsel, Rule 651(c) states:

“The record *** shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner *** to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

Postconviction counsel’s filing of a Rule 651(c) certificate creates a rebuttable presumption that the defendant received reasonable assistance.

In Smith, the defendant’s original postconviction counsel filed a Rule 651(c) certificate, creating a presumption of reasonable representation. Counsel also filed a response to the State’s motion to dismiss the petition. Before the hearing on the State’s motion, however, substitute counsel was appointed. She did not file her own Rule 651(c) certificate.

The supreme court observed that while Rule 651(c) requires appointed counsel to investigate and properly present a defendant’s pro se contentions, the defendant’s substitute counsel was not appointed to represent a pro se litigant; rather, the defendant’s original counsel had already determined that no amendments were needed to shape defendant’s pro se petition. The two attorneys played significantly different roles given that substitute counsel needed only to argue the motion.

The court also found that requiring substitute counsel to file a Rule 651(c) certificate would waste resources. Specifically, original counsel took almost 16 months to fulfill her Rule 651(c) duties, and the State took a year to review the defendant’s petition and file a motion to dismiss. If substitute counsel were required to perform the duties stated in Rule 651(c), she would be starting over and could potentially file a modified petition. This would in turn mean that the State would be starting over.

Accordingly, the supreme court held that substitute counsel was not required to file her own Rule 651(c) certificate.

In reaching that determination, the court stressed that even where a presumption of reasonableness has arisen due to the filing a Rule 651(c) certificate, a defendant may nonetheless pursue a claim that counsel’s representation was unreasonable. Yet, the defendant in Smith had not argued that either of his postconviction attorneys failed to provide reasonable assistance.

Following Smith, substitute counsel generally need not file a Rule 651(c) certificate if prior counsel has already done so. Still, Smith does not prevent substitute counsel from filing a certificate where she has taken the steps enumerated in the rule. In that instance, substitute counsel should consider filing her own certificate for good measure, particularly where counsel anticipates that the defendant will later challenge the adequacy of postconviction representation.

Justice Lytton to Retire from Illinois Appellate Court; Judge Hettel Appointed to Fill Vacancy

Carson Griffis — Sun, 22 May 2022 20:35:59 GMT

After 30 years of service on the Illinois Appellate Court, Third District, Justice Tom M. Lytton has announced that he is retiring effective July 1, 2022. The Illinois Supreme Court has appointed Judge Joseph P. Hettel of the circuit court for the Thirteenth Judicial Circuit to fill the vacancy left by Justice Lytton's retirement.

Justice Lytton was first elected to the appellate court in 1992 and was retained by voters in 2002 and 2012. Before joining the bench, Justice Lytton was a partner at the firm of Lytton, Lytton & Sutton for nearly 20 years and also served as a special Assistant Attorney General for the Illinois Office of the Attorney General.

Justice Lytton earned his Bachelor of Arts and his Juris Doctor from Northwestern University. He also received a degree from the International School of Law in The Hague, Netherlands. In 2018, he was honored by the Jewish Judges Association as the recipient of the Hon. Richard J.
Elrod Public Services Award.

Judge Hettel has served in the Thirteenth Circuit since being appointed to the bench in 2006. He was retained by voters in 2014 and 2020. Before his service on the bench, Judge Hettel worked in private practice and served for six years as LaSalle County’s State’s Attorney. He earned his Juris Doctor from the Chicago-Kent College of Law.

The Illinois Supreme Court's full announcement may be found here.

Justice Lisa Holder White Appointed To Illinois Supreme Court

Carson Griffis — Tue, 17 May 2022 22:05:07 GMT

The Illinois Supreme Court has announced that it is appointing Justice Lisa Holder White, currently serving on the Illinois Appellate Court, Fourth Judicial District, to the Court effective July 8, 2022, filling the vacancy that will be created by Justice Rita B. Garman's retirement. Justice Holder White will be the first Black woman to serve on the Illinois Supreme Court.

Justice Holder White began her legal career as an Assistant State’s Attorney for Macon County before going into private practice while also serving as an Assistant Public Defender for Macon County. In 2001, Justice Holder White was sworn in as an Associate Judge in the Sixth Judicial Circuit and, in 2008, she became a Circuit Judge. In 2013, Justice White was sworn in as the first Black Justice on the Illinois Appellate Court, Fourth District, and was elected to that position one year later.

Justice Holder White previously served on and chaired the Illinois Supreme Court Judicial Conference Committee on Education, which is charged with planning and providing continuing judicial education for Illinois judges. She teaches at the bi-annual Education Conference, which all Illinois state court judges are required to attend, and previously served as an instructor for
“New Judge School." She also is a member of the Decatur Bar Association, the Illinois Judges Association, the Central Illinois Women’s Bar Association, and the University of Illinois College of Law Leadership Project.

The Illinois Supreme Court's full announcement may be found here.

The Appellate Lawyers Association congratulates Justice Holder White on her historic appointment to the Illinois Supreme Court.

Illinois Supreme Court Justice Rita B. Garman Announces Retirement

Carson Griffis — Mon, 09 May 2022 21:04:16 GMT

Justice Rita B. Garman has announced that she is retiring from the bench, effective July 7, 2022. Justice Garman is the longest-serving judge in the State of Illinois.

Justice Garman was first appointed to the circuit court in 1974. At that time, she was the first female judge to serve in the Fifth Judicial Circuit and one of only eight female judges in the State. In 1995, she was appointed to the Illinois Appellate Court, Fourth Judicial District, and elected to that position the next year. She has served on the Illinois Supreme Court since 2001, including serving as Chief Justice from 2013 to 2016.

Before serving on the bench, Justice Garman was an Assistant State's Attorney in Vermilion County and was engaged in private practice with Sebat, Swanson, Banks, Lessen & Garman. Justice Garman received her J.D. degree with distinction from the University of Iowa College of Law in 1968 and her B.S. degree in economics with highest honors from the University of Illinois in 1965, Bronze Tablet. She graduated as valedictorian of Oswego High School in 1961.

Justice Garman's full statement announcing her retirement may be found here.

The Appellate Lawyers Association thanks Justice Garman for her distinguished, groundbreaking career and commitment to public service, and wishes her the best in her retirement.

First District Amends New Local Rules

Carson Griffis — Tue, 03 May 2022 00:52:52 GMT

Effective today, the Illinois Appellate Court, First District, has amended its rules of procedure. The amended rules may be found here.

These amendments update the new local rules adopted by the First District that were effective on July 1, 2021. The new local rules made many changes to the First District's rules, including reflecting the court's transition to electronic filing.

The new rules and their amendments were a result of the work of the court's 24-member Executive Committee and the Justices of the First District. Justice Aurelia Pucinski is the Chair of the First District's Executive Committee.

When Lawyers Make Mistakes

Carson Griffis — Mon, 02 May 2022 11:13:10 GMT

By: Linda Sackey

Even the most conscientious lawyer can make a mistake. Unfortunately, as the United States Court of Appeals for the Seventh Circuit recently observed in In re Cook Med., Inc., 27 F.4th 539 (7th Cir. 2022), some mistakes cannot be remedied and will doom the clients’ claims.

The attorney at issue here helped several clients file short-form complaints in the in the multidistrict litigation In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, where plaintiffs alleged that they were injured by defendants’ medical device. The district court’s case management order advised plaintiffs to submit a profile form with general personal and medical background information, along with details about their device and alleged injuries. If a plaintiff did not complete a profile form within the specified time frame, defendants could move to dismiss the plaintiff’s claim.

In May 2019, defendants informed the attorney that four of his clients had not submitted the required forms. Several weeks later, when the forms still had not been filed, defendants moved to dismiss. The attorney never responded to the motion. The district court dismissed the cases on July 19, 2019.

More than one year later, one of the clients told the attorney about the dismissal. On August 18, 2020, the attorney moved for reconsideration and reinstatement of the cases. According to the attorney, he did not receive notice of defendants’ motion to dismiss, and he delayed in moving for reconsideration because new filters on his inbox caused the dismissal order to be sent to his junk folder. The attorney sought relief under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6).

The district court denied the attorney’s motion, finding it both untimely and meritless. In general, Rule 60(b) motions must be made within a “reasonable time.” And Rule 60(b)(1) in particular requires requests for reconsideration based on excusable neglect to be raised within one year of entry of judgment. In this case, the district court noted, plaintiffs sought reconsideration nearly 13 months after the order dismissing their cases. Thus, the court concluded that the motion was not brought within a reasonable time.

The district court also noted that “inexcusable attorney negligence is not an exceptional circumstance justifying relief” under either Rule 60(b)(1) or 60(b)(6). After determining that the attorney’s conduct fell within that category, the court denied the plaintiffs’ motion for reconsideration of the dismissal.

The Seventh Circuit ruled that the district court had acted within its discretion, and it affirmed the decision. The appellate court observed that the only stated ground for relief in plaintiffs’ Rule 60(b) motion was the attorney’s “neglect—his mishandling of the submission of his clients’ profile forms and, even more, his inattentive monitoring of both the docket and the email notifications from the district court.” The court determined that there was no showing of extraordinary circumstances that would warrant relief under Rule 60(b).

Second District Holds that Moot is Not Frivolous and Second is Not Successive

Carson Griffis — Thu, 17 Mar 2022 02:15:11 GMT

By: Kimberly Glasford

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2018)) contemplates the filing of one petition. Successive petitions may only be filed with leave of court after satisfying the cause-and-prejudice test. Defendants, however, are entitled to one complete opportunity to demonstrate constitutional violations.

In People v. Taylor, 2022 IL App (2d) 190951, the Second District of the Appellate Court considered the interplay of these rules as well as the impact of the mootness doctrine.

Defendant Johnny Taylor filed a petition under the Act, asserting that appellate counsel’s ineffectiveness led the appellate court to dismiss his direct appeal. When the appellate court recalled the mandate in Taylor’s direct appeal, the trial court dismissed his postconviction petition as moot. Taylor later filed a second postconviction petition, which the trial court treated as successive. Because Taylor had not obtained leave of court, the court denied him relief.

On appeal, the reviewing court first determined whether the petition before it was successive, which in turn depended on the characterization of Taylor’s first postconviction proceedings.

The reviewing court recognized that a trial court may summarily dismiss an initial postconviction petition that is frivolous or patently without merit but found no case law associating mootness with that standard. The court found that while it was well-settled that res judicata, forfeiture or a lack of standing renders a petition frivolous and patently without merit, untimeliness does not.

The reviewing court found that mootness was akin to untimeliness in that it did not speak to whether a petition raised a constitutional violation or to an inherent element required to file a postconviction petition. The court also found that a petition need not establish that an actual controversy exists. Moreover, mootness, unlike res judicata, did not involve a judgment on the merits.

Having determined that mootness does not render a petition frivolous or patently without merit, the reviewing court determined that the trial court erred in treating the defendant’s first petition as an initial postconviction petition. Thus, it followed that his second petition was not successive within the meaning of the Act.

Moreover, even if mootness could render a petition frivolous and patently without merit, Taylor’s second petition could not be treated as a successive filing, as Taylor had not received his one complete opportunity to show that his constitutional rights were substantially violated. Specifically, the trial court dismissed his first petition after the reviewing court recalled the mandate on direct appeal but before Taylor had the opportunity to withdraw his petition.

Taylor shows that courts must protect a defendant’s right to a complete opportunity to demonstrate that constitutional violations occurred. Practitioners should be aware, however, that an earlier Second District decision determined that “the mootness doctrine shares with the doctrine of res judicata all of the features that led our supreme court to hold that a trial court could consider res judicata at the first stage of postconviction proceedings.” People v. Angarola, 387 Ill. App. 3d 732, 742 (2009). Thus, the matter of mootness may not be a moot point.

Appellate Court Analyzes Effect of Successive Motions to Vacate Settlement on Time to File Notice of Appeal

Carson Griffis — Tue, 01 Mar 2022 22:10:24 GMT

By: Carson R. Griffis*

In Parker v. Liberty Insurance Underwriters, Inc., 2022 IL App (1st) 200812, the appellate court highlighted the risks that filing successive postjudgment motions, including sanctions motions, may pose to ensuring that an appeal is perfected.

Jimette Parker and Liberty Insurance Underwriters, Inc., reached an agreement to settle Parker’s lawsuit against Liberty. The circuit court then dismissed Parker’s action with prejudice, but retained jurisdiction to enforce the settlement’s terms.

A few days later, Liberty filed a motion to enforce the agreement claiming that Parker refused to sign some of the documents memorializing their agreement. In response, Parker moved to vacate the settlement and the dismissal of his action. The court granted Liberty’s motion to enforce the settlement and rejected Parker’s request to vacate it. Parker then filed a second motion to vacate the settlement, but withdrew that motion a few weeks later.

More than 30 days after the court had denied Parker’s first motion to vacate the settlement, he filed a motion for sanctions under Illinois Supreme Court Rule 137. The circuit court denied that motion, finding that it lacked jurisdiction. Three days later, Parker filed a notice of appeal that listed the denials of his first motion to vacate and his sanctions motion as the orders he was appealing.

The appellate court held that it lacked jurisdiction because Parker’s notice of appeal was untimely. To begin, the court noted that the dismissal of Parker’s action with prejudice based on the parties’ settlement was a final judgment because it disposed of all of Parker’s claims. It thus construed the first motion to vacate the settlement as a postjudgment motion. And once the circuit court denied that motion, Parker had 30 days to either file a notice of appeal or a Rule 137 sanctions motion.

Because successive postjudgment motions do not toll the time to file a notice of appeal or a sanctions motion, however, Parker’s decision to file a second motion to vacate the settlement did not stop the clock on his time to appeal. Parker’s sanctions motion and notice of appeal were thus untimely.

Cases Pending Highlights Civil Cases in Illinois Supreme Court's March Term

Carson Griffis — Sun, 27 Feb 2022 18:24:07 GMT

The Illinois Supreme Court's March Term begins Tuesday, March 15, 2022. Oral arguments are scheduled for March 15, 16, 17, 22 and 23, 2022. A total of 13 cases will be heard -- 7 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

March 17, 2022

Prate Roofing Installations LLC v. Liberty Mutual Insurance Corp.

Midwest Sanitary Service, Inc. v. Sandburg, Phoenix & Von Gontard, P.C.

March 22, 2022

Chicago Title Land Trust Co. v. Village of Bolingbrook

Holm v. Kodat

O’Connell v. The County of Cook

March 23, 2022

Dawkins v. Fitness International, LLC

Below is a summary of one of those cases, Dawkins v. Fitness International, LLC. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

Dawkins v. Fitness International, LLC, No. 127561

This issue in this appeal is whether the Physical Fitness Facility Medical Emergency Preparedness Act (the “Act”), 210 ILCS 74/1 et seq., or common law imposes a duty on a fitness center to use an automated external defibrillator (“AED”) when it knows that one of its patrons is experiencing a medical emergency.

The Act requires fitness facilities to have an AED available, retain staff trained in using it, and schedule at least one trained staff member to be present during business hours. It also states that, so long as a facility has and maintains its AED, “[a] right of action does not exist in connection with the use or non-use of an automated external defibrillator at a facility governed by this Act, except for willful or wanton misconduct.” 210 ILCS 74/45.

Dollett Dawkins was exercising at a gym owned by Defendant Fitness International LLC (“Fitness”), when she collapsed, stopped breathing, and lost her pulse. Although there was an AED present and a staff member trained to use it, eight minutes passed before a Fitness employee applied the AED to Dollett. During that time, other patrons attempted to administer CPR and called for assistance from Fitness staff. Dollett, who has a heart condition, was suffering ventricular fibrillation, which caused cardiac arrest and, ultimately, permanent brain damage. Leo Dawkins, Dollett’s husband, sued Fitness on his own behalf and on Dollett’s, alleging claims for both negligence and willful and wanton misconduct and alleging that Fitness should be held liable for its employees’ failure to use the AED despite knowing that she was experiencing a medical emergency. Fitness moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure, 735 ILCS 5/2-619(a)(9), arguing that it complied with the Act by having an AED and trained staff present, and it could not be held liable for an alleged failure to use the AED. The trial court granted the motion to dismiss and dismissed all counts of the complaint with prejudice.

Plaintiff appealed from the dismissal of his willful and wanton counts only. The Illinois Appellate Court reversed. The court concluded that, in passing the Act, the General Assembly intended fitness facilities to have AEDs available for use during medical emergencies. Because section 45 of the Act explicitly stated that a fitness facility has immunity except for willful and wanton misconduct, the appellate court reasoned that the Act imposed liability for willful or wanton misconduct. The appellate court rejected Fitness’s argument that the Act only created liability for willful and wanton misuse, as opposed to non-use, of an AED, noting that the immunity provision expressly referenced “non-use” of an AED. The appellate court also held that, regardless of the Act, Fitness had a common-law duty to use the AED as part of the business invitor-invitee relationship between it and Dollett. According to the appellate court, that duty required Fitness employees to administer reasonable first aid to Dollett, which could include the use of an AED. The Act did not clearly abrogate this common-law duty — in fact, it created a private right of action for willful and wanton failures to use an AED. Finally, the appellate court held that Leo’s complaint alleged willful and wanton conduct, noting that it alleged that Fitness employees knew that Dollett was suffering a medical emergency but failed to use the AED, which violated Fitness’s own policy on AED use.

In its petition for leave to appeal, Fitness argued that the appellate court erred in imposing on non-medical personnel an affirmative duty to use an AED and construing the Act as creating a private right of action for non-use of an AED. Fitness argued that, contrary to the appellate court’s interpretation, the Act imposes no affirmative duty to use AEDs. Fitness also noted that several other states’ courts, interpreting similar statutes, have held that they do not impose an affirmative duty to use an AED. Some of those decisions also held that there is no common-law duty to use an AED.

Appellate Court Decision: 2020 IL App (3d) 170702-U. Holdridge, J., with Carter, J., and O’Brien, J., concurring

Ignorance of the Law is Still No Excuse

Carson Griffis — Thu, 17 Feb 2022 23:30:06 GMT

By: Linda Sackey

In Lewis v. Village of Alsip, 23 F. 4th 772 (7th Cir. 2022), the United States Court of Appeals for the Seventh Circuit reminded the public that “[p]eople must learn about their legal obligations.” Their failure to do so is no defense.

The Village of Alsip has enacted an ordinance that prohibits parking on any primary snow route at any time within 12 hours after a snowfall of one inch or more. Primary snow routes are streets marked with signs designating them as primary snow routes. The ordinance also bans parking on any secondary snow routes at any time within 24 hours after a snowfall of three inches or more. Secondary snow routes are all streets in the village that are not designated primary snow routes.

During a snowstorm, Shellie Lewis left her car parked on a public street in the village that, as it turned out, was a secondary snow route. She was fined $50 for violating the ordinance. Most people do not enjoy receiving a parking ticket; however, Lewis apparently was so displeased that she filed a lawsuit in federal court under 42 U.S.C. §1983. She claimed that the village violated the Due Process Clause of the Fourteenth Amendment by failing to mount signs on every street to warn drivers when snow requires them to remove their vehicles.

The district court dismissed Lewis’s complaint, and the Seventh Circuit affirmed its decision. Citing Texaco, Inc. v. Short, 454 U.S. 516, 532 (1982), the court of appeals explained that “[g]enerally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.”

The Seventh Circuit rejected Lewis’s claim that traffic regulations were a special constitutional matter. The court found numerous decisions holding that traffic laws were not exceptional. For instance, in Cochran v. Illinois State Toll Highway Authority, 828 F.3d 597, 600 (7th Cir. 2016), the Seventh Circuit ruled that “[d]ue process does not require a state to post signage notifying all those entering of its laws and regulations. Rather, the statute or regulation is adequate notice in and of itself as long as it is clear.”

In short, this opinion rests on the well-known principle that ignorance of the law is no excuse.

Hon. Alan Joel Greiman Passes Away

Carson Griffis — Wed, 16 Feb 2022 13:07:34 GMT

Hon. Alan Joel Greiman, former circuit court judge and Chief Justice of the Illinois Appellate Court, has passed away at the age of 90. As a judge, he instituted a celebrated mediation program and other innovations that resulted in speedier resolutions of cases.

Justice Greiman also served in the Illinois House of Representatives, where he served as Assistant Majority Leader. During his tenure in the House, he sponsored the Illinois Domestic Violence Act, as well as legislation granting no-fault divorce and the right to public employee collective bargaining, prohibiting the sale of handguns, banning discrimination on the basis of sexual orientation, protecting newsrooms from unreasonable searches, and was the first in the nation to propose a ban on discrimination based on age. He also was an ardent sponsor of the Equal Rights Amendment.

On behalf of the Appellate Lawyers Association, ALA President Scott Howie issued the following statement:

"Justice Greiman was an exemplary member of the appellate court, an exacting questioner at oral argument and fair and thorough in his written opinions. He was also a great friend and supporter of the Appellate Lawyers Association, and we’ll miss him very much. On behalf of the ALA, I extend our deepest condolences to his family and many friends and colleagues."

Services will be held at 10 a.m. on Thursday, February 17, 2022, Chicago Jewish Funerals, 8851 Skokie Blvd. (at Niles Center Road) Skokie, IL. Justice Greiman's obituary, which includes details regarding memorial contributions and a livestream of the services, may be found here.

Cassiday Schade LLP Accepting Applications for Appellate Associate Position

Carson Griffis — Tue, 01 Feb 2022 01:18:38 GMT

The law firm of Cassiday Schade LLP is accepting applications for an associate position in its Appellate Department. The Department handles all appellate work for the firm’s offices in the Illinois Appellate Court, the Illinois Supreme Court, the United States Court of Appeals for the Seventh Circuit, and the Wisconsin Court of Appeals.

The associate would work closely with the head of the Appellate Department in drafting appellate briefs and arguing in the reviewing courts. The associate would also work closely with trial counsel on post-trial motions and appeals. The individual should have strong research, writing, and oral advocacy skills. Resumes may be submitted to the head of Cassiday Schade’s Appellate Department, Julie Teuscher, at jteuscher@cassiday.com.

City of Chicago Appeals Division Accepting Applications

Carson Griffis — Thu, 27 Jan 2022 01:27:15 GMT

The Law Department of the City of Chicago is accepting applications for an Assistant Corporation Counsel position in its Appeals Division. The Division handles all appellate work for the City of Chicago in the Illinois Appellate Court, the Illinois Supreme Court, the United States Court of Appeals for the Seventh Circuit, and the Supreme Court of the United States.

The Division is comprised of a Deputy Corporation Counsel, a Chief Assistant Corporation Counsel, a Senior Counsel, and approximately eight Assistant Corporation Counsel. Typically, each case is assigned to a single Assistant Corporation Counsel (or Senior Counsel). The Deputy and the Chief work on every case. The Appeals Division works cooperatively with the lower court attorneys and supervisors in drafting the appellate brief and preparing for oral argument. The Appeals Division files upwards of a hundred briefs every year on a variety of topics.

More details on how to apply for the position may be found here.

An Issue Is Not A Claim

Carson Griffis — Tue, 04 Jan 2022 21:55:35 GMT

By: Kimberly Glasford

Recently, in Armstead v. National Freight, Inc., 2021 IL 126730, the Illinois Supreme Court reiterated that the distinction between claims and issues is crucial under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

Following a vehicular collision in Illinois, the plaintiff brought a workers’ compensation claim against his Pennsylvania-based employer in Pennsylvania. The order adjudicating the plaintiff’s claim incorporated an agreement stating that he had sustained only right knee strain, to the exclusion of other injuries.

The plaintiff then filed a two-count negligence claim against the other driver and his employer in Illinois. The circuit court granted defendants’ “Motion for Partial Summary Judgment or Summary Determination of a Major Issue” and determined that the plaintiff’s judicial admission in the workers’ compensation agreement prohibited him from raising any injury other than right knee strain. The court also found there was no just reason to delay enforcement or appeal under Rule 304(a).

The plaintiff appealed. The circuit court, however, subsequently granted his motion to voluntarily dismiss without prejudice the rest of his action as to injuries pertaining to right knee strain. The plaintiff then filed a second notice of appeal. After consolidating the appeals, the appellate court affirmed on different grounds.

Justice Overstreet, writing for the majority, found that the court lacked jurisdiction to consider the circuit court’s partial summary judgment ruling.

Rule 304(a) states, in pertinent part, that “[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Conversely, Rule 304(a) does not authorize the review of orders disposing of mere issues within a claim. Armstead, 2021 IL, 126730, ¶ 24.

The supreme court found that the circuit court’s order granting the plaintiff’s motion for partial summary judgment disposed of an issue that was ancillary to, rather than separate from, his negligence claims. Id. ¶ 27. Specifically, the order resolved the issue of whether the workers’ compensation agreement contained a judicial admission precluding him from asserting injuries to his shoulder and back. Yet, the order did not resolve either negligence claim. Consequently, the circuit court’s Rule 304(a) language had no effect and jurisdiction remained in that court.

Moreover, because the plaintiff failed to refile the action within one year (735 ILCS 5/13-217 (West 2016)), his action remained dismissed. Accordingly, the supreme court vacated the appellate court’s decision in its entirety and remanded for the circuit court to dismiss the case.

Chief Justice Anne M. Burke, joined by Justice Neville, concurred in part and dissented in part. She agreed that the plaintiff’s appeal under Rule 304(a) was improper because it merely resolved an issue. The same reasoning, however, precluded the court from addressing the order on the plaintiff’s motion for voluntary dismissal.

Specifically, Chief Justice Burke observed that while the majority concluded that the plaintiff dismissed “his action,” he had actually attempted to dismiss his “claim” for right knee strain, a claim which did not exist. Even assuming the plaintiff had dismissed the entire action, the appeal was moot because the plaintiff did not attempt to refile. The appropriate remedy would be to vacate the circuit court’s voluntary dismissal order and return the case to the circuit court with the partial summary judgment ruling intact.

The distinction between issues and claims appears to plague both litigants and courts alike. Tread carefully.

Motion to Reconsider Tolls the Time to Appeal Under the First Step Act of 2018

Carson Griffis — Tue, 14 Dec 2021 01:17:02 GMT

By: Linda Sackey

In part, the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, authorizes a reduction of a sentence for a prisoner who is serving a sentence for a covered crack-cocaine offense. Under the First Step Act, the prisoner is entitled to ask a judge to treat him as if the Fair Sentencing Act of 2010 had been in force on the date of his original sentence.

At issue in United States v. Hible, 13 F.4th 647 (7th Cir. 2021), was whether a motion to reconsider a decision under the First Step Act extends the time to file an appeal. Each prisoner in the consolidated cases before the United States Court of Appeals for the Seventh Circuit sought a shorter sentence and filed, within the time allowed for appeal, a motion asking the district court to reconsider an adverse decision. The judges in each case denied that motion, and the prisoner appealed. Each prisoner filed a notice of appeal within 14 days of the decision on the motion to reconsider but more than 14 days after the original decision.

Observing that the Supreme Court has held repeatedly that motions to reconsider in criminal cases extend the time for appeal, the Seventh Circuit concluded that a motion to reconsider a decision under the First Step Act suspends the decision’s finality and extends the time to appeal. The court’s ruling was of no help to either prisoner in these cases, as their requests for lower sentences remained denied, but it settles the law in this area going forward.

Illinois Supreme Court Lifts Pause on Judicial Redistricting

Carson Griffis — Thu, 09 Dec 2021 02:27:05 GMT

Today, the Illinois Supreme Court announced that, effective January 1, 2022, it is lifting the pause on judicial redistricting in Public Act 102-11. This law will change the judicial district boundaries, including the districts of the appellate court, for the first time since they were established in 1964. The Court had paused the transition to give the courts sufficient time to plan and implement the significant changes it required.

Effective January 1, 2022, a notice of appeal initiating an appeal to the appellate court or a direct appeal to the Supreme Court under Rule 302(b) shall be transmitted by the clerk of the circuit court to the appropriate appellate district as established by the Public Act 102-11. Additionally, a petition or application or motion under Rule 303(d), Rule 303A, Rule 306, Rule 307(d), Rule 308, Rule 335, Rule 604(c), or Rule 606(c) will be filed in the new appellate district established by the Act. These provisions will apply regardless of the date of the judgment appealed or sought to be
appealed.

Circuit courts will remain subject to the rule that, when a conflict arises among the districts, a circuit court is bound by the decisions of the appellate court of the district in which it sits. In a redistricted circuit, the appropriate appellate district will be the district in which the circuit was located at the time that the circuit court action was initiated.

If a case is heard by one appellate court district on appeal and if a subsequent appeal in that case is heard by a new appellate district pursuant to the order, the new district will treat the decision of the prior district as the law of the case. That the decision of the prior district applied the law of the prior
district that is contrary to the law of the new district will not be a basis for departing from the decision of the prior district.

The full text of the Court's order may be found here, and the full text of Public Act 102-11, which lists the counties included in each new appellate district, may be found here.

Retired Judge Hauptman Appointed to Replace Retired Third District Justice Wright

Carson Griffis — Wed, 01 Dec 2021 13:35:41 GMT

The Illinois Supreme Court has appointed retired Judge John L. Hauptman to replace Justice Vicki R. Wright, who retired from the Illinois Appellate Court, Third District, effective November 30, 2021. Justice Hauptman's appointment is effective from December 1, 2021 through December 4, 2022.

Justice Wright began her legal career as an appellate prosecutor in the Third District in 1982, after graduating from Loyola University School of Law in Chicago. She became an Assistant State’s Attorney in Whiteside County in 1984 and was appointed as a Circuit Judge for the 14th Judicial Circuit in 1991. She was the first female Associate Circuit Judge appointed to the 14th Judicial Circuit and, in 2006, became the first person from Whiteside County elected to the Third District of the Appellate Court.

Before joining the bench, Justice Hauptman earned his Juris Doctor from the John Marshall Law School, worked in private practice for over 10 years, and served as an Assistant State’s Attorney in Whiteside County. Justice Hauptman was first appointed to the bench in 1997 as an Associate Circuit Judge in the 14th Judicial Circuit. He was elected as Circuit Judge in Whiteside County in 2004 and was retained for another term in 2010. During his tenure as Circuit Judge, Judge Hauptman helped organize the first Drug Court in Whiteside County. He retired in December 2016.

The Appellate Lawyers Association thanks Justices Wright and Hauptman for their many years of service on the bench and congratulates them on their respective retirement and appointment.

E-Filing in Wrong County Not Appropriate Basis to Transfer Action to Correct County

Carson Griffis — Fri, 19 Nov 2021 01:42:50 GMT

By: Carson Griffis*

In Miller v. Thom, 2021 IL App (4th) 200410, the appellate court addressed whether forum non conveniens applied to a plaintiff's error in e-filing her complaint in the wrong county.

The plaintiff e-filed her medical malpractice complaint in the circuit court of Sangamon County, but the complaint's caption indicated that it was being brought in St. Clair County. The defendants filed their appearances in Sangamon County and a motion to dismiss the complaint for failing to attach the necessary affidavit under section 2-622 of the Code of Civil Procedure. 735 ILCS 5/2-622. In response, the plaintiff filed the requisite affidavit in Sangamon County.

The plaintiff then filed a motion to transfer venue, stating that her attorney inadvertently selected Sangamon County rather than St. Clair County in the Odyssey e-filing system. The circuit court denied the motion but gave the plaintiff an opportunity to file a forum non conveniens motion instead. The plaintiff then filed a forum non conveniens motion, which the circuit court granted.

On appeal under Illinois Supreme Court Rule 306(a)(2), which allows for interlocutory appeals from orders granting or denying forum non conveniens motions, the appellate court reversed the circuit court's transfer order. Leaving aside the question of whether a plaintiff could bring a forum non conveniens motion at all, the court held that the plaintiff's motion did not implicate that doctrine because forum non conveniens applies when there is more than one proper venue for an action, but one venue is more convenient than the other. In this case, Sangamon County was not a proper venue because it had no connection to the lawsuit -- the only reason that Sangamon County was involved was plaintiff's e-filing mistake. So this was not a circumstance where both Sangamon and St. Clair Counties were appropriate venues, but St. Clair County was more convenient.

The court also held that the venue provisions of the Code of Civil Procedure did not justify the transfer of plaintiff's action. The court noted that a defendant must file a motion to transfer venue "on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint." 735 ILCS 5/2-104(b). Because that time had elapsed by the time the plaintiff moved to transfer venue, the court held that it would be "unjust" to allow the plaintiff to seek to transfer venue, especially since the venue statute is "designed to protect defendants."

Seventh Circuit Rescinds Circuit Rule 57

Carson Griffis — Mon, 01 Nov 2021 22:47:48 GMT

As previously detailed, the Seventh Circuit had invited comments on its proposal to rescind Circuit Rule 57 because it conflicted with Federal Rule of Appellate Procedure 12.1. Having received no comments, the Seventh Circuit repealed that rule effective immediately.

Circuit Rule 57 provided that a party who filed a motion to modify a final judgment in the district court while an appeal was pending had to request the district court to indicate whether it was inclined to grant the motion. If the district court indicated that it was, then the Seventh Circuit would "remand the case for the purpose of modifying the judgment" and a party "dissatisfied with the judgment as modified [had to] file a fresh notice of appeal." Federal Rule of Appellate Procedure 12.1 provides that, if the district court states that it would grant such a motion or that the motion raises a substantial issue, "the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal."

The court's press release regarding the rescission of Circuit Rule 57 may be found here.

Illinois Supreme Court Clerk Carolyn Taft Grosboll To Retire; Assistant Clerk Cynthia Grant Appointed As Next Clerk

Carson Griffis — Wed, 27 Oct 2021 23:58:15 GMT

Illinois Supreme Court Clerk Carolyn Taft Grosboll, who has served in that role since January 3, 2011, has announced her retirement effective November 30, 2021. Cynthia A. Grant, currently the Court's Assistant Clerk, has been appointed as the new Clerk of the Supreme Court effective December 1, 2021.

Clerk Taft Grosboll's many accomplishments included developing the Court’s first e-filing process, migrating that process to the Court’s Statewide e-filing system, creating electronic sharing of documents among Court staff, and creating a method for law firms to register with the Clerk’s Office each year online instead of through the mail. She also increased public transparency by posting briefs in cases on the Court's Call of the Docket Online and developed new procedures to adapt to the difficulties created by the Covid-19 pandemic.

Cynthia Grant has served as the Assistant Clerk in the Supreme Court’s Clerk’s Office since 2013. She previously served for four years as legal counsel for various departments with the Illinois Secretary of State’s office and spent two years on the staff of the Speaker of the Illinois House of Representatives. Ms. Grant earned her undergraduate degree from the University of Wisconsin at Madison and her Juris Doctor from the University of Illinois Chicago School of Law.

The Illinois Supreme Court's full statement on Clerk Taft Grosboll's retirement and Ms. Grant's appointment may be found here.

The Appellate Lawyers Association expresses its sincere gratitude to Clerk Taft Grosboll for her many years of service to its members and the public, and congratulates her on her retirement. The ALA also congratulates Ms. Grant on her appointment as the Court's next Clerk.

Cases Pending Highlights Civil Cases in Illinois Supreme Court's November Term

Carson Griffis — Tue, 26 Oct 2021 21:03:29 GMT

The Illinois Supreme Court's November Term begins Tuesday, November 9, 2021. Oral arguments are scheduled for November 9, 10 and 16, 2021. A total of 10 cases will be heard -- 4 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

November 10, 2021

Doe v. Lyft, Inc., No. 126605

In re Application of the County Collector, No. 126929

Suburban Real Estate Services v. Carlson, No. 126935

November 16, 2021

In the Matter of the Estate of John W. McDonald, III, No. 126956

International Association of Firefighters, Local 50 v. City of Peoria, No. 127040

Munoz v. Bulley & Andrews, No. 127067

Below is a summary for one of those cases, Doe v. Lyft, Inc. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

Doe v. Lyft, Inc., No. 126605

This petition asks the Illinois Supreme Court to determine whether ride sharing companies such as Uber and Lyft may be held vicariously liable for the tortious conduct of their drivers against their passengers in the same manner as other common carriers or whether they are immune from such heightened standards under the Transportation Network Providers Act (“TNPA”).

In 2017, Plaintiff was sexually assaulted by her Lyft driver. She sued Lyft, alleging, inter alia, that as the driver’s employer, it should be vicariously liable for his conduct. Lyft moved to dismiss Plaintiff’s complaint pursuant to Section 2-615 of the Code of Civil Procedure, arguing that it was a Transportation Network Company (“TNC”) within the meaning of Section 25(e) of the TNPA (625 ILCS 57/25(e)), and could not be treated as a common carrier subject to heightened standards of vicarious liability. In response, Plaintiff challenged the constitutionality of Section 25(e), arguing that it constituted special legislation and that its enactment violated the “three readings rule” found in Section 8(d) of Article IV of the Illinois Constitution. The trial court granted Lyft’s motion to dismiss, finding that Section 25(e) plainly exempted ridesharing companies from common carrier status, meaning that Lyft may not be deemed a common carrier as a matter of law. The court also certified two questions for immediate review under Supreme Court Rule 308: whether Section 25(e) of the TNPA “preclude[s] TNCs, such as Lyft, from otherwise being subject to the highest duty of care under common law, like that of a common carrier’s elevated duty to its passengers;” and, if so, whether it violates the Illinois Constitution’s ban on special legislation or whether the Act itself was passed in violation of the Illinois Constitution’s three-readings rule.

The Illinois Appellate Court, First District granted leave to appeal and answered the first question in the affirmative and the second question in the negative. The court first held that Section 25(e) of the TNPA exempted Lyft from common carrier standards of liability. Rejecting Plaintiff’s argument that TNCs provide the same functions as common carriers—and finding that, but for Section 25(e), TNCs would be common carriers—the court reasoned that imposing common carrier liability on TNCs would render that section meaningless and concluded that the section “exempts TNCs from common carrier standards of liability.” The court accepted Plaintiff’s argument that Section 25(e) discriminates in favor of ridesharing companies vis-à-vis taxicabs, but determined that such discrimination was not arbitrary under a rational basis review. The court justified this conclusion by noting: (i) the part-time nature of Lyft drivers and how the company’s “business relationship” with them differs substantially from taxicab medallion holders; (ii) its exclusive use of technological platforms to deliver their services; and (iii) the fact that TNC passengers receive “relevant information [about their driver] before they enter the vehicle.”

The appellate court further rejected Plaintiff’s argument under the three-readings rule, which requires the general assembly to read a bill three times before passage. The court acknowledged that the TNPA originated as a wholly different bill regarding public accounting. After two readings in the House, the text of that bill was completely eliminated and replaced with entirely new language which ultimately became the TNPA. The “new” bill was then read only once in the House. While recognizing that such a procedure violates the three-readings rule under Giebelhausen v. Daley, 407 Ill. 25 (1950), the court found that the enrolled bill doctrine—which prevents judicial inquiry into legislative bill-passing procedure—foreclosed any challenge under the three-readings rule.

Concurring in part, and dissenting in part, Justice Robert Gordon agreed with the majority’s conclusion regarding Section 25(e), but opined that the section failed to pass constitutional muster under the prohibition against special legislation.

Appellate Court Decision: 2020 IL App (1st) 191328. Lampkin, J., with Burke, J., concurring. Gordon, P.J., concurring in part and dissenting in part.

New Domestic Violence Claim, Same Old Statute of Limitations

Carson Griffis — Tue, 19 Oct 2021 21:34:58 GMT

By: Kimberly Glasford

Section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401) generally provides a vehicle for a petitioner to obtain collateral relief for a meritorious claim or defense, even in criminal cases. Subject to certain limited exceptions, a section 2-1401 petition must be filed no later than two years after the challenged judgment was entered. 735 ILCS 5/2-1401(c) (West 2016).

On January 1, 2016, Public Act 99-384 took effect and added subsection (b-5), which recognizes a “meritorious claim” for a defendant convicted of a forcible felony where he or she was a victim of domestic violence by an intimate partner. 735 ILCS 5/2-1401(b-5) (West 2016).

Subsection (b-5) requires the petitioner to show, among other things, that evidence of domestic violence was not presented at sentencing, and he or she could not have learned sooner through due diligence that such evidence was mitigating. 735 ILCS 5/2-1401(b-5) (West 2016).

Public Act 99-384 did not, however, amend section 2-1401(c) to create an exception to the two-year statute of limitations for claims based on the new subsection. The upshot is that under the express language of section 2-1401(c), relief is largely unavailable to those defendants convicted in the decades before subsection (b-5) was enacted. Yet, that hasn’t stopped defendants from trying.

Recently, in People v. Bowers, 2021 IL App (4th) 200509, the Illinois Appellate Court, Fourth District, held that the two-year statute of limitations applies to claims under subsection (b-5). Because that defendant was convicted in 1990, the trial court properly dismissed her petition.

The reviewing court found that the plain language of section 2-1401(c) clearly established a two-year statute of limitations and contained no exception for claims under subsection (b-5). Given that the legislature clearly would have been aware of the statute of limitations, this omission was unlikely to have been mere oversight.

The court also rejected the defendant’s contention that the due diligence requirement set forth in subsection (b-5) was intended to take the place of the statute of limitations. The court noted that litigants frequently had to overcome multiple hurdles to obtain relief.

While the reviewing court was sympathetic to the defendant’s argument that it was seemingly strange to limit relief to only those defendants who were recently sentenced, the court found the legislature may have started with a small number of eligible petitioners, lest the court be overburdened by a sudden rush of petitions. Thus, applying the statute of limitations would not produce an absurd result.

Having already found that the statue was clear, the Bowers court did not delve into various legislators’ comments on the amendment. The court stated, “legislators can have differing interpretations of a law, and parties can have strong policy disagreements about the law without that law being absurd.” Bowers, 2021 IL App (4th) 200509, ¶ 42.

It’s worth noting, however, that one legislator spoke directly to the statute of limitations. According to Representative Mitchell, “[i]t is an option for judges to provide post-judgment relief for up to two years after the original sentencing.” 99th Ill. Gen. Assem., House Proceedings, May 25, 2015, at 29. Additionally, “[t]he time lapse is because often, given the nature of domestic violence, it takes some time for a partner through counseling through time to understand what’s happened to them.” Id.

Although not discussed in Bowers, it’s also worth noting that Public Act 99-384 amended the Unified Code of Corrections by adding a new factor that sentencing courts must consider as mitigating. Specifically, a mitigating factor exists if “[a]t the time of the offense, the defendant is or had been the victim of domestic violence and the effects of the domestic violence tended to excuse or justify the defendant’s criminal conduct.” Id.; 730 ILCS 5/5-5-3.1(a)(15) (West 2016). This may reduce the number of defendants who need relief under section 2-1401(b-5).

The beneficiaries of subsection (b-5) may be few, but if the legislator intended something different, they’ll have to go back to the drawing board.

Judicial Districts Act of 2021 Redraws Downstate Judicial Districts, Posing Challenges for Justices Seeking Retention

Carson Griffis — Fri, 15 Oct 2021 20:54:25 GMT

The stated purpose of the Judicial Districts Act of 2021 (JDA) “is to redraw the Judicial Districts to meet the requirements of the Illinois Constitution of 1970 by providing that outside of the First District the State ‘shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties.’” Several justices of the Illinois Supreme Court and appellate court do not reside in the judicial district, as redrawn by the JDA, to which they were elected or appointed.

In their article in the Illinois State Bar Association’s Bench & Bar newsletter entitled “Justices Denied? Impact of the Judicial Districts Act on Incumbent Justices of the Illinois Supreme Court and Appellate Court,” former ALA President Steven Pflaum and Neal, Gerber & Eisenberg LLP summer associate Andrew Hamilton dissect the statutory and constitutional issues confronting Illinois justices who wish to run for retention but, due to redistricting by the JDA, no longer reside in the district to which they were previously elected.

Click here to read the article.

Justice Zenoff Seeking Judicial Law Clerk/Secretary

Carson Griffis — Tue, 05 Oct 2021 22:02:55 GMT

Justice Kathryn Zenoff of the Illinois Appellate Court, Second Judicial District, is seeking a judicial law clerk/secretary for an opening in early November in her chambers in Rockford, Illinois. Remote with in-chambers-as-needed working arrangements considered. The position offers an annual salary of $84,681 and an attractive judicial branch benefits package.

The judicial law clerk/secretary will conduct legal research and draft memoranda, orders, and opinions for the Justice. Duties also include reviewing and editing the work of other clerks, and administrative duties.

The position requires graduation from an ABA-accredited law school. Law Review/journal experience and prior experience as a judicial law clerk or appellate lawyer are strongly preferred, but all applicants with an outstanding academic record in core courses and superior research, analytical, and writing skills will be considered.

Instructions on how to apply, as well as other details about the position, may be found here.

No Harm, No Lawsuit

Carson Griffis — Thu, 23 Sep 2021 02:31:49 GMT

By: Linda Sackey

In Wadsworth v. Kross, Lieberman & Stone, Inc., 2021 WL 3877930, at *1 (7th Cir. Aug. 31, 2021), the United States Court of Appeals for the Seventh Circuit addressed “a problem that has become familiar to our circuit: alleged violations of the Fair Debt Collection Practices Act that have not caused the plaintiff any concrete harm.” Concluding that Article III prevented it from adjudicating such claims, the court reversed and remanded the case to the district court with instructions to dismiss for lack of subject matter jurisdiction.

In September 2016, a healthcare research company hired plaintiff as a study manager responsible for developing clinical trials. The company offered plaintiff a $7,500 signing bonus, half of which would be payable after 30 days of employment and the other half would be payable after roughly six months’ employment. That said, the company provided that if plaintiff left her position or if it fired her for cause within 18 months of the second payment, she would have to repay the full bonus. Plaintiff agreed. In September 2017, after one year on the job, the company discharged her.

The following week, the company hired a debt-collection agency to retrieve the bonus payments. The agency mailed plaintiff a collection letter shortly after she was fired, and one of its employees called her by telephone four times in the weeks after that. Plaintiff sued the debt collection agency, arguing that its letter and phone calls violated the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. §§ 1692 et seq.

Both parties moved for summary judgment. The agency did not dispute her allegations about its conduct but argued that the Act was inapplicable because (1) the signing bonus was not a “debt” within the meaning of the Act, and (2) the agency was not acting as a “debt collector” under the Act because plaintiff’s debt was not in default at the time of the letter and phone calls. The district court rejected both arguments and entered summary judgment for plaintiff.

On the agency’s appeal, the Seventh Circuit found that plaintiff had not suffered a concrete injury traceable to the agency’s alleged violations of the Act; therefore, she lacked standing to sue. The court explained that to establish standing in federal court, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the defendant’s conduct, and (3) that is likely to be redressed by a favorable judicial decision.

On the first prong, the court noted that an injury must be concrete to be cognizable in federal court. In other words, it must be real, and not abstract. A plaintiff cannot establish standing simply by pointing to a procedural violation of a statute; instead, she must show that the violation harmed or presented an appreciable risk of harm to a concrete interest that Congress sought to protect.

In this case, the Seventh Circuit found that plaintiff had not established that the agency’s communications caused her any harm under the Act. Plaintiff alleged that she suffered personal humiliation, embarrassment, mental anguish, and emotional distress because of the agency’s conduct. The court concluded that anxiety and embarrassment were not injuries in fact. Rather, it determined that stress and embarrassment were “quintessential abstract harms” that were beyond its power to remedy.

Seventh Circuit Inviting Public Comments on Proposed Rescission of Circuit Rule 57

Carson Griffis — Wed, 22 Sep 2021 01:24:57 GMT

The Seventh Circuit is seeking public comments on its proposal to rescind Circuit Rule 57. That rule currently provides that a party who files a motion to modify a final judgment in the district court while an appeal is pending should request the district court to indicate whether it is inclined to grant the motion. If the district court indicates that it is, then the Seventh Circuit "will remand the case for the purpose of modifying the judgment" and a party "dissatisfied with the judgment as modified must file a fresh notice of appeal."

The Seventh Circuit has stated that it intends to rescind that rule because it conflicts with recently adopted Federal Rule of Appellate Procedure 12.1.

Persons interested in submitting a public comment on the proposed rescission may e-mail them to mailto:USCA7_Clerk@ca7.uscourts.gov. Or they can mail them to: Advisory Committee on Circuit Rules c/o Clerk of Court, United States Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Room 2722, Chicago, IL 60604.

The Seventh Circuit's press release regarding the proposed rescission may be found here.

Seventh Circuit Clarifies Appellate Jurisdiction for Appeals from Denials of Qualified Immunity

Carson Griffis — Wed, 08 Sep 2021 01:27:00 GMT

By: Carson Griffis*

In Taylor v. Ways, Nos. 20-1410 & 20-1411, the Seventh Circuit clarified the scope of its jurisdiction when a party files an interlocutory appeal from a denial of qualified immunity.

Unlike most other defenses, the denial of a qualified immunity defense may be immediately appealed by a defendant, but only to the extent the appeal raises legal questions. If the defendant's arguments are dependent on, and inseparable from, disputed facts, then the court of appeals lacks jurisdiction.

In Taylor, the plaintiff sued three officials in the Cook County Sheriff's Office, alleging that he was fired because of his race. At the summary judgment stage, the district court denied all three officials qualified immunity based on evidence that one of them had used a racial slur toward the plaintiff.

The officials filed an interlocutory appeal of the denial of qualified immunity, and the plaintiff argued that the Seventh Circuit lacked jurisdiction. Because some of the officials' arguments raised legal questions, the Seventh Circuit concluded that it had jurisdiction, but not over every argument raised by the officials. It concluded that it lacked jurisdiction over one official's argument that his actions were not the proximate cause of the plaintiff's termination because the facts over what caused the plaintiff's firing were disputed. Given the conflicting evidence over whether that official had used a racial slur, the court held that it could not, as a matter of law, find that the official's alleged racial animus had no effect on the decision to terminate the plaintiff.

The court left open the question of whether proximate cause, which is typically a factual issue, could ever be an appropriate subject for an interlocutory appeal from the denial of qualified immunity.

Third District Appellate Court Adopts New Rules

Carson Griffis — Thu, 05 Aug 2021 23:05:25 GMT

The Illinois Appellate Court, Third District, has adopted new rules of procedure which will become effective on September 1, 2021. The new rules will replace all existing local rules currently in effect.

The Justices and court staff who worked on this project believe that the new rules will not only enable it to carry out its work more efficiently, but also answer procedural questions often asked by attorneys and litigants in a clear and concise manner.

The new rules are available here.

Second District To Resume In-Person Oral Arguments in August

Carson Griffis — Thu, 08 Jul 2021 21:09:32 GMT

The Second District of the Illinois Appellate Court has announced that it will resume conducting in-person oral arguments in August 2021 at its Elgin courthouse. The court clarified that it will entertain motions for an argument to be conducted remotely depending on an attorney's or party's particular circumstances.

Additional information about the scheduling of August arguments will be included with the argument acknowledgment forms usually sent two weeks before an argument date. Questions may be directed to the clerk's office at (847) 695-3750.

The court's full press release on this topic may be found here.

Truly Grateful and Terribly Happy

Carson Griffis — Tue, 15 Jun 2021 22:03:43 GMT

By: John M. Fitzgerald

In her acceptance speech at the 1954 Academy Awards, Audrey Hepburn told the audience, “I want to say thank you to everybody who in these past months and years have helped, guided and given me so much. I'm truly, truly grateful and terribly happy.”

I have very little in common with Audrey Hepburn, but as my term as ALA President reaches its conclusion, my feelings can be described much the same way. The past year has had its share of challenges. This marks the first, and hopefully last, bar year in which in-person meetings were not feasible. But our officers, directors, committee co-chairs and members responded admirably. We held a record number of events remotely, our members volunteered countless hours for our first-ever virtual Moot Court, and our members stuck with us notwithstanding a dramatic change to the way in which we meet and hold events.

Thank you for giving me this wonderful opportunity. Serving as the President of the Appellate Lawyers Association has been a great honor and a joy. I offer my best wishes to our new President, Scott Howie, and I am confident that he will be a great leader for our association.

At this moment, as we emerge from a once-in-a-century pandemic, I feel very proud to be a member of the ALA. I am confident that the new slate of officers and directors will do outstanding things in the months and years ahead, and I look forward to seeing all of you at future ALA events

Illinois Attorney General's Office Seeking Attorneys for Civil and Criminal Appeals Divisions

Carson Griffis — Tue, 15 Jun 2021 18:10:48 GMT

The Office of the Illinois Attorney General is currently accepting applications from experienced attorneys for Assistant Attorney General positions in its Civil and Criminal Appeals Divisions. These positions offer ALA members the opportunity to brief and argue a wide variety of cases in state and federal reviewing courts in Illinois, including the Illinois Supreme Court and U.S. Court of Appeals for the Seventh Circuit.

Additional details about the Civil Appeals Division position and application process may be found here, and additional details about the Criminal Appeals Division position and application process may be found here.

Illinois Supreme Court Delays Implementation of New Appellate Court Districts

Carson Griffis — Tue, 08 Jun 2021 21:03:28 GMT

On June 7, 2021, the Illinois Supreme Court entered an order delaying the transition to the new appellate court district boundaries recently enacted by the Illinois General Assembly. Public Act 102-0011, which took effect on June 4, 2021, updated the boundaries of the Second through Fifth Districts of the Illinois Appellate Court.

In response, the Illinois Supreme Court ordered that "[a]ppeals and other matters shall continue to be filed in the judicial districts as they existed on June 3, 2021, until further order of the Court." The court explained that the delay was necessary to faithfully execute the law's changes while ensuring continued access to justice and an orderly transition to the new boundaries.

The text of Public Act 102-0011 may be found here. A copy of the Illinois Supreme Court's order may be found here.

ALA Celebrates Pride Month

Carson Griffis — Tue, 08 Jun 2021 20:57:01 GMT

The Appellate Lawyers Association joins bar associations all across America in celebrating Pride Month and recognizing the many contributions of LGBTQ+ members of the bench and bar. We celebrate LGBTQ+ members of the ALA and recommit ourselves to the struggle for justice and equality for all Americans.

From Romer v. Evans to Lawrence v. Texas, and from United States v. Windsor to Obergefell v. Hodges, Supreme Court opinions have marked milestones in the struggle for LGBTQ+ rights. With great pride, we pay tribute to the justices, lawyers and litigants who made those victories possible, and we look forward to future victories in the fight for equality.

Illinois Supreme Court Seeking New Clerk

Carson Griffis — Wed, 02 Jun 2021 11:51:53 GMT

The Supreme Court of Illinois is seeking applications for the position of Clerk of the Supreme Court of Illinois with a start date of December 1, 2021. More information about the position may be found in the Court's vacancy announcement and recruitment brochure.

Candidates should forward a letter of interest, resume, self-edited writing sample of no more than 5 pages, and completed Judicial Branch Employment Application to courtemployment@illinoiscourts.gov. The Judicial Branch Employment Application is available here.

The position is open until filled, but applications received on or before June 25, 2021, will be given first consideration.

First District of the Illinois Appellate Court Updates Local Rules

Carson Griffis — Wed, 02 Jun 2021 11:46:11 GMT

On May 5, 2021, the Illinois Appellate Court, First District, adopted new local rules, to take effect on July 1, 2021. This represents the court’s first revision to the rules since 2008 and reflects, among other things, the court’s transition to electronic practice.

This long-anticipated revision results from the significant efforts of Presiding Justice Mathias Delort, Justice David Ellis and Presiding Justice Carl Walker. The Rules Committee’s work was furthered by its consultation with the Executive Committee, the other justices of the First District, Clerk Thomas Palella, Deputy Clerk Tina Schillaci, and Appellate Attorney Julia Maness.

The ALA remains grateful to the Rules Committee for the opportunity to provide input and looks forward to the implementation of the new rules.

Click here to view the new First District Local Rules.

Postage Meter Labels: Not Proof of Mailing

Carson Griffis — Mon, 17 May 2021 12:10:05 GMT

By: Kimberly Glasford

Last week, the First District Appellate Court determined in People v. Tolbert, 2021 IL App (1st) 181654, that an incarcerated, pro se defendant’s postage meter label did not constitute proof of mailing under Illinois Supreme Court Rules 373 and 12(b)(6).

Rule 373 states that if the clerk of court receives a pro se incarcerated defendant’s notice of appeal or other documentation after the due date, “the time of mailing” constitutes the time of filing. That rule also specifies, however, that proof of mailing must be provided as set forth in Rule 12.

In turn, Rule 12(b)(6) states with respect to documents mailed by an incarcerated pro se litigant, that “service is proved . . . by certification under section 1-109 of the Code of Civil Procedure of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.”

In Tolbert, the defendant’s notice of appeal was received after the 30-day filing period. Additionally, he did not provide the certification called for by Rule 12(b)(6). Yet, his envelope displayed a postage meter label dated one day before the defendant’s 30-day filing period expired.

After examining the Mailing Standard of the United States Postal Service, Domestic Mail Manual (Apr. 5, 2021), the reviewing court determined that postmarks and postage meters were sufficiently similar to consider caselaw addressing postmarks.

In Huber v. American Accounting Ass’n, 2014 IL 117293, the supreme court found that a postage label from an Automated Postal Center (APC) showed the date of sale, but not necessarily the date that the envelope was placed in the mail. Absent an attorney certificate or non-attorney affidavit, the defendant had failed to provide proof of mailing with respect to his APC-labeled notice of appeal.

The Tolbert court also observed that one First District decision and one Second District decision had determined that a legible postmark constitutes sufficient proof of timely mailing for jurisdictional purposes. People v. Humphrey, 2020 IL App (1st) 172837; People v. Hansen, 2011 IL App (2d) 081226. That being said, another Second District decision as well as a Fourth District decision had reached a contrary conclusion. People v. Lugo, 391 Ill. App. 3d 995 (2009); People v. Blalock, 2012 IL App (4th) 110041.

The Tolbert court sided with the latter group. Specifically, the reviewing court found the plain language of Rule 373 and Rule 12(b)(6) were clear and unambiguous. Additionally, the supreme court had amended Rule 373 in 1981 to eliminate postmarks as a method of proof. If postmarks did not constitute adequate proof of mailing, neither did postage meter labels.

In light of the court’s determination that the defendant’s postage meter label did not constitute the proof of mailing called for by the rules, he could not take advantage of the mailbox rule. Accordingly, the court dismissed his appeal as untimely.

While the litigant in Tolbert was incarcerated and pro se, the case is a good reminder to the rest of us to be familiar not only the rule but also how the courts are interpreting it.

ALA Receives Response to Its Report on E-Filing Issues in Illinois Reviewing Courts

Carson Griffis — Fri, 14 May 2021 20:33:36 GMT

The Appellate Lawyers Association’s Special Committee on E-Filing issued a report proposing some recommended changes to Illinois reviewing courts' e-filing systems based on feedback from ALA members. The Administrative Office of Illinois Courts (AOIC) and the Clerks of the Illinois Supreme Court and the five Districts of the Illinois Appellate Court have provided a response to the report expressing the courts' appreciation for the ALA's meaningful feedback.

The response also indicates that several changes in line with the ALA's recommendations are in progress or being taken under advisement. For example, the response states that:

All reviewing courts intend to adopt the Illinois Supreme Court's e-filing manual to establish uniform e-filing standards across every reviewing court in Illinois;
AOIC and Tyler Technologies are working to develop a method to allow for a window in which rejected e-filings may be corrected and resubmitted;
ALA members' concerns about unreliable service through the e-filing system were provided to the Illinois Supreme Court's e-Business Policy Advisory Board;
The Illinois Supreme Court hopes that all non-confidential cases and documents will be available through re:SearchIL by July 1, 2022;
Filing codes for oral argument acknowledgments, correspondence, and specific brief types were successfully added to the e-filing system;
AOIC and the clerks of the reviewing courts have submitted a request to Tyler Technologies to have all volumes of a record on appeal transmitted through a link in a single e-mail rather than separate e-mails for each volume; and
The recommendation for all districts requiring paper copies of briefs to require the same number of copies has been taken under further advisement.

The full response to each of the ALA's recommendations may be found here.

The ALA expresses its gratitude to the Illinois Supreme Court, each of the Districts of the Illinois Appellate Court, their respective clerks, and AOIC for their thoughtful response to its report.

Additionally, the ALA wants to thank its members for their input; the report could not have been possible without them.

Cases Pending Highlights Civil Cases to be Heard in Illinois Supreme Court's May Term

Carson Griffis — Wed, 28 Apr 2021 21:09:48 GMT

The Illinois Supreme Court's May Term begins Tuesday, May 11, 2021. Oral arguments are scheduled for May 11, 12, 13, 18 and 19, 2021. A total of 16 cases will be heard -- 7 civil and 9 criminal. The following civil cases are scheduled for argument this Term:

May 13, 2021

Haage v. Zavala, No. 125918

Guns Save Life, Inc. v. Ali, No. 126014

May 18, 2021

Western Illinois University v. The Illinois Education Labor Relations Board, No. 126082

Cahokia Unit School District No. 18 v. Pritzker, No. 126212

Board of Education of Richland School District No. 88A v. City of Crest Hill, No. 126444

May 19, 2021

Sproull v. State Farm Fire and Casualty Co., 126446

McQueen v. Pan-Oceanic Engineering Co., Inc., 126666

Below is a summary for one of those cases, McQueen v. Pan-Oceanic Engineering Co., Inc. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

McQueen v. Pan-Oceanic Engineering Co., Inc., No. 126666

This issue in this appeal is whether a jury verdict finding a truck driver not liable for an accident is legally inconsistent with a verdict holding his employer liable for the same accident.

Plaintiff Fletcher McQueen, who was injured in the accident with the defendant truck driver, sued both the driver and the driver’s employer, Pan-Oceanic Engineering Co., Inc. (“Pan-Oceanic”) for negligence and also alleged that Pan-Oceanic failed to properly train the driver. Pan-Oceanic admitted liability for the driver under the theory of respondeat superior. The jury returned a verdict against Pan-Oceanic for $167,227.45 in compensatory damages and $1 million in punitive damages, but found the driver not negligent. Pan-Oceanic filed a post-trial motion, seeking judgment n.o.v. and a new trial, due to several alleged errors in the jury instructions. The court denied the motion and rejected Pan-Oceanic’s argument that, because it admitted agency, its liability could not exceed that of the driver. The trial court explained that the allegations of negligence and willful and wanton conduct against Pan-Oceanic focused on fault attributable solely to Pan-Oceanic for its own conduct and the allegations of negligent training and supervision were a separate, nonderivative tort. The trial court also held that Pan-Oceanic waived its objection to certain jury instructions because it did not object at trial or tender an alternative instruction. Pan-Oceanic appealed.

The Illinois Appellate Court, First District, reversed and remanded the case for a new trial, finding errors in the jury instructions and holding that the verdicts were legally inconsistent. The court explained that, under Illinois law, a plaintiff who is injured in a motor vehicle accident cannot maintain a claim for negligent hiring, negligent retention, or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under respondeat superior. Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924 (1st Dist. 2002). A negligent entrustment claim is derivative of the employee’s negligence. The employer is responsible for all of the fault attributed to the negligent employee, but only the fault attributed to the negligent employee. As such, once an employer admits responsibility for its employee’s negligence, “then any liability alleged under an alternative theory, such as negligent entrustment or negligent hiring, becomes irrelevant and should properly be dismissed.” The court declined to treat negligent training, as alleged in this case, differently from the other negligence claims that are barred once an employer admits liability under respondeat superior. Accordingly, the appellate court held that the verdicts were irreconcilably inconsistent, and reversed and remanded for a new trial.

Justice Mikva dissented, arguing that Gant was inconsistent with other appellate court decisions (Longnecker v. Loyola University Medical Center, 383 Ill. App. 3d 874 (2008) and Neuhengen v. Global Experience Specialists, Inc., 2018 IL App (1st) 160322), holding that an independent claim of negligence may be maintained against an employer even after it admits that respondeat superior applies. Justice Mikva also explained that the verdicts in this case could be reconciled because the jury was instructed on theories of the employer’s liability — that it failed to follow its own policies in placing the load on the truck and that it ordered the driver to take the load despite it being unsafe — that were independent of the driver’s conduct.

Appellate Court Decision: 2020 IL App (1st) 190202. Connors, J., with Cunningham, J., concurring. Mikva, P.J., dissenting.

The Seventh Circuit Confirms That A Reasonable Accommodation Under Title VII Imposes Burdens On Employers, Not Coworkers

Carson Griffis — Tue, 27 Apr 2021 23:13:27 GMT

By: Linda Sackey

Whether an accommodation will be considered reasonable for purposes of Title VII of the Civil Rights Act of 1964 is a question of great importance to employers and employees nationwide. The United States Court of Appeals for the Seventh Circuit recently addressed the issue in EEOC v. Walmart Stores East, et al., 992 F.3d 656 (7th Cir. 2021).

In that case, after Walmart offered Edward Hedican a position as one of eight full-time assistant managers, he informed the company that he was a Seventh-day Adventist. That meant that he could not work between sundown Friday and sundown Saturday. The store’s human resources manager found that Walmart would have to assign the other seven assistant managers to extra Friday and Saturday night shifts to accommodate Hedican. She concluded that such an accommodation would disrupt the store’s regular system of scheduling assistant managers, and she determined that it would occasionally leave the store shorthanded.

The human resources manager asked Hedican if he would instead apply for an hourly management position to avoid the rotation schedule that assistant managers are subject to. He declined and filed a charge of discrimination with the Equal Employment Opportunity Commission, which prosecuted this lawsuit instead of Hedican.

Title VII makes it unlawful for an employer to discriminate against an employee because of his religion. “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” The district court granted Walmart’s motion for summary judgment, finding that the interference with the store’s regular system of scheduling would constitute more than a slight burden. The district court also concluded that even though the entry-level pay for an hourly management job was lower than that of an assistant manager, the hourly management position was a reasonable accommodation.

On appeal, the EEOC argued that other accommodations would have enabled Hedican to work as an assistant manager. For example, the EEOC asserted that Walmart could have given him the job and allowed him to swap shifts with other assistant managers. However, following Supreme Court precedent, the Seventh Circuit ruled that Title VII does not obligate employers to offer an accommodation that comes at other employees’ expense. The burden of accommodation must fall on the employer, not on other employees.

One judge dissented, observing that the human resources manager did not even ask the other assistant managers whether they would be willing to adjust their schedules to accommodate Hedican. In the dissenting judge’s view, “[d]iscussion of the difficulty of accommodating Hedican brings to mind the sorts of excuses employers long trotted out for why it was impractical to hire women of child-bearing age: that employers could not afford to waste resources training employees who would quit as soon as they were pregnant; that projects and deadlines could not accommodate the gaps of maternity leave and the vagaries of daycare and school schedules; that client needs could not be met on a nine to five, Monday through Friday schedule.” The dissent observed that for situation, accommodations such as remote work and flexible work hours demonstrated that any challenges could be overcome.

The dissenting judge found that in this case, a factual question remained as to whether Walmart did enough to accommodate the employee’s religion; therefore, the judge would have reversed and remanded for a trial.

Ejusdem Generis and Statutory Construction

Carson Griffis — Thu, 15 Apr 2021 22:33:38 GMT

By: John M. Fitzgerald

Words, like people, are known by the company they keep. This principle has been recognized in legal decisions for a very long time. This principle can help to unravel even the most perplexing ambiguities that appear on the face of statutes, regulations, contracts, wills, trusts, insurance policies, and even constitutional provisions. It is a principle with which more lawyers should be familiar.

In its most narrow manifestation, the “doctrine of ejusdem generis provides that when a statutory clause specifically describes several classes of persons or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted as meaning ‘other such like.’” People v. Davis, 199 Ill. 2d 130, 138 (2002) (citation omitted). More broadly, “where general words follow particular and specific words in a statute, the general words must be construed to include only things of the same kind as those indicated by the particular and specific words, and this rule is enforced in the construction of a statute, unless there is something in the statute or its context which shows that the doctrine of ejusdem generis should not be applied.” Bullman v. City of Chi., 367 Ill. 217, 226 (1937) (internal citations omitted).

“The reason for the rule is that if the legislature had intended that the general words apply without restriction, it would have used only ‘one compendious word.’” Brink's, Inc. v. Ill. Commerce Comm'n, 108 Ill. App. 3d 186, 190 (1982) (citation). And the rule is versatile: “The application of the rule is not limited to statutes but extends to wills and other instruments.” Id.

By way of illustration, the Illinois Supreme Court was once tasked with deciding whether a BB gun constituted a category I weapon for purposes of the Criminal Code. The Code defined a category I weapon to include “a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24–1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like nature.” People v. Davis, 199 Ill. 2d 130, 133 (2002) (quoting the Code; emphasis added). A BB gun did not meet the statutory definition of a firearm, and applying the ejusdem generis doctrine and the rule of the last antecedent, the Supreme Court held that “any other deadly or dangerous weapon or instrument of like nature” referred “only to weapons or instruments ‘such like’ the class of blade-type weapons which immediately preceded the clause in the provision, i.e., weapons or instruments that are sharp and have the ability to cut or stab.” Id. at 139. Because a BB gun was not like any of those blade-type weapons, it did not fall within the statutory definition’s catch-all clause for “any other deadly or dangerous weapon or instrument of like nature” and did not qualify as a category I weapon. Id.

Similarly, when the Human Rights Act prohibited discrimination in a “public place of accommodation,” and that term was statutorily defined to include a long list of examples (such as “restaurants,” “hotels” and “public swimming pools”) as well as “other places of public accommodation and amusement,” that residual clause was held not to include an educational program at a university. Bd. of Trs. of S. Ill. Univ. v. Dep't of Human Rights, 159 Ill. 2d 206, 211 (1994). The “examples listed in the Act are fundamentally different from institutions of higher education, which administer educational programs. The cited list of establishments are examples of facilities for overnight accommodations, entertainment, recreation or transportation. . . . Thus, what was anticipated by the General Assembly is a restaurant, or a pub, or a bookstore. What was not anticipated is an academic program of a higher education institution.” Id. at 211–12. (The Human Rights Act was subsequently amended to expressly include undergraduate and postgraduate schools.)

The doctrine accommodates a “common drafting technique designed to save the legislature from spelling out in advance every contingency in which the statute could apply.” Pooh-Bah Enters., Inc. v. Cnty. of Cook, 232 Ill. 2d 463, 492 (2009) (citing 2A N. Singer & J. Singer, Sutherland on Statutory Construction § 47:17, at 370–73 (7th ed. 2007)). It is particularly appropriate because a drafter may not be able to spell out “every contingency” in advance, either because some contingencies are unforeseen, or because spelling out each contingency would have negative consequences. For example, if the legislature is prohibiting something, spelling out each contingency might create “easy ways around the definition” and thereby provide a roadmap for evasion. Id. Citing the Singer treatise, the Supreme Court explained that the ejusdem generis doctrine “is justified on the ground that, if the general words were given their full and ordinary meaning, the specific words would be superfluous as encompassed by the general terms,” but if “the legislature had meant the general words to have their unrestricted sense, it would not have used the specific words.” Id.

In short, the doctrine – like most canons of construction – reflects a judicial effort to recognize the limitations of language and the challenges inherent in drafting.

TODAY (APRIL 7, 2021) AT NOON: Appealing for Change: Diversifying the Appellate Bar

Carson Griffis — Wed, 07 Apr 2021 12:15:54 GMT

Today at 12 p.m. CST, the Northwestern University Pritzker School of Law ACS Student Chapter and the ACS Chicago, DC, Madison, Michigan, Milwaukee, New Orleans, Northeast Ohio, Orange County, Philadelphia, Sacramento, San Diego, Tampa, and Virginia Lawyer Chapters, the Asian American Bar Association of Chicago, and the Women's Bar Association of Illinois are hosting a panel of appellate advocates, as they make the case for diversifying the appellate bar and discuss the critical importance of underrepresented law students and lawyers considering careers in appellate law.

Featuring:

Hon. Ann Claire Williams (Ret.), Of Counsel, Jones Day and former Circuit Judge, U.S. Court of Appeals for the Seventh Circuit

Brad Garcia, Partner, O'Melveny & Myers LLP

Juvaria Khan, Executive Director, The Appellate Project

Beverly Marie Jones, Assistant Appellate Defender, Office of the State Appellate Defender

Sopen Shah, Associate, Perkins Coie LLP; Member, ACS Madison Lawyer Chapter Board of Directors

Moderated by:

Shannon P. Bartlett, Associate Dean of Inclusion and Engagement and Instructor, Northwestern University Pritzker School of Law

Those interested in attending the Zoom webinar may register for free here.

Well-Being Week In Law, May 3-7, 2021

Carson Griffis — Thu, 01 Apr 2021 01:48:05 GMT

The Institute for Well-Being in Law is presenting Well-Being Week in Law from May 3 through 7, 2021. The event involves daily activities designed to raise awareness about mental health in the legal profession and encourage action across the profession to improve well-being. The Institute encourages individuals, law firms, corporate legal departments, government entities, bar associations, and other entities in the profession to participate.

Guides for daily activities and other information may be found at the Institute's website.

President Biden Nominates Candace Jackson-Akiwumi to Seventh Circuit

Carson Griffis — Tue, 30 Mar 2021 21:11:35 GMT

President Joe Biden has nominated Candace Jackson-Akiwumi to the current vacancy on the U.S. Court of Appeals for the Seventh Circuit. Jackson-Akiwumi is currently a partner in the Washington, D.C., office of Zuckerman Spaeder LLP, where she focuses her practice on complex civil litigation, white collar criminal defense, and investigations.

Jackson-Akiwumi received her bachelor's degree from Princeton University and her J.D. from Yale Law School. After graduating, she served as a law clerk to the Hon. Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit and the Hon. David Coar of the U.S. District Court for the Northern District of Illinois. She then entered private practice for three years, and later served as a staff attorney with the Federal Defender Program, Inc., in Chicago for 10 years. She also served as an Adjunct Professor at Northwestern Pritzker School of Law.

If confirmed, Jackson-Akiwumi would be the second judge of color to serve on the Seventh Circuit after Judge Ann Claire Williams, who retired in 2018.

The Appellate Lawyers Association congratulates Candace Jackson-Akiwumi on her nomination to the Seventh Circuit.

Oral Pronouncements and Final Judgments

Carson Griffis — Tue, 30 Mar 2021 11:50:30 GMT

By: Carson Griffis*

One of the key questions in perfecting an appeal is determining when final judgment is entered. In most circumstances, it’s clear. But in some cases, a judge’s oral pronouncement can it more difficult to determine if a final judgment has been entered.

Rocha v. FedEx Corp., 2020 IL App (1st) 190041, illustrates such a situation. In Rocha, the circuit court made an oral pronouncement that it was granting the defendant’s motion for summary judgment as to some of the counts of the plaintiff’s complaint, but also said that it planned to reduce that ruling to writing. The remaining counts later went to trial, where the defendant prevailed. The circuit court entered a judgment on the jury’s verdict, but still did not put its summary judgment ruling in writing. More than 30 days later, the plaintiffs moved to vacate the judgment entered on the jury verdict and requested an extension of time to file a post-trial motion. The defendant then requested that the circuit court enter an order nunc pro tunc to reflect the oral summary judgment ruling and decline to exercise jurisdiction over the plaintiffs’ post-trial motion because more than 30 days had passed since judgment had been entered. The circuit court entered the order granting summary judgment nunc pro tunc, stating that its oral pronouncement was clear and plaintiffs should have taken its oral pronouncement as the entry of summary judgment at the time it was made. Thus, the circuit court denied the plaintiffs’ motion to vacate and extend the time to file a post-trial motion. Plaintiffs then filed a notice of appeal.

The defendant argued that the appellate court lacked jurisdiction because a final judgment disposing of all of the plaintiff’s claims had been entered when the court entered judgment on the jury’s verdict. Accordingly, the defendant argued, the plaintiff’s failed to file a timely post-trial motion that would have extended the time to file their notice of appeal, thus rendering their notice of appeal untimely. The plaintiffs, citing Illinois Supreme Court Rule 272, argued that the circuit court’s oral pronouncement regarding the defendant’s motion for summary judgment did not constitute a final disposition of those counts of its complaint. Rather, final judgment had not been entered until the circuit court entered its written order granting the defendant summary judgment.

The appellate court agreed with the plaintiffs because, while it was clear that the circuit court was going to grant the motion for summary judgment when it made its oral pronouncement, it was unclear that it intended to enter final judgment at that time. Because the circuit court stated that it planned to later reduce its ruling to writing, it had suggested that final judgment would not be entered until it issued a written order. And although the circuit court later entered its written order nunc pro tunc to the date of its oral pronouncement, the appellate court held that an order cannot relate back in time if doing so would render a notice of appeal untimely. Thus, the appellate court concluded that it had jurisdiction over the plaintiffs’ appeal.

For practitioners, Rocha highlights the importance of seeking clarity in any oral pronouncements and, when appropriate, requesting that any oral pronouncements be reduced to writing as soon as possible.

Double Deference: Shamrock Chicago Explains Scope and Standard of Review for a Contempt Finding

Carson Griffis — Fri, 05 Mar 2021 22:12:34 GMT

By: John M. Fitzgerald

In Shamrock Chicago Corp. v. Wroblewski, 2019 IL App (1st) 182354, the First District of the Illinois Appellate Court tackled two issues that commonly cause confusion in Rule 304(b)(5) interlocutory appeals from contempt findings: what is the scope of the appellate court’s review, and what is the applicable standard of review?

The contempt finding in Shamrock Chicago arose from a discovery dispute: a defendant (Skyline) refused to turn over certain documents and information despite being ordered to do so, the plaintiff (Shamrock) filed a motion for a rule to show cause, and the circuit court held Skyline in civil contempt and imposed a monetary fine for its failure to comply with the discovery order.

Scope of Review: Predictably, the plaintiff-appellee (Shamrock) wanted to restrict the scope of the appellate court’s review as much as possible. “Shamrock argues that we cannot review the underlying discovery order, partly because the order holding Skyline in contempt constitutes the only order subject to review.” Id., ¶ 17. Skyline, meanwhile, attempted to use its Rule 304(b)(5) interlocutory appeal to challenge a TRO that was related to the discovery order. Id.

Both parties were wrong. First, Shamrock was wrong to suggest that the discovery order underlying the contempt finding was beyond review. “The law is well settled that when a contempt order based on a discovery violation is appealed, the underlying discovery order is also subject to review.” Id., ¶ 18. Skyline was held in contempt for violating the discovery order, so the appellate court’s review encompassed both the contempt finding and the underlying discovery order. Id. Meanwhile, Skyline was wrong to use its Rule 304(b)(5) appeal from a contempt order (which was based on an underlying discovery order) as a vehicle for challenging a TRO. “Rule 304(b)(5) provides limited jurisdiction that, as we said, involves just the contempt order and the underlying order on which it is based.” Id., ¶ 19.

Finally, Shamrock attempted to block review of the underlying discovery order by saying that it was something other than a discovery order. Because the circuit court had appointed a CPA to monitor Skyline’s compliance, Shamrock argued that the underlying order was not a discovery order at all, but one appointing a receiver. The circuit court and the parties had referred to the CPA as a “receiver,” but this was a misnomer “Receivers have functions based on the relevant statutory schemes allowing for their appointment, but, generally, a receiver takes possession of and holds disputed assets pending resolution of the parties’ claims.” Id., ¶ 22. In this case, the court-appointed CPA took possession of no assets; his role was to analyze documents and to supervise Skyline’s compliance — “a role commonly referred to by judges in Illinois as ‘facilitator in discovery.’” Id., ¶ 23. Thus, the underlying order was, in fact, a discovery order and fell within the scope of the appellate court’s review.

Standard of Review: The parties next disputed the applicable standard of review. “We do not fault the parties for relying on disparate standards of review,” the appellate court explained, since “both parties cite cases that apply their proposed standard.” Id., ¶28. And, indeed, one case suggested an abuse of discretion standard while another suggested a manifest weight of the evidence standard. As the Illinois Supreme Court held in In re Marriage of Logston, 203 Ill. 2d 266, 286-87 (1984), however, this apparent split in authority is not really a split at all: both standards apply.

Logston “makes explicit a system of double deference to the trial court in contempt proceedings,” the appellate court explained. Id., ¶ 29. “If the trial court’s factual findings are in dispute, we review the record and only reverse those findings that are against the manifest weight of the evidence. If the trial court’s factual findings are not in dispute or if those findings are consistent with the manifest weight of the evidence, we review the contempt order for an abuse of discretion, considering the relevant facts.” Id. This “two-step” is “consistent with the role typical to each standard of review,” since the abuse of discretion standard “provides deference to the trial court’s ultimate conclusions,” while the manifest weight of the evidence standard “provides deference to the trial court’s fact-finding . . . .” Id., ¶ 30. “So, where the factual findings are correct or if we determine they are not against the manifest weight of the evidence, we determine whether it was reasonable for the trial court to reach its ultimate ruling based on its factual findings.” Id. Since no one disputed any factual findings by the circuit court, “we need not review the factual findings, but decide whether the trial court’s contempt order constitutes an abuse of discretion.” Id., ¶ 31. Because the circuit court did not abuse its discretion, the underlying discovery order was affirmed. Id., ¶ 47.

The Illinois Bar Foundation Offers Economic Assistance Through Warren Lupel Lawyers Care Fund

Carson Griffis — Sat, 27 Feb 2021 13:29:16 GMT

In times of crisis, the Illinois Bar Foundation's Warren Lupel Lawyers Care Fund provides economic aid to lawyers and/or their families to help ensure their needs for adequate housing, medical care, and other essentials are met. While funding is not intended to be long-term or a recipient’s primary form of support, monthly Lawyers Care payments fund necessities like physical therapy, treatment and counseling services, prescription medications, medical bills, rent and utilities, and more during trying times. Throughout the years, this resource has become a vital lifeline for many attorneys in need.

The program is open for all attorneys admitted to practice law by the ARDC with a primary practice in Illinois. All applicant information is kept 100% confidential. For more information, visit the Fund's website.

General Contractor Entitled to Immunity under Workers’ Compensation Act

Carson Griffis — Fri, 26 Feb 2021 22:14:09 GMT

By: Richard C. Harris, Adler Murphy & McQuillen LLP

In Munoz v. Bulley & Andrews, LLC, 2021 IL App (1st) 200254, the Illinois Appellate Court, First District, recently answered the question of whether a party is entitled to immunity under the exclusive remedy provision of the Workers’ Compensation Act based solely on its preexisting contractual obligation to cover benefits and insurance premiums. The First District answered this question in the affirmative, even though the contractually obligated party was not the injured worker’s direct employer.

Bulley LLC executed an agreement to be the construction manager for a project at a building in Chicago. The agreement required the LLC to purchase and maintain workers’ compensation insurance for the employees of its subcontractors. The LLC procured a policy and named Bully Concrete, among others, as additional insureds. Thereafter, the LLC hired Bully Concrete to perform work for the project. Although Bulley Concrete was a wholly owned subsidiary of the LLC, the companies were distinct and separate. They performed different specialties, had their own presidents, and employed different people.

The plaintiff sued the LLC and alleged he was injured on the worksite during the course of his employment for Bulley Concrete. The LLC moved to dismiss the claim on grounds that it was legally obligated to pay the plaintiff’s workers’ compensation benefits and had, in fact, paid more than $76,000 in medical bills. In response, the plaintiff argued that his workers’ compensation claim was made only against Bulley Concrete. Moreover, the plaintiff argued, a parent company is not shielded under the Act from a lawsuit by an injured employee of its subsidiary.

In affirming the circuit court’s dismissal, the appellate court noted that the Act’s exclusive remedy provision is part of the quid pro quo which balances the sacrifices and gains of employees and employers. In past cases, the Illinois Supreme Court held that allowing a party who paid nothing toward workers’ compensation benefits to escape tort liability under the Act’s exclusive remedy provision would be tantamount to allowing the party to “have its cake and eat it too.” Other cases held that a general contractor did not become an injured worker’s employer under the Act merely because it paid the benefits, reasoning that the aforementioned quid pro quo cannot be maintained if a party is permitted to selectively decide whether it will cover the benefits after an employee is injured.

However, when a general contractor assumes a pre-existing contractual obligation to pay the premiums for every worker on the jobsite, and, in fact, pays the benefits for an injured employee, the general contractor may avail itself of the Act’s exclusive remedy provision. To hold otherwise would equate to “declaring that a party who has paid for the cake may neither keep it nor eat it.”

Chicago Bar Association Seeking Appellate Attorneys For Juvenile Child Protection Cases

Carson Griffis — Thu, 18 Feb 2021 00:03:23 GMT

The Chicago Bar Association In-Court Attorney Program is seeking qualified attorneys to be appointed to represent clients on appeal in Juvenile Child Protection cases. Interested attorneys should complete an application that will be reviewed by The Chicago Bar Association In Court Committee. Applicants will generally be required to have 5 years of legal practice experience with some experience in Juvenile Child Protection cases and some appellate experience. This program offers an opportunity to get additional appellate experience, receive some monetary compensation, and help both parents and juveniles exercise their rights.

Attorneys will represent both parents and minors in juvenile court appeals where the Public Defender’s office, which generally represents parents, or the Office of the Public Guardian, which generally represents minors, has a conflict. Most of the cases arise from Circuit Court orders terminating parental rights, but some arise from other orders, such as findings that minors should be made wards of the court or closing cases to guardianship. Appointed attorneys will be compensated in accordance with Illinois Supreme Court Rule 299. The costs of the appeal in these cases are waived, and transcripts and records are provided without charge.

APPLICATION PREREQUISITES

Member in good standing of the Illinois Bar.
Completion of an accurate application for admission to the program.
Acceptance by the Screening Panel.
Agreement in writing to comply with the Regulations and Rules of the Program, the Code of Professional Conduct of the Illinois Supreme Court, and the Rules of the Circuit Court.
Malpractice insurance (a copy of the Declarations Page must be attached to the application).
Completion of right to privacy waiver.
Acceptance by the Screening Panel of the application is subject to the approval of the Presiding Judge of the Child Protection Division of the Circuit Court of Cook County.
If approved, attorneys will be required to complete a three-hour program entitled, "Effective Appellate Advocacy in Termination of Parental Rights Cases," which will be made available to them.
There is no charge for application or admission to the referral program nor is there a requirement that applicants be a member of any bar association.

To receive an application, or for additional information, please contact:

Juli Vyverberg, Chicago Bar Association

321 S. Plymouth Court

Chicago, IL 60604

jvyverberg@chicagobar.org

(312) 554-2062

When to Raise Plain Error: A Matter of Perspective

Carson Griffis — Sat, 06 Feb 2021 15:45:22 GMT

By: Kimberly Glasford

Recently, in People v. Kadow, 2021 IL App (4th) 190103, the Illinois Appellate Court, Fourth District, considered a plain error argument raised by the defendant for the first time in his reply brief. The court also advised the defendant that the better practice would have been to raise plain error in his opening brief. But perhaps that depends on one’s perspective.

In Kadow, the defendant raised a Miranda violation under the ineffective assistance of counsel umbrella in his opening brief, but apparently did not raise the Miranda violation in its own right. In his reply brief, he then added that the Miranda violation itself amounted to plain error.

The reviewing court stated:

“We first note plain error was not argued in defendant’s opening brief and, as a result, the State has not had the opportunity to argue forfeiture. Although the better practice would have been to raise the plain error arguments in his opening brief, our supreme court has told us we may still conduct a plain error analysis even if it was raised for the first time in an appellant’s reply brief.” Id. ¶ 16.

First, it bears mentioning that the plain error doctrine provides an exception to forfeiture, not the other way around. See People v. Caffey, 205 Ill. 2d 52, 103 (2001). While the court did not explain why the defendant’s omission of “plain error” arguments from his opening brief denied the State the opportunity to argue forfeiture, the State would likely have known to raise forfeiture had the defendant raised the Miranda violation in its own right in his opening brief, even without characterizing it as plain error. More importantly, perhaps, it is well settled that the State may forfeit forfeiture. People v. Williams, 193 Ill. 2d 306, 347 (2000).

Raising plain error in the opening brief may be better from the perspective of the State and the reviewing court, but a defendant may prefer to give the State the chance to forfeit any forfeiture. That said, as a practical matter, raising an error under the umbrella of ineffective assistance of counsel will likely alert the State that forfeiture has indeed occurred. And in that context, perhaps including a plain error argument in the opening brief is the better practice from any perspective.

ALA Member Leah Bendik Appointed to DuPage County Circuit Court

Carson Griffis — Wed, 03 Feb 2021 01:48:47 GMT

The ALA wishes to congratulate Leah Bendik on her appointment as an associate judge in DuPage County. Ms. Bendik is a past member of the ALA’s Board of Directors, a past co-chair of the ALA’s Moot Court Committee, and a dedicated ALA member. She recently moderated the ALA's Illinois Supreme Court Year in Review: Criminal seminar.

Ms. Bendik received her undergraduate degree from Duke University, and her juris doctor from the University of Illinois in Champaign, Illinois, in 2002. She currently serves as an Assistant Attorney General and supervisor in the Criminal Appeals Division of the Office of the Illinois Attorney General.

The ALA wishes Leah the best as she embarks on this new chapter of her career.

National Black Law Students Association Seeking Judges for Thurgood Marshall Moot Court Competition

Carson Griffis — Fri, 29 Jan 2021 12:51:00 GMT

The National Black Law Students Association ("NBLSA") is seeking judges for its virtual 2020-2021 Regional Thurgood Marshall Moot Court Competition.

The NBLSA has been hosting the Thurgood Marshall Moot Court Competition (formerly known as the Frederick Douglass Moot Court Competition) since 1975. Each year, law students across the country participate in six regional competitions and the top three teams from each region advance to the national competition. Each team consists of two law students who submit a brief and present a 30-minute oral argument before a panel of judges acting as the United States Supreme Court. This year all competitions will be held virtually.

The NBLSA is seeking judges to assist with its Midwest Regional competition on the dates/times below:

Wednesday, February 3, 2021

12:00 PM EST- 1:30 PM EST (11:00 AM CST - 12:30 PM CST)

5:00 PM EST - 6:30 PM EST (4:00 PM CST - 5:30 PM CST)

6:00 PM EST - 7:30 PM EST (5:00 CST - 6:30 PM CST)

Thursday, February 4, 2021

12: 00 PM EST - 1:30 PM EST (11:00 AM CST - 12:30 PM CST)

5:00 PM EST - 6:30 PM EST (4:00 PM CST - 5:30 PM CST)

Friday, February 5, 2021

12: 00 PM EST - 1:30 PM EST (11:00 AM CST - 12:30 PM CST)

ALA members interested in participating should contact mailto:mootcourt@nblsa.org.

Free CLE: Overview of Civil Appellate Procedure February 10, 2021

Carson Griffis — Thu, 28 Jan 2021 00:18:05 GMT

On February 10, 2021, from 3:30 to 4:30 p.m., the Public Interest Law Initiative (PILI) is presenting a virtual CLE providing a general overview of the civil appellate process. This information can help volunteers participating in the Illinois Free Legal Answers for Civil Appeals program, a volunteer help desk for self-represented litigants pursuing civil appeals. 0.75 hours of CLE credit have been approved for this event.

Online registration is required. Individuals interested in attending the CLE can register here. Individuals interested in volunteering for the Illinois Free Legal Answers for Civil Appeals program can register here. More information can be found on PILI's website.

Seventh Circuit Clarifies Standards for Rehabilitation Act Liability

Carson Griffis — Sat, 23 Jan 2021 14:53:44 GMT

By: Linda Sackey

In Conners v. Wilkie, No. 19-2426, the Seventh Circuit addressed what can be a thorny issue in employment law, namely, when an employee will be considered a “qualified individual with a disability” under the Rehabilitation Act.

Beginning in 2006, Priscilla Conners was employed as a licensed practical nurse (“LPN”) at a facility operated by the United States Department of Veterans Affairs (“VA”). Among her duties were to treat and monitor patients, give immunizations, manage the front desk, teach classes, and complete paperwork. Conners also was expected to handle medical emergencies. Her job description specified that an LPN should have the physical ability to, among other things, lift, stand, bend, stoop, stretch, and pull without help from another patient care provider.

In October 2011, Conners was struck by an automobile. She suffered severe injuries that required surgery and that hindered her performance of most of her nursing duties. At first, Conners’s supervisor limited her responsibilities to teaching and paperwork. But in March 2013, senior management at the healthcare facility discovered the full impact of her disability on her work and directed her to submit a formal accommodation request. Conners asked for five accommodations. She requested a private office, the option to elevate her leg for roughly 15 minutes every hour or so, a footstool, no standing for more than 15 minutes at a time, and a limitation on walking for more than 25 yards absent an emergency.

Although it agreed to provide a footstool, the VA did not grant the other accommodations because a major component of an LPN’s job is to see patients and to administer immunizations, which require standing and walking. In June 2013, the VA determined that she could not perform the essential functions of an LPN even with reasonable accommodations. Conners later declined the VA’s proposed reassignment to a different position and its option of a medical-disability retirement. In January 2014, her employment was terminated.

Thereafter, Conners sued the Secretary of the VA, claiming in part that the agency failed to accommodate her disability in violation of the Rehabilitation Act. The district court granted summary judgment in the VA’s favor, reasoning that Conners had not presented evidence that she was a qualified individual with a disability, an essential element of a failure to accommodate claim.

On appeal, the Seventh Circuit observed that an employer may be liable for disability discrimination under the Rehabilitation Act if it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,” unless the employer can show that “the accommodation would impose an undue hardship on the operation of the [employer’s] business.” 42 U.S.C. § 12112(b)(5)(A). Further, the employer’s duty to reasonably accommodate a disabled employee may require a reassignment to a vacant position. Id. § 12111(9)(B).

The Seventh Circuit noted that assessing whether an employee was a qualified individual with a disability generally involves a two-step inquiry. Courts first ask whether the plaintiff possesses the basic qualifications for the job. Next, courts ask whether the plaintiff can perform the essential functions of the job—as reflected in, for example, the employee’s written job description and the amount of time the employee spends performing the function—with or without reasonable accommodations.

In this case, the Seventh Circuit found it undisputed that Conners satisfied the basic prerequisites for the position. However, the physical limitations that followed her accidence in 2011 prevented Conners from performing most of the responsibilities of an LPN. Her inability to stand or walk more than 25 yards at a time made it impossible for her to perform the physical requirements set forth in her job description. The Seventh Circuit rejected Conners’s argument that her ability to perform a reduced set of duties after the accident meant that she could perform the essential elements of the LPN position. The court found that an employer is not required to either create a new job or reduce the principal duties of an existing job to accommodate a disabled employee.

Although she was not qualified to work as an LPN, the Seventh Circuit noted that Conners also could have shown that she was qualified to perform the essential duties of a different vacant position at the VA. Her failure to do so, the court concluded, meant that no reasonable jury could conclude that the VA discriminated against Conners when it failed to reassign her.

Retired Illinois Supreme Court Justice James D. Heiple Passes Away

Carson Griffis — Thu, 21 Jan 2021 22:52:53 GMT

On January 18, 2021, retired Illinois Supreme Court Justice James D. Heiple, passed away in Peoria from complications following a brain hemorrhage. He was 87. During his time on the Illinois Supreme Court, Justice Heiple authored 175 majority opinions, 98 dissents, 27 special concurrences and 18 partial concurrences/partial dissents.

Justice Heiple was born in Peoria in 1933, the son of attorney and banker Rae Crane and Harriet Birkett Heiple. He received his undergraduate degree from Bradley University and and his law degree from the University of Louisville Law School. Following service in the Army at Fort Knox, he joined the family law firm of Heiple & Heiple in Washington. In 1959, he opened an office in Pekin, developing a practice in municipal law and as corporation counsel for several municipalities. He also served as an appellate law clerk, a public defender, and a Special Master in Chancery.

In 1970, Justice Heiple won election to fill a vacancy on the Tazewell County Circuit Court and was retained in 1972 and 1978. In 1980, he became a Justice of the Third District Appellate Court. In 1990, Justice Heiple won election to the Third Judicial District seat on the Illinois Supreme Court. Justice Heiple assumed a three-year term as Chief Justice in January 1997, succeeding Justice Michael A. Bilandic. He did not seek retention at the conclusion of his 10-year term in December 2000.

During his career, Heiple served as the Illinois Judges Association president, Tazewell County Bar Association president, held memberships in the Illinois, Kentucky, and federal bar associations, and chaired councils of the Illinois State Bar Association.

The Illinois Supreme Court's statement on Justice Heiple's passing may be found here. Justice Heiple’s memorial website is available at http://www.deitersfuneralhome.com where condolences may be sent to his family.

Alliance of Illinois Judges to Celebrate Election of Judge Jill Rose Quinn, Illinois's First Transgender Elected Official

Carson Griffis — Thu, 14 Jan 2021 23:13:48 GMT

The Alliance of Illinois Judges is celebrating the historic election of Judge Jill Rose Quinn, the first transgender elected official in Illinois. Its video program "From Chiola to Quinn," celebrating LGBTQ judges in Illinois, will air on YouTube January 26 at 5 p.m. Featured Speakers include: Hon Tom Chiola (Ret), Hon. Nancy Katz (Ret), Hon. Mary Rowland, and of course, Judge Jill Rose Quinn. Tickets are $10 and are available at theaij.com/events/

The program will open with congratulatory messages for Judge Quinn, which may be sent to theaij@gmail.com before January 20th.

Illinois Supreme Court to Hold January Term Oral Arguments Via Zoom

Carson Griffis — Fri, 08 Jan 2021 22:42:55 GMT

The Illinois Supreme Court will hold its January 2021 term oral arguments via Zoom videoconferencing. In May 2020, the Court held oral argument via Zoom in light of the COVID-19 pandemic, but resumed in-person arguments in the fall.

The Court's January 2021 docket, as well as a link to livestream the arguments, may be found here. As always, summaries of the cases scheduled for argument are available to ALA Members through Cases Pending.

The "Art" of Legal Writing

Carson Griffis — Wed, 06 Jan 2021 22:23:48 GMT

Greetings ALA friends!

Some of you might recall that I was an appellate law clerk for Justice Susan Fayette Hutchinson for nearly 20 years. But it was not until I joined the Appellate Lawyers Association in 2007 that I truly experienced both camaraderie and professionalism within an organization. Each month, I looked forward to the ALA luncheons and the other activities, where I met some of the best lawyers and jurists in the state and where I learned to be a better appellate practitioner.

I relocated to South Florida five years ago, whereupon I seized an opportunity to take a painting class. I used my love of Gregg Shorthand, which I learned before law school, and began to create artworks using the shorthand as a narrative abstraction. To my complete surprise, people seemed to like my work. Within months, I was exhibiting in group shows. Since then I have had two solo exhibitions, a special guest exhibition at a new hotel, representation with the finest gallery in South Florida, commissioned requests for public art projects, and some wonderful media exposure. You can see some of my work on Instagram; Facebook; my website; and the Paul Fisher Gallery website.

As appellate lawyers, we are readers, researchers, critical thinkers, writers, and collaborators. As a text-based artist, much of my inspiration and practice was borne through my experience as an appellate lawyer. Before I pick up my paintbrush, I research my subject to attain a better depth of knowledge and understanding. I think about how best to express my feelings about the subject. I create a number of prototypes, akin to editing a draft, even engaging in discussions with other artists to gain a different perspective. The skills I learned as an appellate lawyer continue to shape my work in this new endeavor.

My most recent work shown here, The Constitution, is a complete transcription of the U.S. Constitution and all of the amendments into Gregg Shorthand. I painted the text in shades of gray, but I also breathed new life into it with a touch of turquoise. The canvas is linen and approximately 7’ x 9.5’ in size. Living in Florida, a swing state, politics consumed our attention over the past two years. Misinformation and disinformation polluted our consciousness. It seemed as if political theater moved from the stage to the U.S. Capitol. So this past year I reacquainted myself with the U.S. Constitution. Doing so reminded me of the many conversations with my ALA friends, especially my former coworker and ALA member, Charlie Ingrassia, about cases and decisions, old and new.

Since I finished the work, I have garnered serious inquiries for prints. So I am going to have a limited number of prints made. The process entails high-resolution digital scan-back photography, a color-correcting proofing process with multiple proofs, and printing on acid-free archival fine art paper. Each print will be approximately 36” x 44” and signed by me with the particular print number. I am offering the print for $500, but for any ALA member, I would like to share with you a 20 percent reduction in cost, so each print would run $400.

If you would like a print or have any questions or concerns, I invite you to email me. My email is stacey.mandell.art@gmail.com.

Thank you so much, and I hope you have a happy and healthy 2021.

Warmest regards,

Stacey Mandell

Cases Pending Highlights Criminal Cases to be Heard in Illinois Supreme Court's January Term

Carson Griffis — Mon, 04 Jan 2021 23:46:10 GMT

The Illinois Supreme Court's January Term begins Tuesday, January 12, 2021. Oral arguments are scheduled for January 12, 13 and 14, 2021. A total of 11 cases will be heard -- 5 civil and 6 criminal. The following criminal cases are scheduled for argument this Term:

January 12, 2021

People v. Charles Wise, No. 125392

People v. Cordell Bass, No. 125434

People v. Charles Palmer, No. 125621

People v. Chaleah Burge, No. 125642

January 13, 2021

People v. Recardo Johnson, No. 125738

In re Br. M., No. 125969

Below is a summary for one of those cases, People v. Charles Wise. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

People v. Charles Wise, No. 125392

The issue in this case is whether the appellate court erred in vacating defendant’s conviction for unlawful possession of a weapon by a felon upon concluding that the State failed to prove, beyond a reasonable doubt, that firearm found in back seat of minivan he was driving was “on or about his person” as required by 720 ILCS 5/24-1.1(a) because, although he constructively possessed it, it was not within his reach.

The People, as appellant, assert several reasons why the offense of unlawful possession of a weapon by a felon should include constructive possession of a weapon in a vehicle. First, unlike the offenses of unlawful use of a weapon and aggravated unlawful use of a weapon, the offense of unlawful possession of a weapon is not focused on the location of the possession but on possession of weapons by felons, so it would be absurd to exclude constructive possession in a weapon in a vehicle from the latter offense. Further, the "on or about his person" should not be construed as signifying "immediately accessible" because the legislature has specified immediate accessibility in other provisions by using exactly that language. Additionally, for decades before the decision below, the appellate court construed the offense to include constructive possession in vehicles, so the legislature acquiesced to that interpretation. Finally, the appellate court's reasoning supporting its contrary conclusion failed to consider the relevant UUW scheme as a whole.

In response, defendant contends that the plain and unambiguous meaning of "on or about his person" in the provision does not include constructive possession of a weapon not within arm's reach, so it must be given effect (and the State's arguments relying on sources beyond statutory language should not even be considered). Even if considered, applying statutory construction principles supports defendant's interpretation. By using different language for this offense, the legislature intended a different result compared to the UUW and AUUW offenses. In addition, the People's interpretation would render the phrase in question superfluous. Further, that same phrase has been interpreted to mean within arm's reach in the context of the armed violence statute. Finally, defendant's construction still serves the purpose of protecting the public. To the extent there is uncertainty or ambiguity on this point, the rule of lenity requires accepting defendant's construction.

Appellate Court Decision: 2019 IL App (3d) 170252. McDade, J., with O'Brien, J., concurring; Carter, J., dissenting.

Cases Pending Highlights Civil Cases to be Heard in Illinois Supreme Court's January Term

Carson Griffis — Sun, 03 Jan 2021 17:29:12 GMT

The Illinois Supreme Court's January Term begins Tuesday, January 12, 2021. Oral arguments are scheduled for January 12, 13 and 14, 2021. A total of 11 cases will be heard --5 civil and 6 criminal. The following civil cases are scheduled for argument this Term:

January 13, 2021

Beaman v. Freesmeyer, No. 125617

Indeck Energy Services, Inc. v. DePodesta, No. 125733

January 14, 2021

Ciolino v. Ekl, No. 126024

Eighner v. Tiernan, No. 126101

In re Application for a Tax Deed, No. 126150

Below is a summary for one of those cases, Eighner v. Tiernan. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website

Eighner v. Tiernan, No. 126101

The issue in this case is whether a voluntarily-dismissed action under Section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009) can be reinstated as the original action or must be recommenced by filing a new action.

Plaintiff Stanley Eighner filed suit against Defendant Patricia J. Tiernan seeking damages arising from a motor vehicle collision. Plaintiff subsequently moved to voluntarily dismiss the complaint with leave to reinstate pursuant to Section 2-1009 of the Code of Civil Procedure. 735 ILCS 5/2-1009. Less than one year later, Plaintiff attempted to reinstate the action under the original case number by filing a “Notice of Refiling Complaint Being Reinstated Within One Year of Voluntary Dismissal” along with a copy of the complaint being refiled. When this case did not receive a case management hearing date, Plaintiff commenced a new action by filing another complaint with the clerk’s office, now more than one year after the voluntary dismissal.

Defendant moved to dismiss the new action pursuant to Section 2-619(a)(5), arguing that the complaint was refiled more than one year after the initial complaint was voluntarily dismissed, in violation of Section 13-217. 735 ILCS 5/13-217. The circuit court denied the motion to dismiss, but certified the following question for appeal pursuant to Supreme Court Rule 308: “Whether refiling a complaint in a previously dismissed lawsuit as opposed to filing a new action satisfies the language of 735 ILCS 5/13-217, which states a plaintiff may commence a new action after the case is voluntarily dismissed pursuant to 735 ILCS 5/2-1009.”

The Illinois Appellate Court, First District, answered the certified question in the negative. The appellate court, interpreting Section 13-217 which states that a plaintiff “may commence a new action” after the case is voluntarily dismissed, held that the unambiguous language requires a plaintiff to refile the complaint under a new case number. The appellate court expressly did not opine on whether reinstatement of a case upon plaintiff’s motion qualifies as a “new action” under Section 13-217 because Plaintiff did not file such a motion. The appellate court then reversed the judgment of the circuit court and remanded with directions to grant Defendant’s motion to dismiss.

In his petition for leave to appeal, Plaintiff argues that the voluntary dismissal order that provided for dismissal “without prejudice and with leave to reinstate within one year of this Order…” intended for the circuit court to retain jurisdiction, after entry of a non-final order, so the commencement of a new action was unnecessary and prohibited by Section 2-619(3). Plaintiff asks the Illinois Supreme Court to adopt appellate court decisions requiring an analysis of the circuit court’s order to determine if the court intended to retain jurisdiction. Plaintiff further argues that the language “with leave to reinstate” signifies the circuit court’s intention to retain jurisdiction to permit a plaintiff to “reinstate” the voluntarily dismissed action, rather than “refile” the complaint in a new action. Thus, Plaintiff argues that the appellate court’s decision should be reversed and he should be permitted to proceed under his reinstated complaint in the original action.

Appellate Court Decision: 2020 IL App (1st) 191369. Reyes, J., with Gordon, P.J. and Lampkin, J., concurring.

ALA Seeking Members Interested In Being Nominated For Consideration As Next Cook County Public Defender

Carson Griffis — Wed, 30 Dec 2020 02:38:54 GMT

As part of her consultation with all area bar associations, Cook County Board President Toni Preckwinkle has asked the Appellate Lawyers Association to nominate one to three of its members for consideration as the next Cook County Public Defender effective April 1, 2021.

The Public Defender manages a large and complex office with a budget of more than $80,000,000. The office employs 495 attorneys, 61 investigators, and 135 social workers, clerical staff, and other support staff. The office represents both juveniles and adults at different courthouses located throughout the county. Specialized units include the Homicide Task Force and the Multiple Defendants Division. The office has continued to undertake new challenges including representation at police stations and in immigration proceedings.

ALA members interested in being nominated for the position should send their resumes and cover letters to ALA President John Fitzgerald no later than January 15, 2021, at jfitzgerald@tdrlawfirm.com.

U.S. Attorney for Northern District of Indiana Thomas L. Kirsch Confirmed as United States Circuit Judge for the Seventh Circuit

Carson Griffis — Wed, 16 Dec 2020 02:44:41 GMT

On December 15, the United States Senate voted to confirm Thomas L. Kirsch II as a United States Circuit Judge for the Seventh Circuit. Mr. Kirsch will fill the vacancy created by Justice Amy Coney Barrett's confirmation to the U.S. Supreme Court.

Mr. Kirsch currently serves as the U.S. Attorney for the Northern District of Indiana. Before serving as U.S. Attorney, Mr. Kirsch was a partner at Winston & Strawn, where he litigated commercial and civil matters in trial and appellate courts. He also served as an Assistant U.S. Attorney in the Northern District of Indiana, focusing on white collar investigations and prosecutions, and as a law clerk to the Honorable John D. Tinder in the Southern District of Indiana. Mr. Kirsch received a B.A. from Indiana University and a J.D. from Harvard Law School.

Free Online Training for Criminal Appeals Pro Bono Program, January 4 through February 5, 2021

Carson Griffis — Tue, 15 Dec 2020 14:24:19 GMT

The Office of the State Appellate Defender (OSAD) is presenting a five-week online training course for the Illinois Supreme Court's Volunteer Pro Bono Program for Criminal Appeals from January 4 through February 5, 2021. The free program will provide participants with 11.25 hours of MCLE credit, including one hour of professionalism credit.

The course will walk participants through a criminal trial in Illinois, discussing various points of Illinois law and procedure. The course will also familiarize participants with relevant Supreme Court and Appellate Court Rules, will advise participants about client relations, and will teach participants how to use OSAD’s resources to efficiently research criminal law. Completion of this course will qualify participants for the Supreme Court’s pro bono progra.

Please register no later than December 31st by emailing mailto:probono@osad.state.il.us. More information may be found here.

Seventh Circuit Analyzes Rules for Appeals in Multidistrict Litigation

Carson Griffis — Sun, 13 Dec 2020 16:02:22 GMT

By: Carson Griffis*

The Seventh Circuit recently addressed the application of the rules of appellate jurisdiction in multidistrict litigation (“MDL”) in Bell v. Publix Supermarkets, Inc., Nos. 19-2581 & 19-2741 (Dec. 7, 2020). This decision highlights the importance of clarity in complex litigation and how a lack of clarity may result in a lost chance to appeal.

It is axiomatic that an appeal may not be taken in a civil case until there is a final judgment disposing of all claims against all parties. But in cases involving multiple claims for relief, the district court may enter a final, appealable judgment as to one or more of those claims, but fewer than all of them, by expressly determining that there is no just reason for delay. Fed. R. Civ. P. 54(b). In either circumstance, the time to appeal runs from the entry of judgment. Fed. R. App. P. 4(a)(1)(A).

In most cases, the judgment is considered entered when the district court clerk enters a separate judgment order on the court’s docket under Federal Rule of Civil Procedure 58. Fed. R. Civ. P. 58(a), (c)(2)(A); Fed. R. App. P. 4(a)(1)(A). But if the court or clerk neglects to enter a separate judgment order, the judgment will be considered entered 150 days from the date of the final decision being appealed. Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7).

These rules all played a critical role in Bell. There, plaintiffs filed five consolidated class action complaints, each targeted at a different defendant, alleging that defendants’ products had deceptive labeling that violated various states’ unfair and deceptive practices laws. Four of the complaints also brought other claims. In late 2018, the district court entered an order dismissing all of the deceptive labeling claims in all five complaints, as well as a few other claims. In effect, that order disposed of all claims in two complaints, and although the district court did not specify whether the dismissal was with or without prejudice, it stated that the two defendants named in those complaints were “dismissed from [the] litigation.” The order left three complaints with active claims.

Eight months after the dismissal, the district court entered four separate judgment orders under Federal Rule of Civil Procedure 58, expressly stating that there was no just reason to delay the entry of judgment as to all of the deceptive labeling claims under Federal Rule of Civil Procedure 54(b). Plaintiffs filed notices of appeal within 30 days of the entry of the Rule 58 judgments.

With respect to the three complaints with pending claims, there was no jurisdictional issue — the Rule 54(b) finding entered final judgments as to the deceptive labeling claims in those complaints and plaintiffs’ notices of appeal were timely filed within 30 days of the final judgments. But with respect to the two complaints that were entirely dismissed, Rule 54(b) did not apply because the district court did not dispose of fewer than all of those complaints’ claims.

Instead, the Seventh Circuit concluded that the district court “effectively resolved” all of the claims in those complaints when it dismissed them in late 2018. Having entered a final decision in those two actions, the district court should have entered separate Rule 58 judgment orders at the same time. But no Rule 58 judgment orders were entered for eight months, meaning that final judgments in both actions were considered entered 150 days from the dismissals of the two complaints. Plaintiffs, however, failed to file notices of appeal within 30 days of the 150-day rule elapsing, instead waiting for the entry of the Rule 58 judgments. Without timely notices of appeal, the Seventh Circuit concluded that it lacked jurisdiction over those two appeals and dismissed them.

In reaching its conclusion, the Seventh Circuit discussed the “additional wrinkle” of the complaints being part of MDL. The court explained that, in most MDL, separate complaints retain separate identities for purposes of appeal, such that a final judgment as to one complaint will trigger the time to appeal. But MDL plaintiffs may instead choose to file a master complaint that merges their individual complaints into one. Such a merger will not occur, however, if a master complaint is merely an “administrative summary” of the plaintiffs’ claims rather than a legally operative pleading. And determining whether a master complaint is a mere administrative summary or a true merger involves a “pragmatic inquiry” into six factors. The Seventh Circuit concluded that the Bell plaintiffs maintained separate complaints against separate defendants, and appellate jurisdiction had to be established for each individual complaint.

Recognizing the potential for ambiguity in using a multifactor analysis to evaluate a party’s right to appeal, the Seventh Circuit encouraged MDL parties to explicitly agree as to the legal status of the operative complaint. It also urged district courts “to indicate clearly whether a consolidated MDL complaint is to be treated as the operative pleading for purposes of judgment and appeal or instead as merely an administrative convenience.”

A Constitutional Promise Deferred: The Quality Education Clause of the Illinois Constitution

Carson Griffis — Mon, 30 Nov 2020 23:36:00 GMT

By: John M. Fitzgerald,* Tabet DiVito & Rothstein LLC

Most Illinoisans would be surprised to hear that our State Constitution guarantees “an efficient system of high quality public educational institutions and services.” (See Illinois Constitution, Art. X, §1.) Certainly, our State’s system of funding public education is not based on the understanding that such a guarantee exists or ought to be honored, and available data has confirmed for decades that our State’s public school systems are not equipped to offer “high quality” educational services to everyone.

So what to make of the constitutional guarantee? Nearly a quarter-century ago, the Illinois Supreme Court held that “questions relating to the quality of education are solely for the legislative branch to answer.” Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 24 (1996). As the Court explained:

"What constitutes a 'high quality' education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable standards. The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary's field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion."

Id. at 28-29. Thus, “the question of whether the educational institutions and services in Illinois are ‘high quality’ is outside the sphere of the judicial function.” Id. at 32. In other words, the guarantee embodied in Article 10, section 1 was deemed merely rhetorical and totally unenforceable. Similarly, the Edgar court rejected an equal protection challenge to the State’s system of public school finance, finding that the system passed rational basis review because it “represent[s] legislative efforts to strike a balance between the competing considerations of educational equality and local control.” Id. at 39.

Justice Freeman authored a blistering dissent in which he argued that Article X, section 1 “establishes a constitutional floor regarding educational adequacy” and a corresponding responsibility “on the entire state government,” not just the General Assembly. The judiciary’s role, then, was to “adjudicate the nature of [the] responsibility” imposed by Article X, section 1. Id. at 56. “Unfortunately, by holding that the high quality aspect of the education system provision is nonjusticiable, the majority today abandons its responsibility to interpret the Illinois Constitution,” Justice Freeman concluded. Id. at 62. In doing so, “[t]he judiciary joins the legislative and executive departments in failing to fulfill our state government’s constitutional responsibility of providing for an efficient system of high quality public education.” Id.

The Supreme Court is about to revisit Edgar. The Court recently allowed a petition to leave to appeal from the appellate court’s opinion in Cahokia Unit School District No. 187 v. Pritzker, 2020 IL App (5th) 180542, which raises many of the same issues last addressed by the Court in Edgar. In Cahokia, a coalition of school districts have raised similar claims challenging the State’s system of financing public education under Article X, section 1 of the Illinois Constitution and the equal protection clause of the Illinois Constitution. Importantly, the plaintiffs in Cahokia argue that, post-Edgar, the General Assembly and the Illinois State Board of Education have imposed statewide educational standards, including the Illinois Learning Standards first issued by the Board in 1997 and reinforced by the Evidence-Based Funding for Student Success Act in 2017. In other words, the plaintiffs alleged that the State imposes statewide objective standards for educational success, and yet fails to adequately fund school districts so that those standards can actually be achieved in all districts. The two-justice majority in Cahokia affirmed the dismissal of the plaintiffs’ complaint on the basis that stare decisis compelled adherence to Edgar.

Justice Milton S. Wharton, however, authored a compelling dissent in which he explained that Edgar has been overtaken by subsequent events — and not just by a continuing deterioration of Illinois’s public education system, but by changes to the legal landscape. He explained:

"When the supreme court decided Edgar, it was impossible for courts to address alleged violations of the quality education clause without first determining what type of education constituted a quality education because there was no legislative answer to that question. . . . In the 24 years subsequent to the Edgar decision, our legislature modified and expanded the requirements all Illinois schools must enact and employ in educating students. The legislature adopted legislation requiring the Illinois State Board of Education (ISBE) to establish academic standards for all Illinois public school students to meet. . . . Overall, I find that the legislature has modified the original balance between the goals of ensuring a quality education for all Illinois students and promoting local control of schools as was in application when Edgar was decided. As a result, much of the control that local school boards once enjoyed has been shifted to the State."

Id. at ¶¶33-36. In short, the State cannot have it both ways by denying that objective standards exist for assessing whether educational services are of a “high quality” and simultaneously imposing objective educational quality standards on school districts across the State. Nor can the State have it both ways by imposing statewide standards and avoiding accountability under the guise of deference to “local control.”

Indeed, as Justice Wharton explained, underprivileged students are harmed by the “combination of the underfunding alleged by the plaintiffs and the State-mandated education and testing requirements.” Id. at ¶38. The plaintiffs in Cahokia did not even seek education on equal terms with “more affluent school districts,” but only “a level of funding sufficient to fulfill the mandated educational requirements that the legislature and ISBE have determined to be their responsibility.” Id. at 39. And because “legislative and administrative enactments have resulted in the definition of a high quality education in Illinois,” courts “do not have to define what constitutes a high quality education.” Id. The premise of Edgar’s holding thus no longer exists.

The Cahokia case will now be decided by the Illinois Supreme Court, which may overrule Edgar or simply decide that its holding has been superseded by subsequent legislation and administrative rules. If that occurs, the constitutional guarantee of “high quality” public educational services for all Illinoisans may finally become a reality. As we have learned from bitter experience, a constitutional guarantee means very little unless it is judicially enforceable.

* The opinions expressed in this post are solely those of the author.

Illinois Supreme Court Assigns Judge Eugene P. Daugherity as Justice in Third District of the Appellate Court

Carson Griffis — Mon, 23 Nov 2020 23:47:21 GMT

The Illinois Supreme Court assigned Thirteenth Circuit Judge Eugene P. Daugherity as an Appellate Court Justice in the Third District. Judge Daugherity was assigned to fill the vacancy created by the appointment of Justice Robert E. Carter to the Supreme Court of Illinois effective December 8, 2020. The assignment of Judge Daugherity takes effect on December 8, 2020 and will remain in effect until December 5, 2022.

Judge Daugherity was first appointed to the bench in 2001 in the 13th Judicial Circuit. He was elected to his own term in the November 2002 general election and was retained in 2008, 2014, and 2020. Judge Daugherity has served as the Presiding Judge of the Civil Division in LaSalle County since January 2010.

Before joining the bench, Judge Daugherity was a partner with the firm Myers, Daugherity, Berry, O'Connor & Kuzma Ltd. in Ottawa, a firm with which he practiced since 1982. Judge Daugherity earned his Bachelor of Arts from Loyola University and his Juris Doctor from the DePaul University College of Law, where he graduated with honors.

Judge Daugherity served as a member of the Illinois Supreme Courts Judicial Conference Committee on Complex Litigation from 2002 to 2011 and served as the Committee’s Chair from 2008 to 2010. During his chairmanship, he directed a complete revision and update of the Manual on Complex Civil Litigation which was completed in 2011. He additionally served as an alternate member of the Illinois Courts Commission in 2017 and 2018.

Illinois Supreme Court Amends Supreme Court Rule 23

Carson Griffis — Fri, 20 Nov 2020 22:21:57 GMT

This is a great day for the Illinois appellate bar.

Earlier today, the Illinois Supreme Court amended Supreme Court Rule 23 to allow unpublished Rule 23(b) orders issued on or after January 1, 2021 to be cited for persuasive purposes. The amendment can be found here.

Today’s amendment follows years of advocacy by the Appellate Lawyers Association, working in conjunction with the Illinois State Bar Association and the Chicago Bar Association, for exactly this amendment to Rule 23. Most recently, at the public hearing of the Illinois Supreme Court Rules Committee on June 24, 2020, ALA Rules Committee Co-Chair Seth A. Horvath argued that Rule 23 should be amended to allow the citation of Rule 23 orders as persuasive authority. We are pleased to see that the Supreme Court Rules Committee, and ultimately the Supreme Court itself, was persuaded by the ALA’s arguments.

The ALA thanks the justices of the Illinois Supreme Court for approving this amendment to Rule 23, and the members of the Illinois Supreme Court Rules Committee for recommending it. Special thanks also are owed to past ALA Presidents J. Timothy Eaton and Michael T. Reagan, who have advocated for amending Rule 23 for quite a long time. We are also grateful for the tireless work of the ALA’s Rules Committee and its co-chairs, Seth A. Horvath and Garrett L. Boehm, Jr.

The ALA remains committed to the task of recommending rule changes to promote fairness and transparency in the appellate process.

ALA Issues Report on E-Filing Issues in Illinois Reviewing Courts

Carson Griffis — Sun, 15 Nov 2020 14:52:00 GMT

The Appellate Lawyers Association’s Special Committee on E-Filing has issued its "Report on E-Filing Issues," suggesting areas of improvement in Illinois reviewing courts’ e-filing system. The report was compiled based on the Committee members’ own experiences as well as feedback from the ALA’s membership.

The report highlights the positive aspects of the e-filing system, such as reduced costs, administrative ease, convenience, and responsiveness of court clerks. The report’s recommendations for improvement fall into 10 general categories:

Uniformity & Clarity of Rules: Implementing uniform e-filing rules to reduce variance among the circuit and reviewing courts;
Acceptance & Rejection of Filings: Encouraging uniformity in the reasons for accepting or rejecting filings among courts and establishing a mechanism to backdate corrected filings;
Docket Access: Ensuring that attorneys have access to a case’s full docket through re:SearchIL, similar to federal courts’ Public Access to Court Electronic Records (“PACER”) system;
Service: Allowing Tyler to add e-mail addresses from the eFile IL service database and listing all parties on whom service is actually made in e-mails to filing attorneys;
Menu Options: Expanding the menu options for categorizing filings to include oral argument confirmations, letter filings, motions to cite additional authority, and motions to publish Rule 23 orders;
Distribution of Orders & Opinions: Allowing courts to transmit orders and opinions to parties through the e-filing system;
The Record on Appeal: Transmitting the entire record on appeal in a single link rather than separate e-mails;
Courtesy Copies: Developing a more uniform approach to the requirement and number of paper courtesy copies of briefs;
Technical Issues: Ensuring that all Electronic Service Filing Providers, not just Odyssey eFileIL, have full access to the e-filing system; and
Miscellaneous: Allowing clerks to maintain limited paper filing systems to fill gaps in e-filing until the system is updated.

The full report may be found here.

Judge LeRoy K. Martin, Jr. Appointed to Illinois Appellate Court, First District

Carson Griffis — Fri, 13 Nov 2020 13:40:59 GMT

The Illinois Supreme Court has announced that Cook County Circuit Judge LeRoy K. Martin, Jr. has been assigned to the Illinois Appellate Court, First Judicial District. Judge Martin will fill the vacancy created by the appointment of Justice Robert E. Gordon to the Appellate Court of Illinois effective December 7, 2020. Justice Gordon is filling the vacancy of Justice Shelvin Louise Marie Hall and his appointment is through December 5, 2022. Judge Martin will occupy the rotation position of Justice Hall in the Fourth Division of the First District and will be assigned Justice Hall’s cases.

Judge Martin earned his Bachelor of Arts from DePaul University and his Juris Doctor from the North Carolina Central University School of Law. Judge Martin served as a Cook County Public Defender from 1985 to 1987, then engaged in private practice for 15 years. Judge Martin was first appointed to the bench in 2002, serving in the Chancery Division and, since 2015, as the Presiding Judge of the Criminal Division.

Judge Martin has been appointed to several Illinois Supreme Court committees, including the Civil Justice Committee. He has presented at New Judges School and the Judicial Education Conference. He was the 2016 recipient of the Earl B. Dickerson Award. He taught trial practice at the Loyola University School of Law in 2012 and 2014.

Illinois Supreme Court Expands Pro Bono Criminal Appeals Program

Carson Griffis — Thu, 12 Nov 2020 13:44:36 GMT

The Illinois Supreme Court recently announced the statewide expansion of the Volunteer Pro Bono Program for Criminal Appeals as of December 1, 2020.

The initiative launched this past February to assist the Office of the State Appellate Defender with the backlog of criminal appeals that are pending before the Illinois Appellate Court. Since the program’s inception, 78 attorneys have been approved to participate and 43 cases have been assigned to pro bono attorneys (33 in the First District and 10 in the Second District). The program will now be expanding to all appellate districts and it provides a unique opportunity for appellate attorneys to get involved in pro bono service throughout Illinois.

You can participate by:

Volunteering to handle a direct criminal appeal. Complete details about the program’s parameters, eligibility criteria, and application are on the Court’s website. Volunteer attorneys must be admitted for at least five years and have participated in two prior appeals or have served for at least two years in various governmental agencies or as a judicial clerk in a reviewing court. Oral argument will be strongly considered in these appeals.
Supervising an attorney who does not meet the eligibility criteria. Newly licensed attorneys and friends and colleagues who do not otherwise meet the eligibility criteria may handle these appeals under the supervision of a qualified appointed attorney. This is an excellent opportunity to help others get appellate experience.
If you do not meet eligibility criteria, you can qualify by completing OSAD’s free, CLE-eligible online training program, “Criminal Appeals in Illinois: An Introduction to Law and Procedure.” The training program is a 5-week online course intended to assist pro bono attorneys with substantive and procedural criminal law. The training is offered on a quarterly basis by OSAD with the next seminar scheduled from January 4 - February 5, 2021. To sign-up, please email the Office of the State Appellate Defender at probono@osad.state.il.us. You can also read more about the training program here.

Justice Robert L. Carter Appointed to Illinois Supreme Court

Carson Griffis — Tue, 10 Nov 2020 23:04:03 GMT

Justice Robert L. Carter of the Illinois Appellate Court, Third Judicial District, was selected to join the Illinois Supreme Court on December 8, 2020. Justice Carter will fill the vacancy of Justice Thomas L. Kilbride.

Justice Carter, a native of Ottawa, Illinois, has been a judge since 1979. He was elected Circuit Judge in 1988 and became Chief Judge in 1993. He has served on the Third District Appellate Court since 2006.

In December 2002, Justice Carter was elected Chair of the Conference of Chief Judges and re-elected in 2003 and 2005. He completed a one-week course in mediation at the National Judicial College in Reno, Nevada, in the summer of 2001. Since 1980, Justice Carter has been a lecturer at judicial education programs on topics such as jury trials, evidence, contempt, and domestic relations.

Before serving on the bench, Justice Carter served in the United States Army in Vietnam between 1969 and 1970 and was awarded the Army Commendation Medal. He worked as a law clerk to Justice Howard C. Ryan of the Illinois Supreme Court from 1974 to 1975 and engaged in private practice from 1975 to 1979. He holds A.B. and J.D. degrees from the University of Illinois at Champaign-Urbana, and a Master of Arts in Administration from Sangamon State University.

Justice Carter's appointment will terminate December 5, 2022.

Is Venue Proper Based on an Employee’s Home Office? Big Surprise: It Depends.

Carson Griffis — Sat, 07 Nov 2020 00:09:33 GMT

By: Richard C. Harris, Adler Murphy & McQuillen, LLP

The Illinois Supreme Court recently shed light on the circumstances in which an employer can be sued in a particular venue based on the work performed by employees from their homes. This decision is timely given the increasingly virtual business environment that has evolved in response to COVID-19.

The plaintiff in Tabirta v. Cummings was injured in an auto accident in Ohio. He filed suit in Cook County against the other driver and the other driver’s employer, neither of whom were residents of Cook County. However, the other driver’s employer was a food-product manufacturing company who delivered products to grocery stores in the collar counties and had hired an account representative, Bolton, who resided in Cook County. The plaintiff argued that venue was proper under the Illinois venue statute because Bolton’s home office constituted an “other office” of the company. Alternatively, the plaintiff argued that Bolton’s work from his home meant the company was “doing business” in Cook County. See 735 ILCS 5/2-102.

The Court acknowledged that Bolton’s home office was an “office” in the plain, ordinary sense of the word, but held it was not an “other office” for purposes of the venue statute. The evidence showed that Bolton spent about 20 hours per week working from home, during which he communicated with customers by phone and email. Although Bolton acted as the “point person” for the grocery stores in the collar counties, he did not sell any products and there was no evidence that the company hired him because he lived in Cook County—he was hired based on his extensive experience in the food industry, and his employment would not have been affected if he moved to a different county. Further, the company did not pay any of the expenses associated with Bolton’s residence and did not hold out to its customers that the residence was a company office.

As to whether the company was “doing business” in Cook County under the venue statute, the Court noted that this requirement could only be satisfied if the company was conducting “usual and customary business” from within Bolton’s residence. However, the company had no other offices or facilities in Cook County, nor did it design, manufacture, advertise, finance, or sell products from within Cook County. Although 0.19% of the company’s total sales were to customers in Cook County, this minuscule volume was insufficient to constitute “doing business” under the venue statute. Thus, the Court held that Bolton’s work from his Cook County residence was “merely incidental” to the company’s usual and customary business of food product manufacturing.

In a special concurrence, Justice Kilbride emphasized that whether a home office qualifies as an “other office” under the venue statute turns on the specific facts adduced in each case, and there is no one-size-fits-all solution. Justice Kilbride’s cautionary concurrence should resonate with employers and employees alike. Regardless of what the future holds for post-COVID working conditions, it seems certain that a large percentage of business will continue to be conducted from home offices. Your vacation home in Galena may be lovely this time of year—but think about whether you would want your company to be sued there before you pack up your work and head west for the holidays.

Challenges to Administrative Authority: Fast Track to the Circuit Court

Carson Griffis — Tue, 27 Oct 2020 12:33:21 GMT

By: Kimberly Glasford

Last week, in Goral v. Dart, 2020 IL 125085, the Illinois Supreme Court held that employees of the Sheriff of Cook County were not required to exhaust administrative remedies before challenging the statutory authority of the Cook County Sheriff’s Merit Board (Merit Board) to preside over pending disciplinary charges. The supreme court also determined that if the Merit Board lacked statutory authority, the de facto officer doctrine would not salvage the administrative proceeding.

Thomas Dart, the Sheriff of Cook County, filed disciplinary charges against several employees. While those administrative proceedings were pending before the Merit Board, the employees filed an action in the circuit court, seeking a declaration that the Merit Board’s composition did not comply with the Counties Code (55 ILCS 5/3-7011 (West 2012)). The plaintiffs argued that this negated the board’s authority to act.

The circuit court dismissed the action based on the plaintiffs’ failure to exhaust their administrative remedies, but the appellate court found the authority exception to that requirement applied. The appellate court also found that the de facto officer doctrine would not validate the Merit Board’s actions. The supreme court granted the plaintiffs leave to appeal.

On appeal, the supreme court recited the well-settled principle that a party may not seek judicial review of an unfavorable administrative decision unless he has exhausted all administrative remedies. This requirement furthers efficiency by giving agencies the opportunity to correct their own mistakes and defers to agencies’ factfinding and expertise. That said, an exception exists where a party challenges an agency’s “jurisdiction” as being not authorized by statute, a matter that involves neither factual issues nor agency experience.

The supreme court found that the plaintiffs’ challenge to the Merit Board’s composition, filed before any substantive action was taken by the board, fell within the authority exception.

In reaching this decision, the supreme court rejected the defendants’ assertion that the authority exception is limited to situations where an agency promulgates a rule outside the scope of the subject matter assigned by statute. Additionally, the legislature did not vest the Merit Board with the authority to make decisions regarding its own composition and such decisions did not fall within the board’s expertise. The supreme court also rejected the defendants’ assertion that the court’s ruling would expose the circuit court to a wave of interlocutory challenges, noting that lawyers are prohibited from filing frivolous lawsuits.

While defendants raised concerns about piecemeal litigation, the court found that “the height of inefficiency and waste is to allow the proceedings to continue before an administrative tribunal that is being challenged as illegally comprised,” which could lead to a void administrative decision. Goral, 2020 IL 125085, ¶ 63.

The supreme court also rejected the defendants’ assertion that the de facto officer doctrine saved the administrative proceedings and required dismissal of the circuit court action.

Under that doctrine, acts performed by a person acting under the color of official title are valid even though the legality of that person’s appointment is later discovered to be deficient. Such acts are valid to the extent that the public or interested third parties are concerned. The doctrine protects the public by preventing repetitious suits challenging actions by officials with questionable claims to office. Yet, the doctrine, a defense against collateral proceedings, does not preclude a timely challenge to an agency’s authority. “Thus, our precedent embraces the notion that, before being subjected to an administrative proceeding, a party should have some avenue to timely question and verify that the agency has authority to act.” Id. ¶ 73.

The supreme court found that the de facto officer doctrine did not apply because the plaintiffs challenged the Merit Board’s authority before the board had acted on the disciplinary charges.

The supreme court also disagreed with the notion that the plaintiffs were required to challenge the Merit Board’s authority via a quo warranto action, which is a proceeding to oust an illegally appointed officer from office. The plaintiffs could not file a quo warranto action unless the State’s Attorney were to refuse to file the action and the circuit court granted the plaintiffs leave to do so. Consequently, a quo warranto action was not the most effective means of challenging the Merit Board’s authority.

Justice Michael J. Burke, joined by Justices Garman and Theis, dissented. According to the dissent, the majority had misunderstood the historical context of the de facto officer doctrine and the authority exception to the requirement that parties exhaust administrative remedies did not apply.

The Goral decision rewards prompt attacks on an administrative agency’s authority. Whether this results in an uptick in administrative litigants rushing to the circuit court remains to be seen.

Judge Scudder’s Tips for Writing an Amicus Brief that Adds Value

Carson Griffis — Mon, 12 Oct 2020 22:03:53 GMT

By: Linda Sackey

In Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644, 2020 WL 5867923 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers), Circuit Judge Michael Y. Scudder wrote a short and informative opinion on a topic that is of great interest to many appellate practitioners: how to write an amicus brief that assists the court in evaluating a case.

Judge Scudder observed that many amicus briefs do nothing more than rehash arguments that the parties have made. He notes that “[n]obody benefits from a copycat amicus brief,” and the court’s practice is to reject such briefs. Rather, Judge Scudder emphasized that an amicus brief should add something new, different, and important to the court’s consideration of the issues.

Among Judge Scudder’s suggestions for helpful avenues to pursue in an amicus brief are:

• Offering a different analytical approach to the legal issues before the court;

• Highlighting factual, historical, or legal nuance glossed over by the parties;

• Explaining the broader regulatory or commercial context in which a question comes to the court;

• Providing practical perspectives on the consequences of potential outcomes;

• Relaying views on legal questions by employing the tools of social science;

• Supplying empirical data informing one or another question implicated by an appeal;

• Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;

• Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.

U.S. District Court for the Northern District of Illinois Hosts Virtual Seminar on Chicago 7

Carson Griffis — Mon, 05 Oct 2020 21:18:31 GMT

The Chicago 7 Trial was one of the most famous trials ever to take place in a Chicago courtroom, and is the subject of a new Netflix film. On Tuesday, October 20, 2020, from 3 to 4:30 p.m., the United States District Court for the Northern District of Illinois, along with the Federal Bar Association and Seventh Circuit Bar Association, is hosting a conversation with former Assistant United States Attorney Dick Schultz, the last living member of the Chicago 7 trial team. U.S. District Judge Thomas Durkin and U.S. Magistrate Judge Jeffrey Cole will interview Mr. Schultz as he discusses one of the most notable trials in American history.

This is a free virtual seminar offering 1.5 credit hours of Illinois CLE (pending approval). Registration is required, and those interested may register here.

Judge Barrett Nominated for U.S. Supreme Court

Carson Griffis — Sat, 26 Sep 2020 13:37:16 GMT

The ALA congratulates Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit on her nomination for Associate Justice of the United States Supreme Court.

The Honorable Amy Coney Barrett was confirmed as a judge of the U.S. Court of Appeals for the Seventh Circuit in October 2017.

Judge Barrett earned her B.A. in English literature, magna cum laude, from Rhodes College. She earned her J.D., summa cum laude, from the University of Notre Dame, where she served as executive editor of the Notre Dame Law Review.

Before joining the faculty of the University of Notre Dame Law School, where she was selected as "Distinguished Professor of the Year" by three of the Law School's graduating classes, Judge Barrett clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court.

Judge Barrett has been a friend and supporter of the ALA, and if confirmed by the Senate, she would be the first U.S. Supreme Court justice since John Paul Stevens to have previously served as a judge of the U.S. Court of Appeals for the Seventh Circuit.

(Biographical information courtesy of the University of Notre Dame.)

Toward a More Perfect Union: The VMI Case and the Legacy of Justice Ruth Bader Ginsburg

Carson Griffis — Sun, 20 Sep 2020 20:15:31 GMT

By: John M. Fitzgerald

Much-deserved tributes continue to pour in for the late Justice Ruth Bader Ginsburg. It is quickly becoming a cliché to call her an icon, a pioneer in the struggle for equal rights, and one of the most influential judges in recent American history. Even those who vehemently disagreed with her in life now hail her, rightfully, as an American hero.

On Friday night, shortly after learning of her death, I struggled to explain to my 12-year-old daughter exactly why Justice Ginsburg mattered so much. My daughter, like others in her age group, was vaguely aware that Justice Ginsburg was a great judge who fought for the rights of women. But that general notion does not do justice to her full legacy. Those “Notorious RBG” t-shirts were delightful but not very informative.

The most enduring legacy of any judge can be found in the bound volumes of reported decisions (or, in 2020, their digital equivalent). And no single decision speaks more to Justice Ginsburg’s philosophy and legacy than United States v. Virginia, 518 U.S. 515 (1996).

That case can be distilled to its first three sentences, authored by Justice Ginsburg for the majority less than three years after her confirmation to the Supreme Court: “Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.” Id. at 519.*

Perhaps sensing that she faced a historic moment, Justice Ginsburg took the opportunity to explain how the nation’s history led to a dispute over whether the equal protection clause prevented the Commonwealth of Virginia from barring female applicants from VMI. After noting the modern legal standard — namely, that parties “who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action” (id. at 531) — Justice Ginsburg explained:

“Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination. . . .

In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U.S. 71, 73, 92 S.Ct. 251, 252-253, 30 L.Ed.2d 225 . . . . Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

Id. at 531-32. Justice Ginsburg had, of course, written the successful appellant’s brief in the Reed case.

In the wake of Reed, Justice Ginsburg explained, the Supreme Court “has carefully inspected official action that closes a door or denies opportunity to women (or to men).” Id. at 532. Such action requires an “exceedingly persuasive” justification, and that justification “must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. at 533.

The Commonwealth of Virginia failed to meet that standard. While Virginia claimed that it was important to offer its citizens the option of single-sex higher education, it offered no single-sex higher education opportunities to women. “Virginia describes the current absence of public single-sex higher education for women as ‘an historical anomaly,’” Justice Ginsburg observed, “But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation.” Id. at 538. While Virginia claimed (with no apparent sense of irony) that VMI’s exclusion of women served the goal of “diversity” by offering Virginia residents single-sex higher educational opportunities, Justice Ginsburg could not “extract from that effort any Commonwealth policy evenhandedly to advance diverse educational options.” Id. (emphasis added). The goal of diversity was not served by excluding women from VMI. “However ‘liberally’ this plan serves the Commonwealth’s sons,” Justice Ginsburg concluded, “it makes no provision whatever for her daughters. That is not equal protection.” Id. at 540 (emphasis in original).

To Justice Ginsburg, the case boiled down to this simple truth: “Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.” Id. at 520. Even assuming that “most women would not choose VMI’s adversative method” of education, the question was simply “whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” Id. at 542. Generalizations about the preferences and capabilities of most women were insufficient. After all, “Virginia never asserted that VMI’s method of education suits most men.” Id. at 550. (emphasis in original).

And the “notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other ‘self-fulfilling prophec[ies]’ once routinely used to deny rights or opportunities.” Id. at 543. After all, similar self-fulfilling prophecies had been used in early stages of the country’s history to exclude women from the bar and from attending medical schools. Moreover, women’s “successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded.” Id. at 544-545. (That was quite an understatement, as subsequent experience has shown.)

Finally, Virginia did not cure the equal protection violation by creating a “parallel program” exclusively for women. Even aside from the fact that the “parallel program” was significantly different in curriculum and educational methods from the experience offered to VMI cadets, VMI’s prestige was simply “unequaled.” Id. at 556.

Justice Ginsburg concluded: “A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignores or excluded. VMI’s story continued as our comprehension of ‘We the People’ expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’” Id. at 557-58.

Justice Scalia’s dissent has not aged well. Justice Scalia lamented the Court majority’s “destruction” of VMI. Id. at 603. His prediction was wrong. As Justice Ginsburg understood, the inclusion of women would not ‘destroy’ VMI. It strengthened VMI, which continues to thrive twenty-four years later.

In a heartening postscript, Justice Ginsburg visited VMI in 2017. Shortly after her passing, VMI released the following statement: “During her 2017 visit to VMI, Justice Ruth Bader Ginsburg said she knew that her landmark decision to allow women among the ranks of the Corps of Cadets would make VMI a better school. Nearly 25 years later, VMI’s female alumni are among our nation’s leaders in corporate boardrooms, within our military, and within our communities. VMI is saddened to hear of the passing of Justice Ginsburg. She was a courageous legal scholar whose impact on our Institute and our nation is an inspiration for all.”

How true.

*Quotations in this article omit internal citations and footnotes.

LAST CHANCE: OSAD Online Training Course for Pro Bono Criminal Appeals Program (11.25 Hours CLE, 1 Hour Professional Responsibility)

Carson Griffis — Thu, 17 Sep 2020 12:31:08 GMT

From September 21 to October 23, 2020, the Office of the State Appellate Defender is presenting a free, five-week online training course for attorneys who want to participate in the Illinois Supreme Court's pro bono criminal appeals program. The course will walk participants through a criminal trial in Illinois to assist them in spotting issues to raise on appeal, familiarize participants with relevant Supreme and Appellate Court rules, advise them about client relations, and more. Completing the course will qualify you to participate in the pro bono program.

The course schedule is flexible. OSAD will release videos and supplemental materials once a week for five weeks. Participants can review the weekly materials at their own convenience, and OSAD will hold "office hours" (via phone, email or Zoom) twice a week for participants to raise questions. A detailed curriculum may be found here.

To register, email probono@osad.state.il.us. Registration closes tomorrow, September 18.

Grant of Petition for Relief from Judgment Requires Separate Notice of Appeal

Carson Griffis — Mon, 14 Sep 2020 22:22:58 GMT

By: Carson Griffis*

In Heartland Bank & Trust v. Katz, 2020 IL App (1st) 182259, the Illinois Appellate Court reminded litigants that an order disposing of a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure, 735 ILCS 5/2-1401, must be appealed within 30 days. In that case, the plaintiffs obtained a default judgment, and the defendants later filed section 2-1401 petitions to vacate that judgment. The circuit court granted the petitions and the case proceeded to final judgment, after which the plaintiff attempted to appeal the grant of the section 2-1401 petitions.

The appellate court held that it lacked jurisdiction to consider that appeal, however, because the plaintiff did not file a timely notice of appeal. The court noted that, under Illinois Supreme Court Rule 304(b)(3), a judgment or order granting or denying a section 2-1401 petition may be immediately appealed by filing a notice of appeal within 30 days, and the failure to do so deprives the appellate court of jurisdiction over such an order. The appellate court emphasized that this conclusion was consistent with the nature of a section 2-1401 petition, which initiates new and separate proceedings attacking a final judgment rather continuing the same case. Because an order disposing of such a petition ends those new proceedings entirely, it follows that such an order is final and appealable.

Cases Pending Highlights Criminal Cases In Illinois Supreme Court's September Term

Carson Griffis — Thu, 10 Sep 2020 22:33:07 GMT

The Illinois Supreme Court's September Term begins Monday, September 14, 2020. Oral arguments are scheduled for September 15, 16, 17, 22 and 23, 2020. A total of 17 cases will be heard -- 12 civil and 5 criminal. The following criminal cases are scheduled for argument this Term:

September 25, 2020

People v. Alejandro Reveles-Cordova, No. 124797

People v. Demario Reed, No. 124940

People v. Justin Knapp, No. 124922

People v. Shawn Marlon Brown, No. 125203

September 23, 2020

In re J.M.A., No. 125680

Below is a summary for one of those cases, People v. Alejandro Reveles-Cordova. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website

People v. Alejandro Reveles-Cordova, No. 124797

The one-act, one-crime rule provides that a defendant cannot have multiple convictions stemming from a single act and that a defendant cannot be convicted of a greater offense and a lesser-included offense when there are multiple acts. The abstract elements test is used to determine whether a charged offense is a lesser-included offense of another charged offense. Here, the Court is asked to determine how the abstract elements test should apply: should the Court analyze only the elements of the offense for which the defendant is charged and convicted, or should the court analyze all ways in which the offense can possibly be committed to determine if it is theoretically possible to commit the second offense without committing the first. Here, defendant was convicted of criminal sexual assault and home invasion predicated on criminal sexual assault. The Court must decide whether, under the facts here, the criminal sexual assault is a lesser included offense of the home invasion.

According to defendant, a split in appellate court authority has developed, reflecting the two approaches to applying the abstract elements test described above. Defendant asserts that the Court should endorse comparison of the offenses only as charged. Defendant claims this interpretation is more in line with how the Court has "historically" applied the abstract elements test and the one-act, one-crime rule, with apparent legislative acquiescence to case law holding that there can be no conviction for a greater offense and its predicate without expressed intent to do so, and with the goal underlying he one-act, one-crime rule: to prohibit multiple punishments for a single act.

The State argues in support of the other interpretation, that the abstract elements test should examine all ways that an offense can be committed to determine whether it is theoretically possible to commit the second offense without committing the first. The State disputes defendant's characterization of the Court's relevant precedent, noting that a 2010 case, Miller, adopted use of the abstract elements approach for determining lesser-included offenses so that older precedent is less helpful. The State emphasized that here there are indisputably multiple acts involved because home invasion involves (1) entering the victim's home, and (2) committing criminal sexual assault therein. And when the one-act, one-crime doctrine applies, to multiple act cases, there can be multiple convictions, even given interrelated acts, so long as one offense is not a lesser-included offense.

Appellate Court Decision: 2019 IL App (3d) 160418. Schmidt, P.J., with Carter, J., and O'Brien, J., concurring

Cases Pending Highlights Civil Cases In Illinois Supreme Court's September Term

Carson Griffis — Wed, 02 Sep 2020 15:52:52 GMT

The Illinois Supreme Court's September Term begins Tuesday, September 15, 2020. Oral arguments are scheduled for September 15, 16, 17, 22 and 23, 2020. A total of 17 cases will be heard --12 civil and 5 criminal. The following civil cases are scheduled for argument this Term:

September 16, 2020

People ex rel. Lisa Madigan v. Stateline Recycling, LLC, No. 124417

People ex rel. David P. Leibowitz v. Family Vision Care, LLC, No. 124754

Tzakis v. Berger Excavating Contractors, Inc., No. 125017

Steed v. Rezin Orthopedics and Sports Medicine, S.C., No. 125150

September 17, 2020

Dameron v. Mercy Hospital and Medical Center, No. 125219

Gillespie v. East Manufacturing Corp., No. 125262

State Farm Mutual Automobile Insurance Co. v. Elmore, No. 125441

September 22, 2020

Tirio v. Dalto, No. 125442

Barrall v. The Board of Trustees of John A. Logan Community College, No. 125535

Rehfield v. Diocese of Joliet, No. 125656

Zander v. Carlson, No. 125691

September 23, 2020

Policemen’s Benevolent Labor Committee v. The City of Sparta, No. 125508

Below is a summary for one of those cases, Dameron v. Mercy Hospital and Medical Center. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

Dameron v. Mercy Hospital and Medical Center, No. 125219

The issue in this case is whether a party who has disclosed a witness as a testifying expert may thereafter redesignate that witness as a nontestifying consultant whose opinions and work product are privileged and protected from discovery unless there is a showing of exceptional circumstances by the opposing party.

Plaintiff Alexis Dameron filed a medical malpractice action against the defendants, Mercy Hospital and Medical Center, Cordia Clark-White, M.D., Alfreda Hampton, M.D., Natasha Harvey, M.D. and Patricia Courtney (collectively, “Defendants”). On May 30, 2017, in her answers to written discovery, Plaintiff disclosed Dr. David Preston as an expert witness. She also disclosed that Dr. Preston would testify as to the results of an EMG test he would perform on Plaintiff on June 1, 2017. On that date, Dr. Preston examined Plaintiff and conducted the test. He also prepared a report in which he discussed his findings and opinions. Two months later, Plaintiff filed a motion to designate Dr. Preston as a nontestifying expert consultant pursuant to Supreme Court Rule 201(b)(3), claiming that the disclosure of Dr. Preston as a testifying expert witness was “inadvertent.” The trial court denied Plaintiff’s motion and ordered Plaintiff to produce Dr. Preston’s records and report regarding the EMG test. Plaintiff refused and the court found her in contempt and imposed a $100 fine, which was later reduced to $1. Plaintiff appealed the interlocutory friendly contempt order pursuant to Supreme Court Rule 304(b)(5).

The appellate court reversed, explaining that, under Illinois law, a party may withdraw an expert witness as long as the opposing party is given clear and sufficient notice allowing it to take the necessary action in light of the abandonment of the witness. However, in this case, the court noted, Plaintiff did not merely seek to withdraw Dr. Preston as a testifying expert witness, but sought to redesignate him as a nontestifying consultant whose reports and opinions are protected from discovery pursuant to the privilege set forth in Rule 201(b)(3). The court noted that this was an issue of first impression in Illinois and looked to federal cases for guidance. Following Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 2159476 (S.D. Ind. May 17, 2013), the appellate court held that “where a previously disclosed testifying expert witness has been timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated a Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.” Because Plaintiff had not disclosed Dr. Preston’s report to Defendants prior to her motion to redesignate him as a consultant, the appellate court held that the trial court erred in denying Plaintiff’s motion. Accordingly, the appellate court reversed the trial court’s order, vacated the contempt finding and remanded the case for further proceedings.

Appellate Court Decision: 2019 IL App (1st) 172338. Hall, J., with Rochford, J., and Hoffman, J., concurring

Online Memorial Service Honoring Justice Charles E. Freeman To Be Held September 16

Carson Griffis — Sat, 22 Aug 2020 14:48:15 GMT

Chief Justice Anne M. Burke of the Illinois Supreme Court has invited the ALA's members to attend a memorial service in honor of the late Justice Charles E. Freeman at 2 p.m. on Wednesday, September 16, 2020.

In light of COVID-19, guests will not gather in the Supreme Court Building, but the service will be streamed at: https://livestream.com/blueroomstream/events/9226889. A video recording of the service will be available on the Court's website for those who cannot watch live, and a program for the service may be downloaded from the Court's website (http://www.illinoiscourts.gov/Media/Video/Events/default.asp) a few days prior to the service.

Justice Freeman was elected as the first African-American member of the Illinois Supreme Court in 1990, and also served on the Illinois Appellate Court from 1986 to 1990 and the Cook County Circuit Court from 1976 to 1986. Before serving on the bench, Justice Freeman worked in private practice and various public service roles, including as an Assistant Attorney General, Cook County Assistant State's Attorney, Assistant Attorney for the Cook County Board of Election Commissioners, and arbitrator with the Illinois Industrial Commission. During his 28 years as a justice of the Illinois Supreme Court, he was praised for drafting opinions upholding criminal defendants' rights, improving efficiency in the Family Violence Prevention program, and improving the Court's operations, including establishing its web page. Justice Freeman received numerous awards throughout his distinguished career, including the Freedom Award from The John Marshall Law School, the Seymour Simon Justice Award from the Jewish Judges Association, the Earl Burrus Dickerson Award from the Chicago Bar Association, and the Ira B. Platt Award and Presidential Award from the Cook County Bar Association.

ALA Hosts Virtual CLE: The Road to Brown: Thurgood Marshall's Early Career & the American Civil Rights Movement

Carson Griffis — Thu, 06 Aug 2020 02:19:49 GMT

The ALA is hosting a CLE Lecture featuring Professor Marcia Chatelain. Professor Chatelain, Provost’s Distinguished Associate Professor of history and African American Studies at Georgetown University, is a frequent public speaker, media commentator, and consultant to educational institutions, delivering lectures and workshops on inclusive teaching, social movements, and food justice. Her lecture will explore a variety of cases in U.S. Supreme Court Justice Thurgood Marshall’s career leading up to the landmark decision in Brown v. Board of Education of Topeka, Kansas.

Date: Thursday, August 20, 2020

Time: 12:00 to 1:00 p.m.

Location: Online. Attendees will receive a Zoom link after registering for the event. (NOTE: Only speakers will be visible, so participants need not dress formally.)

Cost: Free for ALA members; $25 for non-members

CLE Credit: 1.0 hour, Diversity & Inclusion Credit

Questions? Call (630) 416-1166, ext. 303

Register: Use our online registration system here, or visit www.applawyers.org. Please note that you will receive a Zoom link in your confirmation e-mail.

Pro Bono Opportunity - Illinois Free Legal Answers for Civil Appeals

Carson Griffis — Sun, 12 Jul 2020 13:56:09 GMT

The ALA is excited to announce a new pro bono opportunity for appellate lawyers that is launching this fall: Illinois Free Legal Answers for Civil Appeals. This American Bar Association project is sponsored by the Administrative Office of the Illinois Courts, the Illinois Supreme Court Commission on Access to Justice, and the Public Interest Law Initiative (PILI). It operates as a virtual legal advice clinic for civil legal issues where low-income Illinoisans can submit a question about their civil appeal. It is a limited scope opportunity, and volunteer attorneys who provide brief advice and counsel through the website will be covered by professional liability insurance maintained by the ABA. Volunteer lawyers log on to the site at their convenience and answer questions waiting in the queue.

The program is currently seeking volunteers who have experience in appellate practice. You can visit https://www.pili.org/appellate for more information and to sign up for updates.

Illinois Appellate Court, First District, Adopts Common Sense Approach To Good Cause For Minor E-Filing Error

Carson Griffis — Tue, 30 Jun 2020 12:34:39 GMT

In Davis v. Village of Maywood, 2020 IL App (1st) 191011, the First District of the Illinois Appellate Court held that a party demonstrated good cause to justify a late filing based on his attorney's "minor, understandable" e-filing error.

Plaintiff's counsel attempted to e-file a complaint on the morning of the day the statute of limitations was set to expire. When submitting the complaint, he entered his Cook County Attorney Code in the "Lead Attorney" field but did not reenter it in the field labeled "Case Cross Reference Number." Four days later, the circuit court clerk reviewed the submission and rejected it because counsel did not reenter his Cook County Attorney Code. Counsel resubmitted the same complaint with the Code later that day, and it was accepted. The circuit court later dismissed the complaint as untimely.

The First District reversed, holding that plaintiff established good cause for the late filing under Illinois Supreme Court Rule 9(d)(2), which states that a party may "seek appropriate relief from the court, upon good cause shown" if an e-filed document "is rejected by the clerk and is therefore untimely." The court emphasized that the complaint itself was substantively correct, that the e-filing submission contained all of the other necessary information, and that it was "neither . . . obvious nor intuitive" that counsel should have reentered his Attorney Code in the "Case Cross Reference Number" field. The court also noted that the e-filing platform and Cook County circuit court clerk subsequently warned users about this very problem, showing that the field's label was unclear. Because the name of that field was "confusing at best and misleading at worst," it contributed to counsel's error and constituted good cause.

The First District's opinion may be found here.

Pro Bono Opportunity: Volunteer Pro Bono Criminal Appeals Program

Carson Griffis — Wed, 24 Jun 2020 21:05:04 GMT

In February, the Illinois Supreme Court created the Volunteer Pro Bono Criminal Appeals Program to assist the Office of the State Appellate Defender with a backlog of appeals that has accumulated over many years due to underfunding. This is an important initiative for the Court, and furthers the Court’s commitment to improving access to justice.

The Program provides a unique opportunity for appellate lawyers to get involved in pro bono service. There are a number of ways to participate:

1. Volunteer to handle a direct criminal appeal. The Illinois Supreme Court recently issued amended eligibility criteria for serving as a volunteer pro bono attorney. Appointed attorneys must only have participated in two prior appeals, or have served in various government agencies or judicial clerkships. Oral argument will be strongly considered in these appeals.

2. Supervise an attorney who does not meet the eligibility criteria. Newly licensed attorneys and friends and colleagues who do not otherwise meet the eligibility criteria may handle these appeals under the supervision of a qualified appointed attorney. This is an excellent opportunity to help others get appellate experience.

3. Mentor a law student looking for legal experience. Law students may not be of record to handle these appeals. However, a qualified appointed attorney may informally mentor a law student by having them work on limited aspects of the appeal (e.g., conducting research, assisting in writing the appellant’s brief, etc.), while the attorney makes all appearances before the court. If you are interested in mentorship, please contact Gretchen Sperry at gsperry@hinshawlaw.com.

OSAD is also offering a free, CLE-eligible online training program to assist pro bono attorneys with substantive and procedural criminal law and to offer guidance on issue spotting. OSAD is also making some of their internal training materials available for review. Registration closes July 2nd. Please contact Laura Weiler at laura.weiler@osad.state.il.us for more information.

The Illinois Supreme Court has long been a supporter of the ALA, and this is our opportunity as ALA members and supporters to give back. Please consider applying for this program.

ALA Rules Committee Addresses Proposed Amendments To Illinois Supreme Court Rules

Carson Griffis — Wed, 24 Jun 2020 20:47:21 GMT

Earlier today, Seth Horvath, co-chair of the ALA's Rules Committee, addressed three proposals to amend the Illinois Supreme Court rules at a public hearing of the Illinois Supreme Court's Rules Committee held via Zoom. Video of Mr. Horvath's comments can be seen here, starting around the 1:36:00 mark.

The ALA supported in part and opposed in part Proposal No. 19-05, which would make amendments to Illinois Supreme Court Rules 306, 315, 316, 318, 341, and 368. The ALA also opposed Proposal No. 19-14, which would amend Rule 303(a)(2). The specific reasons for the ALA's position on these proposals were outlined in a letter it submitted to the Illinois Supreme Court's Rules Committee on June 10, 2020, which can be found here.

Finally, the ALA expressed its opinion on Proposal No. 19-11, regarding an amendment to Illinois Supreme Court Rule 23, by reiterating its position that parties should be able to cite unpublished orders under that rule as persuasive authority, but not as binding precedent.

SCOTUS Title VII Ruling Unmoots 2018 ALA Moot Court Competition Problem

Carson Griffis — Wed, 17 Jun 2020 02:34:07 GMT

By: Brad Jarka

In November 2018, we hosted our annual moot court competition and students gathered to argue whether Title VII’s prohibition on employment discrimination “because of . . . sex,” included protections for employees suffering an adverse employment action for their sexual orientation or gender identity. Six months later, and again just days ago, the United States Supreme Court took the case from moot to momentous.

The Court granted certiorari and consolidated three cases: Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. On June 15 this year the Court ruled, six to three, that Title VII protects LGBTQ folks from workplace discrimination based on their sexual orientation or gender identity.

If you served as a judge or brief grader for our 2018 competition, you will find the discussion in all three opinions—the majority and each of two dissents—familiar. The case centers on complicated issues of statutory construction, causation, original public meaning, and hotly contested public policy. Our student competitors nonetheless anticipated and presented every argument the parties and the Court addressed.

To the students and ALA members considering participation in our competition this year, as the 2018 problem shows, what is moot today may matter tomorrow. We hone our skills as appellate advocates to protect the rights and interests of real clients at the highest levels of our court system. We hope you will join us again this November!

No Injury, No Claim

Carson Griffis — Tue, 02 Jun 2020 01:02:18 GMT

By: Dodie O'Keefe

In Lewis v. Lead Industrial Ass'n, 2020 IL 124107, the Illinois Supreme Court found the plaintiffs did not suffer any economic loss to sustain their tort claim where the only costs they sought to recover had been paid in full by Medicaid.

Nearly two decades ago, the plaintiffs, a class of parents, filed a civil conspiracy claim against four companies that had previously manufactured lead paint (the defendants), to recover the economic costs of lead toxicity blood screenings underwent by their children as required by the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 2000)). Lewis, 2020 IL 124107, ¶ 3.

The circuit court subsequently found that the plaintiffs, two of whom were Medicaid recipients, had suffered no economic injury to sustain their claims where the screening costs had been fully covered by Medicaid and where there was no other evidence of expenses incurred by the plaintiffs for the screenings. Id. ¶¶ 7-8. In reaching its conclusion, the circuit court rejected the plaintiffs’ arguments that they were nevertheless entitled to recover those costs because the State could seek reimbursement for any recovery they received, and furthermore, whether Medicaid had paid those costs had no bearing on their right to recovery under the collateral source rule. Id. Because the plaintiffs had neither suffered from economic loss or physical injury, the circuit court entered summary judgment in the defendants’ favor. Id.

On appeal, the appellate court reversed that judgment, finding the plaintiffs had alleged a valid claim for economic injury because they had incurred an obligation for the screening costs under the Rights of Married Person Act (Family Expense Act) (750 ILCS 65/15 (West 2000)), which codifies parental liability for the expenses of their minor children. See Lewis, 2018 IL App (1st) 172894, ¶¶ 10, 15. The appellate court also found that the collateral source rule precluded the diminution of the plaintiffs’ recoverable damages by the benefits received from Medicaid. Id. ¶¶ 12-13. The supreme court disagreed.

In its opinion, the supreme court held that the plaintiffs suffered no economic injury because they did not incur an obligation for the screening costs under the Family Expense Act since they were never indebted to the medical providers who conducted the screenings. Lewis, 2020 IL 124107, ¶¶ 37-38. The court also rejected plaintiffs’ argument that an obligation was created based on the State’s right of recoupment under section 11-22 of the Illinois Public Aid Code (305 ILCS 5/11-22 (West 2018)) for any recovery they received, noting that right may only be exercised against a judgment against the wrongdoer and not to seek repayment from the recipients. Id. ¶¶ 40-41. Last, the court held that because the plaintiffs in this case did not suffer an economic injury, the collateral source rule, which “prescribes the methodology of awarding damages,” was inapplicable. Id. ¶¶ 49, 52.

In sum, the supreme court reemphasized that essential to every cause of action is some injury or harm to a legal right suffered by the plaintiffs. Id. ¶ 29.

Cases Pending Highlights Civil Cases In Illinois Supreme Court's May Term

Carson Griffis — Tue, 12 May 2020 01:41:48 GMT

The Illinois Supreme Court's May Term begins Monday, May 11, 2020. For the first time, the Court will be conducting remote oral arguments using Zoom videoconferencing. Oral arguments are scheduled for May 12, 13, and 14, 2020. A total of 10 cases will be heard -- 6 criminal and 4 civil. The following civil cases are scheduled for argument this Term:

May 13, 2020

People ex rel. Dep't of Human Rights v. Oakridge Nursing & Rehab. Center, No. 124753

May 14, 2020

Sharpe v. Westmoreland, No. 124863

Goral v. Dart, No. 125085

United States v. Gilspie, No. 125483

Below is a summary for one of those cases, Sharpe v. Westmoreland. Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website.

Sharpe v. Westmoreland, No. 124863

This case concerns two questions certified by the circuit court under Supreme Court Rule 308: (1) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request visitation with his or her deceased partner’s child as a step-parent under 750 ILCS 5/602.9(a)(3) (the Illinois Marriage and Dissolution of Marriage Act (“Marriage Act”)); and (2) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request parental responsibilities of his or her deceased partner’s child as a step-parent under 750 ILCS 5/601.2(b)(4).

The marriage of Crystal Westmoreland and Matt Sharpe was dissolved in January, 2013. As part of the dissolution, they agreed to a joint parenting agreement with respect to their child, A.S., who was then seven years old. While the parties shared equal parenting time, A.S.’s legal residence was with Sharpe. In November, 2013, Sharpe entered into a civil union with Kris Fulkerson. A.S. continued to reside with Sharpe and Fulkerson and her three children. Sharpe died on January 2, 2017. After his death, Westmoreland began to deny Fulkerson visitation with A.S., even though A.S. expressed a desire to live with Fulkerson and her children. Fulkerson then filed a petition seeking visitation rights and an allocation of parental responsibilities with respect to A.S.

The circuit court granted Fulkerson’s petition for leave to intervene, determining that she had standing as a step-parent under the Marriage Act to seek visitation with and parental responsibilities of her deceased partner’s child, A.S. Westmoreland argued that Fulkerson did not have standing because she is not a step-parent of A.S., given that she was never legally married to A.S.’s father as required by the definition of step-parent under sections 600(l) and 602.9(a)(3) of the Marriage Act (750 ILCS 5/600(l), 602.9(a)(3)). The circuit court certified the above two questions under Rule 308 and the appellate court granted the petition for leave to appeal.

The appellate court explained the purposes behind the Marriage Act and Civil Union Act, explaining that while the Civil Union Act provides persons entering into civil unions with the same obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to those persons entering into marriages, the equation of partners’ rights and obligations in relation to each other does not necessarily equate civil union partners to married spouses in relation to children. The Marriage Act specifically addresses the allocation of parental responsibilities, including establishing visitation with a minor child by a nonparent. A step-parent under the Marriage Act is defined as someone who is or was married to the parent, immediately prior to his or her death. 750 ILCS 5/600(l), 602.9(a)(3). The court explained that neither of these sections mentions or includes partners to a civil union and held that the omission of any reference to partners joined by civil unions in the definition of step-parents reflects a legislative intent not to include civil union partners in the category of nonparents who have standing to seek visitation. The court then held that step-parentage requires a legal marriage as opposed to a civil union. The appellate court answered both certified questions for interlocutory appeal in the negative, reversed the circuit court’s ruling and remanded for further proceedings.

Fulkerson seeks relief in the Illinois Supreme Court, arguing in part that the appellate court’s opinion conflicts with the Religious Freedom Protection and Civil Union Act, 750 ILCS 75/1, et seq., deprives parties to civil unions of the rights the General Assembly promised them, and stigmatizes their relationship as second-class by denying them legal protections accorded to married couples.

Cases Pending Highlights Criminal Cases In Illinois Supreme Court's May Term

Carson Griffis — Sun, 03 May 2020 15:33:29 GMT

The following criminal cases are scheduled for argument this Term:

May 12, 2020

People v. Ashanti Lusby, No. 124046

People v. Miguel DeLeon, No. 124744

People v. Ronald Lee Stoecker, No. 124807

People v. Kevin Jackson, No. 124818

May 13, 2020

People v. Joseph Hollahan, No. 125091

People v. Keith Gaines, No. 125165

Below is a summary for one of these cases, People v. Ashanti Lusby. Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Ashanti Lusby, No. 124046

In People v. Bailey, 2017 IL 121450, the Court held that the circuit court must not seek or be influenced by State input when evaluating whether a defendant should be given leave to file a successive postconviction petition. The first issue presented by this case is whether the appellate court can assess cause and prejudice (to decide whether leave to file should have been granted) following a Bailey error, or whether the appellate court must remand the matter back to the circuit court for consideration without the State's input. In the analogous context of improper State influence during summary first-stage review of an initial postconviction petition, the Court has required remand. Nonetheless, since Bailey, an appellate split has developed regarding whether the appellate court can reach the merits of the leave-to-file issue or must remand. While defendant's brief remains largely silent on this issue, the State's brief acknowledges that the Court, under its broad supervisory authority, can reach the merits of the leave-to-file issue (as it did in Bailey). But the State urges the Court to address the scope of the appellate court's authority to resolve the appellate court split.

The merits of the petition concern the constitutionality of defendant's sentence. Following Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and People v. Holman, 2017 IL 120655, this case presents the question of whether a de facto natural life sentence (an aggregate 130-year sentence served eligible to be served at 50%) for an offender who committed crimes at age 16 violated the Eighth Amendment. The State's position on the question first acknowledges that there is a procedural and a substantive component to the Eighth Amendment analysis. The sentencer must consider youth and its attendant characteristics (the procedural component), before deciding on a proportionate sentence, in that the sentencer must determine whether the crimes reflected transient immaturity, so that a life sentence is unavailable, or reflect permanent incorrigibility, so that a life sentence is available (the substantive component). Here, the State argues that the appellate majority erred in determining that the sentencer failed to honor this procedural component as reflected in its emphasis on the sentencer's failure to explicitly state that it considered the presentence investigation report that contained evidence relevant to youth and attendant characteristics. The State further asserts that the appellate majority should have held that, under Holman's analytical framework, the sentence passes constitutional muster. Defendant, in contrast, emphasizes the factual differences between this case and Holman in agreeing with the appellate majority's conclusion that the sentence violates the Eighth Amendment.

Finally, the State challenges the remedy that the appellate majority provided upon finding an Eighth Amendment violation. Because the appellate court was reviewing the circuit court's order denying defendant leave to file his successive postconviction petition, the State insists that the majority erred in ordering a new sentencing hearing. The State suggests that the majority instead should have remanded the matter to the circuit court for the petition to be filed and for second-stage postconviction proceedings to occur. Defendant finds no fault in the majority's remedy, noting other Eighth Amendment precedent that provides new sentencing hearings even for cases in similar procedural posture.

Reviewing Courts Hold Telephonic and Virtual Oral Arguments Due to COVID-19 Pandemic

Carson Griffis — Wed, 22 Apr 2020 12:55:23 GMT

Several reviewing courts located in Illinois have begun to hold oral arguments remotely, either by telephone or by online chat services.

The U.S. Court of Appeals for the Seventh Circuit has ordered all oral arguments through the end of April to be conduct by telephone. On the day of the argument, the court calls counsel on a teleconference line and mutes them until it is their turn to argue. The Presiding Judge on the panel keeps track of time and reminds counsel of the time limits. For people interested in "attending" an argument, the Seventh Circuit livestreams audio of its arguments on its YouTube channel.

The Illinois Supreme Court announced that it is holding its May arguments via the Zoom teleconferencing platform. The court has stated that it will hold training sessions with counsel to inform them of procedures for argument. Like the Seventh Circuit, the Illinois Supreme Court will livestream its arguments on its own YouTube channel.

The Second District of the Illinois Appellate Court has used the WebEx videoconferencing platform for its April oral arguments. The arguments are audio-only, and counsel may argue through the microphone on their computer or call in via phone. The other districts of the Appellate Court have not yet announced procedures for remote oral arguments.

Illinois Supreme Court Clarifies Proper Application of Primary Jurisdiction Doctrine

Fri, 10 Apr 2020 13:32:32 GMT

By: Richard Harris

The Illinois Supreme Court recently resolved a disagreement in the appellate court as to whether the doctrine of primary jurisdiction authorizes a circuit court to stay the proceedings before an administrative agency. In Hastings Mutual Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, the First District answered that question in the affirmative. In West Bend Mut. Ins. Co. v. TRRS Corp., 2019 IL App (2d) 180934, the Second District declined to follow Hastings Mutual and held that the doctrine can only be applied to stay judicial proceedings pending the resolution of a specialized controversy before an administrative agency. The Supreme Court sided with the Second District and overruled Hastings Mutual.

West Bend involved a coverage dispute on a workers’ compensation claim. The injured worker, Gary Bernardino, underwent surgery to repair his torn rotator cuff. When Bernardino later learned he needed a follow-up surgery, he filed an “application for adjustment of claim” in the Illinois Workers’ Compensation Commission (IWCC). West Bend denied its responsibility for coverage, claiming Bernardino’s employers chose to cover his lost wages and medical expenses relating to the first surgery without reporting the injury to West Bend.

West Bend filed a complaint for declaratory judgment in the circuit court of McHenry County, seeking a declaration that it had no duty to defend or indemnify Bernardino’s employers in connection with his IWCC claim. Shortly thereafter, the IWCC scheduled an expedited hearing on Bernardino’s claim, which prompted West Bend to file an emergency motion in the circuit court to stay the IWCC proceedings until the declaratory judgment action was resolved. The circuit court agreed with West Bend that under Hastings Mutual, the doctrine of primary jurisdiction required the entry of an order staying the IWCC proceedings until the coverage dispute was resolved in the circuit court.

However, the Supreme Court agreed with the Second District that Hastings Mutual was wrong to allow the inverse application of the primary jurisdiction doctrine, which may be invoked when two courts share concurrent jurisdiction over the subject matter of the dispute. The doctrine holds that in certain instances, a circuit court should stay its own judicial proceedings pending the referral of a specialized controversy to an administrative agency having expertise in the area. The Supreme Court noted that it had never applied the doctrine to stay an administrative proceeding. The Court held, “[t]he doctrine operates to facilitate, not delay or otherwise hinder, an administrative agency’s resolution of a technical or specialized issue that requires administrative knowledge or expertise.”

Left open was the question of whether a circuit court possesses the inherent equitable power to issue the stay of an administrative proceeding pending judicial review. The Supreme Court declined to consider West Bend’s alternative arguments and remanded the case to the circuit court. Quoting the Second District, the Supreme Court “[took] no position as to what procedures, if any, are available to West Bend if it seeks to renew its motion in the circuit court to stay the IWCC proceedings.”

Certified Questions and Mandates: More Complicated Than You Think

Carson Griffis — Tue, 07 Apr 2020 12:31:21 GMT

By: Kimberly Glasford

In Crim v. Dietrich, 2020 IL 124318, the Illinois Supreme Court held that when the trial court enters a partial directed verdict, a litigant must file a post-trial motion to preserve any challenge to the jury’s subsequent verdict on a remaining claim. Equally interesting, however, are the justices’ varying applications of Illinois Supreme Court Rule 308 (eff. July 1, 2017), and different interpretations of an appellate court mandate.

The Crims filed a medical malpractice action against Gina Dietrich, D.O., alleging that she failed to obtain informed consent for a natural birth and was negligent during delivery. At trial, the court granted Dietrich’s motion for a partial directed verdict as to the informed consent claim. The jury then found in her favor on the remaining negligent delivery claim but the Crims did not file a post-trial motion challenging that finding.

On appeal in Crim I, the appellate court found the directed verdict was improper, reversed the judgment and remanded for a new trial. According to the mandate, the appellate court held that “the order on appeal from the circuit court be REVERSED and the cause be remanded . . . for such other proceedings as required by order of this court.” On remand, the parties disputed whether retrial was limited to the informed consent claim or whether the Crims could present evidence regarding the negligent delivery claim.

According to Dietrich, retrial was limited to the informed consent claim because the Crims did not file a post-trial motion attacking the jury’s verdict on the negligent delivery claim and the reviewing court did not address it. The Crims argued, however, that the mandate in Crim I was general, requiring a new trial on all issues.

The trial court sided with the Crims but certified, pursuant to Rule 308, the question of “[w]hether the ruling of the appellate court, [in Crim I], reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The appellate court found in Crim II that the new trial should encompass all claims. The supreme court disagreed.

The majority opinion, authored by Justice Karmeier and joined by Justices Garman, Theis and Neville, noted that “[a] certified question under Rule 308 permits the discretionary appeal of an otherwise unappealable interlocutory order of the circuit court where the court ‘finds that the order involves a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Crim, 2020 IL 124318, ¶ 19 (quoting Ill. S. Ct. R. 308(a) (July 1, 2017)). The majority found that the certified question met that standard because it involved a pure question of law and did not invite an advisory opinion. Additionally, answering the question would materially advance the termination of the litigation.

The majority acknowledged it would be improper for a certified question to seek a new interpretation of Crim I. Indeed, a certified question could not revest the appellate court with jurisdiction to revisit a previously decided case. The certified question at issue, however, did not reflect an improper purpose. Instead, it merely asked whether Crim I required an entirely new trial, which “is no different than a certified question involving statutory construction.” Crim, 2020 IL 124318, ¶ 21. In support, the majority cited a case involving the impact of a United States Supreme Court decision on an Illinois case, rather than the impact of an Illinois decision on the same Illinois case. Id. (citing Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6).

As to the merits, the majority concluded that the Crim I mandate did not require a new trial on all claims because the Crims failed to file a post-trial motion under 735 ILCS 5/2-1202. Furthermore, the “mandate could not remand the matter for a new trial on an issue never raised and not considered.” Crim, 2020 IL 124318, ¶ 40. Finally, the majority recognized that “[w]hen a court of review does not determine the merits of a case but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated and the cause stands as if no trial had occurred.” (Internal quotation marks omitted.) Id. ¶ 40 (quoting People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 326 (1959)). But it concluded that the appellate court ruled on the merits by finding that the trial court improperly entered a directed verdict, notwithstanding that the appellate court had not made a determination as to liability.

Chief Justice Burke specially concurred, finding that a new trial on all claims was not necessary because the opening brief in Crim I expressly abandoned the Crims’ objection to the jury’s verdict. Additionally, the appellate court did not review the jury’s verdict.

Chief Justice Burke recognized that, “[i]f a judgment in an ordinary suit at law in which the parties are entitled to a jury trial is reversed for errors intervening prior to the entry of the judgment and the cause is remanded generally, the parties are entitled to a trial de novo.” (Internal quotation marks omitted.) Id. ¶ 53 (quoting Roggenbuck v. Breuhaus, 330 Ill. 294, 300 (1928)). But she disagreed that the erroneous partial directed verdict in Crim I constituted an error “prior to the entry of judgment” within the meaning of that rule because “a directed verdict is itself a judgment.” Crim, 2020 IL 124318, ¶ 55 (Burke, C.J., specially concurring). When “Crim I stated that it was reversing the ‘judgment’ of the trial court, it was necessarily referring to the directed verdict since the only matter the appellate court addressed was the informed consent claim.” Id. ¶ 56.

Justice Kilbride dissented, stating that the certified question did not satisfy Rule 308 because it was case-specific. Crim, 2020 IL 124318, ¶ 67 (Kilbride J., dissenting). Additionally, Justice Kilbride believed that the parties asked the certified question to clarify what the mandate in Crim I meant, which the majority acknowledged would be improper. Specifically, the Crims’ attorney stated on remand, “I think that there’s going to need to be a 308 appeal, an interlocutory appeal so that the Appellate Court can tell us what it wanted when it issued its order.” Furthermore, there was no substantial ground for disagreement: “no court has ever addressed what the mandate in Crim I means, nor will any court ever address that question again.” Id. ¶ 76.

Justice Kilbride also disagreed that construing a mandate was akin to statutory construction, noting that while statutes have general applicability, mandates by nature are case-specific. He added that by finding that Crim I could not have required a new trial on all claims due to the Crims’ failure to file a section 2-1202 motion, the majority confused a party’s forfeiture with the appellate court’s power to grant relief.

The supreme court’s decision indicates that in interpreting a mandate, the court will adopt a reading that renders the mandate legally correct. The decision also suggests that justices will differ as to whether a procedural issue presents a purely legal issue. With that in mind, litigants should ensure that mandates and certified questions are crystal clear while the court has jurisdiction to clarify any ambiguity.

Seventh Circuit Suspends Paper Copy Requirement

Carson Griffis — Wed, 01 Apr 2020 13:00:39 GMT

In response to the COVID-19 public health emergency, the Seventh Circuit has suspended the requirement that parties provide paper copies of electronically filed briefs, appendices, and petitions for rehearing under Federal Rule of Appellate Procedure 30(a)(3) and Circuit Rules 31(b) and 40(b). The suspension does not apply to cases currently scheduled for oral argument, and the court may direct parties to provide paper copies in certain cases. Parties still must serve paper copies on pro se litigants.

The suspension is in effect until further order of the court. The Seventh Circuit's order is available here.

Illinois Supreme Court Extends Deadlines In Light Of COVID-19

Carson Griffis — Tue, 24 Mar 2020 22:58:06 GMT

The Illinois Supreme Court has issued two orders extending various deadlines in cases before it and the Illinois Appellate Court.

These extended deadlines will remain in effect until further order by the Illinois Supreme Court. Both orders, and all other court updates regarding COVID-19, may be found here.

Illinois Appellate Court

The deadline for filing any notice of appeal from a circuit court judgment due on or after March 24, 2020, is extended from 30 to 60 days.

The deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

Illinois Supreme Court

The deadline for filing a petition for leave to appeal from an appellate court judgment, denial of a petition for rehearing, entry of judgment on rehearing, issuance of an opinion after granting a motion to publish, or order denying a motion to publish due on or after March 24, 2020, is extended from 35 to 70 days.

The appellate court is directed to hold its mandates for 70 days from the date of its judgment, including judgments entered 35 days before March 24, 2020.

Unless the Illinois Supreme Court previously granted a motion for an extension that was marked "final," the deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

The relaxed requirement that parties provide paper copies of e-filed documents within 14 rather than 5 days is extended to documents e-filed through April 7, 2020.

The Jurisprudence of Justice P. Scott Neville, Jr.

Carson Griffis — Thu, 19 Mar 2020 13:19:56 GMT

By: John M. Fitzgerald

In less than two years, Justice P. Scott Neville, Jr., has already left his mark on the Illinois Supreme Court. In the opinions he has authored since joining the Illinois Supreme Court in June 2018 — his opinions while serving on the Illinois Appellate Court, First Judicial District, may be the subject of another article — he has consistently demonstrated a passion for protecting the constitutional rights of criminal defendants. A few significant examples are highlighted below.

In People v. Buffer, 2019 IL 122327, Justice Neville authored an opinion for the Court which held that a 50-year murder sentence imposed on a then-16 year-old defendant was a de facto life sentence in violation of the Eighth Amendment.

Writing for a divided court in People v. Murray, 2019 IL 123289, Justice Neville reversed the defendant’s conviction for unlawful possession of a firearm by a street gang member, finding that there was insufficient evidence that the Latin Kings were a street gang for purposes of the Illinois Streetgang Terrorism Omnibus Prevention Act. Justice Neville’s opinion in Murray is notable for its discussion of the standards for the admissibility of expert opinion testimony in a criminal trial. Justice Neville found that, while the state’s gang expert generally discussed the State’s gang database, the expert failed to establish a sufficient connection between the database and his conclusion that the Latin Kings were a street gang.

In a partial dissent in People v. Clark, 2018 IL 122495, Justice Neville disagreed with the Court majority’s holding that the Public Defender Records Automation Fund fee was a fee instead of a fine. His partial dissent stands out for his invocation of the rule of lenity, which generally holds that an ambiguous statute should be construed in favor of a criminal defendant.

In a dissenting opinion in People v. Kimble, 2019 IL 122830, Justice Neville disagreed with the Court majority’s holding that a defendant’s right to a fair trial was not violated by the trial judge’s ex parte comment to deadlocked jurors. He believed that double jeopardy barred the defendant’s re-prosecution.

Finally, his special concurrence in In re N.G., 2018 IL 121939, should be studied by any law student who intends to pursue a career in the criminal justice system. In that case, a father’s parental rights were terminated due to his conviction for violating a statute that had, in another case, been held facially unconstitutional. Although the statute had been held unconstitutional in another case, the father never obtained a court order in his criminal case vacating his conviction. The issue in N.G. was whether the father’s parental rights could be terminated on the basis of a conviction that, while based on an unconstitutional statute, had not been vacated. The majority held that the father was not required to first obtain an order in the criminal case vacating his conviction; because his conviction was void, it could not be used as a basis to terminate his parental rights. Justice Neville authored a special concurrence in which he argued that everyone, particularly prosecutors, have a responsibility to correct illegal convictions. Here is the key language:

“But it is manifestly unfair to hold defendants exclusively responsible for vacating a void conviction. This approach places an onerous burden on lay defendants who are the least equipped to undertake that burden because they lack legal skills and do not know how to navigate the legal system. The dissent's approach would allow a void conviction to remain on the record of this defendant and all other similarly situated defendants. That result cannot be tolerated in a well-ordered system of justice. . . . In my view, the burden of correcting an illegal conviction must be borne by all of the participants in the criminal justice system."
"I reject the notion that the burden of correcting a void conviction falls exclusively on the defendant. Rather, the State should be required to undertake that responsibility. Where a court—at any level—has notice that a defendant's conviction is void, that court has an independent obligation to vacate and expunge the void conviction. In addition, the state's attorney in each county should commence proceedings to vacate and expunge all void convictions that were predicated on a statute that has been declared to be facially unconstitutional. In my view, the aforementioned remedies can be used by criminal justice participants to return illegally convicted defendants to their preconviction status."
“I also encourage the state's attorney in each county to commence proceedings to vacate and expunge any illegal convictions based on a facially unconstitutional statute. Finally, I note that the expungement of void convictions from the criminal record is necessary for all defendants who have been wrongfully convicted to receive complete justice."

These are stirring words. They remind all of us to do our part to fight injustice wherever we find it.

Illinois Supreme and Appellate Courts Modify Procedures Due to COVID-19

Carson Griffis — Thu, 19 Mar 2020 03:38:03 GMT

The Illinois Supreme Court and Illinois Appellate Courts remain open but have modified some procedures in light of the difficulties created by COVID-19.

The Illinois Supreme Court has allowed parties to submit paper copies of briefs and other documents in 14 days, rather than five days, through March 31, 2020.

The First District of the Appellate Court has stated that it will allow a 30-day extension for any appellant or appellee briefs due on or before April 17, 2020, in all civil cases and criminal cases where the defendant is represented by private counsel or is self-represented. The First District also waived its requirement that parties provide six paper copies of filed briefs through April 17, 2020.

The Second District has allowed parties 14 days, rather than five days, to submit paper copies of briefs filed through March 31, 2020.

The Fourth District has temporarily postponed oral arguments.

The Fifth District also modified its March oral argument calendar and has suspended its requirement that parties submit paper copies of briefs until further order of the court.

The Illinois Supreme Court and other Illinois courts will continue to post announcements on the Illinois courts' website, which may be found here.

ALA Postpones March 24, April 7, and April 9 Events Due to COVID-19

Carson Griffis — Mon, 16 Mar 2020 21:52:14 GMT

Given the growing concerns around COVID-19 and in consideration of the health and safety of our members and guests, the Appellate Lawyers Association has decided to postpone the following events:

1) The First District Roundtable Luncheon scheduled for Tuesday, March 24

2) The Second District Roundtable Luncheon scheduled for Tuesday, April 7

3) The Advanced Appellate Practice Seminar scheduled for Thursday, April 9

Full refunds will be issued for those who already registered. We intend to reschedule these events for another date and will share event details in the future.

Seventh Circuit Names Christopher G. Conway as Clerk of Court

Carson Griffis — Mon, 16 Mar 2020 13:34:56 GMT

Chief Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit announced that Christopher G. Conway has been selected to serve as Clerk of Court. Mr. Conway will fill the vacancy created by the retirement of Gino J. Agnello.

Christopher Conway joined the Clerk’s Office in 1991. Throughout his 29 years in the Clerk's Office, he has served in its Case Processing Department, managed its Pro Se Department, managed the combined Court Services and Pro Se Departments, and performed crossover work as the Court’s Internal Control Evaluation Officer in the Financial Department. Most recently, he served as the Court’s Attorney Advisor/Court Services Manager.

Christopher Conway earned his bachelor’s degree from Lewis University cum laude and his law degree from DePaul University College of Law.

Cases Pending Highlights Criminal Cases in Illinois Supreme Court's March Term

Carson Griffis — Fri, 06 Mar 2020 01:06:14 GMT

The Illinois Supreme Court’s March Term begins Monday, March 9, 2020. Oral arguments are scheduled for March 10, 11, 17 and 18, 2020. A total of 11 cases will be heard – 6 criminal and 5 civil. The following criminal cases are scheduled for argument this Term:

March 10, 2020

People v. Rickey Robinson, No. 123849

People v. William Coty, No. 123872

People v. Miguel DeLeon, No. 124744

People v. Patrick Legoo, No. 124965

March 11, 2020

People v. Donnell Green, No. 125005

People v. Rasheed Casler, No. 125117

Below is a summary for one of these cases, People v. Donnell Green. Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

People v. Donnell Green, No. 125005

This case presents the issue of whether trial counsel’s prior representation of the intended victim of a crime -- as opposed to the actual victim of the charged crime -- constitutes a per se conflict of interest.

Illinois law recognizes two types of conflicts of interest: per se and actual. A per se conflict is one in which facts about counsel's status, in and of themselves, create a disabling conflict resulting in automatic reversal even absent a showing that the conflict influenced counsel's representation. Currently, one way in which a per se conflict of interest is recognized is when counsel has a prior association with "the victim."

Defendant was found guilty of first degree murder after the prosecution argued for the application of two doctrines: transferred intent and accountability. Under Illinois's murder statute, the requisite mens rea may be directed towards either the decedent or another person, a codification of the doctrine of transferred intent. And a person is legally accountable for another person's when, before or during the offense's commission, and with the intent to facilitate its commission, a person aids the other in the planning or commission of the offense. The prosecution is not required to include in the charging instrument its intent to rely on either doctrine, so long as the theories are supported by trial evidence.

Here, defendant was a passenger in a car who said "I'll do it" but then handed the gun to another passenger who shot at the car of a rival gang, killing the passenger, Jimmy Lewis. The prosecution theorized that the group targeted the driver, Danny "Keeko" Williams, or perhaps the actual victim Lewis or the rival gang more generally.

Defendant filed a postconviction petition, alleging a per se conflict of interest because his defense counsel previously represented Keeko, the intended victim of the shooting. The lower courts denied relief, concluding that an intended victim does not fall within the per se categories, and only the Supreme Court should expand the existing categories.

In its briefing before the Illinois Supreme Court, defendant asserts that the intended victim in a transferred-intent situation should be included within the existing per se conflict category for prior representation of "the victim." Alternatively, defendant argues that the Court should expand the per se conflict categories to include such a situation. The rationale behind the per se conflict rule is that (1) when counsel has a professional association with a person or entity that might benefit from an unfavorable verdict against the defendant, it might subliminally affect counsel's performance in ways that are difficult to detect and demonstrate, and (2) the rule avoids an appearance of impropriety. Defendant asserts that those considerations are also present in his intended victim situation.

The State responds by noting that no (precedential) case has found that the established per se conflict category encompasses this intended victim situation and has instead been limited to actual victims of charged crimes. And the State suggests that the Court should not expand the per se conflict rule in this manner. For one thing, transferred intent need not be alleged in the charging instrument, and ultimately the identity of the intended victim need not ever be definitively resolved. The present case is just such a case in that some evidence indicated that Keeko was the target while other evidence indicated that the group was targeting the rival gang more generally. Finally, if an intended victim could be a group rather than a single individual besides the actual victim, the per se conflict category would have the potential of disqualifying a prohibitive number of defense attorneys, particularly in smaller counties.

Justice Charles E. Freeman, 1933-2020

Carson Griffis — Tue, 03 Mar 2020 01:08:35 GMT

Justice Charles E. Freeman, who served on the Illinois Supreme Court from 1990 to 2018, passed away March 2, 2020. He was 86 years old.

Justice Freeman was born in Richmond, Virginia, in December 1933. He earned his bachelor's degree from Virginia Union University in 1954 and his Juris Doctor from The John Marshall Law School in 1962.

Along with pursuing private practice, Justice Freeman had a long career in public service. He served as an assistant attorney general, Cook County assistant state's attorney, assistant attorney for the County Board of Election Commissioners, arbitrator for the Illinois Industrial Commission, and member of the Illinois Commerce Commission.

Justice Freeman was elected to the Cook County Circuit Court in 1976 and served until 1986, when he was elected to the First District of the Appellate Court. In 1990, Justice Freeman was elected to the Illinois Supreme Court. Justice Freeman was chosen as Chief Justice in 1997, becoming the first African American to lead a branch of government in Illinois. Over the years, he authored many opinions having a profound impact on the development of Illinois law.

The Appellate Lawyers Association expresses profound condolences to Justice Freeman's friends and family. The Illinois Supreme Court's press release on Justice Freeman's passing may be found here.

Cases Pending Highlights Civil Cases in Illinois Supreme Court's March Term

Carson Griffis — Mon, 02 Mar 2020 17:36:48 GMT

The Illinois Supreme Court’s March Term begins Tuesday, March 10, 2020. Oral arguments are scheduled for March 10, 11, 17 and 18, 2020. A total of 11 cases will be heard – 6 criminal and 5 civil. The following civil cases are scheduled for argument this Term:

March 17, 2020

Tabirta v. Cummings, No. 124798

The City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, No. 124831

Sharpe v. Westmoreland, No. 124863

March 18, 2020

Hamby v. Bayer Corp. and Rios v. Bayer Corp., Nos. 125020, 125021 (cons.)

Williamson County Board of Commissioners v. Board of Trustees of the Illinois Municipal Retirement Fund, No. 125330

Below is a summary for two of these cases, Hamby v. Bayer Corp. and Rios v. Bayer Corp. Summaries for these cases and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

Hamby v. Bayer Corp. and Rios v. Bayer Corp., Nos. 125020, 125021 (cons.)

The issue in these consolidated cases is whether, under Bristol Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), courts should focus on the actions of the plaintiffs or the defendants’ connections to the forum state when determining whether to exercise specific jurisdiction over nonresident defendants.

These class action claims were filed by plaintiffs, most of whom are nonresidents of Illinois, against Defendant Bayer Corporation (“Bayer”) for injuries caused by Essure, a permanent contraceptive device manufactured by Bayer. Bayer, relying on Bristol Myers Squibb, moved to dismiss the claims brought by the nonresident plaintiffs for lack of personal jurisdiction, arguing that Illinois lacked both general and specific jurisdiction over it because the plaintiffs were not citizens of Illinois and they did not undergo the Essure procedure in Illinois. The circuit court denied Bayer’s motions to dismiss, finding that the nonresident plaintiffs’ claims “directly arose from or [were] related to” Bayer’s purposeful activities in Illinois and that it would not be unreasonable to require Bayer to litigate in Illinois. Bayer appealed under Supreme Court Rule 306(a)(3).

The Illinois Appellate Court, Fifth District, affirmed, holding that in order for a state court to exercise specific personal jurisdiction over an out-of-state defendant, the suit must arise out of, or relate to, defendant’s contact with the forum. The court held that the proper focus was not on the actions of the plaintiffs, but on Bayer’s conduct that occurred in Illinois and whether the causes of action in the complaint arose from or were connected to its conduct in Illinois. The appellate court held that Bayer purposefully availed itself of Illinois when it directly targeted and marketed in Illinois, conducted clinical trials in Illinois, contracted with Illinois physicians and facilities, and established a physician accreditation program in Illinois, notwithstanding whether the plaintiffs themselves were injured in Illinois, visited doctors in Illinois, or had the device implanted in Illinois. The court further held that the plaintiffs made a prima facie showing that exercising specific personal jurisdiction in this case is appropriate, Bayer failed to rebut that showing, and litigating in Illinois would not be unreasonable.

In their petitions for leave to appeal, Bayer argues, in part, that the appellate court’s decision conflicts with Bristol-Myers Squibb, which held that a state court cannot exercise specific personal jurisdiction over the claims of an out-of-state plaintiff against an out-of-state defendant when “the conduct giving rise to the nonresidents’ claims occurred elsewhere.”

Appellate Court Decision: 2019 IL App (5th) 180279-U; 2019 IL App (5th) 180278-U. Welch, J., with Overstreet, P.J., and Moore, J., concurring.

Seventh Circuit Reminds Parties of Importance of Complete and Correct Jurisdictional Statements

Carson Griffis — Wed, 12 Feb 2020 18:06:00 GMT

By: Carson Griffis*

Chief Judge Wood recently issued an opinion reminding practitioners of their duty to submit complete and correct jurisdictional statements in their briefs, including identifying a magistrate judge's involvement in district court proceedings. In two cases, Lowrey v. Tilden, No. 19-1365, and McCray v. Wilkie, No. 19-3145, magistrate judges had issued the final judgments from which the appeals had been taken.

But Chief Judge Wood found that the parties' briefs lacked necessary information about the magistrate judges' involvement to satisfy Seventh Circuit Rule 28. She noted that Circuit Rule 28 requires an appellant's brief to include information about the magistrate judge's involvement in its jurisdictional statement, including the date on which each party consented to the entry of final judgment by the magistrate judge. And if an appellant's jurisdictional statement is not complete and correct, the appellee's brief must provide that information. But the parties in the two appeals did not provide the dates on which each party consented to the magistrate judge entering final judgment, and in McCray, the parties neglected to mention that a magistrate judge had made the decision being appealed. Chief Judge Wood stressed that this information was critically important to the Seventh Circuit because a magistrate judge has no authority to issue a final, appealable decision unless all parties consent.

Chief Judge Wood ordered the parties to submit amended jurisdictional statements and encouraged all attorneys practicing in the Seventh Circuit to consult the court's Practitioner's Handbook for Appeals (2019 ed.) for guidance on how to prepare complete and correct jurisdictional statements. And she emphasized that the court expected all attorneys "to give close attention to all of the rules, including Circuit Rule 28."

The Practitioner's Handbook for Appeals (2019 ed.) is available on the Seventh Circuit's website and can be found here.

Justice Thomas to Retire from Illinois Supreme Court

Carson Griffis — Mon, 10 Feb 2020 17:55:37 GMT

Justice Robert R. Thomas has announced his retirement from the Illinois Supreme Court effective February 29, 2020. Justice Michael J. Burke, currently a member of the Illinois Appellate Court, Second District, has been appointed to fill Justice Thomas's seat from March 1, 2020, through December 5, 2022. DuPage County Circuit Judge Liam Brennan has been assigned to the Second District effective March 2, 2020, through December 5, 2022.

Justice Thomas has served on the Illinois Supreme Court since November 2000 and served as Chief Justice from 2005 to 2008. Before that, he served on the Second District of the Appellate Court and as a Circuit Judge of the 18th Judicial Circuit in DuPage County. Justice Thomas was admitted to the Illinois Bar in 1981 and practiced in several firms before being elected to the bench in 1988.

Justice Burke began his legal career in the DuPage County State's Attorney's Office in 1983 and became Chief of the Special Prosecutions Unit in 1991. He became an associate judge in 1992 and was appointed to the circuit court in 2001. The next year, he was elected to the circuit court, where he served until his assignment to the Appellate Court in July 2008.

Judge Brennan currently serves as the Presiding Judge of the Felony Division of the DuPage County Circuit Court. He became an Associate Judge in 2008 and a Circuit Judge in 2014. Before serving on the bench, Judge Brennan worked in private practice and in the DuPage County State's Attorney's Office.

The Illinois Supreme Court's announcement of Justice Thomas's retirement, Justice Burke's appointment, and Judge Brennan's appointment can be found here.

The Appellate Lawyers Association congratulates Justice Thomas on his retirement, Justice Burke on his appointment to the Illinois Supreme Court, and Judge Brennan on his appointment to the Illinois Appellate Court.

Chicago Bar Association Hosts Illinois Supreme Court Candidate Forum February 26, 2020

Carson Griffis — Fri, 07 Feb 2020 22:31:14 GMT

The Chicago Bar Association is hosting a candidate forum on Wednesday, Feb. 26, for the judicial candidates running for the Illinois Supreme Court. The forum will be held from 3 p.m. to 5 p.m. at the James R. Thompson Center, 100 West Randolph Street, in the lower level Assembly Hall.

Illinois Supreme Court Justice P. Scott Neville, Jr.; Illinois Appellate Court Justices Cynthia Cobbs, Nathaniel Howse, Jr., Margaret Stanton McBride, and Jesse Reyes; and attorney Daniel Epstein are scheduled to participate in the forum, which will be moderated by Paul Lisnek, a WGN-TV Political Analyst and Anchor of WGN-TV’s Political Report. The forum will also be livestreamed on CAN TV.

This event is complimentary. RSVP and direct any questions to events@chicagobar.org.

ABA WBAI Half Day Summit 3/3/2020

Carson Griffis — Mon, 03 Feb 2020 15:28:19 GMT

On March 3, 2020, the American Bar Association Commission on Women in the Profession and the Women’s Bar Association of Illinois are hosting a Summit on Advancing Women in the Law. The ALA is proud to co-sponsor this free event, where participants will learn what recent groundbreaking research has to say about why women lawyers stay in or leave the profession, and how they can attain access to success in their careers.

Registration is available here.

Circuit Court Need Not “Parrot” Rule 304(a) In Order To Invoke It

Carson Griffis — Sun, 02 Feb 2020 21:16:01 GMT

By: Katherine A. Grosh, Levin Ginsburg

The case of Illinois State Bar Association Mut. Ins. Co. v. Canulli, 2019 IL App (1st) 109141, reminds appellate practitioners that filing a notice of appeal prematurely is far less risky than the alternative, i.e., not filing one at all based on false comfort provided by less-than-perfect Rule 304(a) language.

The First District of the Appellate Court dismissed as untimely defendant's appeal from the Circuit Court of Cook County’s declaratory judgment in favor of ISBA Mutual finding that it owed no duty to defend defendant against defendant's former client’s legal malpractice complaint. ISBA Mutual originally accepted the tender of defense, but withdrew its tender after the client amended her complaint to seek only a reduction in legal fees.

Three months earlier, ISBA Mutual filed a separate action seeking a declaratory judgment that it did not owe defendant a duty to defend him against a sanctions motion filed by third parties whom defendant sued on behalf of his former client. The two declaratory judgment actions were consolidated.

The parties filed cross-motions for summary judgment in both actions. The circuit court granted ISBA Mutual’s motion for summary judgment as to the sanctions motion, but, significantly, the court did not enter judgment on ISBA Mutual’s declaratory judgment action regarding the legal malpractice complaint. In its ruling, the circuit court stated that there was “no reason to delay enforcement of or appeal from (assuming such an appeal is possible)” its judgment in favor of ISBA Mutual regarding the sanctions motion.

Almost seven months later, defendant filed a motion to reconsider the court’s judgment and after it was denied, he filed a notice of appeal—nine months after the entry of the summary judgment order he sought to appeal.

The appellate court dismissed the appeal as untimely, rejecting defendant's two arguments. First, the court rejected defendant's argument that the summary judgment order did not comply with Rule 304(a). The Court stated: “[t]he circuit court need not ‘parrot’ Rule 304(a) in order to invoke it,” and cited to previous decisions in which it found it had jurisdiction to review orders with inexact Rule 304(a) language. Thus, the Court concluded that the language used by the court “clearly invoked Rule 304(a).”

Second, the court rejected defendant's argument that, even assuming that the order complied with Rule 304(a), the order was not final. The court acknowledged that “the inclusion of Rule 304(a) language cannot render final an otherwise nonfinal order,” but stated that that rule did not apply. The court found that the circuit court’s finding that ISBA Mutual did not owe defendant a duty to defend was a ruling on the merits. And even if the court did not rule on the merits, the circuit court’s order dismissing ISBA’s declaratory judgment action as moot with respect to the sanctions motion “fully disposed of the rights of the parties as to that controversy.”

Finally, the appellate court rejected defendant's argument that the order was nonfinal because the still-pending declaratory judgment claim regarding the legal malpractice complaint was “based on the same operative facts.” The appellate court stated that, “[m]erely because both the sanctions motion and the legal malpractice litigation arose out of the same divorce proceedings, it does not follow that the two are related for purposes of determining whether ISBA Mutual owed [defendant] a duty to defend” because “such a duty depends on the language of the complaints, not the conduct on which the complaints were based.”

Accordingly, the appellate court concluded that defendant's notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.

ALA Hosts Illinois Supreme Court Candidates' Forum

Carson Griffis — Sat, 18 Jan 2020 15:00:00 GMT

The Appellate Lawyers Association is hosting a Candidates' Forum for all candidates seeking election to the Freeman vacancy on the Illinois Supreme Court. After joining us for our monthly luncheon, each candidate will be allotted time to discuss their qualifications and answer questions posed by the moderator, ALA President Gretchen Harris Sperry. Time permitting, audience questions may be directed to the candidates. All declared candidates have been invited to participate.

Date: Wednesday, January 29, 2020

Time: 12:00 p.m. to 2:00 p.m.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note that the Union League Club enforces a dress code, which can be accessed here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

Illinois Supreme Court January Term Oral Arguments -- Civil

Mon, 13 Jan 2020 22:28:18 GMT

By: Catherine Weiler

The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

Whitaker v. Wedbush Secs., Inc. No. 124792 January 15, 2020
McAllister v. Illinois Workers’ Comp. Comm’n No. 124848 January 15, 2020
Dynak v. Board of Educ. of Wood Dale School Dist. 7 No. 125062 January 22, 2020
Restore Constr. Co., Inc. v. Board of Educ. of Proviso Township High Schools Dist. 209 No. 125133 January 22, 2020

Levin v. Retirement Bd. of the Cook County Employees’ and Officers’ Annuity and Benefit Fund of Cook County No. 125141 January 22, 2020
Berry v. City of Chicago No. 124999 January 22, 2020

Below is a summary for one of these cases, Berry v. City of Chicago. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

Berry v. City of Chicago

This appeal raises three issues: (1) whether a plaintiff who is exposed to lead in drinking water, but who has not developed any physical symptoms from such exposure, has suffered sufficient present injury to state a claim for negligence; (2) whether an injury suffered by many individuals can constitute the type of special damage necessary to maintain a cause of action for inverse condemnation; and (3) whether the immunity for discretionary decisions in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201) applies to a local government’s decision to follow recommendations from a private body.

Plaintiffs sued the City of Chicago, alleging that, in replacing water mains and meters near their homes, the City caused their drinking water to have increased levels of lead. Plaintiffs had not developed physical symptoms from their exposure to lead, but had drunk the contaminated water. Plaintiffs’ complaint asserted claims of negligence based on their exposure to lead and inverse condemnation based on damage to their water pipes. The City moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, asserting that Plaintiffs had not suffered sufficient physical injury to assert a claim for negligence and that they had not suffered special damage to their property necessary to state a claim of inverse condemnation. The City also asserted that it exercised discretion in replacing the water mains and meters such that the City was immune under section 2-201 of the Tort Immunity Act. The circuit court granted the City’s motion to dismiss, finding that Plaintiffs had not suffered a physical injury sufficient to maintain their negligence claim or special damages necessary to maintain their inverse condemnation claim.

The appellate court reversed. The court held that Plaintiffs’ consumption of lead-contaminated water was a sufficient present injury to state a claim for negligence because of the increased risk of physical injury created by the consumption of lead. The court also held that Plaintiffs suffered special damages when the City’s work interfered with their use and enjoyment of their homes even though many individuals were affected by the increased lead levels. Finally, the court held that section 2-201 of the Tort Immunity Act did not apply because, while the City exercised discretion in developing its plans for replacing the water mains and meters, Plaintiffs alleged that the City was simply executing that plan by following guidelines for water main and meter replacement set by the American Water Works Association.

Justice Connors dissented, arguing that Plaintiffs had not suffered sufficient injury because they had no developed physical symptoms from their exposure to lead and that they had not suffered special damages because many people all suffered the same damage to their property.

In its petition for leave to appeal, the City argued that, under Illinois Supreme Court precedent including Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill. 2d 69 (1982) and Williams v. Manchester, 228 Ill. 2d 404 (2008), Plaintiffs could not maintain their negligence claim based on the increased risk of injury; actual, present injury to person or property is required. The City also argued that Plaintiffs failed to state a claim for inverse condemnation because an injury suffered by a large number of plaintiffs cannot be special damage required to state such a claim. Finally, the City claimed that section 2-201 applied to Plaintiffs’ claims because the City exercised discretion in following the guidelines of the American Water Works Association.

Illinois Supreme Court January Term Oral Arguments -- Criminal

Fri, 10 Jan 2020 20:43:07 GMT

By: Leah Bendik

People v. Aaron Jackson No. 124112 January 14

People v. Jasper McLaurin No. 124563 January 14

People v. Charles Hill No. 124595 January 14

People v. Rory John Swenson No. 124688 January 14

Below is a summary for one of these cases, People v. Charles Hill. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Charles Hill

In May 2017, police pulled over defendant when they thought his passenger matched the description of a wanted fugitive. It was not the fugitive. But the officer smelled raw cannabis. A search of the car found crack cocaine. Defendant moved to suppress. The trial court granted suppression on the basis that the stop was not justified because the officer had no corroborating evidence that the passenger was the fugitive. The State appealed, and the appellate court held that the stop and subsequent search were justified.

Before the Illinois Supreme Court, defendant argues that the General Assembly's decision to decriminalize possession of small amounts of cannabis (instead recognizing it as a civil violation subject only to a fine) necessarily should alter prior precedent that deemed an officer's perception of an odor of raw cannabis gave him or her probable cause for Fourth Amendment purposes because it is no longer considered contraband. The State, in response, asserts that decriminalization is not synonymous with legalization: even possession of the small amounts of cannabis giving rise to only civil violations is still the legitimate object of a police search, as most jurisdictions with similar changes to state cannabis laws have held. In other words, cannabis remains "contraband" in this context. Moreover, because a significant number of cannabis-related activities remain unlawful, the odor of cannabis can still contribute to a probable cause determination under the totality of the circumstances. The State also offered two other alternative bases to uphold the search. One, here, the smell of cannabis plus additional circumstances provided probable cause. Two, even absent probable cause, the evidence should still not be suppressed under the good-faith exception to the exclusionary rule.

New Year Brings New Standards To Special Interrogatories

Carson Griffis — Fri, 03 Jan 2020 01:36:05 GMT

By: Dodie O'Keefe

As the new year arrives, practitioners and judges must pay heed to changes in the law concerning special interrogatories under section 2-1108 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1108). Previously, the statute required special interrogatories that were in proper form to be submitted to the jury if any party so requested. The trial court’s submission or refusal to submit a special interrogatory was reviewed under the de novo standard. And, where the jury’s answer to a special interrogatory was inconsistent with the general verdict, the former controlled the latter.

In trials beginning on or after January 1, 2020, parties may still request special interrogatories, but whether to submit them will lie within the discretion of the trial court. Thus, “[s]ubmitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion.” Notably, the statute will also allow parties to explain to the jury the result of a special finding that is inconsistent with the general verdict. To that end, if a special finding is inconsistent with the general verdict, then the trial court must “direct the jury to further consider its answers and verdict.” If the jury is still unable to render a compatible verdict, then the court must order a new trial.

With that in mind, let us hope these changes bring resolution to this notoriously challenging area of law in the new year.

No Cognizable Injury Based On Extra Space In Chocolate Boxes

Carson Griffis — Tue, 17 Dec 2019 02:58:19 GMT

By: Linda Boachie-Ansah

In the movie Forrest Gump, the protagonist observed that, “life was like a box of chocolates; you never know what you’re going to get.” Clarisha Benson and Lorenzo Smith, plaintiffs in Benson v. Fannie May Confections Brands, Inc., No. 19-1032, 2019 WL 6698082 (7th Cir. Dec. 9, 2019), can attest to that observation. Benson and Smith bought boxes of chocolate from Fannie May stores in Chicago, Illinois. To their displeasure, upon opening the boxes, plaintiffs found less chocolate than they were expecting. Benson and Smith filed a lawsuit against Fannie May on behalf of themselves and a putative class under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), see 815 ILCS 505/1 et seq. Plaintiffs also brought claims of unjust enrichment and breach of implied contract.

According to plaintiffs, Fannie May’s boxes contained unnecessary space that misled consumers into thinking that they would receive more chocolate than they actually would. Had they known there was so much empty space in the boxes, plaintiffs claimed that they would not have purchased the chocolate. Fannie May moved to dismiss the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted its motion, reasoning that plaintiffs had not sufficiently pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), see 21 U.S.C. § 301 et seq., and that the FDCA preempted plaintiffs’ claims under Illinois law.

On appeal, the Seventh Circuit noted that preemption is an affirmative defense. Defendant bears the burden of proving an affirmative defense. Thus, the court held that it was improper for the district court to punish plaintiffs for “failing to anticipate an affirmative defense in [the] complaint and dismissing the action based on FDCA preemption.”

Turning to their claim under the ICFA, the court noted that to prevail, plaintiffs had to plead that (1) the defendant committed a deceptive or unfair act with the intent that others rely on the deception; (2) the act occurred in the course of trade or commerce; and (3) the act caused actual damages. In this case, the outside of the box revealed both the net weight and number of pieces of chocolate inside the box. Nonetheless, the court credited plaintiffs’ assertion that they and other reasonable consumers “attach importance to the size of [the] package.” Overall, the court found that plaintiffs adequately pleaded that Fannie May committed both deceptive and acts.

But plaintiffs also had to show that the deceptive or unfair act caused them to suffer actual damages. And here, where plaintiffs never alleged that the chocolates were worth less than what they paid for them, or that they could have gotten a better price from another company, the court ruled that they could not show a pecuniary loss. The court therefore concluded that plaintiffs’ claim under the ICFA was properly dismissed on the pleadings.

On the remaining claims, the court of appeals found that “there is no stand-alone claim for unjust enrichment” under Illinois law. Thus, plaintiffs’ failure to state a claim under the ICFA necessarily meant that they could not state a claim for unjust enrichment. Plaintiffs also claimed that Fannie May breached an implied contract. But the court observed that the parties had entered “a straightforward, everyday sales contract in which the buyers selected the chocolate and offered to purchase it at the advertised price, at which point Fannie May accepted by taking the plaintiffs’ money in exchange for possession of the chocolate.” The sales receipts that plaintiffs received at the cash register spelled out the terms of the contract. Finding that Illinois law does not recognize an implied contract under these circumstances, the Seventh Circuit concluded that that part of the case was correctly dismissed.

Illinois Supreme Court Permits Limited Use of Electronic Devices During Oral Argument

Carson Griffis — Tue, 03 Dec 2019 00:11:43 GMT

On November 25, 2019, The Illinois Supreme Court issued an order permitting the use of electronic devices during oral argument under limited circumstances. The order allows counsel or litigants to use electronic devices, including laptops, tablets, or cell phones, for referencing notes, taking notes, or searching the internet during oral argument.

Electronic devices may not be used for posting on social media, texting, emailing, phone calls, recording oral arguments, or taking pictures, and spectators are still prohibited from using electronic devices. Those intending to use electronic devices must give the clerk of the Court at least seven days' notice.

The order can be found here.

Sanctions Motion Must Be Filed Within 30 Days Of Finding Of Appealability Under Illinois Supreme Court Rule 304(a)

Carson Griffis — Fri, 22 Nov 2019 14:33:01 GMT

By: Carson Griffis*

In Lakeshore Centre Holdings, LLC v. LHC Loans, 2019 IL App (1st) 180576, a divided panel of the Illinois Appellate Court, First District, held that a finding pursuant to Illinois Supreme Court Rule 304(a) — which allows an appeal from a final judgment entered as to fewer than all parties or all claims in a case — triggers the 30-day time limit to file a sanctions motion under Illinois Supreme Court Rule 137.

The plaintiff filed suit over the defendant’s alleged failure to perform under an option contract. The defendant filed a counterclaim, alleging that the plaintiff had breached the contract. The circuit court dismissed the plaintiff’s complaint in its entirety, disposing of all of the plaintiff’s claims, and entered a finding under Rule 304(a) because the defendant’s counterclaim was still pending. Rule 304(a) provides that, when a case involves multiple claims or parties, a final judgment as to at least one of those claims or parties, but not all of them, is appealable if the circuit court finds “that there is no just reason for delaying either enforcement or appeal or both.”

The plaintiff appealed from the circuit court’s dismissal of its complaint, and the appellate court ultimately affirmed the dismissal. While the plaintiff’s appeal was pending, and about five months after the circuit court made its Rule 304(a) finding, the defendant filed a Rule 137 sanctions motion against the plaintiff alleging that it made false allegations in its complaint. The circuit court granted the sanctions motion in part and awarded the defendant some of its attorney fees. Both parties cross-appealed from the circuit court’s judgment on the sanctions motion.

After ordering supplemental briefing on the issue of the circuit court’s jurisdiction over the sanctions motion, the appellate court vacated the circuit court’s order. It noted that Rule 137 requires that a sanctions motion be filed within “30 days of the entry of final judgment.” The appellate court then emphasized that Rule 304(a) judgments are final judgments, even though they do not dispose of all claims against all parties. And the court noted that timely Rule 137 motions toll the time for filing a notice of appeal. Because a notice of appeal may be filed from a Rule 304(a) judgment within 30 days, the appellate court stressed that it would make sense that only a Rule 137 motion filed within 30 days would toll the time to file that notice of appeal. Finally, the appellate court found that the defendant's pending counterclaim did not change its analysis because its sanctions motion was not related to any pleadings, motions, or documents relevant to the counterclaim. Because the defendant's sanctions motion was not filed within 30 days of the Rule 304(a) finding, the circuit court lacked jurisdiction to consider it.

Justice Mikva dissented, asserting that, because the case as a whole was still pending when the defendant filed its sanctions motion, it was timely. Justice Mikva noted that Rule 137 requires a sanctions motion to be filed in the same “civil action” in which the allegedly sanctionable conduct occurred. Because the civil action was still pending while the defendant’s counterclaim remained pending, the sanctions motion could be filed until all claims against all parties had been disposed of.

Cases Pending Highlights Civil Cases In Illinois Supreme Court's November Term

Carson Griffis — Sat, 09 Nov 2019 18:03:53 GMT

The Illinois Supreme Court’s November Term begins Tuesday, November 12, 2019, with oral arguments scheduled for November 13, 14, 19, and 20. A total of 14 cases will be heard – 8 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

November 14

Lewis v. Atlantic Richfield Co.

November 19

Johnson v. Illinois State Police

Hess v. State Auto Insurance Companies

November 20

In re: Elena Hernandez

Joiner v. SVM Management, LLC

West Bend Mutual Insurance Company v. TRRS Corporation

Below is a summary for one of these cases, Lewis v. Atlantic Richfield Co. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

Lewis v. Atlantic Richfield Co.

This case involves the question of whether parents have standing to bring a claim for their minor child’s routine blood lead screening test, where the parents did not pay for the Medicaid-covered test, and where the child has no personal injury; but where the parents are liable for the expenses of their minor child under the Family Expense Act, 750 ILCS 65/15.

Mary Lewis and Tashwan Banks were the lead plaintiffs in a class action brought against Defendants Atlantic Richfield Company, ConAgra Grocery Products, Inc., NL Industries, Inc., and The Sherwin-Williams Company. They sought to recover the costs of blood lead screening their children underwent as required under the Illinois Lead Poisoning Prevention Act, 410 ILCS 45/1. Their children were not injured and the tests were paid for entirely by Medicaid. Defendants moved for summary judgment based on lack of standing, where Lewis and Banks incurred no expenses for the testing and their claims were solely for economic loss. Lewis and Banks argued that they had standing because, under the Family Expense Act, they were responsible for the medical expenses of their minor children, and the collateral source rule gave them the right to recover for the lead toxicity testing. The circuit court agreed with Defendants and granted them summary judgment.

The Illinois Appellate Court, First District reversed. The appellate court explained that the parents had the legal obligation to pay for their children’s medical expenses and, therefore, the right to seek to recover for those medical expenses. Further, the appellate court noted, that right of action was not affected by the fact that a third party actually paid the expenses. It made no difference that the claims involved a purely economic injury. The purpose of the collateral source rule, the appellate court reasoned, was to keep a tortfeasor from realizing a windfall, such as where the economic injury was shifted to a third party. Here, the appellate court explained, the parents had the legal obligation to pay for lead testing – testing required because of Defendants’ civil conspiracy related to using lead in paint. Defendants should not benefit from their civil conspiracy where, as here, a third party (and not the parents) paid for that statutorily-mandated testing.

In their petition for leave to appeal, Defendants argued that the appellate court incorrectly found that Plaintiffs could bring a claim under the Family Expense Act, where they never incurred any obligation under the Act; and that the appellate court improperly extended the collateral source rule to purely economic damages, even if there was no personal injury.

Cases Pending Highlights Criminal Cases In Illinois Supreme Court's November Term

Carson Griffis — Wed, 06 Nov 2019 01:25:19 GMT

November 13

People v. Shadwick King, No. 123926

People v. Marshall Ashley, No. 123989

People v. Jonathan Lindsey, No. 124289

People v. Phouvone Sophanavong, No. 124337

November 14

People v. Ryan Roddis, No. 124352

People v. Leslie Moore, No. 124538

November 19

People v. Lanard Gayden, No. 123505

People v. Tavarius Radford, No. 123975

Below is a summary for one of these cases, People v. Lanard Gayden. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Lanard Gayden

Police responded to an apartment building in response to reports of a "man with a shotgun." An officer arrived and saw, from no more than five feet away, defendant standing in the threshold of the doorway to his apartment, holding a shotgun. Defendant threw the shotgun down (inside the apartment) and slammed the door. The officer knocked then forced his way into the apartment and arrested defendant. Defendant was charged and convicted of unlawful use of a weapon for possessing a shotgun with a barrel less than eighteen inches; he received a two-year prison sentence with a one-year mandatory supervised release term.

On direct appeal, defendant's arguments included that trial counsel was ineffective for failing to file a motion to suppress evidence (the shotgun) because no record evidence established probable cause or exigent circumstances permitting the officer to enter defendant's apartment without a warrant. The shotgun in question was 17.5 inches long, and defendant asserted that the officer could not determine, from a quick glance from five feet away, that the shotgun was slightly too short. The appellate court affirmed, concluding that the record lacked information needed to evaluate defendant's ineffective assistance claim so that it had to be raised in a postconviction petition. Noting that defendant had mentioned in a petition for rehearing that he had recently discharged his sentence, the appellate court noted that defendant had failed to mention that fact in his initial pleadings so that the argument would not be considered.

Before the Illinois Supreme Court, defendant first argues that the appellate court erred in holding that the record was insufficient to evaluate his ineffective assistance of counsel claim and that police lacked probable cause or exigent circumstances to enter his apartment without a warrant. Alternatively, defendant argues that because he is entitled to a merits decision on his ineffective assistance claim, the supreme court should either: (1) order the appellate court to retain jurisdiction and remand the matter to the circuit court for an evidentiary hearing, or (2) allow defendant to raise his claim in a postconviction petition (despite the fact that he is not imprisoned as required by the Post-Conviction Hearing Act).

In response, the People argue that defendant cannot meet his burden to show ineffective assistance based on the trial record given unanswered questions in the record and the presumption that counsel performed competently, especially given that defendant has not pointed to any potential source of new evidence outside the record. Moreover, there may have been probable cause to arrest defendant for other crimes, such as aggravated assault of his girlfriend (who submitted a complaint), and the hot pursuit exception or exigent circumstances might also have justified the entry. With regard to the alternative argument, the People assert that defendant is not entitled to additional opportunities to raise his meritless ineffective assistance claim. In particular, the People argue that the court may not use its supervisory power to circumvent the terms of the Act. Further, the People contend that there are no grounds for remanding the matter for an evidentiary hearing, and, in any event, defendant forfeited any right to such a hearing.

ALA Presents "The Invention and the Fragility of Democratic Courts" with Judith Resnik of Yale Law School

Carson Griffis — Wed, 06 Nov 2019 01:11:24 GMT

On Thursday, November 7, 2019, Judith Resnick, Arthur Liman Professor of Law at Yale Law School, will present her program, "The Invention and the Fragility of Democratic Courts." In this program, Professor Resnik will use imagery and data to track the impact of democratic values on courts. Historically, courts were exclusionary venues. Only in the twentieth century did courts become committed to treating all persons as equals. Yet democracy has not only changed the courts, it has challenged them as well. Professor Resnik will discuss both the emergence of new roles for federal and state courts and the current decline of the public practices that have been a hallmark of adjudication.

This program is being presented by the Appellate Lawyers Association, along with its cosponsors the Armenian Bar Association, the Hellenic Bar Association, and the Women's Bar Association.

Date: November 7, 2019

Time: 12:00 p.m. to 1:30 p.m.

Location: Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor, Chicago

MCLE: 1 Hour of MCLE credit. The ALA is an approved MCLE provider.

Cost: $40 for public-sector ALA, Armenian Bar Association, Hellenic Bar Association, or WBAI members; $50 for private-sector ALA, Armenian Bar Association, Hellenic Bar Association, or WBAI members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

Memorial Proceeding for Supreme Court Justice John Paul Stevens Thursday, December 5, 2019

Carson Griffis — Thu, 31 Oct 2019 00:37:38 GMT

Chief Judge Diane P. Wood announced that the United States Court of Appeals for the Seventh Circuit will have a Memorial Proceeding for Supreme Court Justice John Paul Stevens on Thursday, December 5, 2019, at 9:30 a.m., in the James B. Parsons Ceremonial Courtroom on the 25th Floor of the Dirksen Federal Building at 219 South Dearborn Street, Chicago, Illinois 60604.

Justice Stevens served as a Circuit Judge for the Seventh Circuit Court of Appeals from 1970 to 1975 and then as the Circuit Justice from 1975 to 2010 while serving on the Supreme Court.

All are welcome to attend.

Zero Tolerance for Duplicity

Carson Griffis — Tue, 29 Oct 2019 01:08:18 GMT

By: Kimberly Glasford

Depending on who’s asking, plaintiff Elena Chernyakova claims that Dr. Vinaya Puppala either did or did not act inappropriately during her hospital stay. Her contrary positions ultimately led the appellate court to dismiss her appeal, impose sanctions against her attorneys and notify the Attorney Registration and Disciplinary Commission (ARDC) of the court’s decision. Chernyakova v. Puppala, 2019 IL App (1st) 173066.

Chernyakova filed an action against Dr. Puppala, as well as Northwestern Memorial Hospital and McGaw Medical Center of Northwestern University. She alleged that Dr. Puppala accessed her medical chart and posted her photo on social media without consent. Subsequently, the circuit court entered summary judgment in favor of the Northwestern defendants.

During trial on Chernyakova’s claims against Dr. Puppala, they entered into a “confidential” settlement agreement before a different judge. That judge granted the parties’ request to seal the transcript of the hearing wherein the settlement terms were discussed.

Chernyakova then appealed from the judgment in favor of the Northwestern defendants, who had since obtained information about the settlement terms. Specifically, they learned that Chernyakova had tendered Dr. Puppala a document admitting that she gave him consent to take her photo.

At the Northwestern defendants’ request, the circuit court unsealed the settlement transcript. While the appeal was pending, the circuit court entered an agreed order to supplement the record with the settlement transcript. That transcript showed that in exchange for $250,000, Chernyakova agreed to write letters to various licensing bodies on Dr. Puppala’s behalf, stating that her prior allegations against him were mistaken.

In the appellate court, the Northwestern defendants moved to dismiss Chernyakova’s appeal and impose sanctions (Ill. S. Ct. R. 375 (eff. Feb 1, 1994)). Before disposing of that motion, the court noted that the Northwestern defendants relied on certain e-mails that were outside the record and were not verified as required by Illinois Supreme Court Rule 361 (eff. Sept. 25, 2019). The court disregarded those exhibits.

The appellate court also found that Chernyakova’s response to the motion violated Illinois Appellate Court First District Local Rule 4G (July 1, 2008). The rule states that “in responding to a motion, the party filing the response should not include in the response a new motion or request for its own relief.” Chernyakova’s response improperly asked the court to reconsider its earlier denial of her motion to strike the supplemental record.

The appellate court dismissed Chernyakova’s appeal and imposed sanctions under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994), which allows a reviewing court to impose sanctions for an appeal or other action taken in bad faith. The court ordered Chernyakova’s counsel to pay $15,000 in attorney fees and costs to the Northwestern defendants.

In reaching this decision, the reviewing court clarified that the confidential nature of the settlement agreement evaporated when Chernyakova and Dr. Puppala described the settlement terms before the circuit court and the court reporter. Additionally, while evidence of settlement negotiations is inadmissible to prove liability (Ill. R. Evid. 408(a) (eff. Sept. 25, 2019)), such evidence was nonetheless admissible to prove bad faith.

The reviewing court acknowledged that it was ordinarily limited to considering matters contained in the record before the circuit court. But the reviewing court’s obligation to do substantial justice and maintain confidence in the legal system required the court to consider events that occurred after summary judgment was entered in this instance.

The reviewing court found that Chernyakova agreed to state that her recollection concerning Dr. Puppala’s conduct and her lack of consent was mistaken. “These representations diametrically contradict the factual allegations in her complaint, especially as they relate to the direct and vicarious liability claims made against [the Northwestern] defendants[.]” Chernyakova, 2019 IL App (1st) 173066, ¶ 27. Consequently, the appeal was not “reasonably well grounded in fact.” Ill. S. Ct. R. 375 (eff. Feb. 1, 1994).

Moreover, Chernyakova’s attorneys were surely aware that her representations were inconsistent. By urging the reviewing court to consider her appeal, counsel showed a “total lack of respect for the appellate process,” “a disregard for the truth seeking process,” and a failure “to adhere to the standards of professional conduct.” Chernyakova, 2019 IL App (1st) 173066, ¶ 30.

Finally, the reviewing court directed the clerk of the appellate court to forward its decision to the ARDC due to the conduct of Joel Brodsky, one of Chernyakova’s attorneys. Brodsky had attempted to prevent the court reporter from giving the Northwestern defendants a copy of the settlement transcript and, while this appeal was pending, the Illinois Supreme Court had suspended his license to practice law.

The Chernyakova decision touches on several important rules of appellate practice, including motion practice in the appellate court. Above all, however, it serves as a warning not to mislead the appellate court.

2019 Pro Bono Week -- The Chicago Bar Association & The Chicago Bar Foundation to provide programming

Fri, 18 Oct 2019 15:11:41 GMT

The Chicago Bar Association & The Chicago Bar Foundation will provide programs from October 21 - 25 for Pro Bono Week.

To learn more or register for the events, visit https://chicagobarfoundation.org/probonoweek/

Chicago-Kent to Host Symposium to Commemorate the Bicentennial of the Federal District Court in Chicago on October 11

Tue, 08 Oct 2019 20:08:37 GMT

The Northern District of Illinois Court Historical Association and Chicago-Kent College of Law are sponsoring "A Symposium to Commemorate the Bicentennial of the Federal District Court in Chicago" on Friday, October 11, 2019, from 9 a.m. to 3:15 p.m. The symposium will examine the issues and cases that have shaped 200 years of justice in the federal court in Chicago. Panels will address Radicalism on Trial; Housing, Schools, and Race; and Policing.

Chicago-Kent College of Law
Marovitz Courtroom
565 W. Adams
Chicago, Illinois

4 hours of Illinois General MCLE

Course provider: Chicago-Kent College of Law

Free and open to the public.

The registration page for the event can be found here.

Notice of Motion for Previously Stricken Motion to Reconsider Does Not Toll Time to Appeal

Carson Griffis — Wed, 25 Sep 2019 01:17:24 GMT

By: Carson Griffis*

A recent decision by the Illinois Appellate Court, First District, clarifies that a timely post-judgment motion that has been stricken by the circuit court does not toll the time to file a notice of appeal even if the same post-judgment motion is refiled with a new notice of motion and ultimately ruled on. Rather, to toll the time to appeal, the order striking the post-judgment motion must be vacated and the court must rule on the original, timely motion.

In Joseph v. Evergreen Motors, Inc., 2019 IL App (1st) 180360, the circuit court granted the defendants' motion for summary judgment. The plaintiff filed a motion to reconsider that decision, but the circuit court struck the motion to reconsider because the plaintiff did not provide the court with a courtesy copy of the motion. More than 30 days after the court had granted the summary judgment motion, the plaintiff refiled the same motion to reconsider with a new notice of motion. The circuit court denied the refiled motion to reconsider, and the plaintiff filed a notice of appeal within 30 days of that denial.

The appellate court held that it lacked jurisdiction to consider the plaintiff's appeal. It first noted that, under Illinois Supreme Court Rule 303(a)(1), a post-judgment motion filed within 30 days of a final judgment will toll the time for filing a notice of appeal until the circuit court disposes of that motion. But, the court explained, this rule did not apply because the circuit court had stricken the plaintiff's timely motion to reconsider. The plaintiff's refiled motion, even though it was accompanied by a new notice of motion, was untimely and thus did not toll the time to appeal under Rule 303(a)(1). The plaintiff should have asked the circuit court to vacate its order striking her motion to reconsider and rule on the merits of the original, timely motion. Until the order striking the motion had been vacated, the notice of motion had no effect because no timely motion to reconsider was pending.

Justice Burke Selected As Next Chief Justice Of The Illinois Supreme Court

Carson Griffis — Wed, 11 Sep 2019 14:44:52 GMT

Congratulations to Justice Anne Burke, who was selected to serve as the next Chief Justice of the Illinois Supreme Court. Her three-year term will begin on October 26, 2019. Justice Burke will be the fifth woman to currently lead a branch of the Illinois judiciary, joining Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit, Chief Judge Rebecca Pallmeyer of the U.S. District Court for the Northern District of Illinois, Chief Judge Sarah Darrow of the U.S. District Court for the Central District of Illinois, and Chief Judge Nancy Rosenstengel of the U.S. District Court for the Southern District of Illinois.

Justice Burke has served on the Illinois Supreme Court since 2006. She is the third woman to ever sit on the state's highest court. From 1995 to 2006, she served as a Justice of the Illinois Appellate Court, First District. Before that, she served as a Judge to the Court of Claims, as special counsel for Child Welfare Services under Governor Jim Edgar, and as a solo practitioner. Before embarking on her legal career, Justice Burke worked with mentally disabled children as a physical education teacher with the Chicago Park District and founded the Chicago Special Olympics, which later grew into the International Special Olympics. Justice Burke is an active member of the American, Illinois State, Chicago, and Women's Bar Associations, and The Illinois Judges' Association.

The Illinois Supreme Court's order announcing Justice Burke's selection may be found here.

Justice Melissa A. Chapman of Illinois Appellate Court, Fifth District, Retiring; Illinois Supreme Court Appoints Retired Circuit Judge Milton Wharton

Carson Griffis — Thu, 05 Sep 2019 01:06:04 GMT

Effective October 1, 2019, Justice Melissa A. Chapman of the Illinois Appellate Court, Fifth District, will be retiring from the bench. Justice Chapman has served on the Appellate Court since 2001.

Justice Chapman was born in Granite City, Illinois. She received her bachelor's and master's degrees from Southern Illinois University-Edwardsville, and worked as a mental health counselor for five years before attending law school.

Justice Chapman earned her Juris Doctor from St. Louis University. Before her appointment to the Appellate Court, she practiced law for 18 years as a partner in the firm of Morris B. Chapman & Associates, Ltd., in Granite City, where her practice focused on personal injury litigation. Along with serving on the bench, Justice Chapman served on the Attorney Registration and Disciplinary Commission Review Board from 1998 to 2001 and has served as a member of the Illinois Pattern Jury Instructions Committee-Civil since 1995.

The Illinois Supreme Court has appointed Retired Circuit Judge Milton S. Wharton to fill the vacancy left by Justice Chapman's retirement. Judge Wharton served as an associate judge in St. Clair County from 1976 until his retirement in 2012. Before serving on the bench, Judge Wharton worked in the St. Clair County Public Defender's Office. Judge Wharton also founded the Court Appointed Special Advocates of Southwestern Illinois, a nonprofit that advocates for the best interests of abused and neglected children.

Cases Pending Highlights Criminal Cases Scheduled for Argument in Illinois Supreme Court's September Term

Carson Griffis — Fri, 30 Aug 2019 20:12:01 GMT

The Illinois Supreme Court’s September Term begins Tuesday, September 10, 2019, with oral arguments scheduled for September 10, 11, 12, 17, 18, and 19. A total of 19 cases will be heard – 5 criminal and 14 civil. The following criminal cases are scheduled for argument this Term:

September 10

People v. Muhammad Abdullah, No. 123492

People v. Ashanti Lusby, No. 124046

People v. Vivian Brown, No. 124100

People v. Quentin Bates, No. 124143

September 18

People v. Conrad Morger, No. 123643 (Godfrey, IL)

Below is a summary for one of these cases, People v. Vivian Brown. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Vivian Brown

Law enforcement responded to a call from defendant's husband reporting that defendant had fired a gun in their home. Upon arrival, police found a rifle beside defendant's bed but no evidence that she had fired the gun in the home. Because defendant did not have a Firearm Owner's Identification card (FOID card), she was charged with possession of a firearm without a FOID card. According to defendant, she was eligible for a FOID card at the time of her arrest.

This case is a direct appeal from the order of the White County Circuit Court that declared section 2(a)(1) of the FOID Card Act (430 ILCS 65/2(a)(1)) unconstitutional on its face and as applied under the Second Amendment. The court found two bases for striking the statute. First, the court held that requiring defendant to fill out a form, provide a picture ID, and pay a $10 fee to obtain a FOID card was an as-applied unconstitutional burden on her Second Amendment rights. Second, the court found that compliance with the FOID Card Act was impossible within one’s own home, rendering it facially unconstitutional as to those with guns in their homes.

Before the Illinois Supreme Court, the People first argue that the FOID Card Act is not an impermissible burden on the right to possess firearms in one's home. Second, the People assert that the circuit court erred by declaring the provision unconstitutional as applied to defendant based on facts other than those in her case. More specifically, the circuit court had raised two hypothetical scenarios (regarding constructive firearm possession in households with multiple residents) to justify the second basis for its order, neither of which describes defendant's circumstances.

Defendant argued that the circuit court correctly found that the FOID Card Act violates defendant's rights under the Illinois Constitution and that the People waived any argument to the contrary. Defendant also asserted that the circuit court's two findings were correct.

An amicus brief was filed in support of each party. The Giffords Law Center to Prevent Gun Violence supported the People; supporting defendant was a collection of gun rights groups, professors, and two state's attorneys.

Cases Pending Highlights Civil Cases Scheduled for Argument in Illinois Supreme Court's September Term

Carson Griffis — Fri, 30 Aug 2019 02:14:10 GMT

September 11

The Robert R. McCormick Foundation v. Arthur J. Gallagher Investment Management Services, No. 123936

Lakewood Nursing & Rehabilitation Center, LLC v. The Illinois Department of Public Health, No. 124019

Horsehead Corp. v. Illinois Department of Revenue and Illinois Independent Tax Tribunal, No. 124155

September 12

Ammons v. Canadian National Railroad Co., No. 124283

Andrews v. Metropolitan Water Reclamation District of Greater Chicago, No. 124283

September 17

Iwan Ries & Co. v. City of Chicago, No. 124469

Rushton v. Illinois Department of Corrections, No. 124552

Sanders v. Illinois Department of Corrections, No. 124565

Hernandez v. Lifeline Ambulance, LLC, No. 124610

September 18

Dew-Becker v. Wu, No. 124472

September 19

Raab v. Frank, No. 124641

Zamuido v. Ochoa, No. 124676

Crim v. Dietrich, No. 124318

Yakich v. Aulds, No. 123667

Below is a summary for one of these cases, Crim v. Dietrich. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

Crim v. Dietrich

This case presents a question of first impression regarding whether an appellate court’s reversal of a partial directed verdict resurrects claims that were tried to a jury but not subject to a post-trial motion or pursued on appeal.

Plaintiffs filed suit against Defendant alleging two claims related to the delivery of a child: (1) failure to obtain informed consent, and (2) professional negligence. The case proceeded to a jury trial. At the close of the Plaintiffs’ case, Defendant moved for a partial directed verdict on the issue of informed consent. The circuit court granted the motion and entered a partial directed verdict as to that claim. The remaining professional negligence claim went to the jury, which ultimately returned a verdict for the Defendant. Plaintiffs did not file a post-trial motion, but they did file an appeal. In their brief on appeal, Plaintiffs limited the scope of the appeal to the partial directed verdict on the informed consent claim and did not raise any arguments challenging the jury’s verdict on the professional negligence claim.

The Illinois Appellate Court’s opinion, 2016 IL App (4th) 150843 (“Crim I”), was limited to the informed consent issue. The Illinois Appellate Court, Fourth District reversed and remanded to the circuit court “for such other proceedings as required by order of this court.”

On remand, Defendant filed a motion in limine to preclude Plaintiffs from raising issues related to the professional negligence claim because, according to Defendant, that issue was never appealed. Plaintiffs, however, argued that the reversal on the informed consent claim changed the tenor of the trial such that both the lack of informed consent and professional negligence claims should go to the jury. The circuit court denied Defendant’s motion in limine, but certified a question for interlocutory appeal to determine whether the Fourth District’s original reversal and remand for a new trial required a trial de novo on all of Plaintiffs’ claims. The Fourth District issued an order concluding that, because the mandate and opinion in Crim I used general language, “the entire judgment was abrogated and the trial court is to proceed as if hearing the case for the first time.” The Fourth District instructed the circuit court “to return to that moment in the trial when that judgment was entered” and “proceed as if no trial had taken place.”

In its petition for leave to appeal, Defendant argues that the new trial should be limited to the only issue the Plaintiffs appealed in Crim I—the informed consent claim. The Fourth District’s holding, Defendant maintained, violated the general rule that failure to file a post-trial motion following a jury trial prevents review of the jury’s verdict. Furthermore, the Fourth District’s mandate in Crim I reversing and remanding the “order on appeal” could not have encompassed the jury verdict because the only order on appeal was the trial court’s directed verdict on the informed consent claim. The mandate, therefore, could not have revived the professional negligence claim. Rather, once the 30-day deadline for filing post-trial motions passed, Defendant argued, the jury’s verdict on the professional negligence claim became a final judgment.

In their answer, Plaintiffs contend that their notice of appeal encompassed not only the directed verdict, but also all subsequent rulings by the circuit court such that Plaintiffs’ appeal additionally included the jury verdict. Plaintiffs also argue that the Fourth District correctly concluded that the mandate in the original appeal remanded the entire case back to the circuit court as if no trial had occurred, thereby requiring a second trial on Plaintiffs’ professional negligence claim.

Appellate Court Holds That It Lacks Jurisdiction To Review Constitutional Challenges to SORA Requirements

Carson Griffis — Fri, 23 Aug 2019 20:05:56 GMT

By Nate Nieman

Walter Wells was convicted of aggravated criminal sexual assault and aggravated battery in a public place and was sentenced to three years in prison. Wells appealed, arguing that the evidence was insufficient to convict him and that the Sex Offender Registration Act (SORA) violated his rights to substantive and procedural due process.

In People v. Wells, 2019 IL App (1st) 163247, the First District Appellate Court determined that the evidence was sufficient to convict Wells. Wells also argued that “the broad SORA regulations and restrictions imposed on him as a result of his conviction for a sexual offense violate his substantive due process rights and are facially unconstitutional.”

However, before reaching this issue, the court had to consider whether it had jurisdiction to review this issue after the State argued that “a defendant cannot raise a constitutional challenge to SORA on direct appeal from the criminal conviction that triggered application of SORA” after the Illinois Supreme Court’s decision in People v. Bingham, 2018 IL 122008.

Bingham involved a defendant’s challenge to SORA registration that was triggered by a felony theft conviction. The Bingham court held “because the requirement to register under SORA was not encompassed within the trial court’s judgment of guilt on the theft conviction or any order of the trial court in that proceeding, the defendant’s constitutional challenge did not ask the reviewing court to take action available to it under [Ill. S. Ct. R.] 615(b).”

The Bingham court reasoned that “‘[a]llowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by the state agencies and officials that are not parties to the action.’” Such challenges to SORA could, however, be brought in civil suits or on direct appeal from convictions resulting from violating SORA requirements.

Finding that Wells’ obligation to register under SORA was a collateral consequence of his conviction that was not embodied in the trial court’s judgment, the court applied Bingham and held that it did not have jurisdiction to consider Wells’ constitutional challenges to SORA.

Lawyers-Lend-A-Hand to Youth Seeks Volunteers for Tutoring at CBA

Carson Griffis — Wed, 14 Aug 2019 01:37:16 GMT

Lawyers-Lend-A-Hand to Youth, an organization that channels the legal community's resources to promote mentoring and tutoring programs in disadvantaged Chicago communities, is seeking volunteer tutors for its one-on-one tutoring program. The program meets on Tuesdays from 5:30 p.m. to 7:00 p.m. at the Chicago Bar Association, 321 South Plymouth Court, Chicago, Illinois. Tutors will assist children from Chicago's Englewood neighborhood become better readers. Orientation will be held on September 3 and 10.

For more information, contact Jenna Meyers at (312) 554-2053 or email jmeyers@lawyerslendahand.org.

Justice Robert Spence Retiring; Retired Circuit Judge George Bridges Appointed to Second District Appellate Court

Carson Griffis — Thu, 08 Aug 2019 13:59:17 GMT

Justice Robert Spence of the Illinois Appellate Court, Second District, will be retiring from the bench. Justice Spence has served on the Appellate Court since 2012 and, before that, served in the circuit court since 2001. Justice Spence also served as an Assistant State's Attorney for 14 years and as an Assistant Attorney General for six years. Justice Spence received his undergraduate degree from Taylor University and his Juris Doctor from The John Marshall Law School.

To fill Justice Spence's vacancy, the Illinois Supreme Court has appointed Retired Circuit Judge George Bridges to the Second District effective September 16, 2019.

Judge Bridges received his undergraduate degree in 1982 from National Lewis University and his Juris Doctor in 1987 from Chicago-Kent College of Law.

Judge Bridges served as Waukegan's first African-American police chief from 1988 to 1990, when he began working as an Assistant State's Attorney in the Lake County State's Attorney's office. Judge Bridges served as Waukegan's police chief again from 1993 until his appointment as an associate judge in Lake County in 1995. The Illinois Supreme Court appointed Judge Bridges as a circuit judge of the Nineteenth Judicial Circuit in 2012, and he was elected as a full circuit judge in 2014. Judge Bridges retired from the bench in 2016.

First District Illinois Appellate Court Sanctions Pro Se Serial Filer While Reviewing Several Important Issues of Appellate Procedure

Fri, 02 Aug 2019 13:58:21 GMT

By: Katherine A. Grosh, Levin Ginsburg

Undaunted by admonishments from the United States Supreme Court, the U.S. Court of Appeals for the Seventh Circuit, and the First District Appellate Court of Illinois, pro se litigant Lisa J. Gillard filed her latest in a series of unsuccessful appeals stemming from a September 2016 incident whereby Gillard shoved a security guard at Northwestern Memorial Hospital and was convicted of battery. Gillard v. Northwestern Memorial Hospital, et al., 2019 IL App (1st) 182348. Over 10 pages of the First District’s 22-page opinion were devoted to a review of Gillard’s litigation over the last few years. Gillard had filed several civil and criminal lawsuits against Northwestern Memorial Hospital, the security contractor, Starbucks, Circuit Court of Cook County Judge Clare McWilliams, and others, alleging in one complaint that she was the victim of “defamation and emotional distress” and seeking $3 billion (with a “b”) in damages. Many of the suits (some of which were consolidated) ended in dismissals for failure to state valid causes of action after multiple pleading attempts.

In the suit at hand, Gillard attempted to allege counts for defamation per se, intentional infliction of emotional distress, negligent infliction of emotional distress, and false light. Id. ¶¶ 11, 17. In the midst of Gillard’s pleading attempts and related motion practice by many of the defendants, the trial court dismissed the case for want of prosecution on two occasions, the second of which occurred after Gillard failed to appear on a series of court dates. Id. ¶¶ 10, 12. Each time, Gillard moved to vacate the dismissal, and the court reinstated the case. Id. ¶ 12. Gillard also filed two motions for substitution of judge, which were denied, but resulted in both trial judges recusing themselves from all cases involving Gillard. Id. ¶ 13, 14. At around the same time, Gillard filed a separate tort complaint against several Cook County sheriff’s officers assigned to duty on the twenty-second floor of the Daley Center. Consequently, all of the law division motion call judges recused themselves from Gillard’s cases. Id. ¶ 15. All then-pending suits, including the instant case, were assigned to Judge Clare McWilliams. Id.

Judge McWilliams granted the defendants’ motions to dismiss Gillard’s complaint, but gave Gillard another opportunity to amend. Id. ¶ 16. Gillard’s fourth amended complaint increased her demand from $500 million in damages to $3 billion, and sought the termination of several of defendants’ employees. Id. ¶ 17. By the time she filed her fourth amended complaint, her criminal battery case had concluded and she was found guilty, and ordered not to have any contact with Northwestern Memorial Hospital except in the case of medical emergency. Id. ¶ 18 (citing People v. Gillard, 2018 IL App (1st) 171121-U, ¶ 1).The defendants again filed motions to dismiss, arguing, among other things, that Gillard’s conviction for battery established conclusively that any statements the defendants had made about Gillard shoving a security guard were not false. They also argued that the fourth amended complaint, like the previous complaints, did not plead adequate facts to support any of her claims. Id. ¶ 19.

Rather than file a response to the motions to dismiss, Gillard filed a motion to substitute Judge McWilliams for cause, arguing that she was part of a “ring of conspiracy” by judges and “mentally unfit.” Id. ¶ 20. Thereafter, she filed a civil complaint against Judge McWilliams, alleging civil rights violations and conspiracy. Id. ¶ 21 (citing Gillard v. McWilliams, 2019 IL App (1st) 182217-U, ¶ 5). She also filed several “emergency motions” to disqualify Judge McWilliams before the presiding judge of the law division, all of which were denied or stricken, as well as a “memorandum” threatening to initiate ARDC proceedings against counsel for Northwestern Memorial Hospital and to file “federal indictment charges” against opposing counsel and several Cook County judges, all after Judge McWilliams entered a “protocol order” at Northwestern Memorial Hospital’s request. Id. ¶¶ 22, 23.

In a written order dated October 23, 2018, entered over one month after the deadline set by the court for Gillard to respond to the defendants’ motions to dismiss, the court dismissed the fourth amended complaint with prejudice, finding that Gillard had not pleaded sufficient facts support any of her claims. Id. ¶ 24. Gillard then filed two separate motions to reinstate the case, incorrectly stating that the case had been dismissed for want of prosecution, and alleging that Judge McWilliams was “disqualified under the law.” Id. ¶ 25. However, as would later become relevant to the disposition of her appeal, neither motion argued that Gillard had sufficiently pleaded the five counts of her fourth amended complaint or otherwise addressed the court’s rulings on the motion to dismiss. Id. ¶ 25. The motions to reinstate were denied on November 1, 2018, and Gillard appealed. Id. ¶ 25.

Although the court’s opinion discusses numerous important appellate procedural rules, the court confronted two main issues: (1) whether Gillard can prevail on her claims of error and (2) “whether her appeal is so frivolous, and her pattern of behavior so egregious,” that an order of sanctions should be entered against her under Illinois Supreme Court Rule 375.

Initially, the court addressed whether it had jurisdiction over the appeal, where Gillard’s notice of appeal specified a “November 1, 2018 order entered by Judge McWilliams,” where that order was the order denying Gillard’s motions to reinstate the case, and was entered by a different judge, and where the notice of appeal did not reference the October 23, 2018 dismissal order entered by Judge McWilliams. Reiterating that “[c]lerical errors in a notice of appeal do not necessarily render the notice defective,” and that an unspecified order is reviewable where it is a step in the “procedural progression” leading to the judgment specified in the notice of appeal, the court found it had jurisdiction to review both orders under the “liberal construction” standard governing notices of appeal. Id. ¶¶ 41-43.

The defects in the notice of appeal aside, the court observed that Gillard’s appellate brief violated Supreme Court Rule 341(h) in several respects. The single-page statement of facts contained no references to the record on appeal and omitted any description of the defendants’ motions to dismiss or the court’s rationale for granting them. Id. ¶ 46. The argument section also failed to cite to the record, and did not contain any substantive content or argument directed at the circuit court’s reasoning for dismissing her fourth amended complaint. Id. ¶ 47. Instead, the brief discussed the jurisdiction of the “Illinois Supreme Court” and the standards a court applies when considering whether a statute is unconstitutional, even though the case was not currently before our supreme court and did not involve any challenge to a statute’s constitutionality. Id. ¶ 47. The court stated: “[a] pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants." Id. ¶ 45 (citing People v. Adams, 318 Ill. App. 3d 539, 542 (2001)). However, because the court understood the issues Gillard intended to raise, and because the defendants very competently briefed the issues, the court elected not to strike Gillard’s brief.

Still, the court found that each of Gillard’s arguments on appeal were either waived -- having been raised for the first time on appeal -- or forfeited under Supreme Court Rule 341(h)(7), having been raised in the trial court but abandoned on appeal in the opening brief. Id. ¶¶ 49-51. Further, Gillard made no reference to any of the five claims actually pleaded in her fourth amended complaint, but rather, made arguments related to causes of action that she never pleaded, such as malicious prosecution and consumer fraud. Id. ¶ 51. Nevertheless, and with emphasis on Rule 63(c)’s requirement of judicial self-disqualification, the court went on to address the merits of Gillard’s appeal, concluding that the circuit court did not err in dismissing Gillard’s fourth amended complaint or in denying her motions to reinstate the case. Id. ¶¶ 52-60.

Addressing the defendants’ motions for sanctions against Gillard, the court stated, “[a]lthough this court is especially solicitous of self-represented parties who do not display punctilious compliance with our rules, we will order sanctions against pro se litigants under sufficiently egregious circumstances.” Id. ¶ 62. The court observed that Gillard’s “prodigious appellate practice has been characterized by repeated, and often dispositive, failures to obey the Illinois Supreme Court rules regarding briefs. Gillard has yet to file before this court a single appellate brief that consistently and properly cites the record.” Id. ¶ 68. The court also noted other courts’ admonishments to Gillard for her frivolous litigation, including the warning the court itself issued to her months ago. Id. ¶ 67 (citing Northwestern Memorial Hospital, 2018 IL App (1st) 180922-U, ¶ 25) (“if [Gillard] pursues a pattern of frivolous appeals before this court, she will face sanctions”). The court continued, “[d]espite our admonishments and dismissals, Gillard persists in inappropriate use of the judicial system.” Id. ¶ 68. Recognizing the likelihood that Gillard would be unable or unwilling to pay a monetary sanction consisting of a judgment for the defendants’ attorneys’ fees, however, the court referred its opinion to the court’s executive committee for the entry of an administrative order requiring Gillard to fulfill several procedural requirements before she can pursue any future appeals. Id. ¶ 69. The court also recommended that for any future appeal she files, it will be automatically stayed and no opposing party need file responsive documents unless requested by the court or the court lifts the stay.

Apparently as the result of prior issues regarding Gillard’s qualifications for court fee waivers, the court also recommended that for future appeals: (a) any fee waiver motion Gillard files pursuant to Illinois Supreme Court Rule 313 shall include her actual residence address (not a post office box address), as well as copies of her last two annual state and federal income tax returns with an affidavit as to their authenticity, and (b) that the circuit court hold a hearing on any future fee waiver petitions filed by Gillard, and stay any litigation brought by her until either she pays the appropriate fees, or the court is satisfied that she actually qualifies for a fee waiver. Id. ¶ 69.

The opinion was authored by Justice Mathias Delort, with Justice Maureen Connors and Sheldon Harris concurring. Still pending before the First District Appellate Court are Gillard’s consolidated appeals from the trial court’s dismissal of her suits against Comeaux-Brookins, the court reporter in her criminal battery trial and the presiding judge of her criminal trial, Judge Clarence Burch, which allege that their defamatory statements led to her arrest for harassment when Gillard violated the staking no contact order.

Justice Mary Ann Mason Retires; Judge Mary Ellen Coghlan Appointed to First District Appellate Court

Carson Griffis — Wed, 24 Jul 2019 00:15:54 GMT

The Appellate Lawyers Association offers its best wishes to Justice Mary Ann Mason on her retirement from the Illinois Appellate Court, effective July 26, 2019. Justice Mason began her legal career as an Assistant U.S. Attorney and later worked at Kevin M. Forde, Ltd. for 16 years. She was appointed to the Circuit Court of Cook County in 2000, serving most recently in the Chancery Division, until her appointment to the Illinois Appellate Court in 2013. Justice Mason served the judiciary with distinction for 19 years. The ALA wishes to recognize Justice Mason’s service by making a donation in her name to the Chicago Bar Foundation, where she will co-chair a task force to examine how professional rules affect innovation and sustainable legal practices. She also will join JAMS as an arbitrator in the Fall.

The ALA also congratulates Judge Mary Ellen Coghlan on her appointment to the First District Appellate Court, effective July 30, 2019. Since 2010, Judge Coghlan has served as the Presiding Judge of the Probate Division of the Circuit Court of Cook County. She first joined the Circuit Court in 1995, after serving as an Assistant Attorney General, an Assistant Public Defender, and a private practitioner. Congratulations to Judge Coghlan.

Rule 304(a) Finding Triggers 30-Day Period for Motion for Sanctions

Thu, 18 Jul 2019 13:57:02 GMT

By: Richard C. Harris

Adler Murphy & McQuillen LLP

A divided Illinois appellate court recently held that the circuit court lacked jurisdiction to entertain a motion for sanctions filed several months after the entry of a Rule 304(a) finding. The Rule 304(a) finding accompanied the dismissal of a “discrete portion of the overall controversy between the parties.” The majority reasoned that, because the allegedly sanctionable conduct related exclusively to the “discrete portion” of the lawsuit that had been dismissed, the motion for sanctions needed to be filed within 30 days of the Rule 304(a) finding.

In Lakeshore Centre Holdings, LLC v. LHC Loan, LLC, 2019 IL App (1st) 180576, the plaintiff sold its ownership interest in a health club to the defendant subject to a repurchase option. The plaintiff later filed a complaint including several claims related to the defendant’s alleged failure to honor the repurchase option. Thereafter, the defendant filed a counterclaim against the plaintiff based on its alleged failure to enter good faith negotiations for the purchase of a different health club. Notably, the defendant’s counterclaim had no relation to the claims advanced by the plaintiff.

On November 30, 2016, the circuit court dismissed the plaintiff’s complaint in its entirety and made a finding under Rule 304(a) that there was no just reason to delay the plaintiff’s appeal. On May 25, 2017, while the plaintiff’s appeal was pending, the defendant filed a motion for sanctions in the circuit court under Rule 137. The sanctions motion related solely to the plaintiff’s claims based on the repurchase option; none of the allegations related to the transaction at the center of the defendant’s counterclaim. After the circuit court granted the sanctions motion in part and denied it in part, both parties filed notices of appeal. However, after the parties briefed the appeal and cross-appeal of the sanctions judgment, the First District Appellate Court ordered supplemental briefing on the issue of whether the circuit court had jurisdiction to grant any of the relief requested in the defendant’s sanctions motion.

Writing for the majority, Justice Pierce noted that Rule 137(b) requires the filing of a sanctions motion within 30 days of “the entry of final judgment.” The final judgment was entered on November 30, 2016, when the circuit court dismissed the plaintiff’s claims in their entirety and entered the Rule 304(a) finding. At that point the clock began to run on all postjudgment activity related to the dismissal of the plaintiff’s claims, including any motions for sanctions. Because the allegedly sanctionable conduct related solely to the repurchase option that was the basis for the plaintiff’s claims, the defendant’s Rule 137 motion needed to be filed within 30 days. However, when no postjudgment motions were filed and the plaintiff filed a timely notice of appeal, the circuit court lost jurisdiction to entertain any such motion. Justice Griffin concurred in the judgment and opinion.

In her dissent, Justice Mikva noted that proceedings under rule 137(b) “shall be brought within the civil action in which the pleading, motion or other document referred to has been filed.” Because the civil action was still pending on the defendant’s counterclaim, Justice Mikva believed that the sanctions motion was timely and the circuit court had jurisdiction to consider it.

Retired U.S. Supreme Court Justice John Paul Stevens Passes Away

Wed, 17 Jul 2019 13:31:31 GMT

Retired U.S. Supreme Court Justice John Paul Stevens passed away yesterday in Florida. He was 99 years old.

Justice Stevens served in World War II, attended law school at Northwestern University School of Law, served as a clerk to Supreme Court Justice Wiley Rutledge, and practiced law in Chicago and Washington DC. In 1970, President Richard Nixon nominated him to the U.S. Court of Appeals for the Seventh Circuit. In 1975, President Gerald Ford nominated Justice Stevens to the Supreme Court, where he served for 34 years. After his retirement in 2010, he authored three books.

A press release from the U.S. Supreme Court may be found here.

Seventh Circuit Holds That a Properly Invoked Mandatory Claim-Processing Rule Will Be Enforced, No Exceptions

Wed, 03 Jul 2019 14:17:33 GMT

By: Kimberly Glasford

The United States Supreme Court has held that a court-prescribed time limit for pursuing an appeal constitutes a “mandatory claim-processing rule” subject to forfeiture and waiver, not a jurisdictional rule. Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13, 16-18 (2017). The United States Court of Appeals for the Seventh Circuit recently determined that despite the non-jurisdictional nature of such rules, two previously recognized exceptions to mandatory appellate procedure were invalid. In re Wade, No. 18-2564, _ F.3d _, 2019 WL 2482413 (7th Cir. June 14, 2019).

The reviewing court in Wade examined Rule 8006 of the Federal Rules of Bankruptcy Procedure, which applies where a bankruptcy court has certified an order for direct review in a court of appeals. Subsection (g) states that “[w]ithin 30 days after the date the certification becomes effective under subdivision (a), a request for permission to take a direct appeal to the court of appeals must be filed with the circuit clerk.”

In Wade, the bankruptcy court denied the debtor-appellants’ motion for sanctions against the law firm-appellee for purportedly violating the automatic bankruptcy stay. The court then certified that order for direct appeal to the court of appeals due to the disputed meaning of a key statute. The debtor-appellants then filed a timely notice of appeal but did not file a petition for permission to appeal, as required by Rule 8006(g). Consequently, the law firm-appellee moved to dismiss the appeal.

The Seventh Circuit determined that as a procedural rule, rather than a statutory one, Rule 8006(g) was mandatory, not jurisdictional. Because the law firm-appellee had properly invoked the rule, the court was required to enforce it.

In reaching this decision, the Seventh Circuit rejected the debtor-appellants’ reliance on prior Seventh Circuit decisions declining to dismiss direct appeals for the appellants’ failure to request permission to appeal under the Bankruptcy and Appellate Rules. Those cases had found dismissal was unwarranted where (1) the record contained the “functional equivalent” of the requisite petition or (2) the defect was harmless. Yet, the Seventh Circuit found those decisions could not be reconciled with the Court’s recent decisions enforcing mandatory rules. Accordingly, the appeal was dismissed, leaving the debtor-appellants to begin the ordinary appeal process in the district court.

This case is a reminder that non-jurisdictional, mandatory rules are not toothless. Cases creating exceptions to mandatory rules should be taken with a grain of salt, particularly considering that the Court has reserved ruling on whether an equitable exception could ever apply to a mandatory claim-processing rule. Fort Bend County v. Davis, 139 S. Ct. 1843, 1849 n.5 (2019).

7th Circuit Bar Association to Hold Reception for Judge Pallmeyer

Tue, 02 Jul 2019 13:46:52 GMT

On Monday, July 8, 2019, from 4:30 - 6:30 p.m., the 7th Circuit Bar Association will hold a reception honoring Judge Rebecca R. Pallmeyer's investiture as Chief Judge.

From the association's website:

Please join the Chicago legal community in honoring Judge Pallmeyer. After nearly 30 years of esteemed service, Judge Pallmeyer will be the first female appointed as Chief Judge in the 200-year history of the United States District Court for the Northern District of Illinois. The reception will be held in the Grand Ballroom at the Standard Club.

Links to register and to view a list of sponsors can be accessed at the 7th Circuit Bar Association's website, https://www.7thcircuitbar.org/.

ALA 2019 Officers and Directors Installation

Carson Griffis — Thu, 13 Jun 2019 17:09:45 GMT

On June 20, 2019, the Appellate Lawyers Association will host its Installation Luncheon of Gretchen Harris Sperry as the 52nd President of the ALA. The ALA's Nominating Committee will present the following slate of officers and directors for election at the meeting:

Officers (2019-2020):
Vice-President: John M. Fitzgerald
Secretary: Scott L. Howie
Treasurer: Jonathan B. Amarilio

Directors (2019-2021):
Director (4th Dist.): John Gabala
Director (1st Dist.): Kimberly Glasford
Director (1st Dist.): Carson Griffis
Director (2nd Dist.): Richard Harris

Date: Thursday, June 20, 2019

Time: 12:00 to 2:00 p.m.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Seventh Circuit Holds That Conditional Dismissal Is Not Appealable

Carson Griffis — Tue, 11 Jun 2019 19:22:56 GMT

By: Carson R. Griffis

A recent decision of the U.S. Court of Appeals for the Seventh Circuit shows that parties cannot try to make an otherwise nonfinal order final and appealable by agreeing to dismiss the remaining claims in the case subject to the outcome of an appeal.

In West v. Louisville Gas & Electric Co., 920 F.3d 499 (7th Cir. 2019), the plaintiff sued two different defendants over the use of a fiber optic cable on a utilities transmission tower on his property: the company that installed the wire (Charter Communications) and the utility that owned the tower (Louisville Gas & Electric). The district court dismissed the plaintiff’s claims against Charter, and the plaintiff wanted to appeal. But his claims against Louisville were still pending, so the dismissal of the Charter claims was not final and appealable. To resolve this problem, the plaintiff and Louisville struck a deal: the plaintiff agreed to dismiss his claims against Louisville with the condition that he could reinstate them, without objection, if he won on appeal. If the plaintiff lost on appeal, he agreed not to refile his claims.

The Seventh Circuit dismissed the plaintiff’s appeal, finding it lacked jurisdiction. Because the dismissal of the claims against Louisville was conditional, it lacked “the binding effects of a truly final judgment.” So long as the plaintiff had reserved the right to reinstate its claims, there was no final judgment disposing of all claims in the district court. The court also found that the conditional dismissal was “the very sort of attempt to manufacture appellate jurisdiction” it had disapproved of in other cases. The court stressed that litigants cannot agree to finality to create appellate jurisdiction.

The court also noted that the plaintiff had three other options for immediately appealing the district court’s ruling. First, he could have asked the district court to enter a final judgment as to the claims against Charter under Federal Rule of Civil Procedure 54(b) (although the Seventh Circuit acknowledged that this would have been “a stretch” due to the similarity of the plaintiff’s claims against both defendants). Second, he could have sought permission to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). Third, he could have disclaimed his right to reinstate the claims against Louisville while on appeal. If the plaintiff waived his right to reinstate the claims, then the district court’s judgment would have been final and the Seventh Circuit would have jurisdiction. But the plaintiff refused to do so.

West shows that parties must be careful to ensure all claims have been disposed of before appealing. And conditioning a dismissal of certain claims on the outcome of an appeal will be viewed as an improper attempt to manufacture appellate jurisdiction. West also lays out a party’s options for appealing an order that disposes of less than all of the claims in a case: Rule 54(b), 28 U.S.C. § 1292(b), or abandoning the still-pending claims.

Illinois Supreme Court Approves New Statewide Appellate Forms

Carson Griffis — Fri, 07 Jun 2019 15:47:32 GMT

The Illinois Supreme Court Commission on Access to Justice has approved four new suites of standardized Appellate Court Forms:

Docketing Statement;
Request for Preparation of Record on Appeal;
Bystander's Report or Agreed Statement of Facts; and
Request for Report of Proceedings (Transcripts).

The Commission's standardized forms are designed to promote, facilitate, and enhance equal access to justice with an emphasis on access to the Illinois Civil Courts. They may be used for filing in any of the five Districts of the Appellate Court statewide. The new forms are available here.

Supreme Court Holds that the Window to Appeal An Order Granting or Denying Class Certification is Not Subject to Equitable Tolling

Fri, 31 May 2019 15:16:00 GMT

By Louis J. Manetti, Jr.
Hinshaw & Culbertson LLP

The Supreme Court recently clarified that the 14-day window to appeal from a federal district court order granting or denying class certification is not subject to equitable tolling. In Nutraceutical Corp. v. Lambert, the plaintiff, Lambert, sued Nutraceutical Corp. and alleged that its dietary supplement marketing violated a California consumer protection law. 586 U.S. ___ (2019). Although the district court initially certified a class, on February 20, 2015, it decertified the class. At that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. See Fed. R. Civ. P. 23(f).

Instead, 20 days after the decertification order, Lambert moved for the district court to reconsider the order. On June 24, 2015, the court denied the motion to reconsider. Fourteen days after that, Lambert petitioned the Ninth Circuit to take the appeal on the decertification order. Nutraceutical’s response to the petition argued that the petition was untimely. The Ninth Circuit deemed the appeal timely. It reasoned that Rule 23(f)’s time limit was nonjurisdictional, and therefore equitable remedies softening the deadline were available.

The Supreme Court rejected the Ninth Circuit’s approach. Rule 23(f) authorizes federal appellate courts to permit a discretionary appeal if the petition is filed within 14 days after the order is entered. The Court began by noting that because Rule 23’s time limitation is in a procedural rule, and not a statute, it is properly classified as a nonjurisdictional claim-processing rule. Thus, the opposing party can waive or forfeit a noncompliance argument. But merely because a rule is not jurisdictional does not render it “malleable in every respect.” Specifically, some claim-processing rules are “mandatory” in the sense that the rule is unalterable if noncompliance is properly raised.

With that, the Court stated that whether a rule allows for equitable tolling turns on whether the rule’s text leaves room for that flexibility. It first noted that Rule 23(f) is phrased unequivocally. And while that, by itself, was not determinative, the Federal Rules of Appellate Procedure singled out Rule 23(f) for inflexible treatment. Although FRAP 2 authorizes appellate courts to suspend the application of the rules in a particular case on a showing of good cause, it also warns: “except as otherwise provided in Rule 26(b).” And Rule 26(b), while allowing for extensions of time generally, specifies that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Given the clear expression of “rigorous enforcement”, compliance with 23(f) could not be suspended on equitable tolling grounds. The Court concluded that this comported with applicable precedent, and was fully consistent with the notion that, because interlocutory appeals disrupt the rule that appeals must ordinarily wait until the end of a case, Rule 23(f)’s time limit would be “purposefully unforgiving.”

Finally, the Court specified that the petition for leave to appeal would have been timely if the motion to reconsider had been filed within the 14-day appeal window. Lambert argued that courts of appeal uniformly hold that, so long as a motion to reconsider is filed within 14 days of an order granting or denying class certification, a Rule 23(f) petition filed within 14 days of the resolution of the reconsideration motion is timely. The Court explained that Lambert’s argument that the same outcome should occur here relied on a mistaken premise. A motion to reconsider filed “within a window to appeal” does not toll anything. Instead, it renders an otherwise final decision of a district court not final for the purposes of appeal. It determines when the 14-day window begins to run—not the availability of tolling. Thus, Lambert’s petition for leave to appeal was untimely, and the case was remanded for further proceedings.

This case should serve as a clear warning that, in the wake of an order granting or denying class certification, whether a litigant intends to move to reconsider the order or to petition the appellate court for review, that action must be taken within 14 days.

The ALA's Roundtable Luncheon Program Featuring the Justices of the Illinois Appellate Court, Third District

Thu, 30 May 2019 17:42:30 GMT

On June 6, 2019, the Appellate Lawyers Association (ALA), the Will County Bar Association (WCBA), the LaSalle County Bar Association (LCBA), and the Peoria County Bar Association (PCBA) will present their Roundtable Luncheon Featuring the Justices of the Illinois Appellate Court, Third District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench>

Date: Thursday, June 6, 2019

Time: 12:00 p.m. to 1:30 p.m. with lunch served at 12:30 p.m.

MCLE: Participants will earn one hour of MCLE credit for the luncheon. The ALA is an approved MCLE provider>

Location: Uptown Grill (banquet room), 601 1st Street, LaSalle, Illinois

Cost: $25 for public-sector members of the ALA, WCBA, LCBA, or PCBA; $30 for private-sector members of the ALA, WCBA, LCBA, or PCBA; $35 for public-sector nonmembers; and $40 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Registration details may be found below.

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

The ALA Annual Roundtable Luncheon with the Judges of the United States Court of Appeals for the Seventh Circuit

Tue, 28 May 2019 17:44:07 GMT

On Wednesday, May 29, 2019, the Appellate Lawyers Association will present its Annual Roundtable Luncheon with the Judges of the United States Court of Appeals for the Seventh Circuit. The luncheon provides an opportunity to converse with the Judges in an informal setting and will feature a panel discussion with several of the Judges. Attendees may ask questions and discuss appellate practice with the Judges and will gain the perspective of the other side of the bench.

Date: Wednesday, May 29, 2019

Time: 12:30 p.m. to 2:00 p.m. (Please note start time.)

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note that the Union League Club enforces a dress code, which can be accessed here.

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Cost: $40 for public-sector members; $50 for private-sector members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Registration details may be found below.

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service in the Law

Thu, 23 May 2019 17:53:28 GMT

In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois is presenting "An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service Law." Judge Bauer will reflect on his 65 years as a public servant, including his 48 years on the federal bench.

Judge Bauer is a Senior U.S. Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit. Judge Bauer served in the U.S. Army from 1945 to 1947, before earning his undergraduate degree from Elmhurst College and his law degree from DePaul University College of Law. He worked in private practice and served as an Assistant State's Attorney before being elected as DuPage County State's Attorney. He served as a Circuit Judge for the Eighteenth Judicial Circuit, DuPage County, before being appointed as the U.S. Attorney for the Northern District of Illinois from 1970 to 1971. In 1971, he was nominated to the U.S. District Court for the Northern District of Illinois, where he served until he was elevated to the Seventh Circuit in 1974.

The event will take place on June 13, 2019, from 3:00 p.m. to 4:00 p.m. in the Dirksen United States Courthouse, 219 S. Dearborn, Courtroom 2141, Chicago, Illinois. A reception will follow in the Court History Museum on the 21st Floor.

Those interested should RSVP to: Bauer_RSVP@ilnd.uscourts.gov.

Prohibition Writ Not a Substitute for an Appeal

Thu, 09 May 2019 17:59:37 GMT

By Don Sampen
Clausen Miller, P.C.

The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.

As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.

Analysis

Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

The four requirements for the writ, according to Garman, are that (a) that the action to be prohibited be of a judicial or quasi-judicial nature; (b) the writ be directed against a tribunal of inferior jurisdiction; (c) the action being prohibited be outside the tribunal's jurisdiction, or if within its jurisdiction, beyond its legitimate authority; and (d) no other adequate remedy be available to the petitioner.

Garman focused just on the fourth requirement, concerning the available of an alternative remedy. She noted Edwards’ argument that the circuit court had already ruled that it had jurisdiction and, over his objection proceeded to trial.

Edwards claimed that he now could be sentenced to jail and that, based on his conviction, the Department of Natural Resources had already initiated proceedings against his license. He thus contended that he would be subject to irremediable harm if he were required to press his claim through the normal appellate process.

Garman observed, however, that Edwards' time to appeal had not expired, that the normal appellate process was fully available to him, and that original actions of prohibition could not be used to circumvent the normal appellate process. Rather, the remedy was available only in rare instances where none of the ordinary remedies were available or adequate.

As for Edwards' complaints that his timber buyer's license could be adversely affected and his livelihood harmed, Garman found that he was essentially complaining of collateral consequences that may occur pending appeal, and that such consequences can attend any normal appellate process.

The trial court, in any event, had not ordered that his license be revoked, he offered only a vague portrayal of the situation surrounding his timber buyer's license, and he provided no documentation of the license revocation proceedings. Under these circumstances, Garman said that Edwards had not demonstrated irremediable harm.

In sum, the Court found that Edwards had failed to demonstrate the requirement that an appeal of his conviction did not provide him an adequate alternative remedy. Hence, the Court denied issuance of the writ.

Justice Thomas L. Kilbride dissented. He argued that Edwards had been convicted of a regulatory offense that does not exist and that he had not even violated the regulation relied on by the state. Kilbride therefore argued that the Court should exercise its supervisory authority to direct the circuit court to vacate Edwards' convictions.

Key Point:

A petitioner seeking issuance of a writ of prohibition must meet all four traditional requirements for issuance of the writ, including the requirement that no other adequate remedy is available to the petitioner. Pursuing an appeal in the underlying litigation normally will constitute an adequate alternative remedy.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's May Term

Tue, 07 May 2019 18:13:02 GMT

The Illinois Supreme Court's May Term begins on Monday, May 13th. The Term will include oral argument in 4 criminal cases and 3 civil cases on May 14th and 15th. Below is a listing of the cases that will be heard:

Tuesday, May 14, 2019: People v. John Michael Custer, No. 123339
                                            People v. Ralph Eubanks, No. 123525
                                            People v. Stevie Smith, Nos. 123901 & 123902 (cons.)
                                            People v. Bethany Austin, No. 123910

Wednesday, May 15, 2019: Carmichael v. Union Pacific Railroad Co., No. 123853
                                                 Jones v. Pneumo Abex LLC, No. 123895, 124002 (cons.)
                                                 Accettura v. Vacationland, Inc., No. 124285

Below are summaries of one of the criminal cases and one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

People v. Ralph Eubanks, No. 123525

Defendant was convicted of aggravated DUI, first degree (knowing) murder, and Class 1 felony failure to report the accident because he was the driver during a hit-and-run collision that killed one pedestrian and seriously injured a second. Related to the first issue, police officers asked defendant to submit to chemical testing of his blood and urine under section 11-501.2(c)(2) of the Vehicle Code (directing officers to pursue such chemical testing of DUI suspects given collisions resulting in death or injury; drivers refusing to submit to testing have their licenses summarily suspended as a result). The First District, in a 2-1 decision on all three issues discussed, held that section 11-501.2(c)(2) is facially unconstitutional because it permits testing in violation of the Fourth Amendment under Missouri v. McNeely, 569 U.S. 141, 147-49 (2013), which held that warrantless blood testing is reasonable only given the driver's consent or case-specific exigent circumstances (not just the natural dissipation of blood-alcohol levels present in every case). Related to the second issue, defendant, given his charge of first degree knowing murder, requested a jury instruction on the lesser-included offense of reckless homicide, but the trial court refused. Knowing murder occurs when the defendant knew that his acts created a "strong probability" of death or great bodily harm, while reckless homicide occurs when he knew that his acts were only "likely" to cause, i.e., created a "substantial risk" of, such harm. The majority reversed, holding that the trial court erred in finding no evidence of recklessness to justify the reckless homicide instruction. Related to the third issue, defendant challenged the sufficiency of the evidence for his Class 1 felony failure-to-report conviction regarding one element: the failure to report within 30 minutes of the collision. The majority reduced defendant's conviction to the Class 4 felony form of the offense in light of the fact that defendant was arrested within the reporting period because the State cannot demonstrate that a defendant failed to report within 30 minutes given that any evidence of a defendant's post-arrest silence is inadmissible.

Before the Illinois Supreme Court, the State challenges the majority's three holdings. First, the facial invalidation of section 11-501.2(c)(2) should be reversed because such holding was unnecessary: the State acknowledged that the police violated defendant's Fourth Amendment rights in gathering the samples and that his aggravated DUI conviction should be reversed so that it was unnecessary to consider the facial validity of the statute. In addition, the provision was facially constitutional because it could sometimes operate constitutionally: when police obtain a warrant, when the suspect consents to testing, and when police document case-specific exigent circumstances. Second, the trial court did not abuse its discretion in refusing the reckless homicide jury instruction because defendant's driving was so dangerous under the circumstances that it was not unreasonable to conclude that he could not have had only the lesser (reckless) understanding of the riskiness posed by his driving. Third, the majority erred in reducing the failure-to-report conviction on unbriefed self-incrimination grounds, and sufficient evidence supported the Class 1 conviction: it was reasonable to infer defendant failed to report within 30 minutes from his later denials that he was in the car at the time of the collision.

Defendant defends the three holdings. First, defendant argues that the constitutionality of the statute must be addressed because there are no nonconstitutional grounds to resolve his challenge to the chemical testing. In addition, he asserts that because section 11-501.2(c)(2) does not direct officers to seek a warrant, denies drivers the ability to revoke their implied consent, and implicitly codifies a per se exigent circumstance of the type rejected in McNeely, it is facially unconstitutional. Second, defendant claims that the trial court improperly considered some evidence not relevant to recklessness and erroneously ignored other evidence of recklessness, reflecting an abuse of discretion in rejecting the reckless homicide jury instruction. Third, his failure-to-report was correctly reduced to a Class 4 felony because inferring his failure to report from his later denials of involvement infringed on his right against self-incrimination.

Jones v. Pneumo Abex, No. 123985, 124002 (cons.)

The issue in this case is whether the clear and convincing evidence standard for proving civil conspiracy at trial also applies when the court is evaluating a motion for summary judgment.

The plaintiff sued the defendants, Pneumo Abex and Owens-Illinois, for his injuries related to lung cancer, which he claims was caused by asbestos exposure. His theory was that these defendants, who were not the plaintiff’s employers, entered into a civil conspiracy with other manufacturers of asbestos-containing products to conceal information from the public that showed the harmful effects of asbestos. The plaintiff’s case is one of many filed against these defendants and others across the state on this theory.

The defendants moved for summary judgment on the ground that the plaintiff did not present clear and convincing evidence that they engaged in this civil conspiracy. They relied on two decisions issued by the Fourth District Appellate Court—Rodarmel v. Pneumo Abex, 2011 IL App (4th) 100463 and Gillenwater v. Honeywell International, 2013 IL App (4th) 120929—which held that under nearly identical circumstances, under a clear and convincing evidence standard, there was insufficient evidence to establish that the defendants engaged in a conspiracy to conceal the challenged information from the public. The circuit court agreed with defendants and granted summary judgment, noting that the case was “indistinguishable” from the Fourth District cases “on the material issues.”

The Fifth District Appellate Court reversed. It did not disagree with the conclusions reached in the cited cases. Rather, it distinguished them on their procedural posture—those cases were decided on motions for judgment notwithstanding the verdict after all trial evidence was presented. It found that on a motion for summary judgment, there was sufficient evidence presented to allow a fact finder to conclude that the defendants engaged in a civil conspiracy.

In their petitions for leave to appeal, the defendants argue that the appellate court failed to apply the clear and convincing standard when evaluating the evidence on summary judgment and erred in finding that issues of fact existed. They argued that the evidence presented was the same as that presented in Rodarmel and Gillenwater, in which the Fourth District held that the so-called parallel conduct was insufficient by itself to establish a civil conspiracy as a matter of law.

REMINDER: ALA Presents Signature Luncheon Featuring Former Acting U.S. Solicitor General Neal Katyal

Mon, 06 May 2019 18:20:01 GMT

A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.

In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.

The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.

Date: Monday, May 13, 2019

Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

May 1st is Law Day -- Read Chief Justice Karmeier's Law Day Press Release

Wed, 01 May 2019 18:21:55 GMT

n honor of Law Day, the Appellate Lawyers Association is reposting Chief Justice Karmeier's article, "Free Speech, Free Press, Free Society". The link to the article is below:

http://www.illinoiscourts.gov/Media/PressRel/2019/042619.pdf

Supreme Court Holds that Counsel's Failure to Appeal at Client's Request Prejudices Client, Even with Plea Waiver

Thu, 25 Apr 2019 13:27:00 GMT

By Nate Nieman

The defendant in Garza entered into two plea agreements in which he agreed to waive his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019). Garza was then sent to prison. Id. Garza repeatedly told his attorney that he wished to appeal after he was sentenced, but Garza’s attorney did not file a notice of appeal because Garza had waived his right to appeal through the plea agreements. Id. at 743.

Garza sought post-conviction relief after the time for filing a notice of appeal had run, claiming that trial counsel rendered ineffective assistance of counsel by failing to file a notice of appeal at Garza’s request. Id. The trial court denied the petition, and the Idaho Court of Appeals and Idaho Supreme Court affirmed that decision. Id. The Idaho Supreme Court held that “Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not.” Garza v. Idaho, 139 S. Ct. at 743. The Idaho Supreme Court joined a minority of courts in ruling that Garza needed to show prejudice. Id. Eight out of ten Federal Courts of Appeals have held a presumption of prejudice applies “even when a defendant has signed an appeal waiver.” Id. The Supreme Court granted certiorari to resolve the split of authority. Id.

The court began its analysis by invoking its decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that prejudice is presumed under the second prong of the Strickland ineffective assistance of counsel test “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Id. at 744. The question in this case was whetherFlores-Ortega applied when a defendant signed an appeal waiver. The Garza court held that it did. Id.

The court reasoned that “while signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain,” Garza v. Idaho, 139 S. Ct. at 745, such as the right to challenge whether the waiver itself was valid and enforceable. Id. The court also determined that “a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative,” id. at 746, not the attorney’s. The court concluded that “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Id.

The court found that Flores-Ortega resolved the “prejudice” issue in this case, reaffirming that “‘when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,’ with no need for a ‘further showing’ of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.” Id. at 747.

The court rejected Idaho’s argument that Garza was not deprived of his right to appeal because he “never ‘had a right’” to do so. Id. at 748. The court responded that “Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants.”Id. Idaho’s argument was at odds with the rule already in place in most of the federal circuits that “When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal.” Garza, 139 S. Ct. at 749. Idaho could not persuade the Supreme Court to depart from the majority of jurisdictions that have adopted this rule.Id.

The Garza court therefore held that “the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed ‘with no further showing from the defendant of the merits of his underlying claims.’” Id. at 749-50 (citing Flores-Ortega, 528 U.S. at 484).

Northern District of Illinois and Federal Bar Association Host Awards for Excellence in Pro Bono and Public Interest Service

Thu, 25 Apr 2019 12:40:00 GMT

The Judges of the U.S. District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association are presenting their 20th Annual Awards for Excellence in Pro Bono and Public Interest Service. Maria Z. Vathis, the president of the Federal Bar Association, will act as Keynote Speaker.

The event will be held Wednesday, May 1, 2019, in the James Benton Parsons Memorial Courtroom, Everett McKinley Dirksen United States Courthouse, 25th floor, 219 S. Dearborn Street, Chicago, Illinois. The event will begin at 1 p.m. and be immediately followed by a reception in the Dirksen U.S. Courthouse Museum and History Center on the 21st Floor.

Roundtable Luncheon and Appellate Practice Seminar Featuring Justices of the Illinois Appellate Court, Fifth District, and Illinois Supreme Court Justice Lloyd Karmeier

Tue, 23 Apr 2019 22:34:00 GMT

The Appellate Lawyers Association (ALA), the Madison County Bar Association (MCBA), and the St. Clair County Bar Association (SCCBA) are co-hosting a roundtable luncheon featuring the Justices of the Illinois Appellate Court, Fifth District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench.

Shortly after the luncheon, the ALA, MCBA, and SCCBA will host an Appellate Practice Seminar. The seminar will begin with a judicial panel composed of Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court, Justice David K. Overstreet and Justice Judy Cates of the Illinois Appellate Court, Fifth District, as well as John J. Flood, Clerk of the Illinois Appellate Court, Fifth District. The judicial panel will be followed by a presentation on Appellate Brief Writing by ALA Past President Professor Edward J. Kionka. The seminar will conclude with presentations on Appellate Motion Practice by Retired Justice Richard P. Goldenhersh and Appellate Oral Argument by ALA Past President Brad Elward.

Roundtable Luncheon: Friday, May 17, 2019, 12 p.m. to 1:30 p.m. (check-in begins at 11:45 a.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois

Appellate Practice Seminar: Friday, May 17, 2019, 1:45 p.m. to 5 p.m. (check-in begins at 1:30 p.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois

Additional details and registration information may be found after the jump.

Luncheon Only:
Cost: $35 for ALA, MCBA, or SCCBA members; $45 for public sector non-members; and $55 for private sector non-members.
MCLE: One (1) hour MCLE credit for luncheon only. The ALA is an approved MCLE provider.

Seminar Only:
Cost: $55 for ALA, MCBA, or SCCBA members; $70 for public sector non-members; and $85 for private sector non-members.
MCLE: Three (3) hours of MCLE credit for seminar only.

Luncheon & Seminar:
Cost: $90 for ALA, MCBA or SCCBA members; $115 for public sector non-members; and $140 for private sector non-members.
MCLE: Four (4) hours of MCLE credit for attending both the luncheon and the seminar.

PLEASE NOTE: On-site registrations will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and pay with credit card. Or, if you prefer, you may register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

U.S. Supreme Court Rule Changes: Less Words, Less Time To File Reply Briefs, And More Disclosures

Mon, 22 Apr 2019 13:17:00 GMT

The U.S. Supreme Court has adopted three amendments to its rules that will take effect on July 1, 2019.

The first limits parties' merits briefs to 13,000 words. The current rule permits merits briefs up to 15,000 words. In a summary explaining the rule change, the Court emphasized that, in its experience, parties could ably present their arguments in less than 15,000 words.

The second rule change requires parties to file their reply briefs by 2 p.m., 10 days before oral argument. Previously, parties could submit their reply briefs a week before oral argument. The purpose of this change is to give the Court more time to review reply briefs before argument.

Finally, the Court will require parties filing certiorari petitions to identify any state or federal cases, in both trial and appellate courts, that are "directly related" to the case at issue. The Court explained that this rule will assist the justices in determining whether they need to recuse themselves from a case.

Illinois Supreme Court Strikes Down Prison Sentences Longer Than 40 Years For Minors

Fri, 19 Apr 2019 16:12:00 GMT

By Carson Griffis
Hinshaw & Culbertson LLP

The Illinois Supreme Court held yesterday that it is unconstitutional to sentence juveniles to prison for more than 40 years. The decision, People v. Buffer, 2019 IL 122327, was authored by Justice Neville and was joined by all members of the court except for Justice Burke, who wrote a special concurrence.

The court held that a sentence of more than 40 years in prison amounts to a de facto life sentence that violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Id. ¶ 41. Relying on a trio of U.S. Supreme Court decisions (Roper v. Simmons, 543 U.S. 551, 560 (2005); Graham v. Florida, 560 U.S. 459 (2010); and Miller v. Alabama, 567 U.S. 460 (2012)), the Court emphasized that juvenile sentences must take into account a minor’s capacity for rehabilitation and diminished culpability. Buffer, 2019 IL 122327, ¶ 17. An overly long sentence, although not strictly a life sentence, does not consider these factors or give juvenile offenders an opportunity to rehabilitate. Id. ¶ 26.

The Court also emphasized the need to draw a clear line for courts and parties to follow in future cases. Id. ¶ 29. The Court looked to sentencing statutes and noted that the legislature had prescribed a minimum sentence of 40 years for juveniles who had committed the same category of first-degree murder that would subject an adult offender to mandatory life imprisonment. Id. ¶¶ 37-39. Because this statute had been passed after Miller, the Court reasoned that the legislature must have viewed a 40-year sentence as compliant with Miller. Id. ¶ 39. Noting that the legislature is the body best suited to fashion criminal penalties, the Court "[e]xtrapolat[ed]" a line of 40 years from this statute. Id. ¶ 41. The Court also found that a 40-year sentence offered some opportunity for juvenile offenders to rehabilitate. Id. ¶ 40. Thus, any sentences of 40 years or less do not violate the Eighth Amendment. Id. ¶ 41.

In her special concurrence, Justice Burke agreed that some sentences may constitute de facto life sentences that violate the Eighth Amendment. Id. ¶ 55 (Burke, J., specially concurring). But she disagreed with the majority’s approach of looking to sentencing statutes because “[i]t is [the] court’s responsibility to decide whether the legislature’s sentencing scheme is constitutional, not the other way around.” Id. ¶ 63. Rather than looking to sentencing statutes, Justice Burke would determine whether a juvenile’s sentence is a de factolife sentence by asking whether the juvenile’s age at the earliest projected time of release exceeds an incarcerated minor’s average life expectancy. Id. ¶ 65. After reviewing statistics on life expectancy, and factoring in the diminished life expectancy of incarcerated individuals, Justice Burke would find that any sentence that would result in a minor being released from prison when he or she is 55 years old or older is a de facto life sentence. Id. ¶¶ 66-67.

Judge Mark Boie Appointed to Fifth District Appellate Court

Thu, 18 Apr 2019 13:35:00 GMT

The Illinois Supreme Court has assigned Judge Mark M. Boie, Resident Circuit Judge of Union County, to serve as an appellate court justice in the Fifth District Appellate Court. Effective May, 1, 2019, Judge Boie will fill the vacancy created by the election of Justice David K. Overstreet to the Fifth District Appellate Court.

Judge Boie was elected to the Circuit Court in 2000 and was retained by voters in 2006, 2012, and 2018. Before serving on the bench, he practiced at the Law Offices of Wesley L. Boie and Mark M. Boie and served as a conflict public defender in Union, Johnson, and Pulaski counties.

Judge Boie has been a member of the Special Supreme Court Advisory Committee for Justice and Mental Health Planning since 2010. Since 2015, he has served as co-chairperson of the Advisory Committee's subcommittee for compliance with the Mental Health and Development Disabilities Code. He is also a member of the Advisory Committee's subcommittee for education and participated in the drafting of a new Supreme Court rule on the use of restraints in involuntary commitment proceedings.

Judge Boie earned his Bachelor of Arts degree from the University of Mississippi in 1989 and his Juris Doctor from The John Marshall Law School in 1996.

Incomplete Record Torpedoes Appellate Argument

Fri, 12 Apr 2019 14:32:00 GMT

By Margaret Manetti

Sosin, Arnold & Schoenbeck, Ltd.

A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.

In that case, the defendant appealed his conviction stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st) 163018, ¶ 1. Three police officers spotted Burnett in a van with no front license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett remove an “L” shaped object from his waistband and place it in the back of the van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett was arrested. Id. He did not have a FOID card or a concealed carry license. Id. ¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.

On appeal, Burnett argued that he was deprived of his constitutional right to effective assistance of counsel because his attorney should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession of a gun is no longer sufficient to establish probable cause to justify an arrest. Id. The First District acknowledged that the Illinois Supreme Court had determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional because it categorically criminalized the possession of a weapon outside the home. Id. ¶ 10.

There was a problem, though: the record did not “contain sufficient information about the circumstances of defendant’s arrest from which we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The Court noted that because the case just went to trial, the State had no reason to factually demonstrate probable cause in the first place. Id. It specified that due to the insufficiency of the record about the arrest, “we have no way of knowing what the officers’ probable cause determination was based upon[.]” Id. ¶ 12.

The Court forcefully rejected the defendant’s argument that holes in the record should go in his favor. It recognized that the defendant “attempts to spin the lack of testimony about probable cause into a conclusion that there was no probable cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because the defendant was “drawing an affirmative conclusion from a negative premise. The lack of evidence currently in the record concerning probable cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a probable cause determination.” Id. (emphasis in original).

The Court concluded that it “would be imprudent for us to reach the question about the existence probable cause at this stage in the case because there is too much potential information to which we are not privy and because the issue was not visited by the circuit court.” Id. ¶ 16. “Because the record is insufficient, we must affirm.” Id.

This case should serve as an important reminder to jealously guard the state of the trial court record for a potential appeal.

ALA Presents Signature Luncheon Featuring Former Acting U.S. Solicitor General Neal Katyal

Wed, 10 Apr 2019 21:38:00 GMT

On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.

A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.

In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.

The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.

Date: Monday, May 13, 2019

Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Illinois Supreme Court Rules Committee Adopts ALA-Proposed Amendment to Rule on Filing Postjudgment Motions

Fri, 29 Mar 2019 16:48:25 GMT

The Illinois Supreme Court Rules Committee adopted the Appellate Lawyers Association's proposed amendment to Illinois Supreme Court Rule 274 today. The amendment clarifies that a postjudgment motion is not due until the judgment order is both final and appealable.

Rule 274 previously stated, in relevant part, "A party may make only one postjudgment motion directed at a judgment order that is otherwise final."

The ALA proposed the following amendment to clarify exactly when a postjudgment motion must be filed: "A party may make only one postjudgment motion directed at a judgment order that is otherwise final and appealable. The motion must be filed either within 30 days of that judgment order or within the time allowed by any extensions."

The amendment was submitted to the Rules Committee as Proposal 17-05. After consideration, the Rules Committee adopted the proposed amendment. The new amendment takes effect on July 1, 2019.

ALA and Sangamon County Bar Association Host Roundtable Luncheon with Justices of Illinois Appellate Court, Fourth District

Fri, 29 Mar 2019 16:45:39 GMT

The Appellate Lawyers Association and the Sangamon County Bar Association are co-sponsoring a Roundtable Luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. This event provides a unique opportunity to interact with the Justices and gain insight into the perspective of the other side of the bench.

Date: Wednesday, April 10, 2019

Time: Check-in for the luncheon will begin at 11:45 a.m. and lunch will be served promptly at 12:00 p.m.

MCLE: Participants will earn one hour of MCLE credit for the luncheon. The ALA is an approved MCLE provider.

Location: Sangamo Club, 227 E. Adams Street, Springfield, Illinois

Cost: $25 for ALA or SCBA members; $40 for nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Information on how to register may be found after the jump.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:
Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

Ingrassia’s Final Case Teaches Important Jurisdictional Lessons

Wed, 27 Mar 2019 16:39:56 GMT

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The recent passing of our dear friend and colleague, Charlie Ingrassia, has been well documented in The Brief. As former editor and co-chair, “Charlie made The Brief a go-to resource for everyone who wants to learn more about recent developments in the appellate world.” John M. Fitzgerald, A Gentleman and a Scholar: Charlie Ingrassia (1979-2019), Feb. 18, 2019. Outside of his many contributions to the Appellate Lawyers Association, Charlie is also remembered as a “gifted writer and excellent strategist.” Austin Bartlett, Remembering Charlie Ingrassia, Feb. 18, 2019. It is fitting, then, that Charlie’s keen eye for jurisdictional issues would win the day in his final case. Our sincere thanks to Lawrence S. Gosewisch, a partner at Charlie’s law firm, for sharing his memories of Charlie’s prevailing argument in Elite Storage Sols., LLC v. Ratajczak, 2019 IL App (1st) 172346-U.

“Charlie Ingrassia worked with me at Adler Murphy & McQuillen, LLP and he and Tim Parilla handled the Elite Storage case. We successfully moved to dismiss the case against our client and Charlie and Tim handled the appeal. Charlie’s years clerking for Justice Hutchinson in the Second District Appellate Court served him well and he always looked first at jurisdictional issues. When Charlie suggested we pursue a dismissal of the appeal on jurisdictional grounds, I was at first skeptical but as usual, I deferred to my appellate specialist. Charlie pursued the argument and the appeal was dismissed. This was a particularly rewarding result for Charlie, who was battling Stage IV cancer during the entire appellate process and during most of the trial court proceedings as well. The decision came down on February 15, 2019, the same day Charlie was scheduled for yet another surgery. We immediately emailed the decision to Charlie, who acknowledged the result, gave the credit to Tim, and said he was being rolled into surgery and would study the opinion later. Charlie passed away on February 17, 2019 without ever leaving the hospital. He loved being a lawyer and he was a great one. I am so glad Charlie knew that he prevailed for our client. It was very important to him. We miss him every day.”

Lawrence S. Gosewisch, Adler Murphy & McQuillen, LLP.

On the merits, Elite Storage involved the denial of an insurance claim due to an alleged lapse in coverage. The plaintiff entered into a contract with Precision Builders & Contractors, LLC (Precision), to provide equipment and services for a project in Elgin. As part of the contract, Precision agreed to procure an insurance policy naming the plaintiff as an additional insured. Precision procured the policy through Maciel Ratajczak and Mr. Insurance Agency (the Ratajczak defendants). The plaintiff was later named as a defendant in a separate lawsuit relating to an injury on the work site. After learning that its claim for insurance coverage was denied based on the alleged lapse in coverage, the plaintiff filed a complaint against Precision and the Ratajczak defendants for negligence and breach of contract.

Charlie’s law firm represented the Ratajczak defendants, who moved to dismiss the plaintiff’s second amended complaint. Notably, Precision did not join the motion. On July 12, 2017, the trial court entered an order dismissing the second amended complaint “in its entirety and with prejudice.” There was no mention, however, of the order being final and appealable under Illinois Supreme Court Rule 304(a). On August 14, 2017, the plaintiff and the Ratajczak defendants filed a “joint and routine motion for entry of a final judgment.” The parties noted that the order of dismissal did not address Precision’s status as a named defendant. They requested the entry of an agreed order clarifying that the order of dismissal was a “final and appealable final judgment.” The agreed order was entered on August 22, 2017. On September 21, 2017, the plaintiff filed a notice of appeal from the order of dismissal.

In the appellate court, the Ratajczak defendants argued that the order of dismissal, dated July 12, 2017, was the final order in the case, thus triggering the 30-day period in which the plaintiff was required to file either its postjudgment motion or its notice of appeal. The Ratajczak defendants argued that, because the plaintiff failed to take either action within 30 days, the appeal should be dismissed for a lack of jurisdiction.

The appellate court agreed with the Ratajczak defendants for three reasons. First, although the order of dismissal did not address Precision’s status as a named defendant, there was no need for a Rule 304(a) finding. Ordinarily, when multiple defendants are named in an action, an order dismissing one of the defendants cannot be appealed absent an express finding under Rule 304(a) that there is no just reason to delay the appeal. However, before the plaintiff filed its second amended complaint, it brought a separate action against Precision seeking relief for the same issues. As a result, the second amended complaint made no claims and sought no relief of any kind against Precision. Because the Ratajczak defendants were the only parties against whom any relief was being sought, the trial court resolved the entire matter on the merits when it granted their motion to dismiss. Moreover, by dismissing the second amended complaint “with prejudice,” the trial court indicated that the plaintiff would not be allowed to amend its complaint to bring any future claims against any of the named defendants. Therefore, the order of dismissal was a final and appealable order.

Second, there was no revestment of jurisdiction on August 14, 2017, when the Ratajczak defendants joined the motion for entry of a final judgment. For the revestment doctrine to apply, the parties must: (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that are inconsistent with the merits of the prior judgment. Although the first two requirements were met, the third was not. The Ratajczak defendants did not assert a position that was inconsistent with the merits of the dismissal order. To the contrary, by seeking reaffirmation that the second amended complaint was dismissed in its entirety, the Ratajczak defendants merely asserted a position that was consistent with the dismissal order.

The third reason for the appellate court’s agreement with the Ratajczak defendants was the recognized principle that appellate jurisdiction cannot be conferred by laches, consent, waiver, or estoppel. Thus, by joining the motion for the entry of a final judgment, the Ratajczak defendants neither waived their jurisdictional argument nor were they equitably estopped from contesting appellate jurisdiction. For these reasons, the appellate court held that the agreed order on August 22, 2017, was entered more than 30 days after the final order, meaning that it was void and could not be appealed.

Although Elite Storage was filed as an unpublished order under Rule 23, its lessons should not be lost on appellate practitioners. The case teaches the importance of identifying the finality of an order that dismisses a complaint “in its entirety and with prejudice.” It also demonstrates a rare exception to the Rule 304(a) requirement in cases involving multiple defendants. It should come as no surprise to anyone who knew Charlie that he would recognize these nuances and persuade the appellate court that jurisdiction was lacking.

Well done, Charlie.

ALA Presents Annual Advanced Appellate Practice Seminar

Tue, 19 Mar 2019 17:37:25 GMT

On April 18, 2019, the Appellate Lawyers Association's annual Advanced Appellate Practice Seminar will feature six presentations by judges and experienced appellate practitioners. The seminar is geared toward seasoned appellate practitioners but will be of great benefit to anyone looking to improve his or her appellate skills. Presentations include:

Judicial Perspectives
- Justices Nathaniel R. Howse, Jr., and Michael B. Hyman, Illinois Appellate Court, First District
- Justice Mary K. O'Brien, Illinois Appellate Court, Third District
- Justice Richard P. Goldenhersh (Ret.), Illinois Appellate Court, Fifth District
Standards of Review
- Hugh C. Griffin of Hall Prangel and Schoonveld LLC
Appellate Ethics
- Steven F. Pflaum of Neil, Gerber & Eisenberg LLP
Memory Techniques for Appellate Presentations
- Professor Patrick G. Gould of the Appalachian School of Law
Amicus Filings
- Michael A. Scodro of Mayer Brown LLP
Electronic Filing Update
- Tina M. Schillaci, Chief Deputy Clerk of the Illinois Appellate Court, First District

Moderated by ALA Vice-President Gretchen Harris Sperry, Hinshaw & Culbertson LLP. Additional details, including registration information, may be found after the jump.

Date: Thursday, April 18, 2019

Time: 1:00 p.m. to 5:00 p.m.

MCLE: Participants will earn 3.75 hours of MCLE credit, including 0.75 hours of professional responsibility credit. The ALA is an approved MCLE provider.

Location: Mayer Brown LLP, 71 South Wacker Drive, Chicago, Illinois

Cost: $35 for public-sector ALA members; $50 for private-sector ALA members; $50 for public-sector nonmembers; and $75 for private-sector nonmembers.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, IL 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

Northern District of Illinois Bicentennial Event: Rivers of Commerce: The Illinois Federal Courts as the Umpires of Antebellum Union

Mon, 18 Mar 2019 17:47:55 GMT

In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois and the Northern District of Illinois Court Historical Association present, "Rivers of Commerce: The Illinois Federal Courts as Umpires of Antebellum Union," a talk by Professor Alison LaCroix about the role of the Illinois federal courts in the debates over the scope of federal power in the early nineteenth century.

When: Tuesday, April 9, 2019, 4 p.m. to 5 p.m.

Where: U.S. District Court Northern District of Illinois, Dirksen U.S. Courthouse, Court History Museum, 21st Floor, 219 South Dearborn Street, Chicago, Illinois.

RSVP: ilnd_rsvp@ilnd.uscourts.gov

More details and full flyer available at: https://www.ilnd.uscourts.gov/_assets/_news/LaCroix.pdf

ALA Presents Roundtable Luncheon Featuring the Justices of the Illinois Appellate Court, Second District

Fri, 15 Mar 2019 17:56:36 GMT

This luncheon provides an opportunity to speak with the Justices of the Second District, the Court’s Research Director, and the Clerk of the Court in an informal setting. The Justices, Research Director, and the Clerk will discuss cases or issues of interest they have encountered during the preceding year. Numbers permitting, the ALA will seat at least one Justice or Court official at each table. Attendees may ask questions and discuss appellate practice with the Justices and thus gain the perspective of the other side of the bench.

Date: Tuesday, April 2, 2019

Time: 12:00 to 1:30 p.m. (check-in begins at 11:45 a.m. with lunch promptly at noon)

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Location: Centre of Elgin, Heritage Ballroom, 100 Symphony Way, Elgin, Illinois.

Cost: $40 for public-sector ALA members; $45 for private-sector ALA members; $50 for public-sector nonmembers; and $55 for private-sector nonmembers. Lunch is included.

Registration information may be found after the jump.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

May a Federal Court Count the Vote of a Judge Who Dies Before the Decision is Issued?

Thu, 14 Mar 2019 16:34:18 GMT

By Katherine A. Grosh
Levin Ginsburg

This is exactly the question answered by the United States Supreme Court in Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo, 586 U.S. ___ (2019) (Feb. 25, 2019).

This case involved the en banc review of an April 9, 2018 decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in an interlocutory appeal involving the Equal Pay Act, in which the Ninth Circuit reversed the district court based on a prior Ninth Circuit decision involving the Equal Pay Act, Kouba v. Allstate Ins. Co., 691 F.2d 873 (1982) (“Kouba”), which the panel “believed it was compelled to follow.” 586 U.S. at ___, citing 887 F. 3d 453, 459 (2018) (en banc). The Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.” Id.

Because a panel decision like Kouba can be overruled only by a decision of the en banc court or the United States Supreme Court, a purpose of the April 9, 2018 en banc decision was to announce new and binding Ninth Circuit precedent interpreting the Equal Pay Act. Judge Reinhardt, who died 11 days after the decision was issued, was the author of the Ninth Circuit opinion – but its status as a “majority opinion” of the en banc court depended on counting Judge Reinhardt’s vote; without his vote, the opinion would have been approved by only 5 of the 10 members of the panel who were still living when the decision was filed.

The Supreme Court ruled that Judge Reinhardt was no longer a judge at the time the en banc decision in this case was filed, and therefore, the Ninth Circuit erred in counting him as a member of “the majority.” Counting his vote, the Court reasoned, effectively allowed a deceased judge to exercise the judicial power of the United States after his death. “[F]ederal judges are appointed for life, not for eternity.” Even though Judge Reinhardt fully participated in this case and authored the opinion, which (along with all concurrences) was final with voting completed by the en banc court prior to his death, the Supreme Court found that the opinion was not endorsed by a majority of the living judges at the time the opinion was “filed,” entered on the docket, and released to the public.

In support of its decision, the Supreme Court relied on the rule it endorsed in United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960), that “a judge may change his or her position up to the very moment when a decision is released,” along with 28 U. S. C. §46(c), the statutory provision authorizing the courts of appeals to hear cases en banc. In the Court’s view, Judge Reinhardt was without statutory or judicial power to participate in the en banc court’s decision at the time it was rendered. Accordingly, the Court granted the petition for certiorari, and vacated the Ninth Circuit’s judgment and remanded the case.

ALA Presents Rountable Luncheon Featuring the Justices of the Illinois Appellate Court, First District

Wed, 13 Mar 2019 16:31:31 GMT

This luncheon provides an opportunity to converse with the Justices of the First District in an informal setting. Numbers permitting, the ALA will seat at least one Justice at each luncheon table. Attendees may ask questions and discuss appellate practice with the Justices and thus gain the perspective of the other side of the bench.

Additionally, Justice Terrence J. Lavin will provide remarks about oral arguments in the First District.

Date: Tuesday, March 19, 2019

Time: 12:00 to 1:30 p.m.

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

Information on how to register for the event may be found after the jump.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:
1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

Judicial Firsts: Trailblazers on the Federal Bench

Tue, 12 Mar 2019 16:29:57 GMT

On Wednesday, March 20, 2019, the Northern District of Illinois Court Historical Association, the Seventh Circuit Bar Association, and the Federal Bar Association will host, "Judicial Firsts: Trailblazers on the Federal Bench," a discussion of some of the groundbreaking jurists in the Illinois federal court system. Moderated by Judge Geraldine Soat Broan (Ret.), participants will include Judge Ilana Diamond Rovner, Chief Judge Ruben Castillo, Judge Edmond E. Chang, Judge Thomas M. Durkin, Judge Susan Pierson Sonderby (Ret.), and Judge Ann Claire Williams (Ret.).

The event will be held at the Dirksen U.S. Courthouse, 219 South Dearborn Street, Courtroom 2525, Chicago, Illinois, from 3 p.m. to 4:30 p.m. A light reception will follow. Although the event is free, space is limited. Please RSVP to dgroboski@ag-ltd.com. 1.5 hours of Professional Responsibility (diversity/inclusion) CLE credit for Illinois, Indiana, and Wisconsin is anticipated to be available.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's March Term

Wed, 06 Mar 2019 17:27:49 GMT

The Illinois Supreme Court's March Term begins on Monday, March 11, 2019. The Term will include oral argument in one criminal case and three civil cases on March 12th and 13th. Below is a listing of the cases that will be heard:

Tuesday, March 12, 2019: People v. Darren Johnson, No. 123318

McIntosh v. Walgreens Boots Alliance, Inc., No. 123626

Wednesday, March 13, 2019: Ward v. Decatur Memorial Hospital, No. 123937

Nichols v. Fahrenkamp, No. 123990

Below is a summary of two of the cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

People v. Darren Johnson, No. 123318
Defendant was charged with burglary and retail theft in connection with the allegation that he stole various items of merchandise from a Walmart with a total value less than $300. With regard to the burglary charge, he was specifically charged with knowingly entering Walmart without authority with intent to commit a theft ("burglary by unlawfully entering") rather than the other form of burglary, in which a defendant unlawfully remains within a building without authority with intent to commit a theft ("burglary by unlawfully remaining"). Under the "limited authority doctrine," authority to enter a business open to the public extends only to those who enter with a purpose consistent with the reason the building is open and not to those who enter with an intent to commit a theft inside. In People v. Bradford, 2016 IL 118674, the Court held that the limited authority doctrine does not extend to burglary by unlawfully remaining in cases in which the defendant lawfully enters during business hours and stays in designated public areas.

Before the Illinois Supreme Court, the State asserts that the limited authority doctrine, recognized in People v. Weaver, 41 Ill. 2d 434 (1968), continues to apply to burglary by unlawfully entering, including this case. The State notes that Bradford declined to extend the doctrine to burglary by unlawfully remaining but gave no hint that the doctrine was not still good law for burglary by unlawfully entering cases. Defendant disagrees, noting that subsequent to Weaver, the retail theft statute was enacted, reflecting a legislative intent to capture shoplifting activity through that offense rather than burglary. In essence, defendant asks the Court to decline to apply the limited authority doctrine to shoplifting cases. It is undisputed that burglary generally encompasses greater penalties than retail theft, so the question boils down to whether burglary was designed to punish the greater harm posed by a person who forms the intent to steal before entering a retail store (so that burglary by unlawfully entering can still apply in this case) or the greater harm posed by a person who exceeds the authority granted in an open retail store by either entering when the store is not open to the public or by going into areas of the store in which the public is not allowed (so that burglary by unlawfully entering cannot still apply in this case).

Ward v. Decatur Memorial Hospital, No. 123937
This appeal addresses whether an order is final for purposes of res judicata when certain counts of a complaint are dismissed without prejudice, while other counts are simply dismissed without any indication of whether they were dismissed with or without prejudice, and the plaintiff is granted leave to replead.

The plaintiff filed his first lawsuit against the defendant over alleged negligence in the medical treatment of his brother. The circuit court dismissed all but one count of that complaint. It specified that some of the counts were dismissed without prejudice, but did not specify whether several others were dismissed with or without prejudice. Nevertheless, the court gave the plaintiff leave to file an amended complaint. The plaintiff filed numerous amended complaints, each of which was dismissed by the trial court with leave to amend, but again unclear as to whether the counts were dismissed with or without prejudice. Eventually, the plaintiff filed a third amended complaint, which the defendant answered. Shortly before trial, the plaintiff moved for leave to file a fourth amended complaint, and the trial court denied that motion. Plaintiff then voluntarily dismissed the lawsuit.

The plaintiff then filed a new lawsuit based on a complaint nearly identical to his proposed fourth amended complaint in the prior lawsuit. The defendant moved to dismiss on the ground that the claims were barred by res judicata and the principle against claim splitting under Hudson v. City of Chicago, 228 Ill. 2d 462 (2008). The circuit court agreed and dismissed the refiled lawsuit.

The Fourth District Appellate Court reversed, holding that the various dismissals—even those that did not clearly indicate they were “without prejudice”—were not final because the circuit court had given the plaintiff leave to replead. The appellate court distinguished Hudson, which held that res judicata applies when one count of a complaint is dismissed with prejudice, the plaintiff voluntarily dismisses the remaining count, and the plaintiff files a new lawsuit asserting the voluntarily dismissed count. The appellate court noted that Hudson did not involve a dismissal with leave to replead. It also cited Foxcroft Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill. 2d 150 (1983), for the proposition that when a plaintiff is given leave to file an amended complaint, it must replead counts previously dismissed with prejudice in the amended complaint, or else the dismissed claims would be deemed abandoned and not appealable. The appellate court reasoned that it would be illogical to apply res judicata when a plaintiff must replead all previously dismissed counts under Foxcroft.

In its petition for leave to appeal, the defendant argues that the Fourth District’s decision conflicts with the First District’s decision in Kiefer v. Rust-Oleum Corp., 394 Ill. App. 3d 485 (1st Dist. 2009), and Hudson. The defendant claims that the appellate court’s decision will encourage claim splitting, which is what res judicata is designed to avoid. In his answer to the petition for leave to appeal, plaintiff contends that the Fourth District correctly interpreted Hudson and Foxcroft.

Appealing a Foreclosure Judgment: Jurisdiction You Can Bank On.

Thu, 28 Feb 2019 15:19:00 GMT

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court,
First District

In cases where procedural facts trigger a confluence of jurisdictional rules, the appellate court’s discussions of jurisdiction often don’t end well for the appellants. Perhaps then it’s refreshing to read a discussion finding jurisdiction is present and accounted for, such as the recent decision in The Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845.

Ewa Wojcik mortgaged her condominium. Upon her failure to cure a default, the Bank of New York Mellon commenced a foreclosure action. In response, she and Anthony Avado, with whom she had become a tenant in common, denied receiving requisite notices. The trial court resolved the parties’ cross-motions for summary judgment in favor of the bank and entered a judgment of foreclosure and sale. The court also found there was no reason to delay an appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Wojcik and Avado then appealed from the denial of their summary judgment motion. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶¶ 1, 5-8, 10.

On appeal, the reviewing court reiterated that judgments resolving fewer than all claims are not appealable absent “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Id. ¶ 14 (quoting Ill. S. Ct. R. 304(a) (Mar. 8, 2016)). Additionally, a foreclosure judgment is ordinarily not final and appealable until the trial court has approved the sale and distribution of the property. The Bank of New York Mellon, 2019 IL App (1st) 180845, ¶ 15. Moreover, an order denying summary judgment is generally interlocutory and not subject to appeal. Id. ¶ 16. An exception exists, however, where the parties have filed cross-motions for summary judgment. Id.

The appellate court determined that it had jurisdiction over the appeal from the denial of summary judgment and the foreclosure judgment because the parties had filed cross-motions and the trial court had entered a Rule 304(a) finding. Id. ¶ 17. Jurisdiction aside, the trial court properly entered summary judgment in favor of the bank. Contrary to Illinois Supreme Court Rule 133(c), Wojcik and Avado had failed to provide specific facts supporting their denial that the bank had tendered certain notices, a condition precedent to filing this foreclosure action. Id. ¶¶ 20-22.

The appellate court’s decision shows that it is possible to appeal from a judgment of foreclosure and the denial of summary judgment, but you can bet your bottom dollar that jurisdiction will be found lacking unless cross-motions are filed and a Rule 304(a) finding is entered.

Remembering Charlie Ingrassia

Mon, 18 Feb 2019 15:55:00 GMT

By: Austin Bartlett

BartlettChen LLC

Charlie was a special person. I first met him several years ago through a mutual friend, Stacey Mandell. Both clerked for Justice Hutchinson and thought the world of her. From the first time I met Charlie, I was struck by his enthusiasm and love for the law. He was also a lot of fun.

After a few years, I persuaded Charlie to join my prior law firm. I had the privilege of working alongside him every day. Charlie was an impressive lawyer. He was a gifted writer and excellent strategist. We worked together on several appeals and dispositive motions, and I believe I learned more from him than he from me. Charlie also had a tremendous capacity for hard work. Even while battling cancer and the inevitable fatigue that it and chemotherapy brings, Charlie beat it back to do the work he set out to do. But most of all, Charlie was just a joy to be around. His goodness, kindness, and exuberance were palpable. I always felt buoyed after spending time with him.

I left my old law firm about a year ago to start my own, but Charlie and I remained in touch. Around this same time, his condition worsened. We spoke frequently about our day, his health, the law, and both of our hopes for the future. No matter what tribulation Charlie was going through health wise, he always seemed more concerned with how I was doing. Although he had every right in the world to be self-absorbed, he looked outward to see how he could help others.

Charlie was my friend. I’ll always be grateful for his friendship. Both personally and professionally, he made me better and set a standard that I aspire to. I’ll miss him dearly.

A Gentleman and a Scholar: Charlie Ingrassia (1979-2019)

Mon, 18 Feb 2019 15:52:00 GMT

By: John M. Fitzgerald
Tabet DiVito & Rothstein LLC

Charlie Ingrassia always made me smile. Few people I know suffered as much as Charlie did. But you wouldn’t know it from talking to him. No matter what was happening in his life, Charlie was infectiously happy, unwaveringly positive, enthusiastic about developments in the law, and devoted to the work of the Appellate Lawyers Association. Even when his health declined, cancer aggressively returned, and one of his legs was amputated, he never indulged in even a hint of self-pity. I will never forget an email in which he explained that, through the process of losing a leg, he had gained a new perspective on life. Or the call in which he apologetically explained that his contributions to The Brief would be temporarily limited because additional tumor growth had been detected; he seemed genuinely more concerned about the pace of new updates to The Brief than about the newly discovered tumor growth. I last saw him, fittingly, at an ALA luncheon at the Union League Club. He was clearly pleased just to be there among his friends and among the appellate justices he so admired, even though getting there had obviously been extremely difficult for him.

Charlie passed away this past week. He was 39.

More than any other lawyer I’ve known, he passionately loved the law. He spoke excitedly and knowledgeably about new appellate opinions, amendments to the rules governing appellate practice, and legal principles. No one I know had a better command of the Illinois Supreme Court Rules. Clerking for Justice Susan F. Hutchinson was a job that he clearly loved, for a boss he adored. He carried the same enthusiasm to the Adler Murphy firm when he transitioned to private practice.

Charlie made The Brief a go-to resource for everyone who wants to learn more about recent developments in the appellate world. He made ALA gatherings more enjoyable, more memorable and more meaningful just through his presence.

The ALA is a place where appellate lawyers and judges make lasting friendships. It’s one of the qualities that makes us a strong bar association. Of all the friends I’ve made through the ALA, Charlie stands in a class of his own. Many, many other people would say the same about Charlie. It is a gross understatement to say that we will miss him for many years to come.

Appellate Court Justices Disagree With Rule 23 As Applied To The Trial And Appellate Courts

Thu, 14 Feb 2019 14:52:00 GMT

By Melody Gaal
Tabet DiVito & Rothstein LLC

In Byrne v. Hayes Beer Distrib. Co., 2018 IL App (1st) 172612, Justice Hyman relied heavily on an unpublished Rule 23 order, suggesting that, while Rule 23 binds parties, the trial courts and the appellate courts are not prohibited from “adopting the reasoning of an unpublished order.”Id. ¶ 22. Justice Mason, while concurring in the result of the case, disagreed with the majority’s reliance on a Rule 23 order.

In Byrne, a delivery driver filed a complaint with the Illinois Department of Labor arguing that his employer, a beer distribution company, violated section 9 of the Illinois Wage Payment and Collection Act, 820 ILCS 115/9, by deducting money from his commissions, without the required written consent, for beer that he did not remove from the shelves before it became stale. Id. ¶ 1. The Department of Labor found that the underlying issue arose out of an interpretation of the parties’ collective bargaining agreement (“CBA”) and was thus preempted by section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185. On administrative review, the circuit court disagreed, finding that the Department’s decision to dismiss Byrne’s claim was erroneous because the underlying issue involved the “legality of the wage reduction under the Wage Act, which did not require interpreting the CBA, and thus, was not preempted by section 301.” Id. ¶ 2.

The appellate court agreed with the circuit court and ruled that section 301 did not preempt Byrne’s claim. In so holding, the majority relied heavily on a Rule 23 order—an order that was cited by both parties and the circuit court: Carletto v. Quantum Foods, Inc., No. 1-05-3163 (2006). The court cited Carletto for the proposition that “only when a claim is directly founded on the rights created by the CBA and the resolution of the state law claim requires an interpretation of the CBA” will the state law claim be preempted. Id. ¶ 24 (internal quotation omitted). Because Byrne’s claim did “not require reference to or interpretation of the CBA,” his claims were not preempted and instead arose solely out of section 9 of the Wage Act. Id. ¶ 32.

Rule 23 provides that an unpublished order “is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e). Yet, in contrast to other appellate court decisions, the First District in Bryne appeared to approve of citation to an unpublished order by the circuit courts and the appellate courts. The court reasoned that, while Rule 23 may not be cited by any party except for the purposes specified in the rule, “nothing in the rule expressly prohibits a trial court or the appellate court from adopting the reasoning of an unpublished order.” Id. ¶ 22 (emphasis added).

While concurring with the result, Justice Mason wrote to express her disagreement with the majority’s “citation and extensive discussion of a Rule 23 order.” Id. ¶ 45. Justice Mason described the majority’s interpretation as “at odds with our court’s longstanding refusal to consider orders entered under Rule 23(b) whether cited by parties or by trial courts.” Id. ¶ 47 (emphasis added). The concurrence identified a key fairness problem with the majority’s interpretation of Rule 23, which would “allow[] a court to cite ‘persuasive’ Rule 23 orders, while prohibiting the parties from doing the same.” Id. ¶ 48. “How can we,” noted the concurrence, “criticize parties who in the future, following the court’s lead, discuss Rule 23 orders for their ‘persuasive’ reasoning when we do it ourselves?” Id. ¶ 49. The concurrence concluded that, unless and until the Illinois Supreme Court amends Rule 23 to abolish the distinction between precedential opinions and nonprecedential Rule 23 orders, courts should “honor that decision by enforcing the rule as written.” Id. ¶ 50.

What should litigants take away from the Byrne decision? On the one hand, Byrne renders it even more tempting for litigants who find a Rule 23 order on all fours with their own case to cite it in their pleadings, despite the clear language in Rule 23 to the contrary. On the other hand, given the weight of authority refusing to consider Rule 23 orders, that decision may not prove to be favorable to litigants in the way that it was for the plaintiff in Byrne. Unless Rule 23 is amended, the best approach may be to do what the concurrence recommended courts do, or simply “rely on the same authorities and employ the same reasoning as [the Rule 23 order] without referencing that case at all.” Id. ¶ 48.

RESCHEDULED: ALA Hosts Reception Honoring the Justices of the Illinois Appellate Court, First District

Tue, 29 Jan 2019 14:27:00 GMT

UPDATE: Due to the extreme weather forecast for January 31, this event will be rescheduled. A new date will be announced soon.

On Thursday, January 31, 2019, the Appellate Lawyers Association will host a reception honoring the Justices of the Illinois Appellate Court, First District. This year's special honorees are retired Illinois Supreme Court Justice Charles E. Freeman and Illinois Supreme Court Justice P. Scott Neville, Jr.

The reception is located at Hotel Allegro, 171 West Randolph Street, Chicago, Illinois., from 5 p.m. to 7 p.m. Hors d'oeuvres will be served. Additional details and registration information may be found after the jump.

Cost: $50 for public-sector ALA members; $55 for private-sector ALA members; $60 for public-sector nonmembers; and $65 for private-sector nonmembers.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5.00 administrative fee.Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, IL 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 416-9798. Additionally, payment is expected from no-shows.

Illinois Supreme Court Clarifies Rules For Direct Appeals From Findings Of Unconstitutionality

Mon, 28 Jan 2019 22:46:00 GMT

By: Carson R. Griffis
Hinshaw & Culbertson LLP

Most Illinois appellate practitioners know that, under Illinois Supreme Court Rule 302(a)(1), they can directly appeal a decision striking down a statute as unconstitutional to the Illinois Supreme Court. But what they may not realize is that such appeals are limited to appeals from "final judgments" finding laws unconstitutional. This is an important limit on the scope of Rule 302(a)(1). It was also the subject of the Illinois Supreme Court's recent decision in Gonzalez v. Union Health Service, Inc., 2018 IL 123025.

In Gonzalez, the plaintiff filed a medical malpractice lawsuit against the defendant. The defendant moved to dismiss the lawsuit because it was immune from suit under the Voluntary Health Services Plans Act (215 ILCS 165/26). The trial court denied the defendant's motion to dismiss, finding that the 1988 amendments to the Voluntary Health Services Plans Act were unconstitutional special legislation.

The defendant directly appealed to the Illinois Supreme Court, citing Rule 302(a)(1) and the Court's supervisory authority as the bases of the Court's jurisdiction. The Court rejected the notion that Rule 302(a)(1) applied because a denial of a motion to dismiss is not a "final judgment." Rather, it is an interlocutory order. The Court noted that it had only entertained Rule 302(a)(1) appeals from interlocutory orders in two limited circumstances: 1) when the interlocutory order was otherwise appealable (e.g., an order granting or denying a request for an injunction); or 2) the order granted summary judgment in a declaratory judgment action challenging the validity of the statute. Because neither of those circumstances existed, Rule 302(a)(1) did not apply.

But the Court didn't stop there. Citing its broad supervisory authority, the Court elected to review the circuit court's order anyway. The Court found that the trial court erred in denying the motion to dismiss because, even if the 1988 amendments were unconstitutional, the prior version of the law would remain in effect. And the defendant still enjoyed immunity under the old version of the law, meaning that the constitutionality of the 1988 amendments was irrelevant from the start. Thus, the Court vacated the trial court's order striking down the amendments and remanded for further proceedings.

Gonzalez is important for two reasons. First, it clarifies that Rule 302(a)(1) usually applies to final judgments and lays out the two narrow exceptions to that general rule. Second, it demonstrates that Rule 302(a)(1) isn't the only way to seek immediate appellate review of an interlocutory order finding a statute unconstitutional. Practitioners may be able to ask the Illinois Supreme Court to invoke its supervisory authority through a motion for a supervisory order. Or they might seek review in the Illinois Appellate Court via a motion for a certified question under Rule 308. While Gonzalez may have limited Rule 302(a)(1), it didn't close the doors of the reviewing courts when important constitutional questions are at issue.

200th Anniversary Celebration for Northern District of Illinois

Fri, 25 Jan 2019 13:58:00 GMT

On March 1, 2019, the U.S. District Court for the Northern District of Illinois will celebrate its 200th anniversary at the Harold Washington Library Center. The event will commemorate the Court's bicentennial anniversary with a series of special events, beginning with the 200th Anniversary Celebration honoring the Court's impact on the community and the nation.

Emmy Award and Edward R. Murrow Award-winning Chicago journalist Phil Rogers, who has covered the Court for decades, will offer remarks. The celebration will also include the release of an inspirational documentary film highlighting the places, cases, and people that have shaped the Court and the community.

U.S. Senator Dick Durbin will receive special recognition and attend if his schedule permits.

Where: Harold Washington Library Center, 400 South State Street, Chicago, Illinois 60605

When: Friday, March 1, 2019, 3 p.m.

Ticket information will be forthcoming from the Northern District of Illinois Court Historical Association.

Federal Bar Association Presents "Storytelling in the Law," Featuring Illinois Appellate Court Justice David Ellis

Tue, 22 Jan 2019 15:23:00 GMT

On Friday, January 25, 2019, from 12:00 p.m. to 1:30 p.m., the Chicago Chapter of the Federal Bar Association will host a fascinating discussion by award-winning author and First District Appellate Court Justice David Ellis on the use of storytelling by lawyers to persuade an audience. A prolific author, Justice Ellis has published 14 novels, including several with acclaimed fiction writer James Patterson. Through his fiction writing, distinguished service on the bench, and his time as a practicing lawyer, Justice Ellis has a tremendous breadth of experience to share on writing, effective storytelling, and the art of persuasion.

The event will take place at The Chicago Bar Association, 321 South Plymouth Court, Corboy Hall, Chicago, Illinois 60604. One hour of CLE will be provided to participants, and lunch is included in the fee. There is a reduced rate for young lawyers (anyone under 40 with less than 10 years of practice experience). Those interested can register here.

Words Count: Judge Easterbrook Issues Opinion Warning Litigants to Accurately Report the Word Cap Pursuant to FRAP 32

Thu, 17 Jan 2019 14:25:00 GMT

By Louis J. Manetti, Jr.

Hinshaw & Culbertson, LLP

Judge Easterbrook recently issued a chambers opinion that reminds appellate litigants that not all software functions are equally useful for determining the word count for an appellate brief. In Vermillion v. Corizon Health, Inc., Judge Easterbrook was alerted to the case when the appellees moved for permission to file a brief in excess of the 14,000 word limit. 906 F.3d 696, 696 (7th Cir. 2018). The appellees explained that although the appellant had certified that his brief contained less than 14,000 words, it actually contained 16,850 words. Id. The appellees asked for leave to file a brief containing 408 words on top of that already-excessive sum. Id.

The Court confirmed that the appellant’s brief was, in fact, over the allowed word limit, struck the brief, and ordered the appellant to show cause why he shouldn’t be penalized for falsely certifying the word count. Id. In response, the appellant asked the Court to reinstate his brief because there were 15,315 words reported in the “Properties” tab of Microsoft Word. Id. He claimed that if the words expressed in Federal Rule of Appellate Procedure 32(f) were subtracted, and that, by his understanding, words in the brief citing “the record and appendix” were also excluded under the rule, he was under the word cap. Id. at 696-97.

Judge Easterbrook pointed out two problems with this claim. First, the “Properties” tab in the Word software does not give an accurate representation of the word count as the Seventh Circuit defines it. Id. at 697. That specific tab omits footnotes from the word count, and under Court rules footnotes count towards the total amount. Id. This alone amounted to over 1,000 words in the appellant’s brief. Id.

Second, Judge Easterbrook held that the appellant was misreading what kinds of words were excluded by Rule 32(f). The appellant argued that citations to the record and the appendix must not be included in the word count because they are not mentioned in Rule 32(f). Id. But Rule 32(f) is a list of exclusions: “Only those matters that are mentioned in Rule 32(f)’s list are excluded. Everything else counts.” Id. (emphasis in original).

In the end, Judge Easterbrook ordered the appellant to file a conforming brief, and noted that each party would be subject to the 14,000 word limit. Id. The case serves as a useful reminder that appellate litigants should take care to comply with the word limits imposed by the Federal Rules of Appellate Procedure.

"Cases Pending" Highlights Civil Cases to be Heard During Illinois Supreme Court's January Term

Thu, 10 Jan 2019 19:42:00 GMT

The Illinois Supreme Court's January Term will begin on Monday, January 14, 2019. The term will include oral argument in 7 civil cases and 6 criminal cases between January 15 and January 24. Below is a listing of the 7 civil cases that will be heard:

Wednesday, January 16, 2018:

Fillmore v. Taylor, No. 122626

Wednesday January 23, 2019:

Van Dyke v. White, No. 121452

People of the State of Illinois (County of Cook) v. Illinois Pollution Control Board, Nos. 122798, 122813 (cons.)

LMP Services v. City of Chicago, No. 123123

Doe v. Coe, No. 123521

Thursday January 24, 2019:

Roberts v. Board of Trustees of Community College District No. 508, No. 123594

McCarthy v. Abraham Lincoln Reynolds Living Trust, No. 123622

Below is a summary of one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

LMP Services v. City of Chicago

In 2012, the City of Chicago passed an ordinance governing the operations of food truck vendors in the city limits. Among other things, the ordinance contained two provisions at issue on appeal. First, it provided that food truck vendors could not operate within 200 feet of a restaurant entrance. Second, it provided that food trucks must install a GPS device for purposes of locating a food truck in the event of a food borne illness outbreak or similar public health event.

LMP Services, a food truck vendor doing business as Cupcakes for Courage, challenged the ordinance as violating her substantive due process rights under the Illinois Constitution because it was an economic protectionist provision intended to benefit owners of brick-and-mortar restaurants at the expense of food truck vendors, and prevented her from pursuing her livelihood. She further challenged the GPS device requirement as an illegal search. The circuit court held that 200-foot rule was an appropriate exercise of the City’s police power and balanced the interests of restaurants and food truck vendors. It further held that the GPS requirement was not a search, but was an appropriate condition of licensure.

The First District Appellate Court affirmed, specifically holding that the government is entitled to consider the relative amount of property taxes paid by each economic group when drafting legislation. It further held that requiring the installation of a GPS device was not a search because the government did not surreptitiously install the device, but rather, it required the food truck owners to install the device.

In its petition for leave to appeal, LMP Services argued that the appellate court relied on inapposite case law in reaching its holding. LMP Services also argued that the appellate court erred in holding that the GPS device was not a search.

"Cases Pending" Highlights Criminal Cases to be Heard During Illinois Supreme Court's January Term

Wed, 09 Jan 2019 16:32:00 GMT

The Illinois Supreme Court's January Term begins on Monday, January 14th. The Term will include oral argument in 6 criminal cases and 7 civil cases between January 15th and January 24th. Below is a listing of the 6 criminal cases that will be heard:

Tuesday, January 15, 2019:

People v. Dimitri Buffer, No. 122327

People v. David Kimble, No. 122830

People v. Ronald Greco, Nos. 122951 & 122952, cons.

People v. Aaron Rios-Salazar, No. 123052

Wednesday, January 16, 2019:

People v. Deontae Murray, No. 123289

People v. Gerald Drake, No. 123734

Below is a summary of one of the criminal cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

People v. Dimitri Buffer, No. 122327

17-year old Dimitri Buffer was sentenced to a 50-year sentence, for which he will be released at age 66, for first degree murder (while discharging a firearm). After briefing on his direct appeal was complete, the U.S. Supreme Court held in Miller v. Alabama, 567 U.S. 460, 479 (2012), that the Eighth Amendment bars mandatory life-without-parole sentences for juvenile homicide offenders (i.e., under age 18). Buffer filed a postconviction petition alleging that his 50-year sentence violated the Eighth Amendment. The trial court dismissed the petition at the first stage, and the appellate court reversed, vacated the sentence, and remanded for resentencing. The appellate court (1) held that defendant's 50-year sentence was a de facto life sentence; and (2) remanded for resentencing because remanding for second-stage postconviction proceedings would be inefficient.

Before the Illinois Supreme Court, the State asserts that the appellate court erred in relying on life expectancy tables to support its finding that a 50-year sentence is de facto natural life and that the consensus in the Illinois Appellate Court is that some point between 54 and 59 years becomes functionally equivalent to life without parole. Common sense and experience comport with the conclusion that a 50-year sentence should not be considered a de facto life sentence. The State asked the Court to provide important guidance to Illinois courts by defining precisely what term-of-years sentence constitutes a de facto life sentence for Eighth Amendment purposes. If the Court holds that 50 years does qualify as de facto life, the State requests that the matter be remanded for second-stage postconviction proceedings (rather than resentencing) to allow the State to file responsive pleadings and assert possible procedural defenses.

Defendant responds by arguing that 50 years should qualify as a de facto life sentence because it does not afford juveniles a meaningful opportunity to reintegrate into society and become productive citizens. Defendant also criticizes the sentence given that juvenile brains will finish developing decades before such long sentences conclude (when their behavior will likely be reformed) and that legitimate penological goals differ for juveniles. Defendant cites holdings from other jurisdictions on the question. Finally on this topic, defendant faults the State for evaluating only whether the sentence was "survivable." Defendant disagrees with the State's request that the Court define generally what term-of-years sentence constitutes de facto life for juvenile defendants and defends the appellate court's decision that it could order resentencing in the case's procedural posture. And if the sentence is deemed constitutional, defendant requests remand to the appellate court to consider whether the sentence comported with the Illinois Constitution, an issue the appellate court declined to address given its Eighth Amendment holding.

RESCHEDULED: ALA Hosts Reception Honoring the Justices of the Illinois Appellate Court, First District

Tue, 08 Jan 2019 14:31:00 GMT

UPDATE: Due to the extreme weather forecast for January 31, this event will be rescheduled. A new date will be forthcoming soon.

On Thursday, January 31, 2019, the Appellate Lawyers Association will host a reception honoring the Justices of the Illinois Appellate Court, First District. This year's special honorees are retired Illinois Supreme Court Justice Charles E. Freeman and Illinois Supreme Court Justice P. Scott Neville, Jr.

The reception is located at Hotel Allegro, 171 West Randolph Street, Chicago, Illinois., from 5 p.m. to 7 p.m. Hors d'oeuvres will be served. Additional details and registration information may be found after the jump.

Cost: $50 for public-sector ALA members; $55 for private-sector ALA members; $60 for public-sector nonmembers; and $65 for private-sector nonmembers.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5.00 administrative fee.Questions? Call (630) 416-1166, ext. 303

Register:

1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, IL 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 416-9798. Additionally, payment is expected from no-shows.

Cut-'n-Paste Briefs Don't Cut It: Chen v. Holder

Mon, 07 Jan 2019 20:14:21 GMT

The advice is familiar. At continuing legal education seminars and in books and articles on legal writing, time and again, lawyers receive this admonition: Beware of lengthy quotations or string citations—they are not welcome by the reader, namely, the judge who will decide your case. The importance of heeding this caution was highlighted recently by the United States Court of Appeals for the Seventh Circuit in Chen v. Holder, __ F.3d __, 2013 WL 6482542 (7th Cir. Dec. 11, 2013).

The Chen case involved a decision by the Board of Immigration Appeals denying asylum to a Chinese woman who claimed a serious risk of persecution if she were deported to China. In particular, the petitioner argued that, because she had given birth to two children while living in the United States—in violation of China's one-child policy—she faced a significant risk of forced sterilization if she returned to China. Id. at *1-2.

But before addressing the merits of the appeal, the Seventh Circuit discussed the petitioner's brief. The court described the brief as consisting of "almost entirely of verbatim quotations" from either the administrative record or other Seventh Circuit decisions. Id. at *3. Even the summary of the argument section contained "entirely (not almost entirely)" extended quotations from Seventh Circuit opinions. In fact, in a brief of 49 pages, the court noted that there were "only five original sentences." A brief "so composed is not helpful to either the reviewing court or to the client." Id.

The court continued that, while often a weak brief signals a weak case, in this instance, the case was not "desperately weak." Id. Yet whatever the merits of the appeal, the court emphasized that "we cannot write a party's brief, pronounce ourselves convinced by it, and so rule in the party's favor. That's not how an adversarial system of adjudication works." Id. The court contrasted the inquisitorial systems of Continental Europe, Japan, and other parts of the world with our adversarial system, which relies more heavily on lawyers for evidence, research, and analysis. It pointed out that the dependence of American judges on lawyers to develop arguments is underscored by a judges-to-lawyers ratio in the United States, which is some six times greater than in Continental Europe. Id. at *3-4. The court summed up its view of the matter: "We're neither authorized nor equipped to write a lawyer's brief for him." Id. at *4.

The court then turned to the merits and criticized the Board's and the immigration judge's analysis that downplayed the risk of forced sterilization that the petitioner might face if she returned to China. Id. at *4-6. But it finally concluded that the petitioner's failure to present evidence of her and her husband's financial resources to pay fines to avoid sterilization was a "fatal weakness" in her case and affirmed the Board's denial of asylum. Id. at 7.

But back to the petitioner's brief. The Chen decision reinforces what is said at all those seminars, and in books and articles on legal writing: avoid an over-reliance on lengthy quotations. In the words of Justice Scalia and Bryan Garner, "[I]t will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words than in the stringing together of quotations from various cases." Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 128 (2008). To be sure, there is a time and place for well-chosen quotations in any brief, but the Chen case is a reminder that there can be too much of a good thing. Ultimately, the court wants to hear from the lawyer.

Recommended Citation: E. King Poor, Cut-'n-Paste Briefs Don't Cut It: Chen v. Holder, The Brief , (January 7, 2014), http://applawyers-thebrief.blogspot.com/2014/01/cut-n-paste-briefs-dont-cut-it-chen-v.html

Carmichael and Ambiguity in Constitutional Law

Thu, 27 Dec 2018 14:10:00 GMT

By: John M. Fitzgerald

The Illinois Supreme Court’s recent opinion in Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund of Chicago, 2018 IL 122793 (opinion filed Nov. 29, 2018) has already been the subject of considerable commentary. Commentators have tended to focus on Carmichael’s effect on the issue of pension reform. But another feature of Carmichael merits attention: namely, the Illinois Supreme Court’s increasing use of one particular canon of constitutional and statutory interpretation.

Nearly four and a half years before the Illinois Supreme Court issued its opinion in Carmichael, the Court faced a separate issue concerning the meaning and scope of the Pension Protection Clause of the Illinois Constitution (Ill. Const., Art. XIII, sec. 5.), which provides that membership “in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” In that case, Kanerva v. Weems, 2014 IL 115811, the Court invoked what had theretofore been a principle of statutory interpretation – the rule that “to the extent there is any question as to legislative intent and the clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioner.” Id. ¶ 36 (quoting Prazen v. Shoop, 2013 IL 115035, ¶ 39). In Kanerva, the Court promoted this principle of statutory interpretation to the realm of constitutional law, reasoning that the “construction of constitutional provisions is governed by the same general principles that apply to statutes.” Id. ¶ 36. Accordingly, from Kanerva onward, any ambiguity about the meaning of the Pension Protection Clause or its application is resolved in favor of the pensioner. This canon of constitutional interpretation is a steep hill for any advocate of pension reform to climb.

The Court invoked this canon repeatedly in Carmichael, where the parties did not dispute the meaning of the Pension Protection Clause but hotly disputed its application to certain amendments to the Pension Code. Those amendments had eliminated a right previously enjoyed by certain pension system members to claim union service credit while on leaves of absence from their public-sector jobs. The Court unanimously held that those amendments violated the Pension Protection Clause. The Court had been asked to decide whether, under the relevant provisions of the Pension Code, the plaintiffs actually had previously enjoyed the right to claim union service credit. Thus, to the extent that those statutory provisions were ambiguous, the canon came into play. Citing Kanerva, the Court reiterated that “whenever there is any question as to the legislative intent and clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioners.” Carmichael, 2018 IL 122793, ¶ 36. The Court then concluded that the Pension Code prior to the amendments was “ambiguous on the question of whether the union salary while on leave of absence could be used as a basis for calculating the pension.” Id. ¶ 42. The Court pointed out that if the General Assembly “had intended [in the Pension Code] to exclude the union salary from the calculation of the pension base but not for contribution purposes, it would have clearly stated so” at various times when the Code was amended. Id. ¶ 44. In other words, terms that limit the rights of pensioners must be clearly and unambiguously stated in the text of the Pension Code. They will not be inferred.

In this context, the standard for finding ambiguity is not exceedingly high. Reaching the separate issue of whether the term “pension plan,” as used in the Pension Code, encompassed defined benefit plans, the Court “note[d] that the existence of alternate dictionary definitions of a word or phrase, each making some sense under the statute, leads to the conclusion that the term in question is ambiguous.” Id. ¶ 61. The parties had cited multiple dictionary definitions of “pension,” each of which had some plausibility, and each of which arguably pointed in different directions. Id. ¶ 59. Thus, there was ambiguity, and that ambiguity “must be liberally construed in favor of the rights of the pensioners so as to apply to a defined benefit plan only and not to defined contribution plans.” Id. ¶ 63.
This canon of construction will likely play a more prominent role in the Court’s constitutional jurisprudence in the coming years, and there is no compelling reason to limit its application to pension cases. Whenever a constitutional provision is directed toward a certain end, it makes sense to resolve ambiguities in favor of that end. In Kanerva and Carmichael, that end was protecting the rights of public-sector pension system members. But if another constitutional provision has as clearly defined a purpose as does the Pension Protection Clause, why not apply a similar canon of construction to resolve ambiguities in favor of that purpose?

Justice Pope Named Illinois Legislative Inspector General

Fri, 21 Dec 2018 13:17:00 GMT

The Legislative Ethics Commission appointed Justice Carol Pope to serve as the permanent Legislative Inspector General on Tuesday. Justice Pope served on the Illinois Appellate Court, Fourth District, from 2008 to 2017, when she retired from the bench. Before that, Justice Pope served on the Circuit Court of Menard County and as Menard County State's Attorney.

Justice Pope will replace acting Inspector General Julie Porter, who was temporarily appointed to the post in 2017. According to the website of the Office of the Legislative Inspector General, the Inspector General receives and investigates complaints of violations of any law, rule, or regulation or abuse of authority or other forms of misconduct by members of the General Assembly and all state employees whose ultimate jurisdictional authority is a legislative leader, the Senate Operations Commission or the Joint Committee on Legislative Support Services.

The ALA Presents Roundtable Luncheon with Justices of the Illinois Supreme Court December 6, 2018

Fri, 09 Nov 2018 14:24:00 GMT

This year marks the bicentennial of the Illinois judiciary—200 years since the first four justices of the Illinois Supreme Court were appointed in the then-state capital, Kaskaskia, Illinois. The Supreme Court has changed since 1818 in innumerable ways, but it continues to guide all of our state courts and our profession, and to serve the people of Illinois in the finest traditions of the law.

On December 6, 2018, the ALA will host an informal roundtable luncheon with our Supreme Court justices to allow participants to speak with the Justices about appellate practice and the role of the judiciary. This is a rare opportunity and should not be missed. Details and registration may be found after the jump.

Date: Thursday, December 6, 2018

Time: 12:00 to 1:30 p.m.

MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be found here.

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions? Call (630) 416-1166, ext. 303

Register:

1. Online registration and payment can be found here. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

2. Mail your completed registration form along with a check payable to ALA to:

Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 60563

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Payment is expected from no-shows.

"Cases Pending" Highlights Civil Cases to be Heard During Illinois Supreme Court's November Term

Thu, 08 Nov 2018 14:07:00 GMT

The Illinois Supreme Court's November Term begins Monday, November 12, 2018, with oral arguments scheduled for November 13, 14, and 20, 2018. A total of 11 cases will be heard -- 4 criminal and 7 civil. The following 7 civil cases are scheduled for argument this term:

November 13, 2018:

In re Marriage of Fatkin, No. 123602
The City of Chicago v. The City of Kankakee, No. 122878
Better Government Association v. City of Chicago, No. 122949

November 14, 2018:

1550 MP Road LLC v. Teamsters Local Union No. 700, No. 123046

Peach v. McGovern, No. 123156

November 20, 2018:

Rosenbach v. Six Flags Entertainment Corp., No. 123186
Smith v. The Vanguard Group, No. 123264

Below is a summary for two of the civil cases, Better Government Association v. City of Chicago and Peach v. McGovern. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

FREEDOM OF INFORMATION ACT

Better Government Association v. City of Chicago, No. 122949

Two issues are presented in this appeal: (1) whether it is appropriate to enter a protective order prohibiting the release of records pursuant to a non-party’s FOIA request; and (2) whether records of the Office of the Special Prosecutor fall within the FOIA exemption for “matters occurring before the grand jury.”

In 2004, Richard J. Vanecko, a relative of former City of Chicago Mayor Richard M. Daley, allegedly assaulted David Koschman, who later died. No charges were initially filed following the alleged assault, but Mr. Koschman's family successfully petitioned for the appointment of a special prosecutor to investigate whether criminal charges were warranted.

While a grand jury was empaneled, the Office of Special Prosecutor (OSP) moved for a protective order “to prevent entities like the City from complying with the FOIA requests for secret grand jury materials that would inevitably end up in its hands.” The motion was granted and protective order was entered.

An indictment later was issued against Vanecko and the City requested that the protective order be unsealed to comply with a FOIA request made by the Chicago Sun-Times. The motion was granted. Uncertainty followed regarding what records were covered by the court’s protective order, and a second protective order was entered prohibiting the City from complying with any FOIA request that would identify or characterize documents that were “disseminated to the [OSP] in furtherance of” the grand jury investigation.

The Better Government Association (BGA) later sent a FOIA request to the City seeking documents that were specifically protected by the protective order. The City denied the requests under section 7(1)(a) of FOIA, which exempts documents from disclosure if disclosure if prohibited by “State law.” The BGA then filed a complaint for injunctive and declaratory relief for release of the documents. The City filed a motion to dismiss, which was denied on the ground that the protective order was not “State law” for purposes of FOIA.

The First District Appellate Court affirmed the trial court’s order entering the protective order as it was necessary to protect certain aspects of the grand jury’s investigation, which is expressly permitted under the FOIA statute.

The appellate court then held that the City did not have the authority to later release those records requested under the FOIA statute because the protective order prohibited their release. The appellate court relied on decisions of the United States Supreme Court holding that the broad purposes of the FOIA statute are subordinate to a court order prohibiting release of the requested documents for certain purposes.

In its petition for leave to appeal, the BGA argued that the court incorrectly relied on federal cases rather than decisions of the Illinois Supreme Court. It argued that the appellate court opinion “seemingly allow[s] individual judges to create new FOIA exemptions that are not found in the statute, both through the issuance of protective orders and through a finding that withholding a record would not be ‘improper.’” It also argued that the opinion ignored the general proposition that FOIA exemptions must be “narrowly construed” in favor of disclosure.

STANDARD OF REVIEW

Peach v. McGovern, No. 123156

The issues in this appeal are: 1) whether the appellate court applied the wrong standard of review (manifest weight of the evidence) when it effectively entered judgment n.o.v. for the plaintiff and 2) whether expert testimony is necessary to admit photographic evidence of a car accident.

Plaintiff sued defendant after defendant rear-ended plaintiff while plaintiff was stopped at a stop sign. At trial, plaintiff testified that the impact was hard enough to push his car into the intersection about 5 to 10 feet. Plaintiff estimated that defendant was traveling 20 to 25 miles per hour. Defendant testified that she was fully stopped behind plaintiff and that the collision occurred when her foot slipped off of the brake. Photographs, which were admitted over plaintiff’s motion in limine, showed that the car suffered minimal damage. Plaintiff claimed that the collision caused him chronic neck pain, and plaintiff’s expert testified that plaintiff’s neck pain was caused by the collision. Plaintiff’s expert testified that even low-speed collisions could cause plaintiff’s neck pain. The trial court directed a verdict for plaintiff on the issue of negligence, leaving only the issues of causation and damages to the jury. The jury returned a verdict in favor of defendant and awarded plaintiff no damages.

The appellate court reversed. The court first held that the trial court abused its discretion in admitting the photographs of plaintiff’s car because, without expert testimony describing the relationship between the damage to the car and plaintiff’s injuries, the photographs were irrelevant. The court acknowledged that the photos might have been relevant to show the speed of defendant’s car, but found that the issue of speed was irrelevant in light of plaintiff’s unrebutted medical evidence that his injuries could have been caused by a low-speed collision.

The court also held that the jury’s verdict was against the manifest weight of the evidence and that the trial court should have directed a verdict for plaintiff on the issue of causation in light of plaintiff’s unrebutted medical evidence. The court said that no reasonable jury would have declined to at least award plaintiff his medical expenses.

In its petition for leave to appeal, defendant argues that the appellate court erred in applying the manifest-weight-of-the-evidence standard of review rather than the more stringent standard of review applicable to judgments n.o.v. Defendant also argues that judgment n.o.v. was inappropriate where there were credibility and fact questions raised at trial. Finally, defendant contends that the appellate court incorrectly demanded expert testimony for the admission of photographic evidence, as such evidence was relevant to the nature and extent of plaintiff’s injuries.

"Cases Pending" Highlights Criminal Cases to be Heard During Illinois Supreme Court's November Term

Tue, 06 Nov 2018 13:54:00 GMT

The Illinois Supreme Court's November Term begins on Monday, November 12th. The Term will include oral argument in 4 criminal cases and 7 civil cases between November 13th and November 20th. Below is a listing of the 4 criminal cases that will be heard:

Tuesday, November 13, 2018: People v. Daksh Relwani, No. 123385

                                                       People v. Sylwester Gawlak, No. 123182

                                                       Kenin Edwards v. Hon. Michael Atterbery, No. 123370
                                                       (prohibition)

Below is a summary of one of the criminal cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

People v. Daksh Relwani, No. 123385

After he was arrested for driving while intoxicated, defendant Daksh Relwani filed a petition to rescind the statutory summary suspension of his driver's license. He argued that rescission was appropriate because the summary suspension statute applies only to motorists operating vehicles on "public highways," and the location of his arrest -- a parking lot adjacent to a Walgreen's store -- could not be so characterized because it was "private property." The issue is whether the trial court correctly denied defendant's petition to rescind because he failed to make a prima facie showing that the parking lot was not a "public highway."

The appellate court affirmed in a 2-1 decision. According to precedent, a parking lot on private property is a "public highway" for this statute if the lot is (1) open to public vehicular traffic, and (2) is publically maintained. The majority noted that defendant's argument that the lot must be private because it was adjacent to Walgreen's was insufficient under this precedent. The majority declined to address, in the alternative, whether it could infer from defendant's testimony that he had been driving on the public highways just before he arrived in the parking lot. The dissenting justice would have concluded that defendant met his prima facie burden by showing that he was driving his vehicle in a parking lot adjacent to a private business, which would shift the burden to the State to offer proof that the private parking lot is publicly maintained.

Before the Illinois Supreme Court, defendant echoed the position of the dissenting justice. In response, the State offered two grounds for affirmance. First, that defendant drove upon a public highway while intoxicated shortly before his arrest so that the implied consent statute applies even if he was ultimately arrested on private property. And second, defendant failed to make a prima facie showing that he was not on a "public highway" when he was arrested in the parking lot.

The ALA to Host Annual Moot Court Competition November 2-3

Wed, 31 Oct 2018 16:13:00 GMT

The Appellate Lawyers Association will host its annual Moot Court Competition November 2-3 in Chicago, Illinois.

ALA members act as judges for one of the only Midwest competitions held at every level in working courtrooms. The final round is scheduled to be held in the ceremonial courtroom of the United States District Court for the Northern District of Illinois. Past judges for the final round include: Judge Diane Wood, U.S. Court of Appeals for the Seventh Circuit; Judge Robert M. Dow, Jr. and Judge Edmond E. Chang, U.S. District Judges for the Northern District of Illinois; Justice Anne Burke and Justice Mary Jane Theis, Supreme Court of Illinois; Justice Brent E. Dickson, Supreme Court of Indiana; Justice David Prosser, Jr., Supreme Court of Wisconsin; Justice Robert Cook, Justice Donald C. Hudson, Justice William E. Holdridge, Justice Margaret Stanton McBride and Justice M. Carol Pope of the Appellate Court of Illinois.

Recent participating schools include University of Wisconsin Law School, Baylor University Law School, Benjamin N. Cardozo School of Law, St. Louis University School of Law, Liberty University School of Law, Northern Illinois University College of Law, Loyola University Chicago School of Law, DePaul University College of Law, Northwestern Pritzker School of Law, Barry University, Brooklyn Law School, Florida State University College of Law, Georgetown University Law Center, South Texas College of Law Houston, St. Mary’s University School of Law, Western State College of Law and Chicago-Kent College of Law.

The ALA Presents Ethical Traps for Appellate Practitioners - October 30, 2018

Fri, 19 Oct 2018 13:42:00 GMT

On October 30, 2018, the Appellate Lawyers Association will host an important discussion on ethical traps for appellate practitioners presented by James J. Grogan and Steven Splitt of the Attorney Registration and Disciplinary Commission. As individuals who regularly interpret and enforce Illinois’s Rules of Professional Conduct, they have unique insights and advice for how appellate attorneys can avoid ethical pitfalls. They will also update us on new trends in this area. This program is a great opportunity to hear from two of the top legal ethics lawyers in Illinois.

This event is taking place at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois from 12:00 p.m. to 1:30 p.m. $40 for public-sector members of either association; $50 for private-sector members of either association; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

Participants will earn one hour of professional responsibility MCLE credit. The ALA is an approved MCLE provider.

Those interested can register online here. On-site registrations will be charged an additional $5 registration fee. Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 416-9798. Additionally, payment is expected from no-shows. Questions? Call (630) 416-1166, ext. 303.

Appellate Justice from Poland to Speak at 9/24/18 General Meeting of Advocates Society

Wed, 19 Sep 2018 16:33:00 GMT

On Monday, September 24, 2018 at 5 p.m., the Advocates Society, the Association of Polish American Lawyers, will host currently sitting Appellate Justice Bogdan Jedrys of Poland, who will discuss the current situation in the Polish judicial system. Justice Jedrys is a member of the independent Association of Polish Judges and will speak after a short general meeting.

The meeting will be held at Hinshaw & Culbertson, LLP, 151 N. Franklin St., Suite 2500, Chicago, Illinois 60606. There is no fee to attend, but participants must register in advance. To register, please RSVP to the Advocates Society President Kristen Kozlowski Lyons at attorneykristen@gmail.com.

Cases Pending

Tue, 18 Sep 2018 13:22:00 GMT

The Illinois Supreme Court's September Term began on Monday, September 10th. The Term will include oral argument in 12 civil cases and 10 criminal cases between September 11th and September 19th. Below is a listing of the 12 civil cases that will be heard:

Thursday, September 13, 2018:

Sienna Court Condominium Assoc. v. Champion Aluminum Corp., No. 122022

Beaman v. Freesmeyer, No. 122654

Carmichael v. Laborers’ & Retirement Employees Annuity & Benefit Fund of Chicago, No. 122793 (cons.)

Stanphill v. Ortberg, No. 122974

Tuesday, September 18, 2018:

Gregg v. Rauner, No. 122802

Piccioli v. Board of Trustees of Teachers Retirement System, No. 122905
Gonzalez v. Union Health Services, Inc., No. 123025
First Midwest Bank v. Cobo, No. 123038
Sperl v. Toad L. Dragonfly Express, No. 123132

Wednesday, September 19, 2018:

A&R Janitorial v. Pepper Construction, No. 123220

Palm v. Holocker, No. 123152

Wingert v. Hradisky, No. 123201

Below is a summary of one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

Stanphill v. Ortberg

This Petition presents the question of whether, in a professional negligence action, a defendant can be civilly liable notwithstanding the lack of reasonable foreseeability of the plaintiff’s injury. The plaintiff below – the administrator of a decedent’s estate – initiated proceedings in Winnebago County, asserting that the defendants – a hospital and a clinical social worker employed by the hospital – negligently failed to diagnose the decedent as suicidal, leading to his ultimate death by suicide. The jury returned a general verdict in favor of the plaintiffs, but answered, in a special interrogatory, that the decedent’s suicide was not reasonably foreseeable. The circuit court thereupon entered a verdict in favor of the defendants.

The plaintiff appealed and the Second District Appellate Court reversed, concluding that the jury’s answer to the special interrogatory was not inconsistent with its general verdict. The Court found that the special interrogatory was improper insofar as it asked the jury to determine whether the decedent’s suicide was reasonably foreseeable to the defendant, rather than to a reasonable person. In so holding, the Second District departed from the First District’s holding in Garcia, which affirmed the entry of a judgment in favor of the defendant under analogous circumstances. There, the jury returned a general verdict for the plaintiff, but answered, in a special interrogatory, that the decedent’s suicide was not reasonably foreseeable to the defendant, causing the circuit court enter judgment in favor of the defendant. Garcia v. Seneca Nursing Home, 2011 IL App (1st) 103085.

In their petition, Defendants argue that the Second District, in analyzing the special interrogatory, incorrectly held thatforeseeability in a professional negligence case should be based upon a reasonable person standard and that the general verdict could not be squared with the jury’s special interrogatory answer.

Ayuda Legal Fundraiser September 13, 2018

Wed, 12 Sep 2018 17:43:00 GMT

On September 13, 2018, from 5:30 p.m. to 9:30 p.m., the Hispanic Lawyers Association of Illinois, the Puerto Rican Bar Association, NLG Chicago, and The Puerto Rican Agenda will be hosting a fundraiser to support the recovery in Puerto Rico at Humble Bar, 3018 West North Avenue, Chicago, Illinois.

Tickets are available at www.tickettailor.com/events/nlgchicagoandayudalegal/185138

Donations may be made at www.latinojustice.org/en/donate

Appellate Practice Seminar Cosponsored with the Peoria County Bar Association Scheduled for September 12 Has Been Cancelled

Tue, 11 Sep 2018 13:50:00 GMT

The seminar, Appellate Practice for the Trial Attorney, scheduled for Wednesday, September 12, 2018, from 1:00 p.m. until 5:00 p.m. at Spalding Pastoral Center, 419 NE Madison Ave. in Peoria, Illinois, has been cancelled.

Appellate Lawyers Association to Co-Sponsor Case Reenactment with Diversity Scholarship Foundation on September 5

Wed, 29 Aug 2018 13:13:00 GMT

The ALA is honored to serve as a co-sponsor of the Diversity Scholarship Foundation’s reenactment of Mendez v. Westminster, a landmark civil rights case that addressed issues of equal protection and social equality.

The event will be held on Wednesday, September 5, 2018, from 5:00 p.m. to 7:00 p.m. at Loyola University School of Law, 25 East Pearson Street in Chicago. There will be a cocktail reception from 5:00 p.m. to 6:00 p.m., followed immediately by the program from 6:00 p.m. to 7:00 p.m. Entry is FREE; seats are limited.

To learn more about the event, please visit the Diversity Scholarship Foundation website.

To register, please click here.

Event Announcement: Volunteer Tutoring at the Chicago Bar Association

Fri, 10 Aug 2018 14:49:00 GMT

You can join your fellow lawyers in helping children from Englewood become a better readers. Lend-A-Hand Tutoring at the CBAis seeking volunteer tutors for its one-to-one tutoring program, which meets on Tuesdays from 5:30 to 7:00 p.m. at the Chicago Bar Association, 321 S. Plymouth Court in Chicago. Orientations will be on September 4 and 11. Program is sponsored by Lawyers Lend-A-Hand to Youth.

For more info, contact Jenna Meyers at (312) 554-2053, email jmeyers@lawyerslendahand.org

D.C. Circuit Judge Kavanaugh nominated for U.S. Supreme Court

Wed, 11 Jul 2018 13:24:00 GMT

D.C. Circuit Court Judge Brett Kavanaugh has been nominated to replace retiring Justice Anthony Kennedy on the Supreme Court of the United States.

Judge Kavanaugh was appointed to the D.C. Circuit Court of Appeals in 2006, and is a graduate of Yale Law School.

United States Supreme Court Justice Anthony Kennedy to Retire Effective July 31

Thu, 28 Jun 2018 16:35:00 GMT

United States Supreme Court Justice Anthony Kennedy has sent a letter to President Donald Trump, informing the president that he will retire from the High Court on July 31.

President Trump has stated that he will select Justice Kennedy's replacement using a list he initially created during his 2016 presidential campaign. The list includes Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, as well as several other United States appellate court judges, multiple state supreme court justices, and a current United States senator.

After Dismissing Appeal For Lack of Jurisdiction, Appellate Court Admonishes Attorney for “Wild And Unsubstantiated” Statements Made in Brief Aimed at Court and Opposing Counsel

Mon, 18 Jun 2018 20:24:00 GMT

By Katherine A. Grosh

Levin Ginsburg

In Board of Managers of Northbrook Country Condo. Ass'nv. Spiezer, the Board of the Northbrook Country Condominium Association filed a forcible entry and detainer action against June Spiezer, as trustee of the June Spiezer Revocable Trust, seeking possession and common expenses owed on her condominium unit. 2018 IL App (1st) 170868, ¶¶ 1, 6. After the trial court entered a default judgment and order of possession in the Board’s favor, her son, Joseph Spiezer, successfully moved to vacate the default judgment and order of possession. Id. at ¶ 6. Joseph then moved to quash service, which the trial court denied, finding that Joseph submitted to the court’s jurisdiction by filing the motion to vacate. Id. at ¶¶ 1, 6. After Joseph, as trustee of the June Spiezer Trust, quitclaimed the condominium unit to himself, the trial court entered another order of possession in favor of the Board, which Joseph timely appealed. Id. ¶¶ 2, 7. That appeal was later dismissed for want of prosecution. Id., citing Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer, No. 1–13–0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

Nearly three years later, Joseph filed a section 2-1401 petition to vacate the second order of possession on the grounds that the order was void because his mother was deceased when the complaint was filed, and her beneficiaries were not named as parties to the suit. Id. ¶ 8. After voluntarily withdrawing the section 2–1401 petition, Joseph filed a “motion to intervene” in the forcible entry and detainer case, effectively re-arguing his section 2-1401 petition and asserting that he should be allowed to intervene to present a motion for an accounting and obtain judgment in his favor for rental income the Board received on the property after entry of the order of possession. Id. Following several agreed continuances and a substitution of attorneys for Joseph, Joseph filed another motion seeking an accounting and asking the trial court to vacate the judgment for possession. Id. at ¶ 9. The trial court dismissed Joseph's motions for lack of jurisdiction. Id.

Joseph appealed from the order dismissing his motions and from the order denying his motion to reconsider, arguing: (i) the trial court had jurisdiction to rule on his motions, and (ii) the order of possession was void and the complaint should be dismissed. Id. at ¶¶ 3, 9.

The Appellate Court found that neither Supreme Court Rule 303 nor the doctrine of revestment conferred jurisdiction over Joseph’s appeal. Id. at ¶ 11. “Having let his appeal on these issues lapse,” the Appellate Court stated, “Joseph cannot exhume his case by motion, and we must dismiss.” Id. at ¶ 3. The Court reasoned:

"Joseph argues that the trial court had jurisdiction to address the merits of his motion to vacate the January 16, 2013, order of possession because 'a void order may be attacked at any time or in any court, either directly or collaterally.' Joseph asserts the order of possession was void because the Board failed to properly serve the trust, trustees, or beneficiaries. But in 2012, the trial court denied Joseph's motion to quash service, finding that he submitted to the court's jurisdiction by filing the motion to vacate its first order of possession. The trial court entered a second order of possession, and Joseph timely appealed. This court then dismissed the appeal for want of prosecution. Spiezer, No. 1–13–0573." Id. at ¶ 13.

Notwithstanding Joseph’s timely appeal from the order of possession, the Appellate Court characterized Joseph’s attempt to file motions to vacate three years later as “an end-run around his long abandoned appeal.” Id. at ¶ 14. Citing case law holding that where an appeal is dismissed, a party may not file a section 2-1401 petition in the trial court to circumvent the requirements of Rule 303, the Appellate Court found that Joseph’s motion to vacate the order of possession filed in the trial court “does not create a right to appeal under Rule 303 nor … provide us with any other rule that permits him to relitigate issues already decided in 2013 and already timely appealed, albeit dismissed for want of prosecution.” Id.

The Appellate Court’s analysis concluded with a brief review of the revestment doctrine, which applies only in certain “limited circumstances” not applicable here, i.e., where both parties “(1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.” Id. at ¶ 15, citing People v. Bailey, 2014 IL 115459, ¶ 25.

As an aside to the jurisdiction issues, the Appellate Court pointed out that Joseph's attorney’s brief “disparage[d] opposing counsel and ma[de] a number of statements that call into question the trial and appellate court's integrity.” 2018 IL App (1st) 170868, at ¶ 4. Specifically, throughout his opening and reply briefs, Joseph’s attorney called her opposing counsel’s arguments “incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word salad.” The Appellate Court stated: “His remarks serve no purpose other than to demean or insult the other side. We expect all attorneys to behave with respect and civility in their written as well as oral interactions with opposing counsel and with the court.” Id. at ¶ 18. Because of the “acerbity of his statements,” including what the Appellate Court deemed “poisonous darts [aimed] at this court,” which went so far as to accuse the courts of ignorance and corruption, and his past behavior before the appellate court, Joseph was ordered to show cause why Rule 375 sanctions should not be imposed for his statements which “flout the norms of proper discourse before the appellate court.” Id. at ¶¶ 19-22.

In a Supplemental Opinion issued in the wake of the show cause order, the Appellate Court noted that Joseph’s lawyer failed to respond. Finding that he waived his right to respond, the Court sanctioned him by requiring him to (i) pay a fine to the Clerk of the First Appellate District and (ii) attend a minimum of six hours of civility and professionalism courses, and repeating the words of U.S. Supreme Court Chief Justice Warren Burger, stated: “[L]awyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.” 2018 IL App (1st) 170868, at ¶¶ 26-27, citing Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211, 215 (1971). The Appellate Court continued: “We are not dealing with a self-represented litigant here, but a licensed and experienced attorney who should know what constitutes the limits of proper argument. The statements addressed in the show cause order are not argument, but accusations and wild and unsubstantiated accusations at that. To let them pass without admonishment would be perceived as condoning [those] accusations, and serve to undermine the judiciary's legitimacy, authority, and persuasiveness in the minds of the public and his client” 2018 IL App (1st) 170868, at ¶ 26. The Court ordered that the clerk send a copy of the opinion to the Attorney Registration and Disciplinary Commission. Id. at ¶ 28.

Illinois Supreme Court Rule Amendments Impact Forfeiture of Points and Oral Argument Procedure

Wed, 13 Jun 2018 13:48:00 GMT

On May 25, 2018, the Illinois Supreme Court amended Civil Appeals Rules 341 and 352.

Rule 341 – Points not argued are forfeited, not waived.

Rule 341 was changed slightly http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/341_052518.pdf

In subsection (h)(7), the rule previously provided that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waivedand shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

The amended subsection (h)(7) now provides that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

This change reflects the appropriate usage of the terms “waiver” and “forfeiture.” Waiver is the intentional relinquishment of a known right, i.e., an intentional act, whereas forfeiture is the failure to make a timely assertion of a right. Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Litigants who fail to appreciate the distinction between the two concepts in their briefs risk criticism. See, e.g., Mich. Wacker Assocs., LLC, v. Casdan, Inc., 2018 IL App (1st) 171222, ¶ 30 n.3 (noting that, when both parties on appeal raised numerous instances of waiver, that “[t]he parties have failed to differentiate between the concepts of waiver and forfeiture.”).

Rule 352 – The Court must now specify why oral argument is not necessary, and oral argument is required if one justice on the panel requests it.

Rule 352 was also changed, but substantially http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/352_052518.pdf

In subsection (a), the rule previously provided that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power should be exercised sparingly.”

The amended subsection (a) now provides that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case. Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it.”

This change appears to reflect a desire by the Illinois Supreme Court to have the Illinois Appellate Courts hold more arguments. Instead of a generic oral argument waiver order, the amendment seems to require a more specific oral argument waiver order detailing why argument won’t be held in a certain case. Additionally, the rule now makes it clear that oral argument must occur in a case if one justice requests it regardless of whether he or she is the authoring justice.

Former ALA President Michael Scodro and Current ALA Member Carolyn Shapiro Discuss "Most Controversial Cases" of the Current Term of the United States Supreme Court on Chicago Tonight

Tue, 05 Jun 2018 20:52:00 GMT

Former ALA President and Illinois Solicitor General Michael Scodro, now a partner at Mayer Brown, as well as current ALA member and former Illinois Solicitor General Carolyn Shapiro, now an associate professor of law at Chicago-Kent College of Law, appeared on Chicago Tonight recently to discuss the "Most Controversial Cases" of the current term of the United States Supreme Court.

The discussion included the recent decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the Colorado Civil Rights Commission’s actions of assessing a cake shop owner’s reasons for refusing to create a cake for a same-sex couple’s wedding celebration violated the free exercise clause, and Collins v. Virginia, which held that the Fourth Amendment’s automobile exception does not allow the warrantless entry of a home or its curtilage in order to search a vehicle therein. Additionally, the panel discussed other pending cases such as Janus v. AFSCME, involving union fair-share dues, and Gill v. Whitford, involving Wisconsin’s redistricting plan, as well as the Court’s denial of a petition for certiorari in Planned Parenthood of Arkansas v. Jegley, a case involving a challenge to an Arkansas law regulating medication abortions.

If the embedded video does not work, you may watch here.

Other panelists included Andy DeVooght, a partner at the firm Loeb and Loeb, and Daniel Hemel, assistant professor at the University of Chicago law school.

Seventh Circuit Roundtable Roundup

Fri, 25 May 2018 15:42:00 GMT

By Margaret A. Manetti,

Codilis & Associates, P.C.

The Appellate Lawyers Association hosted the judges, administrators, and mediators of the United States Court of Appeals for the Seventh Circuit at its annual roundtable discussion and luncheon at the Union League Club of Chicago on May 15, 2018.

The Court’s newest members, Judge Michael Brennan, Judge Michael Scudder, and Judge Amy St. Eve, joined the luncheon. Following tableside discussions with 11 judges from the Court, Deputy Clerk Chris Conway addressed new court rules concerning access to the record and a new timing and lighting system to be used during oral arguments. Next, a panel featuring Judge Michael Kanne, Judge Diane Sykes, and Judge Amy Barrett spoke about appellate practice, with ALA President Evan Siegel moderating the discussion.

The panel of judges described their individual methods on preparing for oral argument and the involvement of their law clerks. Judge Sykes described how she chaired a committee that led the Court to introduce a new policy allowing oral arguments to be video-recorded at the request of counsel or the public. And Judge Kanne, who has served on the Court for 31 years, noted that one of the most important issues facing the Court and appellate community is protecting pro se litigants’ rights and obtaining counsel to represent them.

The ALA congratulates Judge Brennan, Judge Scudder, and Judge St. Eve and expresses its appreciation to the entire Court and staff for their participation in the luncheon.

Appellate Law Employment: Chief Attorney - Compliance, Policy & Appeals with the Chicago Transit Authority

Fri, 18 May 2018 19:29:00 GMT

The Chicago Transit Authority is seeking an attorney to work in the areas of compliance, policy and appeals. The ideal candidate will have at least seven years of legal experience, with at least three of those years related to appellate, policy, or compliance work. The attorney will handle the CTA’s appellate cases in both state and federal courts, from briefing the case to arguing it. In addition to the appellate work, the attorney will draft internal regulatory materials and provide legal advice regarding compliance issues.

More information about the position and how to apply can be found here.

Justice Charles Freeman Retires From Illinois Supreme Court; Justice P. Scott Neville, Jr. Appointed to Fill Seat

Fri, 18 May 2018 16:36:00 GMT

On May 17, 2018, Justice Charles Freeman announced his retirement from the bench after a long and illustrious career in both public and private service. Justice Freeman was the first African-American to serve on the Illinois Supreme Court and retires after serving nearly 28 years as a justice of the Illinois Supreme Court.

Justice Freeman graduated from John Marshall Law School in 1962 after obtaining his Bachelor of Arts from Virginia Union University eight years earlier. He worked in private practice and public service prior to becoming a judge. In 1976, he was elected to the circuit court of Cook County. Ten years later, Justice Freeman was elected to the Illinois Appellate Court and, in 1990, he was elected to the Illinois Supreme Court where he has served ever since. Justice Freeman's retirement will be effective June 14.

The ALA congratulates Justice Freeman on a historic career.

With Justice Freeman’s retirement, the Illinois Supreme Court appointed Justice P. Scott Neville, Jr. to fill Justice Freeman’s seat, effective June 15 until December 7, 2020. Justice Neville has served as a justice of the Illinois Appellate Court since 2004 following four years as a judge in the circuit court of Cook County.

With Justice Neville being appointed to the Illinois Supreme Court, Judge Carl Anthony Walker of the circuit court of Cook County has been assigned to the First District Appellate Court until further order of the Illinois Supreme Court.

The ALA congratulates Justice Neville and Judge Walker.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's May Term

Fri, 04 May 2018 19:07:00 GMT

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018. A total of 15 cases will be heard – 10 criminal and 5 civil. The following 5 civil cases are scheduled for argument this term:

Oswald v. Beard, No. 122203: May 22

People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc., No. 122487: May 22

American Family Mutual Insurance Co. v. Krop, No. 122556: May 22

Cassidy v. China Vitamins, LLC, No. 122873: May 23

Ameren Transmission Co. v. Hutchings, No. 122973 (cons.): May 23

Below is a summary for one of the civil cases, People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

FALSE CLAIMS ACT – ATTORNEY FEES

No. 122487

People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.

The issue in this appeal is whether a relator bringing a qui tam action is entitled to attorney fees under the Illinois False Claims Act (“the Act”) when relator is itself a law firm.

The relator brought a qui tam action under the Act alleging that the defendant failed to collect certain taxes as required by State law. The trial court found that the defendant violated the Act and awarded the relator damages and attorney fees, even though the relator, which is a law firm, represented itself in the suit.

The First District Appellate Court affirmed the trial court’s finding of liability under the Act, but reversed the attorney fee award. The appellate court relied on Hamer v. Lentz, 132 Ill. 2d (1989), holding that an attorney bringing a pro se action under the Illinois Freedom of Information Act could not recover attorney fees, in concluding that the relator was not entitled to attorney fees. The appellate court noted that the Act’s purpose in providing attorney fees for a successful relator was to remove the hurdle of significant legal fees in order to expose fraud and waste. However, the appellate court found, that purpose was not furthered by awarding a law firm relator its own fees since it does not have to pay its own fees. The appellate court also emphasized that allowing law firm relators to collect attorney fees could encourage abusive fee generation and unnecessary litigation.

In its petition for leave to appeal, the relator argues that the appellate court’s decision undermines the Act’s purpose of using private relators to pursue fraud claims because it provides a disincentive for law firms to file qui tam actions. The relator also argues that the potential for abusive fee generation is diminished by the fact that the Illinois Attorney General retains complete control over qui tam actions filed under the Act.

Finally, the relator argued that under the federal False Claims Act, law firm relators are permitted to collect attorney fees.

Appellate Court Decision: 2017 IL App (1st) 152668. Ellis, J., with McBride and Burke, JJ., concurring.

PLA Allowed: 09/27/17

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's May Term

Thu, 03 May 2018 19:25:00 GMT

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018. A total of 15 cases will be heard – 10 criminal and 5 civil. The following 11 criminal cases are scheduled for argument this term:

People v. Darien Harris, No. 121932: May 15

People v. Jerome Bingham, No. 122008: May 15

People v. Kirk Zimmerman (The Pantagraph, WGLT FM, and the IL Press Assoc., Intervenors), No. 122261: May 15

People v. Torrence Dupree, No. 122307: May 16

People v. Shane Harvey, No. 122325: May 16

People v. Ahmet Gocmen, No. 122388: May 16

People v. Derrick Bonilla, No. 122484: May 16

People v. Jennifer Nere, No. 122566: May 17

People v. Nelson Young, No. 122598: May 17

People v. Jafaria Deforrest Newton, No. 122958: May 17

Below is a summary for one of the criminal cases, People v. Ahmet Gocmen. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Ahmet Gocmen

Defendant, Ahmet Gocmen, was arrested and charged with driving under the influence of drugs or combination of drugs (DUI drugs) under 625 ILCS 5/11-501(a)(4) (2015), and his driver's license was summarily suspended. Defendant filed a petition to rescind the suspension, alleging that the officer did not have probable cause for the arrest. The circuit court granted the petition, and the appellate court affirmed in a published split decision.

Officer Beaty responded to a scene at 11:10 a.m. regarding an unconscious driver; paramedics were already present. Beaty observed that defendant was in and out of consciousness, struggled to respond to verbal commands, and was confused about his location. Paramedics told Beaty that he had a high heart rate, pinpoint pupils, and a "fresh track mark" on his arm. In the vehicle, Beaty found a baggie containing an unidentified brown, granular substance, a used syringe, and a partial metal beverage can with burn marks on its interior and a tannish residue on its exterior that field-tested positive for an illicit drug. Defendant told Beaty and paramedics that he was a diabetic, and Beaty testified to no training or experience in identifying drug use.

The lower courts concluded that Beaty lacked probable cause to arrest defendant for DUI drugs given that the syringe and track mark could be explained by defendant's diabetes and that Beaty was not an expert in recognizing drug intoxication.

Before the Illinois Supreme Court, the State argues for reversal on any of three bases, including that the appellate majority erred because: (1) interpreting the circumstances presented did not involve applying expertise in recognizing drug intoxication; (2) the low probable cause standard applied; and (3) laypersons as well as experts should be allowed to opine on whether a person observed is under the influence of drugs. Defendant agrees with the majority that a non-expert should never be found competent to believe that a person is under the influence of drugs, whether at a probable cause stage or when testifying at trial.

The Illinois Supreme Court Has Appointed the Honorable John C. Griffin to the Illinois Appellate Court, First District

Wed, 18 Apr 2018 13:18:00 GMT

On April 17, 2018, the Illinois Supreme Court entered an order appointing the Honorable John C. Griffin to the Illinois Appellate Court, First District, effective May 2, 2018. Justice Griffin will be replacing Justice Simon, who has served on the court since 2012.

The order can be found here.

Don’t Miss Out on the ALA’s Signature Luncheon Featuring Dahlia Lithwick of Slate

Fri, 06 Apr 2018 18:01:00 GMT

On Friday, April 27, the ALA will host its Signature Luncheon, featuring Dahlia Lithwick of Slate, who will discuss the current term of the United States Supreme Court, the current dynamics of the Court, as well as other matters of interest.

Ms. Lithwick is one of the most recognized and respected voices in national legal journalism. A senior editor at Slate and contributing editor at Newsweek, she graduated from Yale University and Stanford Law School. She clerked for Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit and practiced law in Nevada before joining Slate, where she writes the “Supreme Court Dispatches” and “Jurisprudence” columns and hosts the popular “Amicus” podcast. Her work has appeared in The New York Times, Harper’s, The New Yorker, and The Washington Post. In addition, she has appeared on CNN and ABC and is a regular guest of “The Rachel Maddow Show.” In 2013, she won the National Magazine Award for her reporting on the Affordable Care Act, and she has twice been awarded an Online Journalism Award for her legal commentary.

The event is sponsored by Baker McKenzie, Forde Law Offices LLP, Tabet DiVito & Rothstein LLC, and Winston & Strawn LLP. It will begin at noon and run until 1:30 p.m. at the Union League Club in Chicago (dress code must be followed). Attendees will earn one hour of MCLE credit.

To register, please click here.

Bright Line from Supreme Court: Consolidated Cases Remain Independent for Appeal

Thu, 05 Apr 2018 13:10:00 GMT

By E. King Poor

Partner, Quarles & Brady LLP

Going back to the early 1970s, federal courts have disagreed on a basic question of appellate procedure: If a case has been consolidated with others, does it remain independent when it comes to filing an appeal? The Supreme Court finally settled that question in Hall v. Hall, 2018 WL 1472897 (March 27, 2018) and did so with a unanimous and unequivocal “yes,” holding that a judgment in a consolidated case may be appealed immediately.

Important practical considerations flows from the Hall decision—namely, parties in consolidated cases cannot wait to appeal. The appeals clock begins when judgment is entered for any consolidated case, and not when all the consolidated cases have been finally decided.

Third Circuit Dismisses Appeal from a Consolidated Case

The Hall case arose from a family dispute over real estate in the U.S. Virgin Islands. A mother had a falling out with her lawyer son over property that he managed and she then transferred her property to a trust. The trust later sued her son and his law firm for mismanagement. After the mother died, her daughter became the successor trustee and continued the suit against her brother. The brother then sued his sister individually and the individual and trust cases were eventually consolidated.

A single jury heard both cases. It rendered a verdict in favor of the brother in his individual case and against the sister in her trust case. But the verdict for the individual case was set aside for a new trial, while final judgment was entered against the sister in the trust case.

The sister appealed the judgment against her. The Third Circuit dismissed the appeal for lack of jurisdiction reasoning that because the two cases had been consolidated “for all purposes,” the sister could not appeal when the individual case was still pending.

Looking Back Over 200 Years, the Supreme Court Reverses

The Supreme Court reversed. Writing for a unanimous Court, Chief Justice Roberts pointed out that if there had been no consolidation, there would be no question about the sister’s right to appeal. But in light of the consolidation, the Court turned first to the language of Fed. R. Civ. P. 42(a) which permits trial courts to take the following steps for actions involving common questions of law or fact (1) join them for hearing or trial, (2) “consolidate” them, or (3) issue any order to avoid “unnecessary cost or delay.”

The Court found that the word “consolidate” as used in Rule 42(a) was ambiguous. On the one hand, it noted that the term might mean “complete merger,” but on the other hand, it might mean simply a “joining together” without a case losing its “independent character.” Because the term “consolidate” did not have a plain meaning, the Court looked to the “legal lineage” of the term going back to the first federal consolidation statute in 1813.

Unlike other Supreme Court decisions that hinge on the text of a statute or rule alone, the Hall decision turned on history. In particular, the Court examined its own decisions, those of other federal courts, and leading treatises in the 125 years after the original 1813 statute and determined that there was a widely-shared consensus that consolidation meant only a joining together— with constituent cases remaining independent for appeal.

The linkage to that history continued. In 1938, when the current Rule 42(a) was adopted, it was expressly based on the 1813 statute. Because of that, the Court reasoned, unless the drafters of the rule indicated an intent to give it a new meaning, the historical meaning governed. The Court rejected the idea that the drafters would “take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do.”

Beyond its specific holding, Hall offers another lesson: history matters. To settle a decades-old division of authority in 2018, the Court looked to an 1813 statute and the legal authority that followed in its wake. That history, the Court concluded, resolved any ambiguity and therefore it held that consolidated cases retain their independent character for appeals.

Practice Pointer - In Consolidated Cases, Don’t Wait to Appeal

Before Hall, parties in some circuits may have considered waiting until all consolidated cases had been decided before appealing. No longer. With Hall, each consolidated case will have its own appeal clock once judgment is entered. And that’s the only clock that counts to preserve the right to appeal. In consolidated cases, when it comes to appeals, there’s no more waiting.

Three-Minutes Delay in E-Filing Post-Trial Motion Ends Appeal

Tue, 03 Apr 2018 17:22:00 GMT

By Joanne R. Driscoll

Forde Law Offices LLP

While the advent of electronic filing has extended the time deadline within which jurisdictional filings can be made – from the end of business until 11:59 p.m. – counsel’s failure to allow enough time for uploading the filing before midnight can result in disastrous consequences.

In Peraino v. County of Winnebago, 2018 IL App (2d) 170368, decided on March 30, 2018, the Illinois Appellate Court, Second District, dismissed an appeal for lack of jurisdiction because a post-trial motion to reconsider the granting of a summary judgment motion was stamp-filed 12:03 a.m. on January 4, 2017. The motion for reconsideration was due on January 3, 2017.

On January 5, 2017, the plaintiff moved in the circuit court for leave to file his motion to reconsider nun pro tunc to January 3, 2017, contending that the I2File website would not upload his post-trial motion at 11:58 p.m. on January 3, 2017. The circuit court denied the motion, citing to local rule 22.01(N) (17th Judicial Cir. Ct. R. 22.01(N) (July 25, 2016)) and to provisions in the Illinois Supreme Court’s Illinois Electronic Filing User Manual (Ill. S. Ct., M.R. 18367 (eff. Feb. 3, 2014)) directed at technical failures experienced during electronic filing. The circuit court found neither rule applied because there were no technical defects in the software or electronic filing system, only user problems. The plaintiff appealed.

The appellate court dismissed the appeal, sua sponte, for lack of jurisdiction because the plaintiff’s failure to file a timely post-trial motion meant that his notice of appeal was due within 30 days of the summary judgment order (January 3, 2017), and the plaintiff did not move the appellate court for leave to file a late notice of appeal under Illinois Supreme Court Rule 303(d) (eff. Jan. 1, 2015). The appellate court also vacated the circuit court’s order, holding that the circuit court lost jurisdiction to consider the plaintiff’s request to backdate his motion to reconsider. Although not pivotal to its decision, the appellate court agreed that “technical failures” referenced in electronic filing rules pertain to the malfunction of the court’s hardware, software or telecommunications facility; it does not include the failure of the user’s equipment.

All may not be lost to the plaintiff, however, as the appellate court suggested one alternative still available – to request supervisory or other relief from the Illinois Supreme Court.

Illinois Supreme Court Commission on Professionalism’s “The Future Is Now” Conference: May 2

Thu, 29 Mar 2018 19:08:00 GMT

After a successful event in May 2017, the Illinois Supreme Court Commission on Professionalism is again hosting “The Future Is Now” Conference. On May 2, the Commission will host the conference focusing on innovations and practices impacting the delivery of legal services and the legal profession as a whole.

The conference will have ten speakers with each addressing different issues impacting the profession, including the practicality of artificial intelligence, legal technology like algorithms and data analytics, best practices for retaining diverse talent, equal justice as a bipartisan issue, criminal justice reform, and the entrepreneurial spirit. Illinois Supreme Court Chief Justice Lloyd Karmeier will deliver opening remarks about the importance of innovation and the need for lawyers to address new ways to better serve clients.

The conference will be held at Venue SIX10 (610 S. Michigan Avenue in Chicago), beginning at 10 a.m. and ending at 4:45 p.m. The complete conference schedule is posted on the event website.

The registration fee is $75 and will cover the cost of lunch, refreshments and a reception following the formal program. Registration is currently open; however, seating is limited. To register, please click here.

The conference will be approved for 5.0 hours of professional responsibility CLE credit in Illinois, including 0.5 hours of diversity CLE credit. To receive credit, attendees must complete conference feedback forms, which will be sent to participants via email along with their certificates of attendance after the event.

For additional questions and concerns, please email Lindsay Shaw (lindsay.shaw@2civility.org) or call her at (312) 363-6210.

South Asian Bar Association of Chicago Hosting Inaugural "Judicial Reception"

Wed, 28 Mar 2018 14:32:00 GMT

The South Asian Bar Association of Chicago will host its inaugural Judicial Reception on April 5 from 5:00 p.m. to 8:30 p.m. at the Kimpton Hotel Allegro (171 W. Randolph St. in Chicago). As part of the program, SABA will present an award to Hon. James Flannery, Presiding Judge of the Law Division, as well as honoring the South Asian judges in Cook County and the surrounding counties.

SABA was founded to advance the development and growth of a diverse group of legal professionals and foster a culture of service within the South Asian legal community and beyond. Since its inception, SABA has made significant strides to further these goals, including the formation and operation of one of the largest pro bono legal aid clinics in Chicago, located at the Indo-American Center.

In recent years, SABA has expanded its mentoring program to include approved CLE-Mentorship in Illinois. In addition, through volunteer programs and donations, SABA actively supports domestic violence shelters, organizations dedicated to developing leadership excellence in youth, and many other charitable organizations whose causes align with our mission. These efforts have allowed our member community to grow to over 600 legal professionals.

Tickets are $80 for SABA members and $100 for non-members. To purchase tickets, please visit: https://www.eventbrite.com/e/south-asian-bar-association-of-chicagos-judicial-reception-tickets-44045874396

ALA Co-Sponsorship with the Cook County Bar Association for the "Judicial Reception"

Fri, 23 Mar 2018 18:16:00 GMT

The Appellate Lawyers Association is pleased to announce its co-sponsorship with the Cook County Bar Association for the "Judicial Reception." The event will be held on Tuesday, April 3, 2018, from 5:00 p.m. to 7:30 p.m. at the Fremont Chicago (15 West Illinois Street). This reception is an excellent social networking opportunity, aimed at exposing members of the public—including attorneys, politicians, academics, students, and others—to the Illinois judiciary in an informal setting. Last year, over 250 people were in attendance, including over 100 Illinois judges and justices.

Tickets are $65 for CCBA members and $100 for non-member guests, with opportunities for sponsorships at higher levels. Open bar and complimentary hors d’oeuvres are also included.

To purchase tickets and sponsorships, or to find out more information about the event, please visit:https://cookcountybar.org/events/judicialreception.

Illinois Appellate Court: Involuntary Dismissal of a Prior Appeal for Failure to file a Brief Precluded Subsequent Appeal Involving Same Issue

Fri, 23 Mar 2018 16:16:00 GMT

By Stephen Soltanzadeh
Associate, Ancel Glink

The Illinois Appellate Court, Second District, recently held in Hartney v. Bevis, 2018 IL App (2d) 170165, that an involuntary dismissal of a prior appeal for failure to file a brief had a preclusive effect on a subsequent appeal that involved the same issue raised in the dismissed appeal.

In Hartney, plaintiff obtained a monetary judgment against defendant, and defendant appealed in an appeal docketed as No. 2-15-0005. In a separate action, plaintiff sought enforcement, including an order requiring the sale of stock owned by defendant, with the proceeds to go toward satisfying the judgment. Defendant argued that the stock was exempt under 735 ILCS 5/12-1001(b), but the circuit court held that the stock was to be sold, with the exemption applying to any proceeds from the sale, not the stock itself. Defendant appealed that order as well, and that appeal was docketed as No. 2-15-0929. Hartney, 2018 IL App (2d) 170165, ¶¶ 1-5.

In December 2015, with appeal No. 2-15-0929 pending, the appellate court affirmed the underlying judgment in appeal No. 2-15-0005. In January 2016, the circuit court stayed the sale of stock. It later lifted that stay in August 2016, and the stock was sold to plaintiff at auction in October 2016 for $1.00. Meanwhile, in July 2016, the appellate court dismissed appeal No. 2-15-0929 for defendant’s failure to file a brief. Id. ¶ 6.

In November 2016, defendant moved the circuit court for an order applying defendant’s statutory exemption to the stock, not to the proceeds from its court-ordered sale. The circuit court ultimately denied the motion in January 2017 and held that the exemption applied to the proceeds from the sale, but not the stock, and declined to void the sale of stock. Defendant appealed. Id. ¶¶ 7-8.

The appellate court held that its prior dismissal of appeal No. 2-15-0929 on the ground that defendant failed to file a brief precluded defendant from appealing the circuit court’s January 2017 order. The court explained that whereas, generally, a voluntary dismissal will not have preclusive effect on a subsequent appeal, an involuntary dismissal will have preclusive effect so long as the dismissal is based on “a defect in the appeal proceedings . . . attributable to appellant,” (id. ¶¶ 12-13 (quoting 50 C.J.S. Judgments, § 984 (2015))), meaning “where the appellant fails to properly conduct the appeal of an otherwise appealable order.” Id. ¶ 13. The court concluded that the involuntary dismissal based on defendant’s failure to file a brief qualified as a dismissal based on a defect attributable to defendant and, therefore, had preclusive effect. Id. ¶ 16. It further determined that defendant was raising the same substantive issue in the appeal before the court as he had raised in appeal No. 2-15-0929, and, therefore, held that the appeal was barred by that prior appeal’s dismissal.

Seventh Circuit Summarily Affirms District Court and Imposes Sanctions for Filing an Improper Appendix and a Frivolous Appeal

Tue, 13 Mar 2018 17:46:00 GMT

By Kimberly Glasford

Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

In Jaworski v. Master Hand Contractors, Inc., No. 16-3601 (7th Cir. Feb. 15, 2018), several plaintiffs filed an action against several defendant contractors for unpaid services. The district court found the defendants failed to pay their workers and the United States Court of Appeals for the Seventh Circuit found the defendants failed to fulfill their obligations to the court.

The district court in Jaworski entered a partial summary judgment, finding the defendants violated the Employee Classification Act (the ECA) (820 ILCS 185/1 et seq.) by misclassifying the plaintiffs as independent contractors. The court also found that damages under the ECA included the compensation guaranteed by the Illinois Minimum Wage Law (820 ILCS 105/1 et seq.) and the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq.), notwithstanding that the burdens of proof under those laws differed.

Following a bench trial, the court also found the defendants violated the two Illinois wage statutes as well as the Fair Labor Standards Act (29 USC § 201 et seq.). The defendants appealed.

First, the Seventh Circuit found that the defendants failed to comply with Circuit Rule 30 (Cir. R. 30), which requires that an appellant append to its opening brief the judgment under review, the pertinent factual findings, the relevant legal conclusions, and any other opinions or orders involved in the issues raised on appeal. Rule 30 also requires an appellant to certify that it has complied with the rule’s requirements. Cir. R. 30(d). The Seventh Circuit further observed that the failure to meticulously comply with this unambiguous rule might result in sanctions.

The Seventh Circuit observed that the defendants challenged the district court’s posttrial judgment but did not provide that court’s factual findings and legal conclusions. The defendants also failed to provide orders being challenged on appeal.

Moreover, the defendants falsely certified that they had appended all of the district court rulings necessary to decide the appeal. The Seventh Circuit noted that the defendants had not explained why they tendered a false certification. The court also recognized, however, that the clerk’s office would not accept a brief that lacked a Rule 30 certification. Consequently, the reviewing court summarily affirmed the district court’s judgment.

The Seventh Circuit also granted the plaintiffs’ motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure (Fed. R. App. P. 38), agreeing that the defendants’ appeal was frivolous.

That rule states: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Id. The defendants in Jaworski never responded to the sanctions motion.

The Seventh Circuit found that, while the defendants argued the record contained several examples of activities showing the plaintiffs were not employees, the defendants did not actually identify any examples. The defendants also failed to address two of the ECA’s three requirements for an employer to show a claimant is not an employee.

The defendants similarly failed to support their conclusion that the district court erred by finding that ECA claimants did not have the burden of proving their status as employees to be compensated under the Illinois wage acts. Nor did the defendants address the district court’s reasons for finding otherwise. In any event, that court had also found the claimants demonstrated independent violations of the Illinois wage acts. Finally, the Seventh Circuit found it was frivolous to assert that the defendants’ insolvency discharged their obligations to the plaintiffs under the ECA.

In light of the foregoing, the Seventh Circuit ordered the defendants to pay the plaintiffs’ costs and attorney fees in pursuing the appeal.

Several tips can be found in Jaworski. Don’t certify compliance with Rule 30 just to get past the clerk’s office. If the appellee moves for Rule 38 sanctions, respond. Last but not least, it’s better to forgo an appeal than risk sanctions for filing a frivolous one.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's March Term

Fri, 09 Mar 2018 15:27:00 GMT

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's March Term, which begins Monday, March 12, 2018, with oral arguments scheduled for March 13, 2018 (in Springfield) and March 15, 2018 (in Urbana at the University of Illinois). A total of 4 cases will be heard – 1 criminal and 3 civil. The following criminal case is scheduled for argument this Term:

People v. John Plank, No. 122202: March 15

Below is a summary for the criminal case, People v. John Plank. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

Defendant John Plank was charged with driving a motor vehicle while his license was revoked, in violation of 625 ILCS 5/6-303(a). The motor vehicle in question was a bicycle powered by a gasoline motor. Under the Vehicle Code, a "low-speed gas bicycle" is not a "motor vehicle." 625 ILCS 5/1-146. Defendant moved to dismiss the charge against him, arguing that the Code's definition of "low-speed gas bicycle," 625 ILCS 5/1-140.15, is unconstitutionally vague. The circuit court granted the motion, declaring section 1-140.15 unconstitutionally vague on its face in violation of the Due Process Clauses of the U.S. and Illinois Constitutions.

Section 1-140.15 defines a "low-speed gas bicycle" as "[a] 2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour."

Before the Illinois Supreme Court, the State argues for reversal on two bases. First, the statutory definition satisfies due process because it gives a person of ordinary intelligence – even if he does not weigh 170 pounds – a reasonable opportunity to determine whether a motorized bicycle is a "low-speed gas bicycle" and provides a clear and objective standard for enforcing the law. Second, the statutory definition is facially constitutional – even if the maximum-speed component is vague as applied to persons who do not weigh 170 pounds – because any such vagueness does not extend to all of the definition's applications.

In response, Plank asserts that the statutory definition is vague because it (1) deprives citizens of fair notice of what is prohibited, noting that around forty other states have definitions not dependent on the weight of the rider, and (2) encourages arbitrary enforcement given the many determinations involved (the horsepower of the motor, its maximum speed on a level paved surface, whether pedals are operable, whether speed was increased by human pedaling). Plank also argues that a statutory definition need not be vague in all of its applications to be unconstitutionally vague.

Seventh Circuit Emphasizes Requirements of Final Judgments

Mon, 05 Mar 2018 19:31:00 GMT

By Richard Harris

Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

With its tongue in its cheek, the Seventh Circuit Court of Appeals recently found a case so wanting of jurisdiction that it expressed a desire to make both sides pay a penalty into the “law clerks’ holiday-party fund.”

In Cooke v. Jackson Nat’l Life Ins. Co., No. 17-2080 (7th Cir. Feb. 9, 2018), the District Court ordered two kinds of relief. First, the defendant insurance company was ordered to pay the death benefit on the plaintiff’s husband’s policy. Second, the insurance company was ordered to pay the plaintiff’s legal expenses. The parties treated this order as the final judgment for purposes of appeal. However, the order made no mention of any specific relief—it simply stated that one motion was granted, another was denied, and an award was made. “We have held many times,” wrote Judge Frank Easterbrook, “that judgments must provide relief and must not stop with reciting that motions were granted or denied—indeed that it is inappropriate for a judgment to refer to motions at all.”

The Court of Appeals noted that there was another order entered by the District Court, not treated as a final judgment by the parties, which also purported to grant relief. This was a standard form order used for judgments. It stated that judgment was entered in favor of the plaintiff and against the insurance company, and that the plaintiff was awarded “reasonable attorney fees.” Unfortunately, the order was not signed by the district judge (see Fed. R. Civ. P. 58(b)(2)(B)), and it made no mention of exactly how much the insurance company was ordered to pay—whether for attorney fees or on the plaintiff’s husband’s policy. Recognizing these shortcomings, the plaintiff sought clarification by way of a motion to reconsider under Federal Rule of Civil Procedure 59(e). In turn, the District Court entered an order that directed the insurance company to pay a specific amount on the policy, but left open the amount of attorney fees. The plaintiff filed a petition asking for specification on the amount of attorney fees, but this was denied with leave to renew after resolution of the pending appeal from the first order.

The debacle continued when the insurance company filed a second notice of appeal, this time on the order containing the ruling on the plaintiff’s Rule 59 motion. The insurance company conceded the issue on the merits and paid the plaintiff on her husband’s policy, but argued that the plaintiff was not entitled to attorney fees. This prompted Judge Easterbrook to query, “Yet how can [the insurance company] appeal from an award of attorneys’ fees that has yet to be quantified? A declaration of liability lacking an amount due is not final and cannot be appealed.” The obvious problem was that this could lead to multiple appeals from a single award: one contesting the declaration of liability on the issue of attorney fees and another contesting the amount of attorney fees awarded. The insurance company cited Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), correctly observing that decisions on the merits and awards of attorney fees are separately appealable. But while Budinich would have applied to make the award on the plaintiff’s husband’s policy final and appealable, that case did not provide for an appeal from an unquantified award for legal expenses.

Throwing one final wrench into the proceedings, the plaintiff filed a motion under Federal Rule of Appellate Procedure 38, arguing that she was entitled to a separate award of attorney fees because she was forced to litigate the insurance company’s “frivolous” appeal from the order on her Rule 59 motion. The motion was denied, as the plaintiff was scolded for briefing the issue on the merits rather than filing a motion to dismiss the premature appeal. Judge Easterbrook concluded, “If it were permissible for a court to order both sides to pay a penalty—say, into the law clerks’ holiday-party fund—we would be inclined to do so. But there’s no such appellate power and no good reason for us to order [the insurance company] to pay something to [the plaintiff] as a result of a problem that both sides missed.”

Alas, we law clerks are left to finance our own holiday debauchery.

Don't Miss Out on the ALA's March Events

Tue, 27 Feb 2018 18:54:00 GMT

On March 7, 8 and 15, the ALA will host its annual Illinois Supreme Court Civil Cases Year in Review, featuring a panel discussion about the most significant civil cases decided by the Illinois Supreme Court in 2017.

There will be three events: one in Wheaton, co-sponsored by the DuPage County Bar Association (March 7); one in Chicago, co-sponsored by Hispanic Lawyers Association of Illinois (March 8); and one in Springfield, co-sponsored by the Sangamon County Bar Association (March 15). All three events will feature Illinois Appellate Court Justice Ann B. Jorgensen (Second District) and past ALA Presidents J. Timothy Eaton and Michael T. Reagan.

The Wheaton event will be held on Wednesday, March 7, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

The Chicago event will be held on Thursday, March 8, from noon to 1:45 p.m., at Mayer Brown LLP, Townhall Meeting Room, 32nd Floor, 71 South Wacker Drive.

The Springfield event will be held on Thursday, March 15, from noon to 2 p.m., at Maldaner’s, 222 South 6th Street.

Attendees should bring their own lunches except to the Springfield event where lunch will be provided. Attendees to each event will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

Lastly, on Thursday, March 29, the ALA will host its Roundtable Luncheon Program Featuring the Justices of the Illinois Appellate Court, First District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, 65 West Jackson Boulevard, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit and must adhere to the Union League Club dress code.

Amy St. Eve, U.S. District Judge for the Northern District of Illinois, and Michael Y. Scudder, Jr., Partner at Skadden, Arps, Slate, Meagher & Flom LLP, Nominated to the U.S. Court of Appeals for the Seventh Circuit

Fri, 16 Feb 2018 19:57:00 GMT

On February 12, President Donald Trump nominated Amy St. Eve, U.S. District Judge for the Northern District of Illinois, and Michael Y. Scudder, Jr., Partner at Skadden, Arps, Slate, Meagher & Flom LLP, to the United States Court of Appeals for the Seventh Circuit.

Supreme Court Decides When Clock Stops for State Claims

Thu, 15 Feb 2018 18:05:00 GMT

By E. King Poor (Partner, left), William A. Walden and Matthew A. Sloan (Associates), Quarles & Brady LLP

Joining state law claims in a federal suit is common. But until the Supreme Court decided Artis v. District of Columbia, 2018 WL 491524 (Jan. 22, 2018), this question remained unsettled: How much time does a plaintiff have to refile state law claims if all the federal claims are dismissed? In Artis, the Court provided a simple answer: a state statute of limitations is suspended while the federal case is pending and a plaintiff has the time remaining on that statute, plus 30 days, to refile.

Yet simple answers are not always the product of simple decisions. Here, in answering this narrow question of civil procedure, the Supreme Court split five-to-four. Justice Ginsberg authored a majority opinion relying on the textualism championed by the late Justice Scalia. Yet Justice Gorsuch’s dissent harkened back to the common law of the 1600s and argued that the majority’s position was not only contrary to the principles of federalism, but unconstitutional.

“Tolling” Means What the Text Says

Employment cases, like many federal suits, often join state law claims under a federal court’s “supplemental jurisdiction.” The Artis case followed that pattern. After being terminated from her job with the District of Columbia, the plaintiff brought suit in federal court and joined D.C. law claims in her suit. Later, the court dismissed the federal claims without deciding those brought under D.C. law.

Section 1367(d) of the Judicial Code (28 U.S. C. § 1367(d)) governs how much time a plaintiff has to refile in state court, after any federal claims are dismissed. It states that the time to refile in state court is “tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

In Artis, when the case was filed, almost two years remained on D.C.’s three-year statute of limitations, but by the time that the case was dismissed, the entire three-year period had elapsed. The plaintiff then filed suit in a D.C. court 59 days after the dismissal. That court dismissed the new case as untimely. It concluded that § 1367(d) did not suspend the running of the statute, and therefore, filing 29 days after the 30-day grace period was too late. The D.C. Court of Appeals affirmed following a ruling by the California Supreme Court, which in turn, conflicted with decisions from other state supreme courts.

The Supreme Court took the case to resolve this division of authority. Writing for the majority, Justice Ginsburg recognized that the case turned on the statute’s use of the word “tolled.” The Court noted that while “toll” may have other meanings (something that bells do or that drivers pay on a highway), in the context of statutes of limitations, it meant to suspend, or as the Court put it, “stop the clock.” To reach this conclusion, the Court focused on the text of the statute and stated that not only did the dictionary treat “toll” as suspending or stopped, the Court’s own decisions have consistently treated the word the same way. It also pointed out that adding a brief “grace period” such as 30 days, is “not unusual in stop-the-clock statutes.”

Finally, the Court was unpersuaded by the dissent’s argument that a stop-the-clock interpretation of “tolling” violated the Necessary and Proper Clause of the United States Constitution as a federal intrusion on state control of statutes of limitations. In rejecting this argument, the Court relied on its earlier precedent that § 1367(d) was necessary to the “administration of justice in federal court,” because it keeps plaintiffs from having to file in both federal and state courts for an action arising from the same event. The Court explained that whether Congress chose to use a stop-the-clock approach or a 30-day grace period was a matter within its discretion that did not implicate the Constitution.

Dissent: Stop-the-Clock Contrary to Common Law, Federalism and the Constitution

Justice Gorsuch argued in his dissent that, “It may be only a small statute that we are interpreting, but the result that the Court reaches today represents no small intrusion on traditional state functions and no small departure from our foundational principles of federalism.” In particular, he maintained that § 1367(d) grew out of a “rich common law and statutory tradition” that would have interpreted the word “tolling” to mean only a grace period, not a suspension of the statute. Relying on case law from as far back as the early 1600s, he stated that the common law provided only for enough time to “journey” to a new court after another case was dismissed.

The dissent also contended the majority’s stop-the-clock interpretation violated the Necessary and Proper Clause. Claiming that this interpretation unnecessarily intrudes on the ability of states to regulate their own statutes of limitation, the dissent concluded that “The Court today clears away a fence that once marked a basic boundary between federal and state power.”

Practice Pointers

Despite the varying arguments in Artis, the basic rule to emerge from the case is still straightforward: State claims may be refiled within the time remaining on a statute of limitations when the case was filed, plus 30 days. That may be a short period if the case was filed near the end of the statute. Or it may be lengthy, if the case was filed when months or even years remained before the statute expired.

As a result, defendants in particular should be mindful of the need to preserve all evidence and maintain litigation holds even after all the federal claims have been dismissed, when any state claims are still undecided. Any evidence preservation should remain in place until there is confirmation that the remaining periods for any state statute of the limitations, plus 30 days, have expired.

Illinois Appellate Court, First District, Amends Local Rule 39, Now Requires Hard Copies of Briefs

Tue, 13 Feb 2018 19:10:00 GMT

The Illinois Appellate Court, First District, recently amended Local Rule 39.

Effective March 1, 2018, in addition to the requirement of electronically filed briefs, which will be considered the official original filed with the court, the First District will require six duplicate paper copies of briefs and any appendices to be filed with the court’s electronic file stamp within five days of the documents' e-filing acceptance date.

To see these local rules, please click here.

Illinois Appellate Court, Second District, Amends Local Rules, Now Requires Hard Copies of Briefs

Thu, 25 Jan 2018 18:25:00 GMT

By Josh Wolff

Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

The Illinois Appellate Court, Second District, recently amended Local Rule 101. Now, the Second District requires five hard copies of briefs be filed with the Clerk of the Court within five days of the briefs’ e-filing acceptance date.

Rule 101(c) now reads:

“Where a party files a brief electronically, the electronically filed brief shall be considered the official original. The party shall provide the Clerk’s Office with five duplicate paper copies, which shall be received in the Clerk’s Office within five days of the electronic notification generated upon acceptance of the electronically filed brief. Each paper copy shall be a printed version of the electronically filed brief, bearing the Clerk’s electronic file stamp, and shall be printed one-sided and securely bound on the left side in a manner that does not obstruct the text. The paper copies shall comply with all applicable Supreme Court Rules, including the color-cover requirement in Supreme Court Rule 341. A party shall not provide paper copies of any other materials filed electronically.”

The Second District also amended Rule 103 regarding motions for extensions of time, specifically adding subsection (a)(4) concerning information that must be provided in cases that might become moot pending the appeal. Now, the party requesting an extension must include “[i]n a criminal case, the status of the defendant’s sentence (where applicable), or, in any case that would become moot due to the passage of time on appeal, the date on which the appeal would become moot.”

To see these local rules, please click here.

Don't Miss Out on the ALA's February Event

Wed, 24 Jan 2018 18:39:00 GMT

On February 9, the ALA along with the Lesbian and Gay Bar Association of Chicago will host “Neutral Umpires and Honest Black Robes: What Is, and Is Not, Said at Supreme Court Confirmation Hearings,” featuring Professor Carolyn Shapiro, the former Illinois Solicitor General.

Professor Shapiro teaches at Chicago-Kent College of Law, where she founded and acts as co-director of its Institute on the Supreme Court of the United States. At the event, Professor Shapiro will discuss how senators and nominees to the Supreme Court have described the role of the Court and its justices during confirmation hearings.

The event will begin at noon and run until 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard. The Union League Club enforces a dress code, which can be found here.

Attendees will receive one hour of MCLE credit.

For more information about the event and to register, please click here.

Former Appellate Court Justice William Cousins Has Passed Away

Mon, 22 Jan 2018 18:33:00 GMT

The ALA regrets to inform you that former Appellate Court Justice William Cousins passed away on Saturday, January 20, 2018, at the age of 90.

Justice Cousins had an illustrious career, which included graduating from Harvard Law School, serving in combat in the Korean War, and working as a prosecutor and in private practice. Later in his career, he was elected as a Chicago alderman and a judge in the circuit court of Cook County, and eventually became a justice of the Illinois Appellate Court.

For more about Justice Cousins’ life, please click here.

Illinois Appellate Court: Plaintiffs' Failure to Meet Deadlines for Filing Notice of Appeal and Late Notice of Appeal Resulted in Loss of Appellate Jurisdiction

Wed, 10 Jan 2018 18:25:00 GMT

By Kevin R. Malloy
Partner, Forde Law Offices LLP

In Vines v. Village of Flossmoor, 2017 IL App (1st) 163339, the First District reconsidered its granting of a Rule 303(d) motion for leave to amend a notice of appeal, and dismissed an appeal as untimely. In the case, a fourteen year old boy was injured when a metal grate outside the Flossmoor Library gave way, and his parents sued the Village of Flossmoor and the Flossmoor Library. The trial court granted summary judgment to the Village and the Library. The notice of appeal was due December 14, 2016, but the plaintiffs did not file until December 21.

Under Illinois Supreme Court Rule 303(d), the plaintiffs then had within 30 days after the time for expiration of the time to file the notice of appeal, or until January 13, 2017, to file a motion for leave to appeal. No Rule 303(d) motion was filed by that date. After the 30 days expired, the Library moved to dismiss the appeal for lack of jurisdiction, and the plaintiffs then filed a “Motion to Amend” the December 21, 2016 notice of appeal. A panel of the First District (other than the panel that issued the opinion) denied the Library’s motion to dismiss and granted the plaintiffs’ motion to amend the late-filed notice of appeal.

In its opinion, the appellate court reversed its grant of the motion to amend. In doing so, the court first noted its independent duty to review its jurisdiction and that the filing of a timely notice of appeal is both mandatory and jurisdictional. In reversing its prior decision to grant the Rule 303(d) motion, the appellate court noted that, under the plain language of the rule, the requested amendment fell outside the 30-day grace period for civil appeals. The court remarked that “[i]f litigation is to have some finality, acts must be accomplished within the time prescribed by law.” Vines, 2017 IL App (1st) 163339, ¶ 11 (quoting Gaynor v. Walsh, 219 Ill. App. 3d 996, 1004 (2d Dist. 1991)).

The court noted a split of authority as to whether a Rule 303(d) motion must be filed simultaneously with the notice of appeal to confer jurisdiction. The Vines court agreed with LaGrange Memorial Hospital v. St. Paul Ins. Co., 317 Ill. App. 3d 863, 865 (1st Dist. 2000), that the filing of the motion and the notice of appeal separately was not fatal, noting that the authority granted under the rule should be liberally exercised as long as the Rule 303(d) motion is filed within the additional 30 days. In Vines, however, the Rule 303(d) motion was not timely filed.

The plaintiffs urged the court at oral argument to extend the holding of People v. Brown, 54 Ill. 2d 25 (1973), to avoid unduly emphasizing “formality” over “substance.” The appellate court rejected the plaintiffs’ argument. In Brown, the supreme court reversed the appellate court’s dismissal of an appeal where the defendant filed a pro se notice of appeal seven weeks after pleading guilty and being sentenced, but where the trial court did not advise him about the time requirements for a notice of appeal. Brown was inapposite, according to the appellate court, as there is no corresponding obligation on the part of a trial court in a civil suit to admonish parties as to the time limits of the notice of appeal.

While the appellate court noted it was sensitive to the injuries suffered by the boy, the plaintiffs missed the deadline for filing a Rule 303(d) motion, and thus did not meet the mandatory requirement for appellate jurisdiction. Given that “[f]airness, efficiency, and predictability require that there be strict deadlines for our jurisdiction in civil cases,” the court dismissed the appeal. Vines, 2017 IL App (1st) 163339, ¶ 18.

Don't Miss Out on the ALA's January Events

Fri, 05 Jan 2018 20:59:00 GMT

On January 18 and 25, the ALA will host its annual Illinois Supreme Court Criminal Cases Year in Review, featuring a panel discussion about the most significant criminal cases decided by the Illinois Supreme Court in 2017.

There will be two events, one in Chicago, co-sponsored by the Asian American Bar Association (January 18) and one in Wheaton, co-sponsored by the DuPage County Bar Association (January 25). Both events will feature retired Illinois Appellate Court Justice James Epstein and current Illinois Appellate Court Justice Joseph Birkett, as well as Leah Bendik, Illinois Assistant Attorney General, Criminal Appeals Division and Patrick Cassidy, Supervisor, Office of the State Appellate Defender. ALA Secretary Gretchen Harris Sperry will moderate the discussion.

The Chicago event will be held on Thursday, January 18, from noon to 1:45 p.m., at Hinshaw & Culbertson LLP, 222 North LaSalle St., Suite 300.

The Wheaton event will be held on Thursday, January 25, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

Attendees should bring their own lunches and will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's January Term

Wed, 03 Jan 2018 18:41:00 GMT

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's January Term, which begins Monday, January 8, 2018, with oral arguments scheduled for January 9-11, 2018. A total of 6 cases will be heard – 5 criminal and 1 civil. The following cases are scheduled for argument this Term:

People v. Ricardo Vara, No. 121823: January 9

People v. Marc Pepitone, No. 122034: January 9

People v. Theophil Encalado, No. 122059: January 9

People v. Arthur Manning, No. 122081: January 10

People ex rel. Berlin v. Hon. Bakalis, No. 122435: January 10

Thounsavath v. State Farm Automobile Insurance Co., No. 122558: January 11

Below is a summary for one criminal case, People v. Theophil Encalado and one civil case, Thounsavath v. State Farm Automobile Insurance Co. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

People v. Theophil Encalado

Defendant was convicted of three counts of aggravated criminal sexual assault. The victim, Y.C., alleged that at 6 a.m. one morning, defendant lured her into his car while she was walking to a bakery, drove her into an alley, and sexually assaulted her. C.C. alleged that over three years earlier, defendant had also forcibly raped her, luring her into his car while she was walking from a nearby club. DNA recovered from both victims matched defendant. Defendant's defense was that both Y.C. and C.C. were prostitutes who had consented to sex in exchange for money and drugs after he had picked them up and asked for "a date." Prior to the commencement of voir dire, defense counsel requested the court question prospective jurors: "you will hear evidence about prostitution. Would that fact alone prevent you from being fair to either side?" The trial court declined to ask the question, and the appellate court reversed, finding this ruling an abuse of discretion.

While the purpose of voir dire is to empanel an impartial jury free from bias or prejudice, it cannot be used to indoctrinate jurors. In People v. Strain, the Illinois Supreme Court held that defendants are entitled to expose juror predisposition toward, and bias against, gangs. Before the Illinois Supreme Court, the State argues that the trial court did not abuse its discretion in rejecting voir dire on prostitution because there was no need to depart from the general rule against allowing voir dire to preview particular evidence and potentially indoctrinate jurors. Prostitution is not a topic that rises to the level of such intense controversy; the gang issue addressed in Strain is essentially sui generis. In the alternative, the State argues that any error was harmless given overwhelming evidence of Encalado's guilt. In response, Encalado asserts that the proposed question was phrased neutrally and potentially benefited the State as well given that under Encalado's version of events, State's witnesses were prostitutes. An amicus brief filed on behalf of John Marshall Law School's Pro Bono Program and Clinic asserts that: (1) the appellate court's holding would discourage sexual assault victims, whether prostitutes or not, from coming forward in that such voir dire questioning allows defendants to insinuate that victims were prostitutes, circumventing the rape shield statute's general bar on admission of evidence about a victim's sexual history (or past work as a prostitute); and (2) bias against prostitutes is stronger than bias against patrons of prostitutes.

Thounsavath v. State Farm Mutual Automobile Insurance Co.

This issue in this case is whether a driver exclusion endorsement in an automobile policy barring coverage for the named insured violates Illinois law and public policy.

Plaintiff was insured by Defendant State Farm Mutual Automobile Insurance Company. Her policy specifically provided that State Farm would have no liability for losses incurred “while any motor vehicle is operated by: Clinton M. Evans.” Plaintiff was subsequently involved in an automobile accident while traveling as a passenger in a vehicle which was owned and operated by Mr. Evans. She thereupon filed a claim with State Farm, which denied coverage. Plaintiff filed a declaratory judgment action and on cross-motions for summary judgment, the circuit court granted Plaintiff’s motion.

On appeal, the First District Appellate Court affirmed. The appellate court noted that several cases have upheld the validity of named driver exclusions, but distinguished them on the basis that those exclusions were enforced as to parties other than the named insured. In reaching its decision, the Court relied on American Access Casualty Co. v. Reyes, 2013 IL 115601, which held that under section 7-317(b)(2) of the Financial Responsibility Law (625 ILCS 5/7-317(b)(2), which mandates insurance coverage, a named insured could not be excluded from coverage under a named driver exclusion provision in an insurance policy.

In its petition for leave to appeal, State Farm argues that the appellate court misapplied Reyes, and departed from other authority suggesting the validity of named driver exclusions in Illinois.

Appellate Law Employment: Clerkship with Justice Steigmann, Illinois Appellate Court, Fourth District

Tue, 02 Jan 2018 18:19:00 GMT

Justice Steigmann, of the Illinois Appellate Court, Fourth District, is seeking a judicial law clerk for his chambers located in Urbana, beginning February 15, 2018.

The law clerk will perform legal research, analysis, and writing and will review and assist in the drafting of judicial opinions, orders, and other legal documents. Qualified applicants must be graduates of an accredited law school, possess excellent academic credentials, and be members in good standing of the bar. The successful candidate will possess exceptional legal research and writing skills, excellent organizational and analytical abilities, and strong communication, decision-making, and interpersonal skills.

Preferred qualifications include an affinity for cats, as two cats call Justice Steigmann's chambers home, a pleasant demeanor, and a strong sense of humor.

Appellate Court Justice John Schmidt's Funeral

Fri, 22 Dec 2017 13:53:00 GMT

Justice Schmidt's funeral will take place at 11:00 a.m. on Thursday, December 28, 2017 at Kirlin-Egan & Butler Funeral Home, 900 S. 6th St., Springfield. Burial will follow at Old Salem Cemetery.

There will be a visitation from 4:00 to 8:00 p.m. on Wednesday, December 27, 2017 at St. Agnes Church, 245 N. Amos Ave., Springfield.

Memorial contributions may be made to: Sacred Heart-Griffin Band Program, 1200 W. Washington, Springfield, IL 62702; St. Agnes Memorial Scholarship and Tuition Fund, 251 N. Amos, Springfield, IL 62702; or the Springfield Parks Foundation, 2500 S. 11th, Springfield, IL 62703.

For Justice Schmidt's obituary, please follow the link.

Appellate Court Justice John Schmidt Has Passed Away

Tue, 19 Dec 2017 17:56:00 GMT

The ALA regrets to inform you that Appellate Court Justice John Schmidt passed away Tuesday morning, December 19, 2017.

Please click here for more information.

Former Illinois Appellate Court Justice Robert Chapman Buckley Passed Away

Mon, 04 Dec 2017 18:15:00 GMT

Former Illinois Appellate Court Justice Robert Chapman Buckley passed away on Tuesday, November 28, at the age of 94. A funeral mass is set for 10 a.m. Tuesday at St. James Catholic Church in Arlington Heights.

Justice Buckley served on the appellate court from 1978 until 2002. More information about his life can be found in the Chicago Sun-Times and Legacy.com.

Appellate Law Employment: Assistant Corporation Counsel (Appeals Division) of the City of Chicago Department of Law

Fri, 01 Dec 2017 18:43:00 GMT

The City of Chicago Department of Law is looking to fill an Assistant Corporation Counsel position in its Appeals Division. The Assistant Corporation Counsel will brief and argue cases in state and federal appellate courts and do not specialize in a particular subject matter, but instead handle a range of matters, including labor and employment, torts, civil rights, tax and revenue, regulation, issues arising under ordinances and statutes, and other cases involving city government and programs.

The ideal candidate will have graduated from law school in 2014 or earlier, and have a demonstrated interest in appellate practice, as evidenced by at least a one-year appellate clerkship or research position with an appellate court, or having participated in briefing at least two appellate cases. All employees of the City of Chicago must be actual residents of the City of Chicago as outlined in 2-152-050 of the City of Chicago Municipal Code.

The submission deadline is December 19, 2017.

More information about the position can be found here.

Don’t Miss Out on the ALA’s December Event - Roundtable Luncheon with the Justices of the Illinois Supreme Court

Wed, 29 Nov 2017 20:41:00 GMT

On December 7, the Appellate Lawyers Association will host a roundtable luncheon featuring the justices of the Illinois Supreme Court. The luncheon will provide attendees the rare opportunity to speak to the justices in an informal setting, allowing attendees to ask questions and discuss appellate practice.

The event will be from 12:00 p.m. to 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Attendees to the event will receive one hour of MCLE credit. To register, please visit here.

United States Supreme Court: Only Statutory Deadlines Are Jurisdictional

Wed, 22 Nov 2017 15:48:00 GMT

By E. King Poor (Partner, left) and Jerome C. Mohsen (Associate),

Quarles & Brady LLP

Justice Frankfurter once observed that the term “jurisdiction” was “a verbal coat of too many colors.” United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952). But in its recent decision in Hamer v. Neighborhood Hous. Servs. of Chicago, 2017 WL 5160782 (Nov. 8, 2017), the Supreme Court makes plain that the color choices for that term are now more black and white.

In particular, when considering the time to appeal, the Court in Hamerheld that only time limits set by Congress, as opposed to those set by a court rule, are jurisdictional.

In Hamer, a plaintiff’s discrimination claims were dismissed by the district court. Her lawyer then withdrew shortly before the notice of appeal was due, and the court granted her an extension of time to appeal, but beyond what was permitted by Federal Rule of Appellate Procedure 4(a)(5)(C). The defendants did not oppose that request in the district court. But the Seventh Circuit, on its own, ruled that it lacked jurisdiction because the district court had no authority to extend the time to appeal beyond what it termed was a “jurisdictional” deadline and dismissed the appeal.

In a unanimous decision, the Supreme Court reversed. In doing so, it reinforced the distinction between jurisdictional deadlines and what it described as mandatory “claim-processing rules.” Drawing on earlier precedent, the Court explained that time limits are jurisdictional only when set by Congress in a statute. Such statutory deadlines cannot be waived or forfeited even if a party fails to raise the issue. These time limits may be raised at any time, even on appeal, and a court has a duty to raise them.

On the other hand, a time limit set by a court-made rule may still be enforced, but only if it is timely raised by a party. If it is not timely raised, it may be waived or forfeited, and a court has no duty to raise it on its own. The Supreme Court also explained that the distinction between time limits that are court-made and those that are statutory arises from the principle that “[o]nly Congress may determine a lower federal court’s subject matter jurisdiction.”

The Supreme Court pointed out that the Seventh Circuit, like other courts of appeal, have “tripped over” the statement, in Bowles v. Russell, 551 U.S. 205 (2007), that the time for taking an appeal is “mandatory and jurisdictional.” This statement is still correct, the Court explained, when applied to Bowles. Yet Bowles was different. There, the district court granted an extension of the time to appeal, because the appealing party lacked notice of the judgment under Rule 4(a)(6)(B), which mirrors the fourteen-day statutory time limit in 28 U.S.C. § 2107(c). Because the time limit was grounded in a statute, it is jurisdictional and the district court had no authority to extend it.

On the other hand, the time limit in Hamer differed in this essential respect: it was derived only from a court-created rule. In Hamer, the district court granted an extension beyond the time limit based only on a court rule that had no statutory counterpart, and that made all the difference. As a result, the time limit for the extension was only a mandatory claim-processing rule. When the defendants raised no objection to it, the Seventh Circuit could not dismiss the appeal on its own for lack of jurisdiction.

The Hamer decision reinforces that whether a federal time limit is jurisdictional is not a coat of many colors, but actually a black or white question: Is the time limit set by Congress or a court?

Lawyers for Puerto Rico: An Event Benefiting the Hurricane Relief Fund of The Puerto Rican Agenda

Tue, 21 Nov 2017 18:44:00 GMT

On November 28, the Puerto Rican Bar Association and the Hispanic Lawyers Association of Illinois in conjunction with the Chicago Bar Association will host “Lawyers for Puerto Rico,” a social event with live music, drinks and appetizers benefiting the Hurricane Relief Fund of The Puerto Rican Agenda.

The event will take place at the Chicago Bar Association (321 S. Plymouth Court), beginning at 5:30 p.m. and ending at 7:30 p.m.

Guests at the event will include Illinois State Senator Iris Martinez, and Cook County Commissioners Jesus “Chuy” Garcia and Luis Arroyo Jr.

For more information about the event and to buy tickets, please click here.

Appellate Law Employment: Assistant Attorney General (Civil Appeals Division in Chicago) of the Illinois Attorney General’s Office

Mon, 20 Nov 2017 19:25:00 GMT

The Illinois Attorney General’s Office is looking to fill an Assistant Attorney General position in its Civil Appeals division in Chicago. The Assistant Attorney General will brief and argue civil cases in state and federal appellate courts. The ideal candidate should have a minimum of three years of legal experience or an appellate clerkship, as well as a demonstrated interest in appellate work. Preference will be given to candidates who have appellate experience in both state and federal courts.

More information about the position can be found here.

In re Marriage of Teymour: A Must-Read Decision for Family Law Practitioners on the Appealability of Postdissolution Proceedings.

Fri, 17 Nov 2017 19:37:00 GMT

By Jonathan B. Amarilio
Partner, Taft Stettinius & Hollister LLP

“We find that supreme court jurisprudence requires us to depart from the weight of First District authority.” In re Marriage ofTeymour, 2017 IL App (1st) 161091, ¶ 1. To any practitioner of the law, these words should set off alarm bells and garner attention, and In re Marriage of Fouad Teymour, 2017 IL App (1st) 161091, provides no exception to that rule.

Teymour concerns appeals from trial court orders resolving several postdissolution matters, specifically between Fouad Teymour and his ex-wife Hala Mostafa. The underlying facts are unremarkable. Fouad and Hala’s marriage was dissolved and he was ordered to pay maintenance. Several years later, Hala filed a petition to extend the length of the payment period, for unpaid child support, and for attorney fees and costs. Fouad, in turn, sought a reduction of maintenance. Both sides sought discovery sanctions. The trial court entered an order continuing maintenance, found Fouad in indirect civil contempt (although it declined to impose a penalty in conjunction therewith), and granted Hala leave to file petitions for attorney fees, costs and sanctions on several bases, denying Fouad’s reciprocal requests.

Fouad filed a notice of appeal challenging his continued maintenance obligations, the imposition of sanctions, the contempt finding, and the trial court’s failure to dismiss Hala’s request for child support. Hala’s petitions for attorney fees and—possibly—her request for child support (this latter point was apparently unclear from the record) remained pending; however, the trial court did not enter a Rule 304(a) finding.

On appeal, the First District was confronted with a surprisingly unresolved issue: whether unrelated, pending postdissolution matters constitute separate “claims” or separate “actions” for purposes of establishing jurisdiction under Rule 304(a). The reviewing court explained that the appellate districts were split on this question, further explaining that if each pending, unrelated matter constitutes a separate “claim” in the same action, a Rule 304(a) finding is required to appeal from an order disposing of only one such claim. Whereas if each pending and unrelated matter constitutes a separate “action,” an order disposing of only one such action is final and appealable under Rule 301—regardless of the status of other, still pending, actions. And of course, if the latter were true, a party would also have to file a notice of appeal within 30 days of the relevant trial court decision or lose the right to appeal it forever.

Criticizing as imprecise the reasoning adopted in several appellate and supreme court decisions addressing closely related issues, and observing that the supreme court’s 2009 decision In re Marriage of Gutman, 232 Ill. 2d 145 “only added fuel to the jurisdictional fire” (a statement seemingly meant to draw attention), the court here broke with First District precedent and adopted the position taken by the Second and Fourth Districts to find that separate and unrelated postdissolution matters present separate claims, not separate actions, and therefore a Rule 304(a) finding is required where only one of several pending postdissolution petitions has been resolved. Recognizing the fairly unique nature of postdissolution proceedings, the court stated that “[w]here a party files one postdissolution petition, several more are likely to follow,” and any different rule would only encourage unmanageable piecemeal litigation. Teymour, 2017 IL App (1st) 161091, ¶ 39.

Applying that holding to the facts presented, the court found that, even if it assumed the child support request was not pending when the notice of appeal was filed, the several attorney fee petitions (often considered ancillary in other contexts) were still pending. Because the trial court did not make a Rule 304(a) finding, the contempt and sanctions orders were not yet appealable, and the court found it lacked jurisdiction to consider them.

Unless and until the Supreme Court wades into this matter directly, Teymour is a must read opinion for all family law practitioners and for appellate lawyers handling family-law appeals.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's November Term

Mon, 13 Nov 2017 17:47:00 GMT

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's November Term, which begins today, November 13, 2017, with oral arguments scheduled for November 14-16, 2017. A total of 7 cases will be heard – 2 criminal and 5 civil. The following criminal cases are scheduled for argument this Term:

People v. Robert Carey, No. 121371: November 14

People v. Leshawn Coats, No. 121926: November 14

Below is a summary for one criminal case, People v. Robert Carey. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Robert Carey

Defendant Robert Carey was charged with multiple offenses, including felony murder while committing attempted armed robbery (count I) and attempted armed robbery with a firearm (count II). The appellate court agreed with defendant that the indictment's description of count I was deficient. The indictment alleged that the murder occurred during commission of attempted armed robbery, listed the date and location of the offense, provided the statutory citation for felony murder, and named the accused and the victim. But the court found the count deficient because it did not specify which of two forms of attempt armed robbery was alleged, i.e., attempted armed robbery with a firearm or attempted armed robbery with a dangerous weapon other than a firearm.

Before the Illinois Supreme Court, the State argues for reversal on multiple bases. First, count I fully informed Carey of the felony murder charge in compliance with longstanding precedent describing sufficiency of indictments. Second, even if count I were deficient, review of the indictment as a whole sufficiently informed Carey of the charge given that count II specifies attempted armed robbery with a firearm. Third, Carey cannot establish prejudice because the detail of the weapon used was irrelevant to his theory of the case. Finally, even if the indictment were deficient, the appropriate remedy should have been to treat the predicate felony for felony murder as attempted robbery and affirm the conviction rather than to vacate the felony murder conviction.

In response, Carey asserts that the appellate court's opinion was correct for several reasons. First, during the trial, the State argued that the predicate felony was committed on both bases, i.e., with a firearm and with a dangerous weapon other than a firearm. Second, count I cannot be interpreted in light of count II because the latter was nolle prossed before trial. In the alternative, on cross-appeal, Carey argues that the State failed to prove him guilty beyond a reasonable doubt because the State failed to prove that the firearm element given that the parties agreed that the gun Carey carried was inoperable.

The following civil cases are scheduled for argument this Term:

People v. Robert Carey, No. 121371: November 14

In re N.G., Nos. 121939, 121961 (cons.): November 14

People ex rel. Matthew Hartrich v. 2010 Harley-Davidson, No. 121636: November 15

Antonicelli v. Rodriguez, No. 121943: November 15

The Bank of New York Mellon v. Laskowski, No. 121995: November 15

Jenner v. Illinois Department of Commerce and Economic Opportunity, No. 121293: November 16

Below is a summary for one civil case, Antonicelli v. Rodriguez.

Antonicelli v. Rodriguez

At issue is whether a counterclaim alleging that a defendant is an intentional tortfeasor precludes a finding that the defendant has entered a good faith settlement shielding him from further liability. The plaintiff was severely injured when Defendant Daniel Rodriguez, who was driving under the influence of cocaine, struck the plaintiff’s vehicle, which then collided with a semi-truck. The plaintiff sued Rodriguez and two co-defendants—the truck driver and his employer—alleging that they were negligent. The co-defendants filed a counterclaim for contribution, alleging that Rodriguez’s acts were intentional and that damages should be apportioned accordingly. Rodriguez and the plaintiff settled. The circuit court entered a finding that the settlement was made in good faith, then dismissed both the plaintiff’s claims against Rodriguez and the co-defendants’ counterclaims. The circuit court affirmed the good faith finding.

Before the Illinois Supreme Court, the co-defendants argue that Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117), which protects minimally responsible defendants from paying entire damage awards, requires a trial court to consider the respective fault of the defendants before making a finding of good faith. The co-defendants further argue that deciding whether to approve a settlement, courts should look to the totality of the circumstances surrounding the settlement, including, in this case, the uncontroverted evidence that Rodriguez acted intentionally. In response, Rodriguez argues that settling intentional tortfeasors may be discharged from liability under the Act, that the appellate court’s decision furthers the Act’s purpose in promoting settlements, and that Section 2-1117 does not affect a defendant’s ability to settle under the Joint Tortfeasor Contribution Act (740 ILCS 100/2).

Illinois Appellate Court Justice Delort Gives Primer on Appellate Practice and Procedure

Fri, 10 Nov 2017 15:52:00 GMT

By Louis J. Manetti

Associate, Hinshaw & Culbertson LLP

Illinois Appellate Court Justice Delort, with the cooperation of the Chicago Bar Association, recently delivered a seminar accessible on YouTube that serves as a useful primer for appellate practice and procedure. Justice Delort serves in the First District, which is the appellate district that covers Cook County, and was elected to the Appellate Court in 2012.

In The Argument of an Appeal, 26 ABA J. 895, 895 (Dec. 1940), regarded as one of the definitive lists of practice pointers for appellate advocates, John W. Davis, a former U.S. Solicitor General, observed that “discourse on the argument of an appeal would come with superior force from a judge who is in his judicial person the target and trier of the argument[.]” Justice Delort is, in Davis’s words, the trier of the argument, and to the appellate practitioner, these kinds of seminars are invaluable.

The video is a thorough primer on appellate procedure. And Justice Delort imparts practical knowledge about litigating in the appellate court, such as:

Common mistakes practitioners make when they try to make an order appealable under Illinois Supreme Court Rule 304(a)
The difference between an ordinary appendix and a helpful appendix
How to optimize the opening section of a brief—the “Nature of the Case” section
Writing conventions that risk giving Appellate Court Justices a headache

The video is brimming with practical tips and both new and experienced appellate practitioners will learn something from it.

Seventh Circuit Holds that it Lacked Jurisdiction to Review Partial Denial of Section 2255 Motion to Vacate Until After Resentencing on Certain Counts

Mon, 06 Nov 2017 21:50:00 GMT

By Su Wang,
Law Clerk to Justice Aurelia Pucinski, Illinois Appellate Court, First District

In Haynes v. United States, No. 17-1680 (7th Cir. 2017), the Court of Appeals held that it lacked jurisdiction to review the partial denial of a section 2255 (28 U.S.C. § 2255) motion to vacate until after resentencing on certain counts.

In 1988, Stacy Haynes was convicted of 12 federal crimes after committing several armed robberies in Iowa and Illinois. As to the Iowa robberies, Haynes was convicted of three counts of interstate travel in aid of racketeering (18 U.S.C. § 1952). As to the Illinois robberies, he was convicted of three counts of Hobbs Act robbery (18 U.S.C. § 1951). Haynes was also convicted of six counts of using and carrying a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)). Pursuant to 18 U.S.C. § 3559(c)(1), the Government sought a mandatory life sentence on each count of Hobbs Act robbery and interstate travel in aid of racketeering. The district court sentenced Haynes accordingly, after finding that he had the requisite number of prior “serious violent felonies” because of two prior residential burglary convictions in Illinois.

Haynes was unsuccessful on direct appeal and collateral attack under section 2255 until the United States Supreme Court made its decision in Johnson v. United States, 135 S. Ct. 2551 (2014), retroactive on collateral review (Welch v. United States, 136 S. Ct. 1257 (2016)), and the Seventh Circuit allowed Haynes to pursue another collateral attack. In Johnson, the Supreme Court held that the definition of “violent felony” in the residual clause of the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)) was unconstitutionally vague. The residual clause defined “violent felony” to include an offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In the case at bar, the district court determined that Johnson, as construed in United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015), and United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), implied the invalidity of another residual clause, one that Haynes’s life sentences depend upon, i.e., 18 U.S.C. § 3559(c)(2)(F)(ii). The district court did not set aside any of Haynes’s convictions but concluded that his § 1952(a)(2) convictions should be classified in the same manner as the § 1951 offense because Haynes’s interstate travel “set the stage” for the robberies.

On appeal, Haynes contended that interstate travel in aid of racketeering did not satisfy the elements clause of § 924(c)(3)(A). The Seventh Circuit, however, declined to consider the issue, noting that the resentencing ordered on the § 1951 and § 1952 convictions may affect the sentences on the § 924(c) convictions, and that a defendant generally must wait until the entire prosecution is complete before taking an appeal. Citing its agreement with five circuits holding that every count in a multi-count situation must be resolved before the decision may be appealed as to any count, the Seventh Circuit held that “whether a § 2255 proceeding concerns one count or many counts, when a district court orders resentencing on any count, the decision is not final until the new sentence has been imposed.” See United States v. Hammer, 564 F.3d 628, 632-34 (3d Cir. 2009); United States v. Hayes, 532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch, 518 F.3d 887, 894 (11th Cir. 2008); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir. 2006); and United States v. Martin, 226 F.3d 1042, 1048 (9th Cir. 2000). Because the district court had yet to resentence Haynes, the Seventh Circuit dismissed Haynes’s appeal for want of jurisdiction.

The ALA Welcomes Newly Confirmed Seventh Circuit Court of Appeals Judge Amy Coney Barrett to the Organization

Wed, 01 Nov 2017 18:14:00 GMT

The Appellate Lawyers Association welcomes newly confirmed Seventh Circuit Court of Appeals Judge Amy Coney Barrett as an esteemed new member of the organization. Judge Barrett has been a professor at Notre Dame Law School, where she teaches and researches in the areas of federal courts, constitutional law, and statutory interpretation, and practiced law at Miller, Cassidy, Larroca & Lewin in Washington, D.C. She served as a law clerk for Justice Antonin Scalia of the United States Supreme Court and for Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. She received her Juris Doctor degree from Notre Dame Law School and her undergraduate degree from Rhodes College.

Don’t Miss Out on the ALA’s November Event - Patterns and Practice: How Analyzing the Illinois Supreme Court Can Boost Your Appeals

Mon, 30 Oct 2017 13:13:00 GMT

On November 15, 2017, the Appellate Lawyers Association and the South Asian Bar Association of Chicago will host a conversation with appellate strategist Kirk C. Jenkins, chair of the Appellate Task Force at Sedgwick LLP. Jenkins will discuss how data analytics can enhance appellate practices and whether data can help predict a case's result. Jenkins has focused his practice in appellate litigation for more than 20 years and has created a database containing approximately 275,00 data points from Illinois Supreme Court decisions from 1990 to 2016.

The Chicago Bar Association and the Chicago Bar Foundation's Pro Bono Week is October 23 through October 27

Fri, 13 Oct 2017 17:51:00 GMT

The Chicago Bar Association and the Chicago Bar Foundation will once again celebrate their Pro Bono Week from October 23 through October 27. Over the course of the week, there will be several complimentary events, including one titled “Justice: An Evening of Stories and Community” focusing on five-minute stories of justice from members of the crowd. That event will take place on Tuesday, October 24 from 6 to 8 p.m. at Revolution Brewing.

Another highlight of the week will be the 24th Annual Pro Bono and Community Service Fair, which will be presented by the Chicago Bar Association’s Young Lawyers Section. The fair provides the opportunity for attorneys and law students to meet with more than 40 different legal aid, pro bono, community service and mentoring organizations. The event will take place on Thursday, October 26 at the law firm of Kirkland & Ellis LLP (300 North State Street in Chicago) from 5 to 7 p.m.

To learn more about Pro Bono Week and to register, please visit here.

ALA Co-Sponsoring Relief Fundraiser for Mexico and Puerto Rico on October 23

Fri, 13 Oct 2017 17:29:00 GMT

On October 23, the ALA will co-sponsor with the Diversity Scholarship Foundation and the Lesbian and Gay Bar Association of Chicago a fundraiser to support relief in Mexico and Puerto Rico after both have suffered tremendous damage from natural disasters. All profits raised from the event will be given in equal amounts to the Mexican Consul and the Puerto Rican Agenda.

The event will take place at Latinicity, 108 North State Street (Third Floor) in Chicago, beginning at 5 p.m. and ending at 7 p.m.

Guests at the event will include Illinois Congressman Luis V. Gutierrez and Carlos Martin Jimenez Macias, the Mexican General Consul in Chicago.

For more information about the event and to buy tickets, please click here.

Don’t Miss Out on the ALA’s October Event -- Seventh Circuit Court of Appeals: Major Cases in Review Panel Discussion

Fri, 06 Oct 2017 18:33:00 GMT

On October 20, 2017, the Appellate Lawyers Association and the 7th Circuit Bar Association will present a panel discussion on significant cases recently decided by the United States Court of Appeals for the Seventh Circuit. The discussion will focus on civil, commercial, and criminal developments. It will also cover the Court’s recent en banc cases and Seventh Circuit decisions that will be decided this term by the United States Supreme Court. The event will be from 12:00 p.m. to 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois.

Our distinguished panelists will be Judge Gary Feinerman of the United States District Court for the Northern District of Illinois, Illinois Solicitor General David L. Franklin, and Michael A. Scodro, a partner at Mayer Brown and former Illinois Solicitor General. Scodro is also a past president of the Appellate Lawyers Association.

The Appellate Lawyers Association is excited to present this panel discussion with the 7th Circuit Bar Association. Attendees to the event will receive one hour of MCLE credit. Further details and instructions on how to register are available here.

Former ALA President Michael A. Scodro Discusses "Blockbuster" Term for the United States Supreme Court on Chicago Tonight

Thu, 05 Oct 2017 19:08:00 GMT

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the "blockbuster" term for the United States Supreme Court.

The discussion included Gill v. Whitford, a case involving the constitutionality of gerrymandering in Wisconsin, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a baker who refused to create a wedding cake for a same-sex couple and his right to free speech, and Janus v. AFSCME, a case involving union fair-share fees.

If the embedded video does not work, you may watch here.

Illinois Appellate Court, Third District, Enters Order Requesting Courtesy Copies of Electronically Filed Briefs

Wed, 04 Oct 2017 17:29:00 GMT

On September 28, 2017, the Illinois Appellate Court, Third District, entered an administrative order on the filing of briefs. According to the order, electronically filed briefs will be considered the official original brief filed in the appellate court. However, the parties must file five duplicate paper copies of all briefs. The paper copies must bear the electronic file stamp and be filed within five days of the electronically filed copy. Lastly, the paper copies must comply with all applicable Supreme Court rules, including the color cover requirement as detailed in Supreme Court Rule 341.

Below is a copy of the order.

Benefit for Higher Education in Haiti - An Event Co-Sponsored by the ALA

Fri, 29 Sep 2017 13:39:00 GMT

On November 8, 2017, the Appellate Lawyers Association will be co-sponsoring an event titled “Benefit for Higher Education in Haiti” with the Haitian American Lawyers Association of Illinois, along with several other bar associations.

The event will take place at the Hyatt Regency in Chicago (151 East Wacker Drive). The reception begins at 5:30 p.m. followed by dinner and a program at 6:30 p.m. All proceeds will benefit the United Council for Higher Education in Haiti, a not-for-profit 501(c)(3) organization created by the legal community for the construction of a center for higher education in Haiti.

To learn more about the event, please visit the link. Tickets are $150 per person with various sponsorships at higher levels. There will be a silent auction at the event, for which the organizers are seeking donations. In addition, they are seeking volunteers to serve on their Planning Committee. Please email Mail@UCHEH.org for more information or to volunteer.

Amended Illinois Supreme Court Rules Concerning Word Limits of Appellate Documents To Be Effective November 1

Tue, 26 Sep 2017 17:12:00 GMT

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

On September 15, 2017, the Illinois Supreme Court entered an order, amending several Supreme Court rules, all to be effective on November 1, 2017. The amendments, in large part, concerned word limits of several appellate documents. Here is a brief summary of the amendments:

Rule 303A

Under Rule 303A, involving expedited and confidential proceedings under the Parental Notification of Abortion Act, a petitioner who appeals the circuit court’s denial of a judicial waiver under the Act may file a brief statement of facts and memorandum of law in support of her petition. Together, those documents may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 306

Under Rule 306, involving permissive interlocutory appeals, specifically, interlocutory orders affecting the care and custody of, or the allocation of parental responsibilities for unemancipated minors, or the relocation of unemancipated minors, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 307

Under Rule 307, involving interlocutory appeals as of right, specifically those involving the temporary restraining orders, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 315

Under Rule 315, involving petitions for leave to appeal from the appellate court to the Supreme Court, the petition is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix. Similarly, the respondent’s answer, which is optional to file, is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix.

Rule 341

Under Rule 341, involving the general format of appellate briefs, reply briefs may not exceed 20 pages, or alternatively, now may not exceed 6,000 words, excluding the cover, the statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service and any matters appended to the brief under Rule 342(a).

Also, cross-appellants and cross-appellees are granted 30 additional pages, or alternatively, now 9,000 words. The cross-appellant’s reply brief may not exceed 20 pages, or alternatively, now may not exceed 6,000 words.

Rule 367

Under Rule 367, involving petitions for rehearing, unless authorized by the court, those petitions must be limited to 27 pages or alternatively, now may not exceed 8,100 words. Answers to petitions are similarly limited to 27 pages or alternatively, now may not exceed 8,100 words. Lastly, a reply is limited to 10 pages or alternatively, now may not exceed 3,000 words.

Retired Judge Rita M. Novak Reviews ALA September Presenter Joel Cohen's Book "Blindfolds Off: Judges on How They Decide”

Wed, 20 Sep 2017 20:26:00 GMT

In an article for the Chicago Daily Law Bulletin, retired Judge Rita M. Novak reviewed Joel Cohen's Book "Blindfolds Off: Judges on How They Decide." The book will be the basis for the ALA's September 26th event featuring Cohen.

Here are a few snippets from Judge Novak's review:

The explorations in Joel Cohen’s engaging book stem from reflections of Justice Benjamin N. Cardozo in “The Nature of the Judicial Process,” published nearly 100 years ago. Cardozo’s classic work examined the “ingredients” that go into judicial decisions.

------------------------------------------------

Judge Nancy Gertner, a former criminal defense and civil rights lawyer, relates how she decided a tort claim involving the wrongful conviction of innocent defendants perpetrated by FBI misconduct.

Judge John E. Jones III describes his ruling in an “intelligent design” case and the conservative firestorm that followed, one ignited by partisan attackers who perceived the decision as unfaithful to the judge’s prior political affiliations.

------------------------------------------------

Whether in the context of settlement or trial, allowing the facts to unfold and guide the outcome of the case is a check on subjective rulings. Starting with organizing facts early in discovery, as Hellerstein discusses, or awaiting the evidence on a crucial issue, as Judges Charles P. Kocoras, Jones and Walker describe, letting the facts lead where they will keeps the rulings objectively grounded.

The full article is available on the Chicago Daily Law Bulletin's website.

CLE Program on Recent United States Supreme Court Decision: Matal v. Tam

Tue, 19 Sep 2017 14:54:00 GMT

On Wednesday, September 27, the law firm of Banner & Witcoff will present “A New Slant on Trademarks,” a panel discussion of the recent United States Supreme Court case Matal v. Tam, which allowed a music group called The Slants to obtain a federal trademark for its name.

The panelists will include: Rebecca Glenberg, senior staff counsel at the ACLU of Illinois; Andy Kang, legal director of the Asian Americans Advancing Justice; Binal Patel, partner at Banner & Witcoff; and Simon Tam, bassist and founder of The Slants.

The event will be co-sponsored by the Asian American Bar Association of Greater Chicago and the Korean American Bar Association of Chicago. The CLE portion will be co-sponsored by The South Asian American Bar Association of Chicago.

The event will take place at Google (320 N. Morgan Street, #600) in Chicago, beginning at 5:30 p.m. Advanced registration is required. To register, please visit: https://anewslantontrademarkspanel.eventbrite.com.

Cost is $15 for members, $25 for non-members.

Seventh Circuit Holds Rule 60(b) Does Not Provide District Court with Authority to Instruct Circuit Court How to Remedy Errors in Appellate Filings

Thu, 14 Sep 2017 16:51:00 GMT

By Zachary Johnson

Research Attorney, Illinois Appellate Court, First District

In Chambers v. United States, No. 16-2977, a panel of the United States Court of Appeals for the Seventh Circuit held that the district court did not abuse its discretion when it denied defendant Keith Chambers’ Rule 60(b) motion for relief from judgment in his habeas corpus proceeding.

In the decision, the Seventh Circuit discussed the district court’s authority to provide relief under Rule 60(b) and held that the rule does not provide a district court the authority to instruct a circuit court what to do, i.e., Chambers could not use a Rule 60(b) motion to direct the Seventh Circuit to allow him to file a pro se memorandum in support of his request for a certificate of appealability.

In 2008, Chambers pled guilty to distributing and possessing child pornography (18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B)), and was sentenced to 14 years in prison. Chambers voluntarily dismissed his direct appeal. He filed a motion challenging his sentence (28 U.SC. § 2255) based on ineffectiveness of his trial counsel. The district court appointed representation for Chambers (“appointed counsel”) and conducted a hearing on the motion. It concluded that his trial counsel’s performance was not deficient and denied the § 2255 motion. The district court declined to issue a certificate of appealability.

Chambers appealed to the Seventh Circuit and, as the Seventh Circuit stated in its decision, “that is when things went awry.” Although appointed counsel was listed as counsel of record on appeal, he refused to represent Chambers, but did not file a motion to withdraw. Chambers contacted the clerk and district court for help, but was ultimately unsuccessful in getting appointed counsel removed so that he could file a pro se memorandum in support of his request for a certificate of appealability. In February 2013, the Seventh Circuit declined to issue the certificate.

Thereafter, Chambers unsuccessfully filed a motion to recall the mandate and a § 2244(b) application. He then asked the district court for relief from the judgment under Rule 60(b), which gave rise to the appeal in this case.

In his Rule 60(b) motion, Chambers argued that he was deprived of his opportunity to be heard when he was prevented from filing a pro se memorandum in support of his request for a certificate of appealability. The district court concluded that it lacked the authority to direct the appellate court to allow Chambers’ memorandum in support of his request and, therefore, denied his Rule 60(b) motion.

On appeal to the Seventh Circuit, Chambers argued the district court had the authority to grant relief based on the new and unforeseeable circumstances. The government argued that Chambers was relitigating an issue that the Seventh Circuit had already considered and rejected.

In the decision, the Seventh Circuit distinguished Chambers’ circumstances from those in cases where the district court remedied errors made in filing an appeal. The court explained that “all of the cases Chambers cite[d] involved errors either committed or properly remedied in the district court.”

The Seventh Circuit held that the proper vehicle to remedy an error in the circuit court is a motion to recall the mandate, which serves the same purpose as Rule 60(b) does in the district court. But therein lies the problem, as the Seventh Circuit held: “Chambers sought that relief and we rejected it. He cannot now relitigate that claim in the district court through the vehicle of Rule 60(b).”

The Seventh Circuit affirmed the district court’s order finding it did not have authority to consider Chambers’ Rule 60(b) motion. The court briefly addressed the merits of his Rule 60(b) motion and memorandum in support of a certificate of appealability, determining that they would have been unsuccessful.

Don’t Miss Out on the ALA’s September Event

Thu, 07 Sep 2017 20:11:00 GMT

On Tuesday, September 26, the ALA will host a discussion with author Joel Cohen on his research into how judges decide cases. The event is titled “Blindfolds Off: Judges on How They Decide,” and Cohen will share his insights into an unexpected human range of judicial philosophies, practicalities, and biases, a rare perspective he gleaned in researching and writing his book, also titled “Blindfolds Off: Judges on How They Decide.”

In the book, Cohen interviewed more than a dozen members of the federal bench, including judges of the United States Court of Appeals for the Second and Ninth Circuits and the United States District Court for the Northern District of Illinois. All of them provided candid, revealing, and personal assessments of their approaches to rulings and decisions in high-profile and complex cases.

Cohen has published several books, including Broken Scales: Reflections on Injustice, as well as works of fiction and books on religion. His articles regularly appear in Slate, New York Law Journal, Huffington Post, ABA Journal, and other publications. A former federal prosecutor and currently an adjunct professor at Fordham Law School, Cohen counsels individuals and corporations in criminal matters, ethical issues, and disciplinary proceedings. In July 2017, he was part of the appellate team that convinced the United States Court of Appeals for the Second Circuit to reverse the conviction of the former Speaker of the New York State Assembly, a case headed to the United States Supreme Court.

The event will take place at the Union League Club of Chicago (65 West Jackson Boulevard), beginning at noon and running until 1:30 p.m. Attendees to the event will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's September Term (Criminal)

Wed, 06 Sep 2017 17:12:00 GMT

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's September Term (Civil)

Tue, 05 Sep 2017 17:32:00 GMT

Cases Pending, edited by Gretchen Harris Sperry and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court’s September Term, which begins Monday, September 11, 2017, with oral arguments scheduled for September 12, 13, 14, 19 and 20, 2017. A total of 16 cases will be heard – 9 criminal and 7 civil. The following civil cases are scheduled for argument this Term:

Yarbrough v. Northwestern Memorial Hospital—No.121367—September 14

Corbett v. City of Highland Park—No. 121536—September 19

Citibank v. Illinois Department of Revenue—No. 121634— September 19

Ramsey Herndon LLC v. Whiteside—No. 121668—September 19

Cohen v. Chicago Park District—No. 121800—September 20

In re Marriage of Goesel—No. 122046—September 20

Lawler v. University of Chicago Medical Center—No. 120745—September 20

Below is a summary for two of these civil cases, Lawler v. University of Chicago Medical Center and Corbett v. City of Highland Park. Tomorrow, a list of the criminal cases scheduled for argument and a summary of one of the cases will be posted. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

MEDICAL MALPRACTICE – STATUTE OF REPOSE
No. 120745
Lawler v. The University of Chicago Medical Center

The issue in this case concerns whether a medical malpractice claim brought under the Wrongful Death Act, 740 ILCS 180/0.01 et seq., can relate back to an existing claim, or is barred by the statute of repose.

On August 4, 2011, Jill Prusak (“Prusak”) filed a medical malpractice claim against Defendants, including The University of Chicago Medical Center, alleging Defendants failed to diagnose her macular pathology, an injury she alleged she discovered on August 7, 2009, leading Defendants to fail to recognize Prusak’s lymphoma. Prusak died on November 24, 2013.  Prusak’s daughter, Sheri Lawler, substituted as Plaintiff as the executor of Prusak’s estate.  On April 11, 2014, Lawler filed an amended complaint, adding a wrongful death claim.  Defendants moved to dismiss the wrongful death claim as barred by the four-year statute of repose applicable to medical negligence cases, 735 ILCS 5/13-212(a).  The circuit court granted the motion to dismiss, finding that the wrongful death claim was a new action and did not relate back to the original claims.

The Illinois Appellate Court reversed.  The court concluded that the wrongful death claim arose out of the same occurrence set out in the original pleading, and that Defendants had notice of both the facts and allegations underlying the medical malpractice claims in a timely-filed complaint.  Therefore, the Illinois Appellate Court held, Defendants would not be prejudiced by claims filed after the expiration of the statute of repose.  The relation-back doctrine saved the wrongful death claim which otherwise would be barred by the statute of repose.

In their petition for leave to appeal, Defendants argue that the court improperly evaluated the issue using principles applicable to the statute of limitations, not the statute of repose.  By doing so, Defendants explained, the court improperly allowed the relation-back statute to supersede the statute of repose.

TORT IMMUNITY ACT
No. 121536
Corbett v. City of Highland Park

The issue presented in this case involves whether, under Section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (“the Tort Immunity Act”), a bicycle path qualifies as a “riding trail” such that a local public entity is immune from liability for injuries caused by a condition of that path.  That section provides that “[n]either a local public entity nor a public employee is liable for an injury caused by a condition of *** any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107.

This action arose after plaintiff, a cyclist, sustained an injury while riding her bicycle on a portion of the Skokie Valley Bike Path known as the “bunny trail” due to the frequent appearance of rabbits thereon. She sued the County of Lake and the City of Highland Park (“the City”), alleging that they were both liable for the defects present on the path which caused her injuries. The circuit court entered summary judgment in favor of both defendants, concluding that the bicycle path constituted a “riding trail” for purposes of the Tort Immunity Act such that the defendants were immune from liability for Plaintiff’s injuries. Plaintiff appealed the entry of summary judgment in favor of the City.

Reversing, the Illinois Appellate Court, Second District concluded that the section of the paved bicycle path upon which Plaintiff was injured, which was located in a semi-urban area, did not qualify as a “trail,” as intended by the legislature. Relying on prior case law defining a trail as being located within a “forest or mountainous region,” the Illinois Appellate Court determined that the path was not a trail and therefore, the City was not entitled to absolute immunity under the Tort Immunity Act. The court further opined that “[t]he frequent appearance of bunnies on the trail does not, in our judgment, call the foregoing analysis into question.” The court reversed the trial court’s entry of summary judgment and remanded Plaintiff’s claims against the City to the circuit court.

In its petition for leave to appeal, the City argues that the Second District’s restrictions on what constitutes a “trail” under the Tort Immunity Act– limiting it to forested or mountainous regions – would effectively preclude any public entity other than Forest Preserve Districts from seeking immunity, would ignore the purpose of the statute, and would lead to absurd results insofar as there are no mountainous regions within Illinois.

The Third in a Summer Series of First District Decisions Signals Winter for Jurisdiction Over Claims Raised for First Time on Appeal

Wed, 30 Aug 2017 17:06:00 GMT

By Bradley Jarka
Assistant Appellate Defender, Office of the State Appellate Defender

In People v. Daniels, 2017 IL App (1st) 142130-B, the First District of the Illinois Appellate Court has once again undertaken to define the limits of its own jurisdiction. This is the third decision of this kind to be featured on this blog this summer. For further discussion of this topic see Katherine Grosh’s recent analysis of People v. Griffin, 2017 IL App (1st) 143800 and Andrew Kwalwaser’s summary of People v. Grigorov, 2017 IL App (1st)143274.

In Daniels, the court held that it does not have jurisdiction to entertain the State’s request to reinstate charges previously dismissed pursuant to a nolle prosequi, where that request is made for the first time on appeal from the denial of a defendant’s 2-1401 petition. This deceptively simple holding is dependent on the surreptitious complexities lurking in the procedural posture of Daniels’s case, the substantive relief that Daniels requested, and the Illinois Supreme Court’s recent decision in People v. Shinaul, 2017 IL 120162. Each will be discussed in turn.

In 2005, Chicago police officers conducted a pat down search of Ronald Daniels on a city bus and found him to be in possession of an unloaded revolver and four rounds of ammunition. Based on that discovery, the State charged Daniels with several counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use of a weapon by a felon. Daniels pleaded guilty to the count of AUUW charged under Section 5/24-1.6(a)(1), (a)(3)(B) of the criminal code, which made it unlawful to possess an unloaded firearm outside his dwelling or place of business if ammunition was immediately accessible. Pursuant to that plea agreement, the State nolle prosequied (nolle’d) the remaining counts that Daniels had been charged with. Daniels did not take a direct appeal. Instead, once his sentence was completed in early 2014, Daniels filed a 2-1401 petition (735 ILCS 5/2-1401) seeking to vacate his conviction for AUUW. The circuit court denied his petition and Daniels appealed.

By the time Daniels’s case was up on appeal, his path to substantive relief had largely been forged. In 2013, the Illinois Supreme Court decided People v. Aguilar, 2013 IL 112116, which held that Section 5/24-1.6(a)(1), (a)(3)(A) of the AUUW statute was facially unconstitutional. Shortly thereafter, in People v. Burns, 2015 IL 117387, the court clarified that its holding extended to both the Class 4 and Class 2 “versions” of that offense. In Daniels’s case, the State conceded that Aguilar and Burns applied with equal force to Section (a)(1), (a)(3)(B) of the AUUW statute and agreed that Daniels’s conviction under that section should be vacated. Then, for the first time, the State asked the appellate court to remand so that it could reinstate the charges that it had nolle’d in exchange for Daniels’s plea. The court found that it lacked jurisdiction to consider the State’s request.

Enter Shinaul. Like Daniels, Cornelius Shinaul pleaded guilty to one count of AUUW and the State nolle’d the rest of the counts. Like Daniels, Shinaul filed a 2-1401 petition arguing that his conviction should be vacated in light of Aguilar. The State similarly agreed that Shinaul’s conviction had to be vacated. Then, while the case was still in the circuit court, the State filed a motion to reinstate the previously nolle’d charges. The circuit court denied the State’s motion and its subsequent motion to reconsider and the State appealed. Another division of the First District found that there was no jurisdiction to consider the State’s request. The Illinois Supreme Court reversed.

At issue in Shinaul was whether the appellate court has jurisdiction over the State’s appeal from the circuit court’s denial of its motion to reinstate charges after the court had vacated the defendant’s only count conviction. The court concluded that the appellate court did have jurisdiction. There were two key parts to the court’s holding. First, the court found that the State’s motion to reinstate the nolle’d charges was properly filed as the equivalent to a responsive pleading “conditioned upon [Shinaul]’s success in vacating his conviction.” Second, the court found that the denial of the State’s motion to reinstate was, in fact, part of the circuit court’s final judgment in the litigation of Shinaul’s 2-1401 petition. Final judgments are “determination[s] by the circuit court on the issues presented on the pleadings” that permanently affix the rights of the parties. This led the court to hold that, by properly filing its motion to reconsider in the circuit court, the State had made reinstatement of the nolle’d counts “pertinent to the outcome of the judgment” as one of the “issues before the circuit court.” The State thus had the right to appeal that judgment and the appellate court had jurisdiction to consider it.

So, what of Daniels? The State filed a petition for leave to appeal the appellate court’s determination that it lacked jurisdiction to consider reinstatement. The supreme court denied that petition but vacated the appellate court’s judgment and ordered the court to reconsider in light of Shinaul.

Upon reconsideration, the court in Daniels made quick work of distinguishing Shinaul. The court held that the State’s choice to raise the issue of reinstatement for the first time on appeal was a fatal distinction. The appellate court recognized that the circuit court had rendered a final judgment, but found that the judgment had been limited to the merits of Daniels’s 2-1401 petition and had not included any request by the State to reinstate charges. This, of course, was different than Shinaul where the circuit court’s judgment had included both the merits of Shinaul’s 2-1401 petition and the State’s responsive request to reinstate previously nolle’d charges.

For similar reasons, the court then considered and rejected the possibility of exercising original appellate jurisdiction, which is authorized by Article VI, Section 6 of the Illinois Constitution, “when necessary to the complete determination of any case on review.” Here, the court adopted the reasoning from its original opinion and found that the only “case on review” was the merits disposition of Daniels’s 2-1401 petition. That case was a separate civil proceeding unrelated to the original criminal prosecution. Entertaining a request to reinstate charges that were part of the underlying criminal case was not necessary to the determination of the 2-1401 petition. Original jurisdiction was lacking as well.

Ultimately, the appellate court reaffirmed its original disposition of Daniels’s appeal. The court reversed the circuit court’s denial of Daniels’s 2-1401 petition, vacated his AUUW conviction, and declined to reach the State’s request to reinstate the nolle’d charges for lack of jurisdiction. In a footnote, the court suggested that the State was not without a remedy. Subject to statutory or constitutional limitations, the State could either file a new indictment or move, in the circuit court, for reinstatement of the nolle’d charges.

It is worth noting that the Rule 23 order in People v. Burris, 2017 IL App (1st) 142860-U, was reissued just last week on August 16th upon remand to reconsider its prior decision in light of Shinaul. Upon reconsideration, the court in Burris found that it indeed had jurisdiction to review the State’s request to reinstate nolle’d charges (it ultimately denied the State’s request on the merits). As in Shinaul, the State in Burris had made a motion to reinstate the charges in the circuit court prior to taking its appeal.

Appellate Law Employment: Judicial Law Clerk for Justice Zenoff (Second District in Rockford)

Thu, 24 Aug 2017 20:05:00 GMT

Justice Zenoff of the Illinois Appellate Court, Second District, seeks a judicial law clerk for an opening in her chambers in Rockford. Applicants should have an excellent academic record, superior research and writing skills, and outstanding communication, computer, and organizational skills. Strongly prefer experience as a judicial law clerk or practitioner. Journal experience, especially Law Review, also preferred.

Applicant must be willing to live within 45 minutes of chambers and make a minimum 2 year commitment. Position available September 2017. To apply, submit cover letter, resume (with LSAT, GPA, class rank, and bar status), law school transcript, 2 writing samples, and 3 references to Carl Norberg at cnorberg@illinoiscourts.gov. This position is open until filled. EOE.

Seventh Circuit Court of Appeals Grants Wisconsin Justice Department's Request for En Banc Rehearing in Case of Brendan Dassey, of Netflix's "Making a Murderer" Fame

Mon, 21 Aug 2017 13:58:00 GMT

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

The Netflix 10-episode documentary "Making a Murderer" detailed the story of Steven Avery, a Wisconsin man who had been wrongfully convicted of sexual assault and attempted murder. After serving 18 years in prison for the crimes, Avery was released in 2003. Two years later, however, Avery was arrested for allegedly murdering Therea Halbach. During the investigation, the police interviewed Avery's nephew, 16-year-old Brendan Dassey, who confessed to helping Avery commit the murder.

Both Avery and Dassey were charged and eventually convicted of Halbach's murder. Dassey was sentenced to life in prison with the possibility of parole. The Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin Supreme Court declined to review his case.

In 2015, Dassey filed a writ of habeas corpus in federal court, seeking to be released from prison or a new trial. He alleged that various of his constitutional rights were violated, but in particular that his confession to the police had been coerced in violation of the fifth amendment. In 2016, a federal magistrate judge agreed, finding that his confession had been coerced. Accordingly, because his confession was unconstitutional, the judge ordered him to be released from prison.

The Wisconsin Justice Department appealed that decision to the Seventh Circuit Court of Appeals, which stayed Dassey's release pending the appeal. In June 2017, the Seventh Circuit affirmed the magistrate judge's decision in a 2-1 opinion, with Judge Hamilton dissenting. It further granted Dassey's writ of habeas corpus unless the State of Wisconsin elected to retry him within 90 days of the Seventh Circuit's final mandate.

The Wisconsin Justice Department requested a rehearing en banc in front of the entire panel of the Seventh Circuit. The court grantedthe request and vacated its original decision. Now, on September 26, the full Seventh Circuit will hear Dassey's case.

First District Appellate Court Announces: “The Time Has Come to Take a More Serious Look at this Problem” Involving Criminal Appeals

Wed, 16 Aug 2017 11:48:00 GMT

By Katherine A. Grosh
Partner, Levin Ginsburg

In People v. Griffin, 2017 IL App (1st) 143800, the First District Appellate Court declined to reach the merits of a case that the court characterized as “but one of hundreds of criminal appeals involving fines-and-fees issues that were overlooked at the trial court level and raised for the first time on appeal.” Id. ¶ 5. In the case, the defendant pled guilty to two crimes in two separate cases and was sentenced to concurrent prison terms in both cases, with fines and fees. Id. ¶¶ 1-2. The defendant did not file either a motion to withdraw his plea or to reconsider his sentence, nor did he file a direct appeal in either case. Id. ¶ 2.

More than 30 days after sentencing in both cases, the defendant filed a pro se motion to correct the mittimus to reflect a different custody date for purposes of calculating presentence detention credit, which the trial court denied. Id. ¶ 1. He appealed the denial of his motion, abandoning his initial claim as to the custody date, and instead contending for the first time that his fines and fees were erroneously assessed against him and that he was entitled to presentencing detention credit. Id. ¶¶ 1, 4.

The appellate court found that, because the defendant failed to file a motion pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) to withdraw his guilty plea and vacate the judgment or a motion to reconsider his sentence within 30 days of his sentencing, it could not consider his appeal on the merits. Id. ¶¶ 1, 11. The appellate court further found that the denial of his motion to correct the mittimus was not a final and appealable order over which it had jurisdiction because—unlike the sentencing orders—it did not determine the litigation on the merits. Id. ¶¶ 1, 13. Accordingly, the appellate court dismissed the appeal. Id. ¶¶ 1, 27.

The most noteworthy aspect of the opinion was the appellate court’s express recognition that the raising of fines-and-fees issues for the first time on appeal has become a “routine” issue in criminal appeals—one that “could easily be discovered and resolved at the trial court level with more diligent oversight by prosecutors and defense attorneys alike.” Id. ¶¶ 5-6. According to the court’s own Westlaw search, in 2016 alone, there were 137 appeals where a defendant challenged the imposition of fines and/or fees, and 83 cases in which a defendant asserted error in the application of per diem credit against his fines, “all for the first time on appeal.” Id. ¶ 5.

The court stated that “[t]he time has come to take a more serious look at this problem, both for the sake of preserving proper appellate jurisprudence and for the sake of judicial economy.” Id. ¶ 7. The court continued: “Copious amounts of time, effort, and ink are spent resolving these issues at the appellate level when many of them are more appropriately resolved at the trial level through (i) routine review of judgment orders after their entry—a task that would take at most minutes—and (ii) cooperation between the parties to correct any later-discovered errors by means of agreed orders.” Id. (citations omitted). The court “encourage[d] both the State’s Attorney and the public defender to review judgment orders upon entry to ensure that fines and fees are properly assessed,” and “further encourage[d] an open line of communication between the public defender’s office and the State’s Attorney’s office, so that when defense counsel discovers an obvious clerical error in the imposition of fines and fees, he or she can contact the State’s Attorney, and the error can be corrected expeditiously at the trial court level by means of an agreed order.” Id.

The court then went on to support its well-reasoned and amply supported determination of no jurisdiction with a historical discussion of the void judgment rule, abolished by the Illinois Supreme Court in People v. Castleberry, 2015 IL 116916, followed by a rejection of the plain error doctrine as a vehicle for appellate review due to its inapplicability to clerical mistakes. Id. ¶¶ 8-9. The court then outlined what it termed a “three-step analysis,” followed immediately by its determination that it need not proceed beyond step two because the defendant’s appeal from the trial court’s denial of the motion to correct the mittimus was not properly before the court due to the defendant’s failure to file the Rule 604(d) motion—“a condition precedent to any appeal from a judgment on a plea of guilty.” Id.¶¶ 10-11 (quoting People v. Flowers, 208 Ill. 2d 291, 300-01 (2003)).

After reciting the well-established rule that “a trial court retains jurisdiction to correct clerical errors or matters of form at any time after judgment [such as the inadvertent use of the wrong custody date, as Griffin claimed occurred in this case], so as to make the record conform to the actual judgment entered by the court” notwithstanding a lack of compliance with Rule 604(d), the appellate court clarified that “[t]hat jurisdiction, though, does not automatically extend to this court.” Id. ¶ 12. Stating, “it is axiomatic that not every denial of a motion gives rise to a right of appeal,” the court explained that the denial of the motion to correct the mittimus was not a final and appealable order because “there no longer was any pending litigation to resolve when that motion was filed” and the trial court merely affirmed the correctness of an existing judgment. Id. ¶¶ 13-15. The court also summarily rejected any application of the revestment doctrine, since: (i) a Rule 604(d) motion was never filed (id. ¶ 20, citing People v. Henderson, 395 Ill.App.3d 980 (2009)), and (ii) parties may not “revest” a reviewing court with jurisdiction over issues that were never raised in the trial court (id. ¶¶ 21-22).

Although it dismissed the defendant’s appeal, the appellate court noted that he was not left without recourse, noting that he could still petition the trial court for the relief that he seeks because “trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake.” Id. ¶ 26.

Vermilion County Names its Courthouse in Justice Garman’s Honor

Tue, 15 Aug 2017 12:09:00 GMT

At a recent ceremony at the David S. Palmer Arena, Illinois Supreme Court Justice Garman was honored by having the county courthouse named in her honor—it will now be known as the Rita B. Garman Vermilion County Courthouse.

The Commercial-News reports the story.

At the ceremony, Justice Garman noted that early in her career opportunities “for a young woman lawyer were limited[.]” But she gained experience in both government and private practice. And eventually she became an associate judge, then an a circuit judge, then the presiding judge for Vermilion County. She was appointed to the Supreme Court in 2001 and served as the chief judge from 2013 to 2016. The Commercial-News reports that Justice Garman was the first chief justice to serve in every capacity in the state judiciary, and the first woman to hold each of those positions.

The article also reports that over 200 people, including local and state officials, attended the ceremony. Keynote speaker and former Illinois Governor Jim Edgar stated that 40 years ago, he never thought that the Vermilion County courthouse would be named for a judge who was a woman, but that, “How times have changed—and I must say, for the better.” Chief Justice Lloyd Karmeier—Justice Garman’s successor as chief justice—commended the Vermilion County Board and community for having the foresight to honor Justice Garman.

Justice Garman noted that that the ceremony and honor “have made me acutely aware that I am not an island. I am a piece of this community, just as every member of this audience is a piece of a larger whole.”

Vermilion County Names its Courthouse in Justice Garman’s Honor

Tue, 15 Aug 2017 12:09:00 GMT

The Commercial-News reports the story.

Chief Judge Wood Calls on Practitioners to Comply with the Appellate Rule for Jurisdictional Statements

Fri, 04 Aug 2017 16:24:00 GMT

By Louis J. Manetti
Attorney, Codilis and Associates, PC

Chief Judge Wood recently issued a call to comply with a rule that requires parties to summarize jurisdiction. In Baez-Sanchez v. Sessions, Nos. 16-3784 and 17-1438, 2017 U.S. App. LEXIS 12306, at *1 (7th Cir. July 10, 2017), Chief Judge Wood released an opinion in two consolidated cases. Id. The chief judge expounds why the jurisdictional summary rule is important to the Court, explicitly reviews the rule’s requirements, and criticizes the widespread failure to follow all aspects of the rule. She states, “I am issuing this opinion in the hope that attorneys practicing in the Seventh Circuit, as well as our pro selitigants, will take heed and avoid these errors in the future.” Id. at *2.

The opinion explains that the Seventh Circuit screens all of its appeals to make sure that there are no jurisdictional problems—either in the district court or on appeal. Id. at *1-2. To screen cases, the Court relies on jurisdictional information that the parties supply. Id. at *2. The Court must have full and accurate jurisdictional statements because “for centuries it has been recognized that federal courts have an obligation—to assure themselves of their own jurisdiction.” Id. at *8 (quoting Kelly v. U.S., 29 F.3d 1107, 1113 (7th Cir. 1994)). Cases like Belleville Catering Co. v. Champaign Market Place, LLC, 350 F.3d 691, 693 (7th Cir. 2003) stress how seriously the Court takes jurisdiction. There, the appellee suggested that the Seventh Circuit should simply rule on the appeal’s merits—even though it was discovered that diversity jurisdiction was lacking—because it would establish finality, and surely the court had ruled despite jurisdiction in the past. Id. The Court emphasized that this statement “leaves us agog . . . . [t]he proposition that the Seventh Circuit has [ruled without jurisdiction] in the past—a proposition unsupported by any citation—accuses the court of dereliction combined with usurpation.” Id. The jurisdictional summary acts as a bulwark against these threats.

Federal Rule of Appellate Procedure 28, and its corresponding circuit rule unique to the Seventh Circuit, mandate what must be in a jurisdictional statement. Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *3. The appellant or petitioner must establish four things. First, appellants must show the basis for the district court’s jurisdiction. Id. at *3. This includes identifying the specific statute if federal question jurisdiction is involved, and showing the jurisdictional amount and citizenship—not residence—of each party if the case concerns diversity jurisdiction. Id. at *3-4. The opinion cautions that to articulate citizenship for an organization the litigant must work back through the ownership structure until either an individual human being or a formal corporation is identified. Id. at *7. Second, the jurisdictional statement must demonstrate the appellate court’s jurisdiction. Id. at *3. Third, it must articulate the dates showing that the appeal is timely—including the specific dates to show the judgment, any postjudgment motions and when they were resolved, and when the notice of appeal was filed. Id. at *3-4. Last, the statement must provide facts establishing the judgment’s finality or an exception to the final-judgment rule. Id. at *3.

The opinion then turns to appellees, who have their own “equally important” obligations under the rule. Id. at *6. The appellee must explicitly state whether the appellant’s jurisdictional summary is complete and correct. Id. Chief Judge Wood points out that “complete” and “correct” are not synonyms, and the appellee must verify that the appellant’s statement is both. Id. at *7. If it is not, the appellee must provide a complete jurisdictional summary. Id. at *6.

The opinion notes that “a distressing number of briefs filed in this court do not comply with the requirements” for jurisdictional statements. Id. at *2; see also The Practitioner’s Handbook for Appeals, at 134, located at http://www.ca7.uscourts.gov/forms/Handbook.pdf (reporting that the clerk’s office rejects about 10-15% of all submitted briefs because of rule violations). The appellees’ briefs submitted to the chief judge in the two consolidated cases illustrated this problem. In one case, the Attorney General of the United States’s brief reported that the petitioner’s “jurisdictional statement is correct.” Id. at *8-9. The statement was inadequate because it did not say anything about completeness. Id. at *9. The brief in the second case made “the mirror-image problem.” Id. That is, it declared that the appellant’s statement provided “a complete jurisdictional summary”—saying nothing about its correctness. Id. Hence, the Court struck both briefs and ordered the parties to file complying briefs within seven days. Id. at *10.

The chief judge’s frustration with the widespread failure to follow Appellate Procedure Rule 28 and its corresponding circuit rule was palpable. “There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws.” Id. at *9. For guidance, the opinion directs litigants to a jurisdictional checklist that the Court provides, http://www.ca7.uscourts.gov/forms/check.pdf, and the recently updated Practitioner’s Handbook for Appeals, http://www.ca7.uscourts.gov/forms/Handbook.pdf. Id. at *8. In closing, Chief Judge Wood expresses her hope that the opinion “will prevent the same problems from continuing to arise.” Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *10.

Chicago Bar Association's New Gun Violence Prevention Initiative

Tue, 01 Aug 2017 17:22:00 GMT

The Chicago Bar Association recently started a new initiative to help communities in Chicago suffering from pervasive gun violence. On November 3, 2017, from 9 a.m. to 12:30 p.m., the CBA will host “A Call To Action: Communities Suffering From Gun Violence Meet Lawyers Offering Help.”

At the meeting, 20 community representatives from various Chicago neighborhoods will meet with lawyers, seeking legal assistance in four specific areas: (1) mental health services; (2) police/community relationships; (3) faith-based community services; and (4) jobs for high-risk men and women.

During the meeting, community representatives will speak about the four areas of need. The lawyers in attendance will then have an opportunity to speak to these representatives to better understand their needs and determine how they can help meet those needs.

Planning meetings about the initiative will take place on Wednesday, August 23 and 30 at 12:00 p.m. at the Chicago Bar Association building.

If you are interested in volunteering your services, please e-mail Terry Murphy (tmurphy@chicagobar.org) and let him know the area you would like to volunteer with.

Illinois Appellate Court Holds It Lacks Jurisdiction to Vacate Erroneously Assessed Fines and Fees Raised on Appeal for First Time from Collateral Proceeding

Thu, 20 Jul 2017 13:15:00 GMT

By Andrew Kwalwaser
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In People v. Grigorov, 2017 IL App (1st) 143274, a panel of the First District of the Illinois Appellate Court granted a defendant's request for presentencing detention credit but found that it lacked jurisdiction over other claims that he raised for the first time on appeal.

In April 2014, the defendant, George Grigorov, pleaded guilty to aggravated driving under the influence of alcohol and driving on a revoked or suspended license. The circuit court sentenced him to concurrent prison terms of six and three years, respectively, with "all mandatory fines, fees, and court costs." He did not file a Rule 604(d) motion to reconsider his sentence or withdraw his plea, nor did he file a timely notice of appeal. In August 2014, however, he filed a petition pursuant to section 5-9-2 of the Unified Code of Corrections (730 ILCS 5/5-9-2 (West 2014)), requesting that the circuit court vacate $6,000 in imposed "assessments" due to his inability to pay. In September 2014, the circuit court denied the petition.

On appeal, the defendant abandoned his claim that his fines should be revoked due to his inability to pay and argued, for the first time, that (1) he should receive $975 in presentencing detention credit against his fines pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)), and (2) certain fines and fees were erroneously assessed.

As to his first claim of error, the appellate court granted the defendant presentencing detention credit. The court observed that, although the defendant's claims on appeal were "entirely new and unrelated" to his section 5-9-2 petition, section 110-14 of the Code of Criminal Procedure of 1963 allows the award of presentencing credit "merely 'upon application of the defendant.' " 725 ILCS 5/110-14 (West 2012). As the supreme court explained in People v. Caballero, 228 Ill. 2d 79, 88 (2008), a defendant can apply for credit "at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding." Based upon this language, the court found that the interests of justice permitted the defendant to raise his claim for presentencing detention credit for the first time on appeal from the denial of his section 5-9-2 petition.

As to the defendant's contention that certain fines and fees were erroneously assessed, the court declined to reach the merits of his argument for several reasons. First, the court found that it lacked jurisdiction over his claims because they were not raised in the trial court and, moreover, section 5-9-2 of the Unified Code of Corrections "only deals with fines, not fees." Second, the court observed that the defendant did not file a Rule 604(d) motion, a necessary step for attacking fines and fees on appeal. Third, the court held that, in light of the abolition of the void judgment rule in People v. Castleberry, 2015 IL 116916, unauthorized fees are not void. In so holding, the court followed a line of decisions reaching the same conclusion and rejected the defendant's reliance on the only opinion that has held otherwise, People v. McCray, 2016 IL App (3d) 140554.

Fourth, the court found that the plain-error rule did not apply because the fees imposed against the defendant were not defects that affected his substantial rights, but rather were mathematical mistakes that did not implicate his right to a fair sentencing hearing. Finally, the court noted that judicial economy did not favor considering the defendant's arguments on the merits because "notions of judicial economy, by themselves, cannot create jurisdiction where it does not otherwise exist." The court observed that judicial economy is best served when fines and fees are resolved at the circuit court level, particularly in situations like the case at bar, where the defendant is indigent and the possibility of collecting against him does not justify the resources expended in litigating the matter on appeal.

United States Supreme Court Justice Ruth Bader Ginsburg to Speak in Chicago on September 11

Fri, 14 Jul 2017 19:34:00 GMT

On Monday, September 11, United States Supreme Court Justice Ruth Bader Ginsburg will speak at the Auditorium Theatre in Chicago with United States Court of Appeals Judge Ann Claire Williams.

Justice Ginsburg, who has served on the Supreme Court since 1993, will discuss her life and judicial career. Judge Williams has served on the Seventh Circuit since 1999 and recently assumed senior status.

Individual tickets go on sale on July 28 at 10 a.m. and are $35 for the general public.

Please visit here for more information.

New Facebook Group Fosters Discussion of Illinois' New Appellate E-Filing System

Fri, 14 Jul 2017 16:57:00 GMT

With the recent introduction of Illinois’ new appellate e-filing system, questions abound among participants, including lawyers, staff, and court staff. To foster a collegial forum in which all ALA members and nonmembers can openly discuss difficulties encountered and solutions discovered, the Appellate Lawyers Association is pleased to announce a new Facebook group, “Unofficial Illinois Appellate E-Filing Tips,” which can be accessed here.

While this group is not ALA-affiliated, our membership will benefit from the chance to ask questions and offer answers. The ALA encourages you to share this announcement with your colleagues and friends—all are welcome.

Sanctions: Combating Improper Conduct in the Appellate Court

Fri, 07 Jul 2017 17:42:00 GMT

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

Appellate practitioners who want to avoid sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) should consult the First District’s decision in Oruta v. Biomat USA, Inc., 2017 IL App (1st) 152789, which provides a good example of what not to do. The decision also reminds practitioners of a potential resource for combating obnoxious litigants.

On January 14, 2013, the circuit court dismissed with prejudice plaintiff Oruta’s pro se claims against defendant Biomat USA, Inc. In September 2015, however, the plaintiff moved to file a service of summons against the defendant. The court denied that motion on September 29, 2015, noting that the court had dismissed the plaintiff’s claims against the defendant 32 months earlier. The plaintiff immediately filed a notice of appeal and filed an amended notice on May 20, 2016. Both notices of appeal, as well as the plaintiff’s appellate brief, stated that the circuit court entered a final judgment years earlier on January 23, 2012. That being said, the notice of appeal identified the 2015 order as the judgment being appealed.

The reviewing court found the plaintiff failed to demonstrate that the court had jurisdiction to entertain his appeal. If a final judgment was entered in 2012, the 2015 notice of appeal was filed well after the requisite 30-day filing period set forth by Illinois Supreme Court Rule 303(a) (eff. Jan. 1, 2015). Similarly, the plaintiff’s brief set forth no basis for the reviewing court to exercise jurisdiction over the 2013 order. Furthermore, the 2015 order was not appealable, as a final judgment was allegedly entered in 2012. Accordingly, the court agreed with the defendant’s sole contention that the appeal should be dismissed for lack of jurisdiction. Yet, the reviewing court found more was required.

Rule 375(b) authorizes a reviewing court to impose sanctions against a party or his attorney after determining that an appeal or other action is frivolous, not in good faith or primarily taken for an improper purpose. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Additionally, the court can impose sanctions on its own motion. Id. An appeal is generally frivolous where not arguably warranted by law and not grounded in fact. Id. Moreover, harassment, the needless inflation of costs and unnecessary delay constitute improper purposes. Id.Sanctions are within the court’s discretion and may be imposed against pro se litigants under egregious circumstances. Oruta, 2017 IL App (1st) 152789, ¶ 11.

The reviewing court observed that the pro se plaintiff was a serial filer of frivolous appeals, having filed at least seven others, and had repeatedly crossed the line. In an opinion filed the year before, the court had described the plaintiff’s prior improper appeals “so that issues do not repeat themselves,” thereby suggesting that the plaintiff may suffer future consequences for repeating his mistakes. Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 4. Clearly, the plaintiff did not learn his lesson. The reviewing court gave the plaintiff 30 days to show cause why sanctions should not be imposed. The court considered barring the plaintiff from further filings without prior leave of court. Justice Lampkin concurred only in the judgment.

While it remains to be seen whether the plaintiff will be sanctioned, unscrupulous lay persons and practitioners beware: appellate practice is no game.

July 1: Mandatory E-Filing in Illinois Supreme and Appellate Courts

Wed, 28 Jun 2017 20:02:00 GMT

Beginning July 1, both the Illinois Supreme and Appellate Courts will ONLY accept electronically filed notices of appeal, docketing statements and appearances from the parties’ attorneys. Additionally, the reviewing courts will ONLY accept electronically filed records on appeal from the Clerk of the Circuit Court of Cook County.

In order to e-file with the reviewing courts, attorneys must register at the Illinois Courts’ website. There, attorneys can also find other resources about e-filing and instructions on how to e-file.

Also beginning July 1, the Clerk of the Circuit Court of Cook County will ONLY accept the submission of trial exhibits, reports of proceedings and supplemental records through its online portal. From this portal, the Clerk will transmit the pertinent records directly to Illinois Supreme and Appellate Courts.

The portal is available on the Clerk’s website along with additional resources and instructions.

Evan Siegel Installed as 50th President of the Appellate Lawyers Association

Sun, 25 Jun 2017 10:05:18 GMT

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

On Thursday, June 22, the Appellate Lawyers Association installed Evan Siegel as its 50th President. The installation luncheon was held at the Union League Club in Chicago and began with 49th President Joanne Driscoll's opening remarks, which also recapped a wonderful bar year for the ALA.

Following President Driscoll's remarks, Karen DeGrand introduced Evan, emphasizing how once he joined the ALA, he immediately became involved with the Association's events, including writing an opinion for the 2007 Moot Court Competition. Karen discussed how over the years, Evan had made a tremendous impact within the ALA, including most recently his push to improve the ALA's website and its social media presence. After speaking to Evan's various professional accomplishments, she described Evan out of the workplace as a world traveler, avid cyclist, family man and voracious reader. At the conclusion of her introduction, she swore Evan in as the ALA's 50th President.

Evan began his installation speech, thanking those in attendance for the privilege to serve as the ALA's President. Evan discussed his 12-year involvement with the ALA and some of the highlights of his experiences. He talked about the ALA's core components of collegiality, civility, and collaboration and how those components guide not only the ALA, but also the appellate law world.

Evan informed the ALA that his agenda for the upcoming bar year will focus on three main goals: (1) "continue to be engaged in the use of new technologies that modernize the practice of appellate law and bar association membership;" (2) "become an active partner with other bar associations;" and (3) "serve as a bridge between federal and state appeals practice, with a renewed emphasis on programming that informs and educates the bar about the workings of the Seventh Circuit and the Illinois Supreme Court."

Evan also previewed three events for the upcoming bar year. On October 20, the ALA will host a program on the Seventh Circuit’s recent major decisions, featuring Judge Gary Feinerman of the Northern District of Illinois, Michael Scodro, partner at Mayer Brown, and David Franklin, Illinois Solicitor General. On November 15, the ALA will host "Patterns and Practice: How Analyzing the Illinois Supreme Court Can Boost Your Appeals,” an event featuring Kirk Jenkins, who uses analytics to study and explain the workings of the Illinois Supreme Court and other courts of final appeal in the nation’s largest states. On December 7, the ALA will host a roundtable luncheon featuring the Justices of the Illinois Supreme Court.

Evan's installation was also featured in the Chicago Daily Law Bulletin (behind a paywall).

Everyone in the ALA looks forward to another successful bar year with Evan as our president. We also thank Joanne Driscoll immensely for her contributions this past year, as well as everyone else in the ALA who contributed.

The Persuasive Statement of Facts: Reoccurring Expert Tips on How to Write An Effective Facts Section of a Brief

Fri, 16 Jun 2017 14:08:00 GMT

By Louis J. Manetti
Attorney, Codilis and Associates, PC

The facts section of a brief can—and should—lend itself to the overall advocacy of the brief. The advocate who writes it as a necessary-but-unimportant regurgitation of events misses a valuable opportunity to persuade. Appellate experts give reoccurring advice to maximize the statement of facts.

Drafting an effective statement of facts is crucial to an appellate lawyer’s advocacy. Chief Justice William Rehnquist said, “[t]he brief writer must immerse himself in this chaos of detail and bring order to it by organizing[.]” Ross Guberman, Point Made 93 (2d ed. 2014). The facts section is the lawyer’s opportunity to organize in a compelling way: to cull the determinative facts from the chaos of the cold—and often long—record. Legal writing guru Bryan Garner and Supreme Court Justice Antonin Scalia stress the importance of facts: “Don’t underestimate the importance of facts. To be sure, you will be arguing to the court about the law, but what law applies—what cases are in point, and what cases can be distinguished—depends ultimately on the facts of your case.” Antonin Scalia & Bryan A. Garner, Making Your Case 9 (2008).

In his seminal work, Effective Appellate Advocacy, Frederick Wiener warns, “[t]he greatest mistake any lawyer can make, after he has written a fine brief on the law, is to toss in a dry statement of facts and send the thing off to the printer.” Frederick Bernays Wiener, Effective Appellate Advocacy 34 (revised ed. 2004). The strength of the facts section lies in its “selection and juxtaposition, without of course ever appearing to involve the irrelevant.” Id. at 36.

Like every other portion of the brief, the facts section should strive to persuade. Wiener instructs that the facts section, “should always be written in such a way as to advance the cause of the party on whose behalf it is prepared.” Id. Justice Scalia and Garner agree that the facts section must be designed to persuade: “[y]ou advance that objective by your terminology, by your selection and juxtaposition of the facts, and by the degree of prominence you give to each.” Scalia & Garner, supra at 94. And the effective brief obeys the maxim of “show, don’t tell.” That is, the lawyer should resist the urge to characterize the facts and tell the court what they mean. “Devote your energies instead to combing through the record in search of facts that are so clear and so strong that they make your case on their own.” Guberman, supra at 67.

As Garner puts it: “Think of your job as this: you’re trying to induce the judge to seethe in indignation while never revealing your own indignation.” Bryan A. Garner, The Winning Brief 600 (3d ed. 2014). It is more effective for the lawyer’s factual presentation to elicit a reaction than for the lawyer to tell the judges how they should be reacting. But there’s a crucial distinction—although the facts section should aim to persuade, it must not editorialize. “[A] court reading a Statement of Facts wants to feel that it is getting the facts, and not the advocate’s opinions, comments, or contentions.” Wiener, supra at 49.

Experts also emphasize that the facts must be unfailingly accurate. If the facts are inaccurate, the court “will lose faith in you[.]” Wiener, supra at 38. About inaccuracy, Justice Scalia and Garner stress, “[n]othing is easier for the other side to point out, and nothing can so significantly damage your credibility.” Scalia & Garner, supra at 93. What’s worse, a misstatement can cause the reviewing judges to question other assertions in the brief: “[f]alsus in uno falus in omnibus is a standard applied not only to witnesses by lawyers and juries, it is a standard applied to lawyers by appellate judges.” Wiener, supra at 95.

And although Wiener was writing over sixty years ago it would be a mistake to believe that modern appellate tribunals would be more forgiving of factual errors. Just three years ago, the First District Appellate Court noted a basic and inexcusable inaccuracy: the plaintiff’s brief reported that a defendant’s answer admitted his loan was in default, when in fact the answer contained no such admission. PNC Bank, N.A. v. Mathin, 2014 IL App (1st) 133061-U, ¶ 12 n.1. Justice Hyman—citing to Wiener’s book—wrote a concurrence lamenting that the misstatement had cast a shadow over the rest of the brief. Id. ¶¶ 31-34 (Hyman, J., concurring).

Part of being accurate is tackling bad facts head-on. Bad facts, “will come out anyway,” warn Justice Scalia and Garner, and “if you omit them you simply give opposing counsel an opportunity to show the court that you’re untrustworthy.” Scalia & Garner, supra at 95. As Wiener puts it, if the lawyer omits significant facts, “the opposition will rub your nose in them.” Wiener, supra at 39. Ross Guberman, the president of Legal Writing Pro, suggests blunting the damage of bad facts by beginning the sentence with “although” “to subordinate the bad fact to its more favorable context[.]” Guberman, supra at 82.

Also, seemingly minor stylistic choices can make the facts section more forceful and clear. For instance, subheadings can break an otherwise unwieldy section into digestible parts, “so that the reader can more easily grasp the relevance of what he reads.” Wiener, supra at 36. Guberman points out that good factual subheadings put verbs in the present tense, which is “another way to give your headings a conversational feel.” Guberman, supra at 74. Additionally, lawyers should refrain from listing every single date of an event or document in the record. “Using an exact date signals to the reader that it is important—that the reader should remember it for future reference.” Id.The Legal Writer: 40 Rules for the Art of Legal Writing 61-72 (2d ed. 2003)). Justice Scalia and Garner expound on this: “if you spell out every date, you confuse the reader and bog down the story.” Scalia & Garner, supra at 96. Instead, achieve narrative continuity by using relative phrases like “the next day,” and “three months later.”

Finally, use the litigants’ names—or at least a label other than their assigned role in the case. Advocates should avoid using the labels “appellant” and “appellee” because it “is bound to confuse; mistaken references are inevitable; and the designations simply reflect the happenstance of the outcome below and do not characterize the parties’ positions in the context of the controversy on appeal.” Wiener, supra at 95. Garner elaborates: “use real names for both parties and let your arguments do the talking. And if your goal is to cast a negative light on your opponent, you’ll have more success by using names anyway[.]” Garner, supra at 244.

The statement of facts can be a powerful narrative that prompts the reviewing judges to decide in the litigant’s favor. Through selection, juxtaposition, and the usages frequently urged by top authorities, the advocate should aim to write the facts “so that the court will want to decide the case in your favor after reading just that portion of your brief.” Wiener, supra at 37. A lawyer who writes a dry statement of facts as an afterthought does so at his or her peril.

Illinois Supreme Court Clerk's Office To Make E-Filing Switch on June 15

Wed, 14 Jun 2017 17:34:00 GMT

According to a press release from the Illinois Supreme Court today, "The Illinois Supreme Court Clerk's Office will join the eFileIL e-filing community on Thursday, June 15. Filers for the state's highest court will need to access the eFileIL filing platform at efile.illinoiscourts.gov and become a registered user through one of the authorized service providers. Supreme Court filers will no longer be able to use the i2File platform as of 11:59 p.m. on Wednesday, June 14."

The full press release can be viewed here.

New Online CLE Programs for ALA Members

Tue, 06 Jun 2017 20:29:00 GMT

The Appellate Lawyers Association now offers CLE programs online for credit. As part of the ALA’s continuing efforts to bring programming to our members, the ALA now has two recorded programs available online: one featuring Adam Liptak of the New York Times and the other featuring Dean Erwin Chemerinsky, who this July will become the Dean of the University of California Berkeley School of Law.

In Liptak’s program, he offered his reflections on the Supreme Court’s last decade, discussed the challenges and rewards he faces as a national legal reporter, and shared stories from the front lines covering our nation’s highest court. Liptak’s program was recorded live at the Union League Club of Chicago on January 21, 2016.

In Dean Chemerinsky’s program, he discussed five topics relating to the U.S. Supreme Court: the possible outcomes of a 4-4 split on the Court; the pivotal role of Justice Anthony Kennedy; the centrality of issues relating to race in many of the Court’s cases; the confirmation of Justice Neil Gorsuch; and the long-term picture for the Court. Dean Chemerinsky’s program took place at the Standard Club in Chicago on April 21, 2017.

Each program is available to members for $25 and can be watched on any device with Internet access, including a computer, smart phone, tablet, or TV. Viewers will receive one hour of CLE credit for each program.

Instructions on how to purchase and view the programs are available here.

Seventh Circuit Dismisses Appeal After Defendant Filed Premature Interlocutory Appeal

Fri, 26 May 2017 18:24:00 GMT

By Nate Nieman
Nieman Law Group

The juvenile appellant in U.S. v. Sealed Defendant Juvenile Male (4), No. 16-3311, (7th Cir. 2017), along with two other juveniles and an adult, allegedly robbed a CVS store in Indianapolis at gunpoint. They were charged in federal court with Hobbs Act Robbery and possession of a firearm during a robbery. The Government sought to transfer the juveniles’ cases for adult prosecution under 18 U.S.C. § 5032. In order to transfer a case under 18 U.S.C. § 5032, the transfer must be “in the interest of justice,” which the court determines by making certain findings related to the offense and the juvenile offender.

The Government moved to have the juveniles examined by government psychologists to provide evidence showing that it would be in the interest of justice to try the juveniles as adults. The juveniles objected, arguing that the examinations, which would be conducted without their lawyers present, violated their Fifth and Sixth Amendment rights. The magistrate disagreed and ordered the juveniles to submit to the examination without their lawyers present. The district court agreed with the magistrate, and the juvenile appellant in this case filed an interlocutory appeal, arguing that the examination would violate his constitutional rights.

The Seventh Circuit never reached the merits of his appeal because the court dismissed the appeal after determining that it was without jurisdiction to hear it. The court has jurisdiction only over final decisions from the district court. 28 U.S.C. § 1291. A final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). However, the court also noted that “There does exist a ‘small class’ of nonfinal orders that ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). These are called “collateral orders,” and they are “immediately appealable if three elements are satisfied: the nonfinal order must ‘(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.’ ” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)).

In determining whether the district court’s order allowing the defendants to be examined by the psychologists without their lawyers present was an immediately appealable collateral order, the Seventh Circuit focused on the third factor—whether the district court’s order allowing this evaluation was “effectively unreviewable” on an appeal from the final judgment of the underlying action. An order is “effectively unreviewable” only when it involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860 (1978). The court determined in this case that the district court’s order allowing the examination was not “effectively unreviewable” under this standard, explaining that “Had M.G. waited to appeal until after the district court had issued an order granting the government’s motion to transfer under 18 U.S.C. § 5032, then we would be able to consider the merits of his argument now,” citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an appealable collateral order).

In other words, the defendant would have had to submit to the government psychologist’s examination and then the court would have to enter a transfer order under 18 U.S.C. § 5032 before the defendant could file an interlocutory appeal challenging the transfer order itself. The court cited cases from three other circuits where defendants had done just that. See Juvenile Male, 554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d Cir.). Because the defendant in this case did not wait until the transfer order was entered before filing his interlocutory appeal, the order allowing the defendant to be examined by the government psychologist was not considered appealable and the Seventh Circuit dismissed his appeal without considering the merits.

First District Appellate Court: Motion For New Trial Did Not Toll Time to File Notice of Appeal Where Record Not Conclusive On Motion's Filing Date and Prosecutor Waived 30-Day Time Period to File Motion

Wed, 17 May 2017 14:18:00 GMT

By Stephen Soltanzadeh
Associate, Ancel Glink

The First District Appellate Court recently held that a motion for a new trial did not toll the 30-day period for filing a notice of appeal where the record was inconclusive as to the motion’s filing date, even where the prosecutor verbally agreed to “waive” the 30-day requirement for posttrial motions and consented to the defendant filing the motion later than 30 days after judgment.

In People v. Hall, 2017 IL App (1st) 150918, a jury determined that the defendant was a sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. (2014), and the trial court entered an order committing him to the care of the Department of Human Services. The trial court entered judgment on May 14, 2014, after which the parties discussed scheduling posttrial motions with the court. In that discussion, the Assistant State’s Attorney stated that she would “waive the 30 days,” meaning that she would “not object if it’s after the 30 days if it’s all right with the Court.” Defense counsel followed up by asking the court for “June 20,” and the court stated that it would “set that down for any post-trial motions.” The trial court then issued a written order stating that judgment was entered and that the defendant would be transported to court on June 20, 2014, “for further status on this matter.”

At the June 20, 2014 hearing, defense counsel requested leave to file a motion for new trial. In response, the trial court set a date for arguments on posttrial motions. Transcripts from subsequent hearings indicated that a new trial motion was ultimately filed, but it was not clear from the record when the motion was filed, and no file-stamped copy of the motion was included in the record. The court ultimately denied the motion on February 6, 2015, and defense counsel filed a notice of appeal on March 6, 2015.

The People moved to dismiss the appeal, arguing that the appellate court did not have jurisdiction because the new trial motion was not filed within 30 days of the entry of judgment. The defendant responded that the court extended the deadline after the People agreed to the extension, and that the People’s position that a defendant cannot rely on the word of a prosecutor ran counter to the Illinois Rules of Professional Responsibility, which give prosecutors special responsibilities.

The appellate court dismissed the appeal for lack of jurisdiction. It held that the record did not indicate when the posttrial motion was filed, and thus the defendant failed to demonstrate that it was timely, leaving the court without jurisdiction to hear the appeal.

In so holding, the court initially explained that it does not have jurisdiction over an appeal unless the notice of appeal was filed within 30 days of the entry of judgment, or, if a timely posttrial motion was filed, within 30 days of disposition of the motion. It further explained that a posttrial motion must be filed within 30 days of the entry of judgment unless that time is extended by the court. Hall, 2017 IL App (1st) 150918, ¶ 13 (citing 735 ILCS 5/2-1202(c), Ill. Sup. Ct. R. 303(a)(1)).

Turning to the case before it, the appellate court acknowledged that the record was “uncertain” as to whether the trial court had granted the defendant an extension of time to June 20, 2014 to file a motion for a new trial. Hall, 2017 IL App (1st) 150918, ¶ 14. But the appellate court held that even if the trial court had granted an extension, the appellate court lacked jurisdiction because the record did not indicate when the motion for a new trial was filed. Explaining that, as appellant, the defendant bore the burden of preparing a complete record, the appellate court construed the lack of a file-stamped copy of the motion against the defendant and held that he failed to establish that the notice of appeal was timely, leaving the court without jurisdiction over the appeal.

“For the sake of completeness,” the appellate court also noted that the revestment doctrine did not apply because the defendant could not meet all three factors of the revestment doctrine test: that both parties “‘(1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.’” Hall, 2017 IL App (1st) 150918, ¶ 17 (quoting People v. Bailey, 2014 IL 115459, ¶ 25). The court concluded that although the defendant could meet the first two requirements, he could not meet the third because the People actively opposed the motion for new trial and defended the underlying judgment. Accordingly, the appellate court held that the conduct of the Assistant State’s Attorney did not revest the trial court with jurisdiction to hear the defendant’s posttrial motion.

Notre Dame Law Professor Amy Coney Barrett Nominated to the U.S. Court of Appeals for the Seventh Circuit

Wed, 10 May 2017 10:30:00 GMT

On May 8, President Donald Trump nominated Notre Dame University Law School Professor Amy Coney Barrett to the United States Court of Appeals for the Seventh Cirucit.

According to the White House's press release, Barrett currently serves as the Diane and M.O. Miller II Research Professor of Law at the Notre Dame University Law School where she teaches federal courts, constitutional law and statutory interpretation. Prior to becoming a faculty member at Notre Dame, Barrett clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Laurence H. Silberman of the United States Court of Appeals for the D.C. Circuit. She also worked as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., and served as a visiting associate professor at the George Washington University Law School and the University of Virginia Law School.

Carle Foundation v. Cunningham Township Sheds New Light on Appellate Jurisdiction Under Rule 304(a)

Sun, 07 May 2017 18:56:00 GMT

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The Illinois Supreme Court recently shed new light on appellate jurisdiction under Rule 304(a). The rule provides that, where “multiple claims” for relief are involved in a single action, an appeal may be taken from a final judgment as to a single “claim” upon the trial court’s written finding that there is no just reason for delaying an appeal. The court has previously explained that Rule 304(a) applies only to judgments that dispose of “separate, unrelated claims,” and that orders disposing only of “separate issues relating to the same claim” are not immediately appealable under the rule. (Emphasis in original.) In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983).

In Carle Foundation v. Cunningham Township, 2017 IL 120427, the trial court issued a Rule 304(a) finding after granting the plaintiff’s request for a declaratory judgment as to which section of the Property Tax Code governed certain claims in the plaintiff’s complaint. The Supreme Court held, however, that a declaration as to what law governs a complaint “resolves nothing other than the standard by which the underlying claim will be adjudicated.” Carle Foundation, 2017 IL 120427, ¶ 18. Thus, the trial court had merely resolved an “issue” that was ancillary to the plaintiff’s underlying “claims,” and its Rule 304(a) finding was improper. Id.

The parties in Carle disputed whether a charitable-use tax exemption applied to four parcels of land that were used in connection with the operation of a hospital for the tax years 2004 through 2011. The plaintiff argued that the parcels qualified for an exemption that had recently been created for hospitals under section 15-86 of the Property Tax Code. See 35 ILCS 200 15-86 (eff. June 14, 2012). The defendants maintained that section 15-86 did not apply retroactively, and that the case was controlled by the older charitable purposes exemption, under section 15-65 of the Property Tax Code. See 35 ILCS 200 15/65 (eff. Jan 1, 1994).

The plaintiff’s fourth amended complaint included 35 counts. Count II sought a declaration that section 15-86 was applicable to the parcels for the tax years in question. The remaining counts sought declarations that an exemption the plaintiff had received prior to 2004 was never lawfully terminated, and that the parcels actually qualified for an exemption under section 15-65. Additionally, the plaintiff alleged the breach of a 2002 settlement agreement that it had entered with various local taxing authorities.

Shortly after filing its fourth amended complaint, the plaintiff filed a motion for summary judgment on count II and requested a Rule 304(a) finding. In granting the plaintiff’s motion, the trial court acknowledged that its ruling would not resolve the merits of all of the plaintiff’s claims. The court nonetheless granted a Rule 304(a) finding, reasoning that the applicable substantive law needed to be ascertained as a threshold matter before the case could proceed.

The appellate court concluded that it had appellate jurisdiction under Rule 304(a), but it reversed the trial court’s ruling after concluding that section 15-86 was unconstitutional. The Supreme Court then vacated the appellate court’s decision on the basis of its holding that the trial court’s Rule 304(a) finding was improper, and that the appellate court therefore lacked jurisdiction to review the order granting the plaintiff’s motion for summary judgment.

The Supreme Court emphasized, “ ‘it is difficult to conceive of a situation in which the issues are more interrelated’ than the pleading of a claim and the determination of what law governs that claim.” Carle Foundation, 2017 IL 120427, ¶ 23 (quoting Leopando, 96 Ill. 2d at 119). Hence, by requesting a declaratory judgment that section 15-86 was applicable to the parcels for the tax years in question, the plaintiff sought to dispose only of an “issue” that was related to the plaintiff’s “exemption claims.” Carle Foundation, 2017 IL 120427, ¶ 23.

The Supreme Court went on to note that the plaintiff’s request for declaratory judgment was improper in the first instance. The court explained that a declaratory judgment action must relate to an “actual controversy,” which refers to a “concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” Carle Foundation, 2017 IL 120427, ¶ 28. (quoting Underground Contractors Association, Ill. 2d 371, 375 (1977)). However, count II of the plaintiff’s fourth amended complaint was brought only to facilitate interlocutory appellate review of the trial court’s determination; it was not properly aimed at securing a declaration of unresolved rights as to an open legal controversy. Carle Foundation, 2017 IL 120427, ¶ 31.

Finally, the Supreme Court declined the parties’ shared request to address the merits of the case under the court’s supervisory authority. First, the court noted that it was not inclined to accommodate “piecemeal litigation.” Second, the court noted the issue surrounding the constitutionality of section 15-86, which had been the focus of the appellate court’s decision. However, the court’s long-standing rule is that cases should be decided on non-constitutional grounds whenever possible. Because plaintiff’s fourth amended complaint included claims that had nothing to do with the constitutionality of section 15-86, the court concluded that a ruling on the merits would be “decidedly premature.” Id. ¶ 34.

ALA Will Host Roundtable Luncheon on May 16 Featuring Judges of the Seventh Circuit Court of Appeals

Fri, 05 May 2017 10:12:00 GMT

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.

Attendees will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

ALA’s Cases Pending Previews Illinois Supreme Court’s May Term

Wed, 03 May 2017 10:21:00 GMT

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term, which begins Tuesday, May 9, 2017, with oral arguments scheduled for May 9, 10, 11, 16 and 17, 2017. A total of 15 cases will be heard – 9 criminal and 6 civil.

The following civil cases are scheduled for argument this Term:

People ex rel. Lisa Madigan v. Wildermuth—No.120763—May 10

Rozsavolgyi v. The City of Aurora—No. 121048—May 11

Manago v. The County of Cook—No. 121078—May 11

Cochran v. Securitas Security Services USA, Inc.—No. 121200—May 16

Aspen American Insurance Co. v. Interstate Warehousing, Inc.—No. 121281— May 17

Illinois Landowners Alliance v. Illinois Commerce Commission—Nos. 121302, 121304, 121305, 121308 (cons.)—May 17

The following criminal cases are scheduled for argument this Term:

In re Linda B.—No. 119392—May 9

People v. Willis Reese—No. 120011—May 9

In re Destiny P.—No. 120796—May 9

People v. Matthew Gray—No. 120958—May 9

People v. Richard Holman—No. 120655—May 10

People v. Dennis Bailey—No. 121450—May 10

In re Jarquan B.—No. 121483—May 10

People v. Fernando Casas, Jr.—No. 120797—May 16

People v. Byron Boykins—No. 121365—May 16

Below is a summary for one civil case, Cochran v. Securitas Security Services USA, Inc., and one criminal case, People v. Richard Holman. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

Cochran v. Securitas Security Services USA, Inc.

This case raises the question of whether Illinois should recognize a cause of action for negligent interference with the possession of a corpse. In a published opinion, the Fourth District Appellate Court recognized such a cause of action, departing from prior decisions of the First, Second, and Third Appellate Districts which held that willful and wanton conduct by the defendant was a prerequisite to such a claim.

Plaintiff, the mother of the decedent, filed suit against Defendant, claiming that they negligently mishandled her son’s remains such that they were switched with those of another decedent, resulting in an unwanted cremation. Plaintiff alleged that Defendant violated its duty not to interfere with her right to possession of her son’s remains by failing to follow certain procedures with respect to the handling and transferring of decedents’ remains. Plaintiff did not allege that the defendant acted willfully or wantonly. Defendant moved to dismiss, arguing that plaintiff failed to state a cause of action. The trial court agreed, dismissing Plaintiff’s complaint with prejudice, and finding that Plaintiff could not allege any facts which would give rise to a duty owed on the part of the Defendant. Plaintiff appealed.

Reversing, the Fourth District Appellate Court disagreed, holding that requiring a plaintiff to plead willful and wanton conduct is no longer consistent with the current state of the law. In so holding, the Court departed from prior rulings of the First, Second, and Third District Appellate Court, which uniformly have held that a cause of action for negligent interference with possession of a corpse is not recognized under law. The Fourth District Appellate Court held that the rationale for requiring such a heightened pleading standard had been eroded, as evidenced by the decisions of several other states providing for a cause of action based upon the negligent mishandling of a corpse. It therefore held that “the more modem view supports the position taken by plaintiff in the instant case and recognizes an ordinary negligence cause of action arising out of the next of kin’s right to possession of a decedent’s remains,” and that the cases relied upon by the trial court “do not take into account the evolution of the law in this area and fail to persuade us to accept defendant's argument that circumstances of aggravation are necessary.”

People v. Richard Holman

In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held that mandatory-life-without-parole sentences for juveniles (under the age of 18) violated the Eighth Amendment. Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held that Miller had adopted a substantive rule that applied retroactively. Drawing a line between children whose crimes reflected transient immaturity and those reflecting permanent incorrigibility, the Court explained that an individualized hearing about the juvenile's youth and attendant considerations was required to separate out those who could be sentenced to life-without-parole and those who could not. In Illinois, a criminal defendant can file a successive postconviction (PC) petition only with leave of court, 725 ILCS 5/122-1(f), which the court may grant if defendant demonstrates cause for failing to bring the claim(s) in the initial PC petition and prejudice resulting from that failure.

In July 1979, weeks shy of his 18th birthday, Richard Holman and a codefendant burglarized a farmhouse in Southern Illinois and murdered its 83-year-old resident. Holman confessed to committing seven murders with his codefendant (of which he was later convicted of three, including this case). For the instant case, Holman and his codefendant were tried and convicted for first degree murder in 1981; because of his age he was ineligible for the death penalty and faced a 20-to-40-year sentencing range (for which he could earn day for day credit) and the judge, in his discretion, could impose a natural life sentence if Holman was convicted of multiple murders (as he was here). The trial judge received a detailed pre-sentencing investigation (PSI) report regarding Holman's age, background, delinquency record, and family circumstances; statutory-required mitigating factors at the time did not mention youth. The trial judge acknowledged considering the PSI, found no mitigating factors were present, and commented that this defendant could not be rehabilitated before imposing a natural life sentence. Neither Holman's direct appeal nor his initial PC petition challenged his sentence on Eighth Amendment grounds.

In October 2010 (before Miller), Holman sought leave to file a successive PC petition, challenging the statute under which he was sentenced as unconstitutional under the Sixth and Fourteenth Amendments; on appeal from denial of leave to file (before Miller), Holman argued that the sentencing statute was void ab initio under the Eighth Amendment; the post-Miller PLA argued that the sentencing statute violated the Eighth Amendment. In January 2015, the Illinois Supreme Court denied leave to appeal but remanded to the appellate court to reconsider in light of People v. Davis, 2014 IL 105595 (rejecting Eighth Amendment facial challenge to sentencing statute mandating natural life sentence, but holding Miller was retroactively applicable and satisfied cause-and-prejudice for juvenile defendant sentenced to mandatory natural life raising as-applied Eighth Amendment challenge).

On remand, the appellate court excused Holman's forfeiture and upheld Holman's discretionary natural life sentence imposed in April 1981. The court held that Miller provided an illustrative list of factors related to a juvenile defendant's youth without requiring courts to consider any set list of factors. The court held that the sentencing hearing comported with Miller because Holman's age and other mitigating factors were known by the court and because Miller/Montgomery did not prohibit a natural life sentence for all juvenile offenders.

Before the Illinois Supreme Court, Holman argues that he is entitled to a new sentencing hearing because sentencing courts must consider the Miller factors, and the trial court did not do so in his case. Alternatively, Holman argues he is entitled to a new sentencing hearing because the sentencing court did not even consider youth and its attendant circumstances as a mitigating factor. The State argues that the as-applied Eighth Amendment claim is forfeited because it was not presented in any level of review prior to this court's supervisory order. Forfeiture aside, the State asserts that the Rehabilitation Clause of article 1, section 11 of the Illinois Constitution and decades of Illinois precedent on juvenile justice reflect that the Illinois sentencing scheme pre-Miller comported with Miller's requirements. Additionally, the sentencing judge's comment that Holman cannot be rehabilitated (and the record of his extensive delinquency record and multiple murders) is precisely the finding of permanent incorrigibility justifying a natural life sentence under Miller/Montgomery. Finally, the State argues that rather than grant a new sentencing hearing as Holman requests, the Court should remand for additional PC proceedings solely regarding whether Holman qualifies as the rare juvenile offender who is permanently incorrigible because only if he is not is there an Eighth Amendment violation warranting a new, full sentencing hearing. An amicus brief in support of Holman filed by the Bluhm Legal Clinic at Northwestern School of Law asserted, among other things, that the Court should flatly ban natural life sentence for juvenile offenders.

Don't Miss Out on the ALA's May Events

Thu, 20 Apr 2017 17:32:00 GMT

On May 10, the ALA and the Sangamon County Bar Association will co-sponsor a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Fourth District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at Maldaner's Restaurant, 222 South Sixth Street in Springfield, beginning at noon and ending at 1:30 p.m.

On May 19, the ALA will host the same event featuring the Justices of the Illinois Appellate Court’s Fifth District. The event will take place at The Gateway Center, 1 Gateway Drive in Collinsville, beginning at noon and ending at 2 p.m.

Attendees to the luncheon will receive one hour of MCLE credit.

Following each luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar. The event will run from 1:45 p.m. until 3:15 p.m. in Springfield and from 2:15 p.m. until 3:45 p.m. in Collinsville.

This presentation is free to attendees, including those who wish to attend only the e-filing presentation.

Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.

On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.

Attendees will receive one hour of MCLE credit.

Finally, on May 25, the ALA will host a brown bag lunch featuring the e-filing presentation from Tyler Technologies. The event will take place at Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

Former ALA President Michael A. Scodro Discussed the Confirmation of Judge Neil Gorsuch to the United States Supreme Court on Chicago Tonight

Tue, 11 Apr 2017 13:18:00 GMT

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the confirmation of Judge Neil Gorsuch, formerly of the United States Court of Appeals for the Tenth Circuit, to the United States Supreme Court.

If the embedded video does not work, you may watch here.

First District Appellate Court Finds that Supreme Court Rule 306(a)(5) Does Not Grant Review of Orders Involving Temporary Child Support and Maintenance

Mon, 10 Apr 2017 20:30:00 GMT

By Kevin R. Malloy
Partner, Forde Law Offices LLP

Can the appellate court allow a Rule 306 interlocutory appeal of a temporary order setting child support and maintenance payments? After first doing so, the First District took a closer look and decided that it could not, and thus dismissed an appeal for lack of jurisdiction in the case of In reMarriage of Dougherty, 2017 IL App (1st) 161893.

Rule 306(a)(5) allows parties to petition for leave to appeal from “interlocutory orders affecting the care and custody of or the allocation for parental responsibility for unemancipated minors.” Ill. Sup. Ct. R. 306(a)(5) (emphasis added). At issue in In re Marriage of Dougherty was whether temporary orders entered by the trial court awarding child support and spousal maintenance could be appealed under that Rule. No issues were raised regarding custody.

After the appellate court had granted the petitioner’s petition for leave to appeal, the respondent moved for reconsideration and/or to dismiss for lack of jurisdiction. The court took the motion with the case. In its opinion, after first noting its obligation to consider its jurisdiction at any time, the appellate court framed the jurisdictional issue as whether the phrase “orders affecting the care and custody” of minor children in Rule 306(a)(5) referred only to orders relating to the custody of minor children. The court held that it does, and dismissed the appeal.

The petitioner had argued that the temporary child support order concerned the “care” of the child, as did maintenance, since it affected the financial circumstances of the custodial parent. But the petitioner did not cite any relevant authority to support his position. In contrast, the First District pointed to a number of sources to support its construction of Rule 306(a)(5).

The court first noted that the Illinois Supreme Court in Gill v. Gill, 56 Ill. 2d 139, 143-44 (1973), stated that the “obligation of the father to support his minor child is not affected by the decree…granting the care and custody of his child.” Thus, that use of language was relevant in clarifying that “care and custody” is separate from support. In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 9.

Next, the First District pointed to Rules Committee comments to the March 2016 amendment to Rule 306, which reflected changes of the term “custody” to “allocation of parental responsibilities” in the Illinois Marriage and Dissolution of Marriage Act. Those comments specifically focused on the term “custody”, and thus did not suggest that Rule 306(a)(5) extended into temporary orders on “child support and maintenance.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶¶ 10-11.

Further, the First District noted, Rule 306(a)(5) provides that once the petition for leave to appeal has been granted, Rule 311(a)’s expedited procedures apply. Rule 311(a), in turn, states that the expedited procedures in that rule shall apply to “interlocutory appeals in child custody or allocation of parental responsibilities cases from which leave to appeal has been granted pursuant to Rule 306(a)(5).” Ill. Sup. Ct. R. 311(a). That rule further provides, in contrast, that a reviewing court may use the expedited procedures in an appeal from an order “affecting other matters, such as support.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 12 (quoting Rule 311(a) (emphasis by court)).

Finally, the Rules Committee’s comments for Rule 311(a) offered additional guidance, noting that its 2010 amendment was “intended to clarify that the rule addresses only the procedures to be followed in order to expedite disposition of child custody appeals.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 14.

Interpreting Supreme Court Rules the same as statutes, the appellate court applied the doctrine of in pari materia to read Rule 306(a)(5) and Rule 311(a) together, so as to give them “harmonious effect.” The First District concluded that both rules “relate to expedited interlocutory appeals involving custody or the allocation of parental responsibilities,” and that “neither rule, nor any comment suggests that a temporary support of maintenance order may be brought independently.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 15. Thus, the court would not read additional language into the rules in order to confer jurisdiction. Id. Considering the language of the rules together, the court held that “Rule 306(a)(5) does not provide for petitions for leave to appeal from temporary support and maintenance orders.” Id. ¶ 16. Thus, it did not have jurisdiction and dismissed the appeal.

Illinois Supreme Court Commission on Professionalism’s “The Future Is Now” Conference

Wed, 29 Mar 2017 16:53:00 GMT

After a successful event in April 2016, the Illinois Supreme Court Commission on Professionalism is again hosting “The Future Is Now” Conference. On May 18, the Commission will host the conference focusing on innovations and practices impacting the delivery of legal services and the legal profession as a whole.

The Commission will host nine speakers with each addressing different issues impacting the profession, including legal insurance, online dispute resolution, alternative fee arrangements, legal project management, competency-based learning, immigration services, and practice management tools that can make attorneys more competitive in the current legal climate.

The conference will be held at the Art Institute Rubloff Auditorium (230 South Columbus Drive in Chicago), beginning at 10 a.m. and ending at 3:30 p.m.

The conference will be broken up into four sessions. Each session will consist of two to three talks followed by a town hall meeting where attendees will have expanded opportunities to question, comment, and react to each of the speaker talks. The complete conference schedule is posted on the event website.

The registration fee is $75 and will cover the cost of a light breakfast, lunch, and refreshments. Registration is currently open; however, seating is limited. Last year, the conference reached capacity and opened up a waiting list more than one month prior to the event.

The conference will be approved for 5.0 hours of professional responsibility CLE credit in Illinois. To receive credit, attendees must complete conference feedback forms, which will be sent to participants via email along with their certificates of attendance after the event.

For additional questions and concerns, please email Lindsay Shaw (lindsay.shaw@2civility.org) or call her at (312) 363-6210.

Don't Miss Out on the ALA's April Events

Tue, 28 Mar 2017 18:52:00 GMT

On Tuesday, April 4, the ALA will host a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Second District and the Second District’s Research Director. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place in the Heritage Ballroom of the Centre of Elgin in Elgin, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.

Following the luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar.

This presentation is free to attendees, including those who wish to attend only the e-filing presentation.

Attendees will receive 1.5 hours of MCLE credit.

On Friday, April 21, the ALA will host a luncheon featuring Erwin Chemerinsky, renowned lecturer on the United States Supreme Court and the Dean of the University of California, Irvine School of Law. Dean Chemerinsky will discuss the United States Supreme Court’s current docket and other topical issues on the High Court.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.
On Friday, April 28, the ALA will host an advanced appellate practice seminar, which will feature presentations on such topics as remedies in the Illinois Supreme Court, interlocutory appeals, legal ethics on appeal and preserving issues for appellate review.

Presenters include current ALA President Joanne Driscoll, former ALA Presidents Bill Hardy, Karen K. DeGrand, and Michael A. Scodro, ALA Director Don R. Sampen, former Cook County Circuit Court Judge Rita Novak, Kathy Byrne, Isaac Melton, and Douglas Richmond.

The seminar will take place at Quarles & Brady at 300 North LaSalle Street, Suite 4000 in Chicago, beginning at 1 p.m. and ending at 5 p.m.

Participants will receive 3.75 hours of MCLE credit, including .75 hours of professional responsibility credit.

For more information about any of the events and to register, please click here.

Seventh Circuit Clarifies Jurisdiction over Appeals from Orders in Ancillary Actions

Thu, 23 Mar 2017 17:36:00 GMT

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

In P.H. Glatfelter Co. v. Windward Prospects Ltd., 847 F.3d 452 (7th Cir. 2017), the Seventh Circuit addressed three total appeals—two taken by P.H. Glatfelter Co. (Glatfelter) arising out of discovery-related orders and one cross-appeal taken by non-party subpoena respondent Windward Prospects, Ltd. (Windward), who sought costs and fees from Glatfelter under Federal Rule of Civil Procedure 37—all three of which the Seventh Circuit dismissed for lack of jurisdiction.

The underlying case involved an ongoing multi-party environmental cleanup being performed on the Lower Fox River in Wisconsin pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, the parties responsible for creating the hazard and potentially responsible parties (PRPs) may be liable for the full costs of remediation. Glatfelter, 847 F.3d at 453-54.

Paper manufacturer Appvion, Inc. (Appvion), a PRP, sued other PRPs, including Glatfelter, in the Eastern District of Wisconsin, to recover the cleanup costs it incurred and to require other PRPs to pay for future remedial work. Id. at 454. Glatfelter sought discovery from Windward, an English entity conducting Appvion’s defense of the CERCLA claims and managing its cleanup operations, relating to Appvion's costs and possible offsets from insurance, settlements or indemnification payments in connection with the underlying cost recovery action. Id.

When Glatfelter could not obtain compliance with the subpoena it attempted to issue to Windward, it instituted an ancillary proceeding in the District of Massachusetts. Id. at 455. In addition to seeking an order compelling Windward to respond to the subpoena, Glatfelter sought to transfer the case to the Eastern District of Wisconsin, where the main cost recovery action was pending. Id.

The district court transferred the case, and the same judge presiding over the recovery action in the Eastern District of Wisconsin denied the motion to compel, concluding that the court lacked personal jurisdiction over Windward and that Glatfelter had not established that the documents it sought were not already subject to production by Appvion. Id. Glatfelter filed a motion to reconsider, which the court also denied. Glatfelter appealed. Id.

The Seventh Circuit’s analysis began by reciting the general rule that pretrial discovery orders are not final in terms of winding up the underlying lawsuit, as well as the exception to that rule under the collateral order doctrine, where an order “conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” Id. at 455 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Examining opinions from other circuits that had directly considered the issue, the Seventh Circuit held that where a district court enters an order in an ancillary action, and that district court is located in the same circuit as the district court handling the main action, the order in the ancillary action is interlocutory and not immediately appealable. Id. at 456-57.

According to the Seventh Circuit, the problem for Glatfelter was that the ancillary action was transferred from the District of Massachusetts to the Eastern District of Wisconsin prior to the appeal. In the Seventh Circuit, pretrial discovery orders are appealable “only where they were issued by a district court in an ancillary proceeding and said district court was not within the jurisdiction of the circuit court having appellate jurisdiction to review the final adjudication of the main action.” Id. at 456 (emphasis original).

Thus, the three appeals were dismissed for lack of jurisdiction because the ancillary action was in the same district court presiding over the main action (the cost recovery action), and the denial of Glatfelter’s motions would be reviewable on appeal from the final judgment in the main action. Id. at 459.

Former ALA President and Illinois Solicitor General Michael A. Scodro and Former Illinois Solicitor General Carolyn Shapiro on Chicago Tonight to Discuss Judge Neil Gorsuch Confirmation Hearings

Wed, 22 Mar 2017 11:50:00 GMT

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, appeared on Chicago Tonight last night to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.

If the embedded video does not work, you may watch here.

Former ALA President and Illinois Solicitor General Michael A. Scodro and Former Illinois Solicitor General Carolyn Shapiro To Appear on Chicago Tonight to Discuss Judge Neil Gorsuch Confirmation Hearings

Tue, 21 Mar 2017 17:47:00 GMT

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, are scheduled to appear on Chicago Tonight at 7 p.m. this evening to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.

Don't Miss Out on the ALA's March Event

Sun, 19 Mar 2017 20:11:00 GMT

By Josh Wolff

Research Attorney, Illinois Appellate Court, First District

On Wednesday, March 29, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court’s First District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. Numbers permitting, at least one justice will be seated at each luncheon table. Justice Nathaniel R. Howse, Jr., will also discuss the First District’s e-filing initiative.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

ALA’s Cases Pending Previews Illinois Supreme Court’s March Term

Tue, 07 Mar 2017 17:55:00 GMT

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term, which begins Monday, March 13, 2017, with oral arguments scheduled for March 14, 15, and 21, 2017. A total of 6 cases will be heard – 4 civil and 2 criminal. The following cases are scheduled for argument this Term:

People v. David Holmes—No. 120407—March 14

People v. Blackie Veach—No. 120649—March 14

Bogenberger v. Pi Kappa Alpha, et al.—Nos. 120951, 120967, 120986 (cons.)—March 15

In re Estate of Thomas F. Shelton—Nos. 121199, 121241 (cons.)—March 21

Ferris, Thompson & Zweig v. Esposito—No. 121297—March 21

Better Government Association v. Illinois High School Association—No. 121124—March 21

Below is a summary of one of the civil and criminal cases to be argued this term. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

INEFFECTIVE ASSISTANCE OF COUNSEL

No. 120649
People v. Veach

The issue in this case is whether the appellate court majority erred in holding that defendant’s ineffective assistance claim, raised on direct appeal, should wait until postconviction proceedings (the claim faulted trial counsel for stipulating to admission of recorded interviews with State’s witnesses without redacting inadmissible prior consistent statements and bad character evidence). The dissent would have held that the court could determine, based on the direct appeal record, that defendant received ineffective assistance of counsel.

In the PLA, defendant contended that the Fourth District holds that only in the “most extraordinary case” should an ineffective assistance claim be addressed on direct appeal. Perhaps this broader procedural issue motivated the Court to take the case. However, during briefing, both parties asserted that the issue could be addressed on direct appeal because the record on appeal confirms that the ineffective assistance claim is meritorious (defendant) or meritless (the State). If the Court agrees, then the broader procedural issue would not be reached, and perhaps the Court will need to grant leave to appeal in one of the handful of PLAs that appear to be holding for resolution of this case.

FREEDOM OF INFORMATION ACT

No. 121124
Better Government Association v. Illinois High School Association

The main issue in this case involves whether the Illinois High School Association (“IHSA”) is a subsidiary “public body” under the Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”).

Plaintiff Better Government Association (“BGA”) submitted written requests under FOIA to the IHSA seeking all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded that it was a nonprofit 501(c)(3) charitable organization that was not subject to FOIA. BGA then filed a complaint against IHSA and Consolidated High School District 230, requesting that the court declare IHSA a subsidiary “public body” under FOIA, declare that IHSA performs a governmental function on behalf of its member schools, including District 230, and order IHSA and District 230 to produce the requested documents. IHSA moved to dismiss, arguing that it was not subject to FOIA because it was neither a public body nor a subsidiary as the terms are used in FOIA. The trial court granted IHSA’s motion to dismiss (and District 230’s motion to dismiss), holding that IHSA was not a subsidiary public body covered by FOIA. Plaintiff appealed.

The Illinois Appellate Court affirmed, explaining that FOIA provides that all records in the custody or possession of a public body are presumed to be open to inspection or copying. FOIA defines “public body” to be “all legislative, executive, administrative, or advisory bodies of the State, state universities and college, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof ...” 5 ILCS 140/2. A subsidiary public body is itself a public body for purposes of compliance with FOIA. “Subsidiary public body” is not defined in FOIA so the court followed the three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978) for determining whether an entity is a “subsidiary body” as that term is used in the Open Meetings Act (5 ILCS 120/1.02).

The Rockford Newspapers test instructed courts to consider: (1) whether the entity has a legal existence independent of governmental resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted. Applying the first factor to the IHSA, the court determined that IHSA was a voluntary, unincorporated association of member Illinois high schools, both public and private and had an independent legal existence separate from its member schools where IHSA has independent standing to sue and be sued. As for the second factor, the Illinois Appellate Court determined that although a public body could perform the same functions of the IHSA in developing, supervising, and promoting interscholastic competitions among its member schools, the private, independent not-for-profit IHSA does not perform public, governmental functions in this case. Under the third factor, the court concluded that IHSA was not controlled by a government entity to such a degree that it constitutes a subsidiary public body. Therefore, the appellate court held that IHSA was not a subsidiary public body as the term was used in FOIA and affirmed the circuit court’s order granting IHSA’s motion to dismiss.

Seventh Circuit Denies Appellant-Bankruptcy Trustee's Motion to Dismiss His Appeal Where He Failed to Obtain an Indicative Ruling From the District Court

Fri, 03 Mar 2017 18:43:00 GMT

By Andrew Kwalwaser
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In Cox v. Nostaw, Inc., No. 16-1389, the appellant, the bankruptcy trustee for an energy company, filed an appeal in the Seventh Circuit Court of Appeals. While the appeal was pending, however, the parties engaged in mediation and agreed to a settlement that was contingent on approval by the bankruptcy court. The parties filed a joint motion in the bankruptcy court, seeking an indicative ruling as to whether the court would approve the proposed settlement. The bankruptcy court issued an order stating that it would approve the settlement, subject to the objection of creditors, if the case was remanded for that purpose.

The trustee then moved the appellate court, pursuant to Federal Rule of Appellate Procedure 12.1, to dismiss his appeal and remand to the district court with instructions to remand to the bankruptcy court "for proceedings consistent with its indicative ruling."

The Seventh Circuit denied the trustee's motion without prejudice. The court noted Rule 12.1 provides that, if a district court indicates it would grant a motion that is barred by a pending appeal, the reviewing court "may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal." Similarly, Circuit Rule 57 of the Seventh Circuit specifies that the court "will remand" if the district court intends to modify its judgment. These rules, the Seventh Circuit explained, "allow for coordination of proceedings between a district court and a court of appeals."

Because the litigation involved an appeal from the district court's decision to affirm a bankruptcy court order, remand to the bankruptcy court required coordination between three courts: the appellate court, the district court, and the bankruptcy court. In this case, however, there was no record that the parties "sought or obtained an indicative ruling from the district court." The Seventh Court held that "the proper procedure when asking this court to remand to the district court and then to the bankruptcy court is to obtain an indicative ruling from both courts that will need to act." Consequently, the Seventh Circuit denied the trustee's motion "without prejudice to renewal after obtaining an indicative ruling from the district court."

ALA Honors Recently Installed Chief Justice of the Illinois Supreme Court Lloyd A. Karmeier

Tue, 28 Feb 2017 18:09:00 GMT

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On February 23, 2017, the ALA gathered at the Union League Club in Chicago for a special luncheon honoring Illinois Supreme Court Chief Justice Lloyd A. Karmeier, who assumed the position late last year.

ALA President Joanne R. Driscoll began the luncheon by welcoming ALA members and guests, which included Illinois Supreme Court Justice Anne M. Burke, as well as numerous Illinois Appellate Court justices and Circuit Court judges. Thereafter, Chief Justice Karmeier shared his vision for the state’s High Court. Drawing a large laugh from the audience, the Chief Justice remarked that his top priority is to create a “Hail to the Chief” twitter account. Turning to a more serious note, Chief Justice Karmeier noted that the Illinois Supreme Court changes the position of Chief Justice every three years, which it does with “little fanfare.” His role as the state’s top jurist is to oversee the operation of the Illinois courts, including budgetary matters.

Chief Justice Karmeier outlined a number of court initiatives. These included a commitment to promptly and fairly deciding cases; bolstering the Illinois Supreme Court’s commission on professionalism to improve ethical standards; continuing the Illinois Supreme Court’s Access to Justice program in order to help pro se litigants navigate the legal system; pursuing criminal justice reform, including alternatives to cash bond to address situations in which people are held because they cannot afford nominal bail; and the transition to a statewide e-filing system.

Finally, Chief Justice Karmeier discussed his desire to remedy negative campaigning that has become commonplace in judicial elections. He explained that such campaigning is not limited to a certain political ideology or interest group. Sharing his own experience, the Chief Justice recounted a $2.6 million dollar negative advertising campaign against him, most of which was spent during the last two weeks before election day. Chief Justice Karmeier stressed that the judiciary’s integrity has “taken a beating” from negative campaigns and expressed his belief that lawyers have a duty to help ensure that debates regarding judicial candidates are factually based.

The ALA thanks Chief Justice Karmeier for his insightful and engaging comments.

Never Put Off ‘Till Tomorrow: The Seventh Circuit Reminds Us of a Little Known Rule 54(b) Trap

Fri, 24 Feb 2017 18:27:00 GMT

By Jonathan B. Amarilio
Partner, Taft Stettinius & Hollister LLP

Trial and appellate practitioners are often reminded that the failure of a losing party to immediately appeal once a federal district court enters a Rule 54(b) order can be fatal. The entry of a partial final judgment and order in those circumstances starts the appeal clock running. It is a “use it or lose it” scenario. Less well known is a rule in the Seventh Circuit requiring parties to timely request a Rule 54(b) order from the district court where a partial final judgment has been entered.

In Kingv. Newbold, 845 F.3d 866, the Seventh Circuit recently reminded us of this rule. In this case, Raymond King, an Illinois prisoner, sued a number of defendants claiming the medical treatment he received in prison was an Eighth Amendment violation. The defendants moved for summary judgment, which was granted in part, and later one defendant moved for judgment on the pleadings, which was also granted in part. The combined effect of the orders was to narrow the claims such that only two doctors remained in the suit. More than 30 days after the order granting judgment on the pleadings was entered, and more than a year after partial summary judgment was granted, King moved for entry of a Rule 54(b) judgment. The district court granted the motion and the matter went up on appeal.

Examining its own jurisdiction to consider the matter, the Seventh Circuit stated that “[l]ong ago we added a timeliness requirement as a hedge against dilatory Rule 54(b) motions,” further explaining that “as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates.” The court explained that there may be cases of “extreme hardship where dilatoriness is not occasioned by neglect or carelessness in which application of this general rule might be abrogated in the interest of justice,” but it said those instances are “extremely rare,” and found those circumstances lacking here.

King is a cautionary tale reminding us all of a simple and important lesson: If a district court enters partial final judgment excusing defendants from a lawsuit, file a Rule 54(b) motion immediately or you will risk losing the right to take such an appeal.

An Appellate Cautionary Tale: The Appellate Court Dismisses an Appeal for the Fourth Time in the Same Case in Oruta v. B.E.W.

Fri, 10 Feb 2017 15:23:00 GMT

By Louis J. Manetti
Attorney, Codilis and Associates, PC

An appeal’s dismissal for lack of jurisdiction is usually unremarkable. But in Oruta v. B.E.W., 2016 IL App (1st) 152735, the First District Appellate Court’s dismissal marked the fourth time—in the same case—that it ejected the plaintiff from the Appellate Court because it lacked jurisdiction.

The court-characterized “bizarre” litigation began when Larry Oruta filed a lawsuit against several defendants to enforce a workers’ compensation judgment “that never existed.” Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 5. Then, Oruta filed a garnishment against a bank, and the trial court issued an $80,000 turnover order in Oruta’s favor. Id. But when the court learned that no judgment actually existed, it vacated the turnover order and commanded Oruta to give back any money he may have received. Id. Oruta filed the first appeal, seeking review of the order vacating the turnover order. Id. However, the Appellate Court noted that Oruta filed the appeal before the final order in the underlying case had been entered, so the first appeal was dismissed for lack of jurisdiction. Id. ¶ 6.

Back in the circuit court, Oruta failed to comply with the court’s mandate that he return any ill-gotten turnover funds. Id. ¶ 9. Eventually, the court found him in civil contempt, and months later it reaffirmed in an order that he would be in civil contempt until he returned the money. Id. Three weeks later, however, the court ordered Oruta’s immediate release from custody. Id. This caused Oruta to file the second appeal, in which he sought review of the order reaffirming the civil contempt and the order mandating his release from custody. Id. ¶ 10. But the Appellate Court found that the appeal from the continued contempt order was untimely because it was not filed within 30 days, and that the incarceration was terminated by the time Oruta appealed, so the second appeal was dismissed. Id.

Then, in the circuit court, Oruta tried to reinstate garnishment proceedings. Id. ¶ 12. He claimed he had obtained a final judgment, and, in support, he produced a “near-illegible” order. Id. ¶ 13. The circuit court found that it never entered the purported order and struck it. Id. Oruta filed the third appeal and sought review of the order striking the purported order. Id. The Appellate Court once again dismissed the appeal because it held that the order did not finally dispose a claim against any party. Id. ¶ 14.

Finally, Oruta filed a motion in the circuit court that asked the court to refund a Workers’ Compensation Commission bond. The circuit court denied the motion (id. ¶ 16), and Oruta strung out the same bond argument across various motions. Id. ¶¶ 18-22. Eventually, the circuit court denied the requests for lack of jurisdiction. Id. ¶ 24. Oruta appealed.

In its decision, the Appellate Court immediately noted that Oruta’s brief lacked a table of contents and citations to the record, and that it could dismiss the appeal on those grounds alone. Id. ¶¶ 28-36. Turning to the merits of the appeal, the Court found that, while there was evidence that a bond was taken out in 2012, there was no indication that the bond still existed. Id. ¶ 40. Further, the Court noted that it had no more jurisdiction than the circuit court did, and circuit courts only have jurisdiction over workers’ compensation decisions if strict statutory procedures are followed. Id. ¶ 42. The record failed to show that Oruta followed these procedures, so the Court concluded it lacked jurisdiction. Id. ¶ 45.

In essence, Oruta is an appellate cautionary tale. From appealing non-final orders, to failing to file a timely notice of appeal, to appealing orders that do not dispose any party’s claim, to the failure to perfect jurisdiction in the lower court and filing non-conforming appellate briefs, Oruta shows the gamut of pitfalls that can lead to an appellant’s case being dismissed.

Special Event: "2017: Reflections on the Past – Hopes for the Future” featuring Illinois Supreme Court Chief Justice Lloyd A. Karmeier

Wed, 08 Feb 2017 12:10:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On February 23, the ALA will host a special event titled “2017: Reflections on the Past – Hopes for the Future,” featuring Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court.

Chief Justice Karmeier will share his experiences from being on the state’s high court for the past 12 years. He will discuss the challenges facing the court and what he hopes to achieve during his tenure as Chief Justice.

The event will be held on Thursday, February 23, from noon to 1:30 p.m., at the Union League Club, 65 West Jackson Boulevard in Chicago.

Attendees will receive MCLE credit.

For more information about any of the events and to register, please click here.

ALA Honors the Justices of the Illinois Appellate Court, First District

Wed, 01 Feb 2017 20:42:00 GMT

By Evan Siegel
Assistant Attorney General, Illinois Attorney General's Office

The ALA honored the Justices of the Illinois Appellate Court, First District, at its bi-annual reception, held at the Allegro Hotel in Chicago, on the evening of Thursday, January 26. The Association recognized the late Justice Laura Liu and Justice Margaret Stanton McBride for their outstanding contributions to the appellate bar. Justice David Ellis paid tribute to his friend and colleague Justice Liu, and Justice Maureen E. Connors celebrated Justice McBride, her friend and mentor. Justice Liu's husband, attorney Michael J. Kasper, and their daughter, Sophie, were welcomed guests. The Association contributed in Justice Liu's honor to a scholarship fund in the Justice's name at the St. Therese’s Chinese Catholic School in Chinatown. On behalf of Justice McBride, the ALA donated to the Mercy Home for Boys & Girls, a charity located on the Near West Side. Photographs of the event can be accessed here (password is "ala"), courtesy of Jasmin Shah Photography. For reprints, please contact Jasmin here.

Illinois Supreme Court Rejects Amendment to Rule 23

Wed, 01 Feb 2017 01:13:00 GMT

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

Supreme Court Rule 23 is a topic of frequent discussion among Illinois lawyers. A large number of Illinois Appellate Court decisions are issued not as published opinions, but as unpublished written orders (frequently known as “Rule 23 orders”), which are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” See Ill. Sup. Ct. R. 23(e)(1). Many Illinois lawyers may not be aware that multiple bar associations have proposed a significant change to Rule 23, or that the Illinois Supreme Court has rendered a decision on that proposal.

On January 10, 2014, the presidents of the Appellate Lawyers Association, the Chicago Bar Association and the Illinois State Bar Association wrote a joint letter to then-Chief Justice Rita B. Garman of the Illinois Supreme Court to propose an amendment to Rule 23 that would permit Rule 23 orders to be cited as persuasive authority if they were filed on or after January 1, 2011. The Supreme Court deferred adoption of the proposal at that time but invited the Associations to undertake a comprehensive review and “consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.”

The bar associations accepted this invitation and formed a Special Committee on Supreme Court Rule 23, chaired by former ALA Presidents J. Timothy Eaton and Michael T. Reagan and consisting of representatives of the ALA, CBA, ISBA and the Executive Committee of the Illinois Judges Association. The ALA was represented by John M. Fitzgerald and Garrett L. Boehm, Jr., its Rules Committee co-chairs. In August 2016, the Special Committee submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority.

After seeking input from the Illinois Appellate Court justices, the Supreme Court voted during its November 2016 Term to make no changes to Supreme Court Rule 23 at this time.

Don't Miss Out on the ALA's February Events

Mon, 30 Jan 2017 22:23:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On February 9 and 16, the ALA will host its annual Illinois Supreme Court 2016 Civil Cases Year in Review, featuring a panel discussion about the most significant civil cases decided by the Illinois Supreme Court this past year.

There will be two events: one in Chicago (February 9) and one in Wheaton (February 16). Both events will feature Illinois Appellate Court Justice Ann B. Jorgensen of the Second District, and past ALA presidents J. Timothy Eaton and Michael T. Reagan.

The Chicago event will be held on Thursday, February 9, from noon to 1:45 p.m., at Neal, Gerber & Eisenberg LLP, 2 North LaSalle Street, 17th Floor.

The Wheaton event will be held on Thursday, February 16, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

Attendees at both events should bring their own lunches and will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

Appellate Law Employment: Assistant Attorney General (Criminal Appeals division) of the Illinois Attorney General’s Office

Tue, 24 Jan 2017 18:01:00 GMT

The Illinois Attorney General’s Office is looking to fill an Assistant Attorney General position in its Criminal Appeals division in Chicago. The Assistant Attorney General will brief and argue criminal cases in state and federal appellate courts. The ideal candidate will have at least two years of experience as a judicial law clerk, appellate court research attorney or associate in a law firm.

More information about the position can be found here.

Illinois Appellate Court: To Challenge Multiple Administrative Decisions, a Party Must File a Complaint Specific to Each Decision

Thu, 19 Jan 2017 19:14:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

In Finko v. City of Chicago Department of Administrative Hearings and Department of Revenue, 2016 IL App (1st) 152888, the petitioner, Andrew Finko, had received two parking tickets, one on July 10, 2014, and another 18 days later. Finko contested the tickets by mail. An administrative law judge (ALJ) found that the parking violations had occurred and issued separate orders for each ticket. The City of Chicago Department of Administrative Hearings (DOAH) adopted the ALJ’s decisions.

Finko subsequently filed a pro se complaint in the circuit court for administrative review, listing both ticket numbers and attaching copies of the two DOAH’s orders as exhibits. Two months after Finko filed his complaint, the circuit court issued an order which referenced only the first of his tickets. In response, the City of Chicago filed a complete record of the proceedings to support its position on only the first ticket, including a copy of the ticket and photographs of the street and street signs from the day the ticket was issued. The City did not file such a record for the second ticket.

Several weeks later, Finko filed a motion to consolidate and to compel the City to file the record of proceedings for the second ticket. The city responded, arguing that, although Finko was contesting both tickets, he filed only one complaint for administrative review instead of two, which contravened administrative law. The circuit court denied Finko’s motion, in part, because he did not file a complaint specific to the second ticket. The court eventually ruled on Finko’s first ticket, finding that he did not commit a parking violation and reversing the DOAH’s decision.

Finko subsequently appealed the court’s denial of his motion to consolidate and its refusal to consider his challenge to the DOAH’s decision on his second ticket.

The appellate court observed that the issue was governed by section 3-103 of the Illinois Code of Civil Procedure (735 ILCS 5/3-103 (West 2014)), which stated that “[e]very action to review a final administrative decision shall be commenced by the filing of a complaint” within 35 days of the decision. The court further found that, based on the plain language of this section, a party must file a complaint for review of “a final administrative decision,” and nothing in the section allowed for the filing of a single complaint for review of multiple final administrative decisions. Section 3-103 thus required Finko to file a complaint for administrative review for each of his tickets, and because he did not, the circuit court had no jurisdiction to review his challenge to his second ticket.

The appellate court also rejected Finko’s contention that substantial compliance with section 3-103 was sufficient. The appellate court accordingly affirmed the circuit court’s judgment.

First District Reiterates Procedural Requirements for Appellants

Wed, 11 Jan 2017 18:53:00 GMT

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

In Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, the appellate court once again found that a litigant’s failure to comply with procedural rules in the circuit and appellate courts foreclosed meaningful review of her claims.

There, the plaintiff, who was represented by counsel in the circuit court, filed a pro se appeal from the judgment entered against her following a jury trial. In short, she asserted that unfair procedural irregularities occurred below. The defendant responded, however, that it would be improper for the appellate court to review the merits of the plaintiff’s claims due to her own failure to follow procedural rules. The appellate court agreed.

First, the appellate court found that the plaintiff failed to file a posttrial motion and, consequently, failed to preserve the issues raised in this civil appeal pursuant to Illinois Supreme Court Rule 366(b)(2) (eff. Feb. 1, 1994).

Next, the appellate court found it could not review the merits of the appeal because the plaintiff failed to file a report of proceedings, directing the plaintiff to the oft-cited rule set forth in Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). See also Ill. S. Ct. R. 321 (eff. Feb. 1, 1994); Ill. S. Ct. R. 323 (eff. Dec. 13, 2005). The court further noted that while the plaintiff attached documents to her appellate brief, those documents were not included in the record on appeal.

Finally, the appellate court found the plaintiff’s opening brief failed to comply with Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013). Specifically, the brief omitted the requisite statement of the issues, statement of jurisdiction and statement of facts. Additionally, the plaintiff’s argument section did not properly set forth cohesive arguments with citations to authority. Due to these deficiencies, the appellate court affirmed the circuit court’s judgment.

Presiding Justice Hyman and Justice Mason each filed a special concurrence. Justice Hyman essentially added that the plaintiff’s concerns may have reflected her misunderstanding of the trial process and, thus, could be alleviated by explaining that process. In contrast, Justice Mason observed that the appellate court routinely refused to consider matters outside the record and found that the plaintiff’s concerns should not be addressed in this appeal.

While the pro se nature of the plaintiff’s claims in Wing places some doubt on whether a posttrial motion would have had any merit, the case nonetheless reminds trial attorneys intending to pursue an appeal that they must file such a motion, including all potential contentions. Moreover, Wing provides a short checklist of procedural challenges for appellees attempting to secure an affirmance.

Don't Miss Out on the ALA's January Events

Sun, 08 Jan 2017 20:54:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On January 13 and 31, the ALA will host its annual Illinois Supreme Court 2016 Criminal Cases Year in Review, featuring a panel discussion about the most significant criminal cases decided by the Illinois Supreme Court this past year.

There will be two events, one in Wheaton, co-sponsored by the DuPage County Bar Association (January 13) and one in Chicago, co-sponsored by the Cook County Bar Association (January 31). Both events will be moderated by ALA Treasurer Gretchen Harris Sperry and will feature Illinois Appellate Court Justice Joseph Birkett (Second District), Leah Bendik, Illinois Assistant Attorney General, Criminal Appeals Division and James Chadd, Deputy State Appellate Defender, Office of the State Appellate Defender. The Chicago event will also feature retired Illinois Appellate Court Justice James Epstein. The Wheaton event will also feature retired Illinois Appellate Court Justice Stuart Palmer.

The Wheaton event will be held on Friday, January 13, from noon to 1:30 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

The Chicago event will be held on Tuesday, January 31, from noon to 1:45 p.m., at Hinshaw & Culbertson LLP, 222 North LaSalle St., Suite 300.

Attendees at both events should bring their own lunches and will receive 1.5 hours of MCLE credit.

Additionally, on Thursday, January 26, from 5 to 7 p.m., the ALA will host a reception honoring the justices of the Illinois Appellate Court’s First District. This year’s special honorees will be Justice Margaret Stanton McBride and the late Justice Laura Liu. The event will be held at the Hotel Allegro, 171 West Randolph Street in Chicago.

For more information about any of the events and to register, please click here.

ALA’s Cases Pending Previews Illinois Supreme Court’s January Term

Tue, 03 Jan 2017 18:14:00 GMT

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s January Term, which begins Monday, January 10, 2017, with oral arguments scheduled for January 10, 11, 12 and 18, 2017. A total of 9 cases will be heard – 5 civil and 4 criminal. The following civil cases are scheduled for argument this Term:

In re Marriage of Heroy—No. 120205—January 11

The City of Chicago v. Alexander—No. 120350—January 11

The Carle Foundation v. Cunningham Township—Nos. 120427, 120433 cons.—January 12

Chultem v. Ticor Title Insurance Co.—No. 120448—January 12

Barr v. Cunningham—No. 120751—January 18

Below is a summary for one of these civil cases, In re Marriage of Heroy. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

In re Marriage of Heroy

The issue in this case involves what factors are to be considered in determining whether to award attorney’s fees to a party in a divorce proceeding and whether a party must show her inability to pay her own fees in order to receive them from the other party.

In 2006, and as part of the parties’ divorce, the trial court awarded Donna $35,000 per month in permanent maintenance, plus $4,500 per month in retroactive temporary maintenance in addition to the $6,000 per month she had been receiving prior to the entry of judgment. On appeal, the appellate court affirmed the trial court’s award of $35,000 per month in permanent maintenance. In 2009, David filed a petition requesting the termination or modification of Donna’s permanent maintenance award due to a decrease in his income, a decrease in his net worth, and Donna’s failure to make any reasonable efforts to become self-supporting since the dissolution judgment. After an extensive hearing, the trial court found that David had met his burden of establishing a substantial change in circumstances as required by Section 510 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/510), entitling him to modification of the permanent maintenance payments to Donna, but rejected David’s request to terminate the payments. The court lowered Donna’s permanent maintenance payments to $27,500 per month. The court also ordered David to contribute $125,000 toward Donna’s attorney’s fees incurred during the maintenance modification proceedings. After David filed a notice of appeal, Donna sought an order requiring David to make a contribution to her prospective attorney’s fees related to the appeal. The trial court granted Donna’s motion and ordered David to pay $35,000 toward her prospective attorney’s fees.

The Illinois Appellate Court first rejected David’s argument that the trial court should have placed more emphasis on Donna’s failure to make reasonable efforts to become financially self-supporting, finding that, since the trial court in its 2006 order addressed Donna’s self-sufficiency and her ability to support herself in the lifestyle she enjoyed during her marriage in awarding permanent maintenance, those issues were res judicata. The court then reviewed the record and determined that the trial court made a calculation error and had intended to make Donna’s permanent maintenance award to be 25% of David’s cash flow, which would be $25,745 in monthly maintenance to Donna, and not $27,500. The appellate court vacated the trial court’s award of modified permanent maintenance and remanded the case to the trial court with directions to enter a modified permanent maintenance award of 25% of David’s cash flow. The court also reversed the order requiring David to pay some of Donna’s attorney’s fees, citing In re Marriage of Schneider, 214 Ill. 2d 152 (2005), and reasoning that the question was not whether David had more financial resources than Donna, but whether Donna had the ability to pay her own fees without depleting her assets to such an extent as to undermine her financial stability. As the record was devoid of any evidence that payment of her attorney’s fees would undermine Donna’s financial stability, the court held that the record did not support the award of attorney’s fees to Donna.

Illinois Appellate Court Determines It Lacked Jurisdiction to Review a Circuit Court's "Supplemental Opinion"

Mon, 19 Dec 2016 18:45:00 GMT

By Stephen Soltanzadeh
Associate, Ancel Glink

The First District of the Illinois Appellate Court recently held that it lacked jurisdiction over an appeal from a circuit court’s “supplemental opinion,” entered nearly a year after its initial decision, where the appellant did not timely file a notice of appeal from the initial order. The appellate court held that because the circuit court’s initial decision disposed of all claims between the parties, that decision was a final order; therefore, the circuit court lacked jurisdiction to enter a supplemental decision more than 30 days after the final order and, in turn, the appellate court lacked jurisdiction to review the supplemental opinion.

CitiBank N.A. v. The Illinois Department of Revenue, 2016 IL App (1st) 133650, involved a consolidated appeal concerning Department of Revenue denials of requests by plaintiffs CitiBank N.A. and Chrysler Financial Services America (Chrysler) for refunds of Retailers’ Occupation Tax Act (ROTA) taxes. Chrysler sought administrative review of the Department’s decision and, on March 14, 2014, the circuit court affirmed. Over eight months later, in November 2014, Chrysler filed a section 2-1401 petition (735 ILCS 5/2-1401) stating that it had not learned of the circuit court’s decision until October 2014 and arguing that the circuit court had overlooked a factual stipulation.

In December 2014, the circuit court granted Chrysler’s section 2-1401 petition, and in March 2015, it issued a supplemental opinion, which again affirmed the Department’s decision. The March 2015 supplemental opinion was identical to the March 2014 decision, except that it contained an additional discussion of Chrysler’s argument regarding the stipulation and included a statement that Chrysler’s time for filing a notice of appeal would begin to run upon entry of the supplemental opinion. Chrysler filed a notice of appeal within 30 days of the March 2015 supplemental opinion.

The appellate court held that it lacked jurisdiction over the appeal because Chrysler failed to timely file a notice of appeal after the circuit court’s March 2014 order. The court explained that, because the March 2014 order disposed of all of Chrysler’s claims, it was final and left Chrysler with four choices: (1) file a posttrial motion within 30 days; (2) file a notice of appeal within 30 days; (3) accept the decision; or (4) file a section 2-1401 petition. Because Chrysler failed to timely file a notice of appeal from either the March 2014 final order or the December 2015 order granting the 2-1401 petition, it lost its opportunity to appeal.

The court further rejected Chrysler’s argument that it was appealing only the court’s March 2015 modified opinion, not the March 2014 or December 2015 decisions. The court held that the circuit court lacked jurisdiction to modify its decision after 30 days of its entry, and that the appellate court lacked jurisdiction to review an order that the circuit court did not have jurisdiction to enter. The court also determined that the circuit court’s statement that Chrysler’s time to appeal would begin to run from entry of the March 2015 order had no effect because the circuit court may not extend the time for filing a notice of appeal. Finally, the court observed that all of the claims raised by Chrysler on appeal related to issues decided in the circuit court’s March 2014 order, which Chrysler could appeal only by timely filing a timely notice of appeal within 30 days of entry of the order. Accordingly, the court dismissed Chrysler’s appeal for lack of jurisdiction.

Seventh Circuit Dismisses a Defendant's Appeal Where, As Part of His Plea Agreement, He Agreed to Waive his Appeal Rights

Tue, 13 Dec 2016 21:16:00 GMT

By Paul Berks
Massey & Gail LLP

In United States v. Worthen, No. 15-3521, the Seventh Circuit dismissed an appeal of a criminal conviction on the grounds that the defendant waived his right to appeal as a condition of entering a plea agreement.

A grand jury indicted defendant Worthen on four counts, including “causing death while using or carrying a firearm during a crime of violence,” under 18 U.S.C. § 924(j), which carried a potential sentence of death or life in prison. Worthen pled guilty to the section 924(j) charge, as well as a robbery charge, and agreed to waive his appeal rights. In exchange, the government dismissed the other counts and promised not to seek the death penalty.

The district court subsequently sentenced Worthen to 60 years in prison – 10 years for robbery and 50 years for the section 924(j) charge. Worthen appealed, arguing that robbery was not a “crime of violence” within the meaning of the statute, and therefore was not a predicate offense necessary to support his conviction. Absent a conviction on a valid predicate offense, Worthen argued his section 924(j) conviction was invalid.

The government moved to dismiss the appeal because Worthen had waived his right to appeal as part of his plea deal. The Seventh Circuit noted that it had long enforced the general rule that “appeal waivers are enforceable and preclude appellate review.” The court also recognized that it had previously carved out a “narrow exception[ ] to this rule” when “a sentence *** exceeds the statutory maximum for the crime committed.” Worthen argued he fell within this exception because, if his conviction under section 924(j) was invalid, the maximum sentence on the remaining robbery charge was 20 years, and his 60-year sentence would therefore exceed the statutory maximum for the crime for which he was convicted.

The Seventh Circuit rejected this reasoning as “entirely circular” because it would require the court to determine the merits of his appeal in order to assess the validity of his appellate waiver. The court explained that, under Worthen’s approach, “the rule would be that an appeal wavier is enforceable unless the appellant would succeed on the merits of his appeal.” It explained that this approach would effectively “eviscerate the right to waive an appeal” by merging the merits of the appeal with the validity of the waiver.

The court further recognized that the effective reversal of its “longstanding precedent that appeal waivers are generally enforceable” would reduce the willingness of the government to offer appeal waivers as part of plea deals. This, in turn, would lead the government to offer less generous plea bargain terms, harming defendants, like Worthen, who secured a promise from the government not to seek the death penalty, in part, in exchange for his waiver of the right to appeal. Accordingly, the court dismissed Worthen’s appeal without considering its merits.

Mary Foster and James Grogan Entertain and Educate Concerning Ethical Issues for Appellate Lawyers.

Mon, 05 Dec 2016 18:04:00 GMT

By Karen Kies DeGrand
Partner, Donohue Brown Mathewson & Smyth LLC

On November 29, 2016, the ALA convened for lunch at the Union League Club in Chicago, and ALA members and guests were treated to a lively presentation concerning ethical problems facing appellate lawyers. The discussion also encompassed the broader topic of trends in legal ethics.

These two distinguished attorneys stand at the forefront of legal ethics in Illinois. Ms. Foster teaches several legal ethics courses at Northwestern University Pritzker School of Law, where she covers not only the general topic but also lectures on legal ethics for the business lawyer, legal ethics for the global lawyer and legal ethics for the public interest/government lawyer. Drawing on her many years of experience as a Senior Trial Lawyer for the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (“ARDC”) and as counsel for the ARDC Review Board, Ms. Foster has taught numerous legal ethics courses and programs for other law schools and continuing legal education providers. Mr. Grogan, Deputy Administrator and the Chief Counsel of the ARDC, has served the state for more than 36 years investigating and prosecuting charges of lawyer misconduct and has argued dozens of disciplinary cases in the Supreme Court of Illinois. An adjunct professor at the Loyola University School of Law, Mr. Grogan has taught legal ethics and lectured on various professional responsibility topics in a variety of settings.

Acknowledging that appellate lawyers generally are not prone to ARDC-prosecuted violations, the speakers identified the most common areas of disciplinary concern. Most frequently, neglect or incompetence, either as a pattern in in conjunction with other misconduct, will draw the ARDC’s attention to the appellate practitioner. Ms. Foster described an extreme situation that arose in the context of a Seventh Circuit appeal, where an attorney’s lies about illness to avoid oral argument plus other misconduct resulted in a 60-day suspension and restitution of a fee. The speakers also discussed Illinois rule changes, which include requiring additional disclosure by Illinois lawyers with no malpractice insurance and inquiry into attorneys’ succession plans for their practices.

The speakers also addressed nationwide trends. One new rule under discussion is ABA Model Rule 8.4(g), adopted in August, 2016, which categorizes conduct that constitutes harassment or discrimination as professional misconduct. Also drawing widespread disciplinary attention is lawyer misuse of social medical, including Facebook misconduct, and unprofessional behavior in the employment arena.

The ALA extends sincere thanks to Jim Grogan and Mary Foster for their humorous and informative presentation.

Seventh Circuit: No Jurisdiction Over Interlocutory Appeal After District Court Revokes Certification of the Appeal

Mon, 28 Nov 2016 18:27:00 GMT

By Andrew Kwalwaser
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In Kenosha Unified School District No. 1 Board ofEducation, et al. v. Whitaker, No. 16-8019, the Seventh Circuit Court of Appeals determined that it lost jurisdiction over an interlocutory appeal when the District Court of the Eastern District of Wisconsin revoked its certification of the appeal.

The plaintiff, a transgender boy, sued his school district for sex discrimination after his high school prohibited him from using the boys' bathroom. The defendants filed a motion to dismiss, which the district court denied. Following a hearing on the plaintiff's motion for a preliminary injunction, the defendants submitted a proposed order certifying for appeal the order that denied their motion to dismiss under 28 U.S.C. § 1292(b). The district court entered the proposed order, and the defendants filed the instant petition for interlocutory appeal. Additionally, the defendants filed a separate appeal from the district court's order partially granting the preliminary injunction.

While the instant appeal was pending, the plaintiff moved the district court to reconsider certification pursuant to Federal Rule of Civil Procedure 60(b). The district court granted the plaintiff's motion and revoked certification, finding that the defendants "had not made a legal or factual argument in support of certification" and that the district court had erred by not soliciting argument on the issue. The district court also stated that it erred by omitting "interlocutory certification language" from the certification order.

The district court observed that 28 U.S.C. § 1292(b) sets forth several factors to be considered in certifying an interlocutory appeal, including whether the underlying order involves a "controlling question of law," "whether an immediate appeal would materially advance the ultimate termination of the litigation," and "whether there is a substantial ground for difference of opinion on the question of law." Although determination of whether sex "encompasses gender identity" for purposes of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, would control one of the plaintiff's claims, the district court found that it would not advance the litigation because the plaintiff had pleaded facts sufficient to survive the motion to dismiss on other grounds.

The Seventh Circuit asked the parties to file statements of position regarding the district court's revocation of certification. Both parties agreed, as did the Seventh Circuit, that its jurisdiction to hear an interlocutory appeal under U.S.C. § 1292(b) "derives from a district court's certification of an order." As the Seventh Circuit had not entered an order granting the petition at the time the district court withdrew certification, the Seventh Circuit lost jurisdiction to consider the instant appeal.

The defendants argued that the Seventh Circuit could exercise pendent appellate jurisdiction in connection to the separate appeal from the preliminary injunction order. The Seventh Circuit observed that the doctrine of pendent appellate jurisdiction allows a reviewing court to consider a non-final order that is "inextricably intertwined" with an appealable order. As the instant appeal was not properly taken from an appealable order, pendent appellate jurisdiction did not exist. Instead, the Seventh Circuit noted that "[t]he appropriate place for the defendants to request pendent appellate jurisdiction is in the appeal from the preliminary injunction order." Consequently, the Seventh Circuit denied the defendants' petition for interlocutory appeal.

ALA's Cases Pending Previews Illinois Supreme Court's November Term

Fri, 18 Nov 2016 14:21:00 GMT

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s November Term, which began Monday, November 14, 2016, with oral arguments scheduled for November 15, 2016. A total of 4 cases were heard – 1 civil and 3 criminal. Here is the civil case with the date of oral argument:

Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois—No. 120343—November 15

Below is an abbreviated summary for the case. Summaries for this case and others pending with the Supreme Court can be found in our Cases Pending publication, accessible to ALA members on our website.

No. 120343
Board of Educ. of Springfield School Dist. No. 186 v. Attorney General of Illinois

The following two issues are presented in this appeal: (1) whether the signing of an agreement during a closed session meeting constitutes a final action in violation of section 2(e) of the Open Meetings Act (“Act”) where the agreement was later approved by vote at a subsequent public meeting; and (2) whether the public was adequately informed of the nature of the public action to be taken at the subsequent meeting.

Plaintiff, the Board of Education of Springfield School District No. 186 (“Board”), terminated its superintendent’s employment contract upon mutual agreement. The superintendent signed the agreement on January 31, 2013, and at a closed session meeting on February 4, 2013, a majority of the Board signed, but did not date, the agreement. The agenda for the March 5, 2013 Board meeting included an action item to approve a resolution related to the agreement and included a copy of the agreement itself. At the next Board meeting, the Board approved the agreement in open session and added the March 5, 2013 date to the Board members’ signatures on the agreement.

The Illinois Attorney General (“AG”) issued a binding opinion concluding that the signing of the agreement during the February 4, 2013, closed session meeting constituted a “final action” in violation of section 2(e) of the Act (5 ILCS 120/2(e)). On the Board’s complaint for administrative review, the circuit court found that the “final action” occurred on March 5, 2013, when the Board members voted to approve the agreement during the public meeting.

The AG then issued a second binding opinion, concluding that the Board violated the Act by failing to adequately inform the public of the nature of the public business being conducted at the March 5, 2013, meeting. The circuit court again reversed, finding that the AG expanded the requirements of the Act to require that a public body explain the significance of the final action to be taken, rather than merely advise the public of the nature of the final action to be taken.

The Illinois Appellate Court, Fourth District affirmed both circuit court orders. Relying on Grissom v. Board of Education, 75 Ill. 2d 314 (1979), it held that a Board can discuss and vote on an employment decision in closed session and hold a final roll call vote on that decision in open session without violating the Act. The appellate court also concluded that the Act only requires that the public agency advise the public about the general nature of the final action to be taken, but it is not required to provide a detailed explanation as to the significance or impact of the final action.

In her petition for leave to appeal, the AG argues that the appellate court’s decision allows public bodies to take final action during open meetings without making a public recital at the meeting to inform the public about the business being transacted, in violation of section 2(e) of the Act. The AG also argues that the appellate court erred in holding that the Board validly approved the separation agreement at the March 5, 2013, meeting because the public was not adequately informed about the general subject matter of the agreement, which is inconsistent with the language of section 2(e) of the Act and with the Act's purpose of keeping the public “informed as to the conduct of their business.” 5 ILCS 120/1.

7th Circuit: Illinois Court of Claims' Rejection of Inmate's Complaint Did Not Preclude Review in Federal Court of Inmate's Similar Complaint

Wed, 16 Nov 2016 18:26:00 GMT

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

In McDonald v. Adamson, No, 15-1305, the Seventh Circuit Court of Appeals recently reversed a ruling from the District Court for the Northern District of Illinois that an inmate’s claims were barred by res judicata.

In 2010, Illinois state prison inmate Donald McDonald filed a complaint in the Illinois Court of Claims against the Illinois Department of Corrections. McDonald claimed that he had been denied his First Amendment free exercise rights as a practicing Muslim. He alleged that he was not permitted to attend Friday prayer services, that prison officials regularly stole prayer cassette tapes and prayer rugs, and that Christians were allowed to have more volunteers enter the prison than were Muslims. McDonald sought, among other things, a damages award of $5,000.

The Illinois Court of Claims conducted a hearing on McDonald’s complaint but failed to issue a decision for more than two years. In the interim, McDonald filed a similar complaint in the federal district court seeking injunctive relief under 42 U.S.C. § 1983. In 2013, the Illinois Court of Claims issued an order rejecting the allegations in McDonald’s original complaint. The district court subsequently dismissed McDonald’s federal complaint, finding that the order from the Illinois Court of Claims rendered the federal complaint barred by res judicata.

On appeal, the Seventh Circuit agreed with the defendants’ concession that McDonald’s federal claim was not barred by res judicata. The court explained that Illinois law affords preclusive effect only to a final judgment rendered by a “court of competent jurisdiction.” Because the Illinois Court of Claims lacks jurisdiction to consider claims based upon a federal statute or the federal or state constitutions, it is not a “court of competent jurisdiction” under Illinois preclusion law. Thus, the adverse judgment in the Illinois Court of Claims did not bar McDonald’s federal complaint based upon the same facts.

The Seventh Circuit also declined to address the defendants’ collateral estoppel argument. The court acknowledged that res judicata and collateral estoppel are separate legal doctrines, but noted that the defendants bore the burden to raise collateral estoppel as an affirmative defense in the district court. Hence, the Seventh Circuit would not affirm a judgment based on an affirmative defense raised for the first time on appeal.

The Seventh Circuit noted in closing that, on remand, the district court would be free to grant McDonald leave to amend his complaint. The defendants would also have an opportunity to renew their motion to dismiss.

Don't Miss Out on the ALA's November Events

Fri, 11 Nov 2016 12:23:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On November 29, 2016, the ALA will host a luncheon focusing on ethics for appellate practitioners featuring Jim Grogan, Deputy Administrator and Chief Counsel of the Illinois Attorney Registration & Disciplinary Commission and Mary Foster, former Review Board counsel at the ARDC and current senior lecturer at the Northwestern Pritzker School of Law.

At the luncheon, Grogan and Foster will discuss ethical issues that uniquely affect appellate attorneys. The program will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE ethics credit.

For more information and to register for either event, please click here.

April ALA Speaker Erwin Chemerinsky Discusses Impact of Only Eight Supreme Court Justices

Mon, 07 Nov 2016 21:21:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal discussing how the United State’s Supreme Court’s lack of a ninth justice has affected its docket.

Chemerinsky observed that, at the end of the Court’s first month, its docket only had 39 cases, which was “significantly fewer than usual for this point of the term.” In addition to the smaller docket, Chemerinsky noted that the effect of only eight justices could be seen by looking at the Court’s December schedule for oral argument. “Four of the six days that the court is hearing arguments, the justices will hear only one case, rather than the two, or occasionally three, cases usually heard per day.”

Chemerinsky also believed that the Court is waiting for the appointment of a ninth justice for some cases that were granted review last January and have already been fully briefed, but remain without a date for oral argument. Those cases include: Trinity Lutheran Church of Columbia,Missouri v. Pauley, which “concerns whether it violates free exercise of religion or denies equal protection for a state to give aid (the material for the bottom of playgrounds) to public and secular private schools, but not to religious schools”; Wisconsin v. Murr, which concerns “the takings clause and how it is determined whether adjacent pieces of property should be deemed to be one or two pieces of property”; and Microsoft v. Baker, which concerns “whether plaintiffs can appeal the denial of class certification by dismissing their suit.”

The full article can be accessed here.

Illinois Supreme Court Amends Rule 307

Tue, 25 Oct 2016 16:22:00 GMT

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

Effective November 1, 2016, the Illinois Supreme Court has made significant amendments to Illinois Supreme Court Rule 307, which governs interlocutory appeals from, among other things, orders granting or denying motions for injunctive relief. These amendments were successfully proposed by the ALA in the hope that they would promote fairness, efficiency and clarity in Rule 307 interlocutory appeals.

Rule 307 was amended in two primary ways.

First, the amendments provide that parties to Rule 307(a) appeals no longer need to file a full record on appeal. They may instead file a Rule 328 supporting record, which is compiled by the appellant (not the circuit court clerk) and supported by affidavit. The appellee may file a supplemental supporting record if he or she feels that the appellant’s supporting record was incomplete. The process of compiling a Rule 328 supporting record can be much quicker and easier than compiling a full record on appeal, and this more expeditious manner of presenting a pertinent record to the reviewing court can be essential in a Rule 307 interlocutory appeal, in which at least one party normally claims the existence of an emergency. (Pursuant to the amendment, full records on appeal are still required in cases arising under the Juvenile Court Act where an order terminating parental rights has been entered.)

Second, the amendments effectively overrule the Illinois Appellate Court’s opinion in Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230. Nizamuddin held that, in Rule 307(d) appeals — which are appeals from orders granting or denying motions for temporary restraining orders (TROs) — the notice of appeal must be filed in the appellate court (not the circuit court) even though “the rule does not state point-blank” that the notice must be filed in the appellate court. See Nizamuddin, 2013 IL App (2d) 131230, ¶ 6. The Supreme Court’s amendment now specifies that the notice of appeal in a Rule 307(d) interlocutory appeal — as in all other types of appeals — shall be filed “in the circuit court.”

Nizamuddin also held that parties may not file documents via mail or delivery to a third-party commercial carrier in Rule 307(d) appeals, notwithstanding that Rule 373 expressly authorizes that method of filing papers in a reviewing court and there is nothing in Rule 307 to the contrary. See Nizamuddin, 2013 IL App (2d) 131230, ¶¶ 7-11. The Supreme Court has amended Rule 307 to provide that Rule 373 may be utilized in Rule 307(d) appeals, provided that the relevant documents are sent by overnight delivery.

Conclusion

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules that are intended to promote fairness, efficiency and clarity in the appellate process. The ALA appreciates the Illinois Supreme Court’s adoption of the amendments proposed by the ALA. Any ALA members who have ideas for amending the Illinois Supreme Court Rules are encouraged to contact the co-chairs of the ALA Rules Committee, John Fitzgerald and Garrett Boehm.

Seventh Circuit Adopts a Federal Standard of Finality for Foreclosure Judgments

Wed, 19 Oct 2016 22:30:00 GMT

By Louis J. Manetti

Attorney, Codilis and Associates, PC

The Seventh Circuit recently broadened a prior holding and stated that, under a federal standard of finality, foreclosure judgments are not final and appealable orders. In Bank of America, N.A. v. Martinson, 2016 U.S. App. LEXIS 12402, *1, the bank filed a foreclosure action in Wisconsin, and the borrowers removed the case to federal court. The federal district court entered judgment in the bank’s favor, and the order provided for a sheriff’s sale after the borrowers’ time to redeem the property expired. Id. The borrowers appealed the judgment order to the Seventh Circuit. Id.

The Seventh Circuit began the opinion by considering its jurisdiction. It noted that, in HSBC Bank USA, N.A. v. Townsend, 793 F. 3d 771, 777-78 (7th Cir. 2015), it held that Illinois foreclosure judgments were not final orders. The Townsendmajority reasoned that Illinois foreclosure judgments were not final because the order did not resolve all the issues in the lawsuit. Specifically: (1) the owner retained statutory rights to redeem the property before the sale; (2) a judicial sale would still need to be confirmed in a further court proceeding; and (3) the court would still need to decide the amount of deficiency, if any. Id. at 775-77. The Seventh Circuit held that Townsend controlled the issue of appellate jurisdiction, and it was not material that the bank in this case was not seeking a deficiency. Martinson, 2016 U.S. App. LEXIS 12402 at *5.

The Seventh Circuit then had to resolve another difference between the present case and Townsend. The outcome in Townsend, 793 F. 3d at 777, resulted from the court’s holding that, under Illinois law, foreclosure judgments are not final and generally cannot be appealed until the sale is confirmed. But this case was different—it involved an appeal regarding a Wisconsin foreclosure judgment, and the court acknowledged that Wisconsin courts invariably treat foreclosure judgments as final and appealable orders. Martinson, 2016 U.S. App. LEXIS 12402 at *5-6; see also Anchor Sav. & Loan v. Coyle, 148 Wis. 2d 94, 100-01 (“[T]he judgment of foreclosure and sale disposes of the entire matter in litigation and is a final judgment as a matter of right . . . . [t]he proceedings after the judgment . . . are analogous to the execution of a judgment and simply enforce the parties’ rights which have been adjudicated[.]”).

Despite Wisconsin law, the Seventh Circuit held that Townsend controlled in this case because Townsend applied a federal standard of finality—“a procedural issue governed by federal law.” Martinson, 2016 U.S. LEXIS 12402 at *6 (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988)). Congress’s use of “final decisions” in section 1291 did not mean to incorporate state law, and a “final decision” in federal court is one “which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Budinich, 486 U.S. at 199.

The Seventh Circuit acknowledged that it would create a significant “and potentially treacherous” difference between state and federal forums if it held that a Wisconsin state court foreclosure judgment was an appealable order but a Wisconsin federal district court judgment was not. However, it reasoned that, if it did not follow Townsend and apply a federal standard of finality, it would create an in-circuit conflict about federal procedural law, and the more palatable option was to be consistent in applying federal procedure “and to accept the inevitable potential for confusion based on the difference between federal and state procedure in such cases.” Martinson, 2016 U.S. LEXIS 12402 at *6.

As a result, the court held that Townsend’s application of a federal standard of finality is binding in the Seventh Circuit, decided that the foreclosure judgment in this case was not a final order, and dismissed the appeal for lack of jurisdiction.

April ALA Speaker Erwin Chemerinsky Previews New Supreme Court Term

Fri, 14 Oct 2016 13:37:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal, previewing the United States Supreme Court new term, which began on October 3.

Initially, Chemerinsky noted that, for the first time in 30 years, the Court will begin its new term with only eight justices. He also discussed the possibility that the Court goes the entire term without having a ninth justice, observing that if Donald Trump were to be elected president, “hearings would not likely be held until spring” and if Hillary Clinton were to be elected president, various possibilities exists including nominating someone other than Merrick Garland.

Chemerinsky divided the Court's new term into three major areas of law: race discrimination, criminal justice and constitutional rights.

Among the race discrimination cases is Pena-Rodriguez v. Colorado, which “concerns whether a jury verdict can be reconsidered after it is learned that one of the jurors expressed racial bias during deliberations.” Additionally, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris concern “the use of race in drawing election districts.”

Among the criminal justice cases is Moore v. Texas, which concerns how to determine “whether a person is intellectually disabled and thus cannot be executed.”

Finally, among the constitutional rights cases is Trinity Lutheran Church of Columbia v. Pauley, which concerns “whether a state may deny aid to parochial schools that it provides to public and secular private schools in the state.” Additional, in Murr v. Wisconsin, the Court discuss “how to determine what constitutes a parcel of land for purposes of the takings clause of the Fifth Amendment.”

Illinois Supreme Court Amends Rules 12, 307 and 373

Wed, 12 Oct 2016 10:44:00 GMT

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On October 6, 2016, the Illinois Supreme Court entered an order amending various rules that govern appellate practice and procedure. The amendments, which become effective on November 1, 2016, are:

Rule 12: Governing proof of service in trial and reviewing courts, amended Rule 12 now allows proof of service to be established by a certificate of “the person, as provided in section 1-109 of the Code of Civil Procedure” who delivered, deposited, faxed, or e-mailed the document. Language requiring non-attorneys to establish proof of service by an affidavit has been stricken.

Rule 307(a): Rule 307(a) governs interlocutory appeals as of right. The amendments clarify that, when such an appeal is filed, a supporting record pursuant to Rule 328 must be filed within the same 30-day period as filing the notice of appeal, unless the timeframe for filing the supporting record is extended by the Appellate Court. However, the amendments clarify that a Rule 328 supporting record “shall not” be filed in cases arising under the Juvenile Court Act. In those cases, a record pursuant to Rule 323 must be filed. The amendments also incorporate Rule 328 language into subsections (b) and (c).

Rule 307(d): Rule 307(d) governs appeals from temporary restraining orders. Pursuant to the amendments, Rule 307(d)(1) provides that documents to be filed with the Appellate Court may be filed by mail in accordance with Rule 373, but only if those documents are sent by overnight delivery. Relatedly, subsection (d)(2)—governing the legal memoranda in an appeal from a temporary restraining order—now provides that documents may be served on the other party personally, by facsimile, or e-mail. Moreover, the legal memoranda may be filed with the Appellate Court by mail pursuant to Rule 373 so long as it is sent by overnight delivery.

Rule 373: Rule 373 governs the date of filing of papers in the reviewing court. Consistent with the amendment to Rule 12, the title of Rule 373 has been amended to strike the currently existing reference to an affidavit. In addition, the body of the rule added language to provide that proof of mailing by a pro se petitioner from a correctional institution shall be established by Rule 12(b)(4).

ALA Proposes New Amendments to Supreme Court Rules

Wed, 05 Oct 2016 17:39:00 GMT

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules. Just this week, the ALA proposed several new amendments to the Illinois Supreme Court Rules that are intended to foster the efficient and speedy resolution of civil appeals. These amendments, which would change certain language in Illinois Supreme Court Rules 306, 308, 315 and 321, have been submitted to the Illinois Supreme Court Rules Committee for its consideration. The proposed amendments, which are discussed below, were authored by ALA Board member Don Sampen and were unanimously approved by the ALA Rules Committee.

I. Proposed Amendment to Illinois Supreme Court Rule 306

The ALA proposes adding a new Rule 306(c)(8), which would provide as follows:

“After the petitioner has filed the petition and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the petition within 30 days thereafter.”

The purpose of this amendment is to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a petition for leave to appeal from one of the types of orders described in Rule 306(a). Importantly, this amendment would not require the Illinois Appellate Court to render any decision on the merits of any such appeal within 30 days. It would set a timeframe only on the Illinois Appellate Court’s decision whether to grant a petition for leave to appeal. This amendment is intended to provide certainty and predictability as to when a petitioner or respondent should expect a decision to be made as to whether an interlocutory appeal will proceed.

II. Proposed Amendment to Illinois Supreme Court Rule 308

The ALA proposes adding a new Rule 308(f), which would provide as follows:

“After the applicant has filed the application and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the application within 30 days thereafter.”

Like the proposed amendment to Rule 306, this proposed amendment is intended to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a Rule 308 application for leave to appeal. This amendment would thereby provide certainty as to when such a decision will be made. This language, of course, would not require the Illinois Appellate Court to decide the merits of any Rule 308 appeal within any set timeframe.

III. Proposed Amendment to Illinois Supreme Court Rule 315

The ALA proposes amending Supreme Court Rule 315(f) to delete the phrase “within such 21-day period” from the end of the first sentence of that provision. As amended, the first sentence of Rule 315(f) would read:

“The respondent need not but may file an answer, with proof of service, within 21 days after the expiration of the time for the filing of the petition, or within such further time as the Supreme Court or a judge thereof may grant within such 21-day period.”

The rationale for this proposal is that, in many instances, 21 days may be too short a period of time in which to file a motion for an extension of the filing deadline and receive a ruling on that motion, especially if an extension is necessitated by an unforeseen occurrence.

IV. Proposed Amendment to Illinois Supreme Court Rule 321

The ALA proposes adding this underscored language to Supreme Court Rule 321:

“The common law record includes every document filed, including compact disks and other electronic filings, and judgment and order entered in the cause and any documentary exhibits offered and filed by any party.”

This amendment is intended simply to clarify that the common law record in a given case may include not only paper documents but also electronic filings. If a party was permitted to file a document in electronic format in the circuit court, that fact should not provide a basis for excluding it from the common law record.

Conclusion

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules that are intended to promote fairness and efficiency in the appellate process. The ALA appreciates the Illinois Supreme Court Rules Committee’s consideration of these proposed amendments to the Illinois Supreme Court Rules. Any ALA members who have ideas for amending the Illinois Supreme Court Rules are encouraged to contact the co-chairs of the ALA Rules Committee, John Fitzgerald and Garrett Boehm.

ALA Kicks Off Bar Year with Luncheon Featuring Appellate Court Clerks

Fri, 30 Sep 2016 17:20:00 GMT

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On September 12, 2016, the ALA began a new bar year by sponsoring a luncheon at the Union League Club in Chicago featuring the Clerks of each of the five Illinois Appellate Court districts. ALA President Joanne R. Driscoll opened the program by welcoming ALA members and guests, which included many justices from the Illinois Appellate Court as well as new Illinois Solicitor General David L. Franklin.

Thereafter, President Driscoll introduced the Clerks—Steven M. Ravid of the First District; Robert J. Mangan of the Second District; Barbara Trumbo of the Third District; Carla Bender of the Fourth District; and John J. Flood of the Fifth District. The speakers provided an update on the Appellate Court’s transition to e-filing and also provided district-specific practice pointers.

Regarding e-filing, the Clerks noted that the system, while moving slowly, is gradually being implemented as all circuit courts in the Second District use e-filing, along with two circuit courts in the Third District, three in the Fourth District, and one in the Fifth District. Despite feeling a “bit rushed,” the Clerks assured the audience that their respective offices are working with Tyler Technologies, Inc., to implement a state-wide e-filing system as seamlessly as possible.

The Clerks proceeded to provide practice pointers for the audience. For example, Clerk Ravid noted that, if a party files a motion seeking an extension within the First District, the party should specify the date to which the extension is sought. In addition, if an appeal involves multiple appellees, the parties should advise the Clerk whether more than one appellee brief will be filed so as to reduce delay.

For the Second District, Clerk Mangan advised against mailing emergency motions. And, if a party desires an oral argument, it may file a motion under Illinois Supreme Court Rule 352 (eff. Feb. 6, 2013), while Clerk Bender noted that oral argument is usually given when requested in the Fourth District. Clerk Trumbo helpfully advised litigants in the Third District to avoid using plastic covers on briefs, as her office removes them. Finally, Clerk Flood reminded litigants that, if a party has a conflict with a scheduled oral argument, it should advise his office as soon as possible, as rescheduling an argument that has already been set can be administratively challenging.

The ALA thanks the Clerks for their engaging and informative presentation.

Don't Miss Out on the ALA's October Events

Tue, 27 Sep 2016 20:36:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On October 04, 2016, the ALA, in conjunction with the Cook County Bar Association, will host a business development and networking program featuring Steve Fretzin, a business development and networking expert. Fretzin is the author of Sales-Free Selling: The Death of Sales and the Rise of a New Methodology and The Attorney’s Networking Handbook, and a contributing writer for the National Law Review and the Chicago Daily Law Bulletin.

Fretzin’s presentation will focus on the best strategies for attorneys to grow their practices, including the use of LinkedIn and the more traditional networking event. The program will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE credit.

The following day, October 5, 2016, the ALA, in conjunction with the Champaign County Bar Association, will host an Appellate Practice Seminar featuring the justices of the Illinois Appellate Court, Fourth District. Prior to the seminar, a luncheon honoring the justices will be held. The luncheon is open to seminar attendees, but requires an additional cost. The seminar will focus on such topics as preserving matters for appeal during post-judgment proceedings and feature a judicial panel of the Fourth District justices. Seminar attendees will also have the opportunity to ask questions.

The luncheon and seminar will take place at the University of Illinois College of Law. The luncheon begins at 12:30 p.m. and runs until 1:30 p.m. The seminar begins at 1:45 p.m. and concludes at 4:30 p.m. Attendees will receive 2.5 hours of MCLE credit.

For more information and to register for either event, please click here.

Seventh Circuit Remands Union's Challenge to Wisconsin Town's Ordinance For Determination of Mootness

Thu, 22 Sep 2016 13:12:00 GMT

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

In Construction & General Laborers’Local Union No. 330 v. Town of Grand Chute, Wisconsin, No. 15-1932, 2016 WL 4410073 (7th Cir. Aug. 19, 2016), the Seventh Circuit Court of Appeals confronted a labor union’s First Amendment challenge to a town ordinance in Grand Chute, Wisconsin, which, as construed and applied, prohibited the display of giant inflatable rats and cats used by unions during wage disputes to the extent they were “staked to the ground on the public way.” 2016 WL 4410073, at *1.

In the district court, the union had moved for a preliminary injunction, which the court denied, and then entered summary judgment for the defendant town. Id. The union appealed. Id. However, without resolving the merits of the appeal, the Seventh Circuit reversed and remanded for a determination as to whether the union’s claim was moot, since the union had not requested an award of damages. Id. at *1-2.

Whether the dispute was moot was an issue that neither the parties nor the district court had considered. Id. at *1. As the Seventh Circuit noted in its opinion, however, by the time the district court entered summary judgment, the construction project that led to the use of the demonstrative rats and cats had been completed and the union was no longer picketing. Id. Also complicating the mootness analysis was the fact that the language of the ordinance had changed between the district court’s denial of the union’s motion for preliminary injunction and the entry of summary judgment. Id. at *2.

As the Seventh Circuit put it, “[w]e cannot decide this suit on the merits without being confident that we have a justiciable controversy.” Id. at *2. A controversy is still considered “live” if it is capable of repetition. Id. at *1-2. For a case to remain live because it is capable of repetition, the Court clarified, “there must be ‘a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Id. at *1 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Despite counsel for the union’s statement at oral argument that a dispute “might crop up again” if the union decides to demonstrate against a future construction project, the Court found that the record failed to contain any information about this likelihood. 2016 WL 4410073, at *1.

The Court further noted that, even if such a construction project in Grand Chute is built and a labor dispute arises, this particular suit may still be moot “if the controversy about that future project would not evade review.” Id. The Court continued, “Labor disputes are often short-term affairs, but many are long-lived,” and only the possibility of damages – which the union did not seek in this case – keeps a case alive when the project and resulting dispute have ended. Id.

Remanding for the district court to “take another look at it,” the Seventh Circuit explained: “If the Union persists in abjuring damages, the district court must determine whether the probability of a fresh dispute between this union and Grand Chute is high enough—and the risk that it would be over too quickly to allow judicial review also high enough—to satisfy the ‘capable of repetition yet evading review’ proviso to the mootness doctrine.” Id. at *2. The Court also instructed the district court to address the validity of the town’s current ordinances, rather than the version that was changed before the entry of summary judgment. Id.

Justice Posner authored both a concurrence and a dissent, observing that “[a]ppellate courts should try to make the first appeal in a case the last and order a remand only when the need for further proceedings at the trial level is imperative.” Id. at *4 (Posner, J., concurring and dissenting). In Justice Posner’s opinion, the balance of the evidence was “clear enough” to justify a decision that the union’s constitutional right of free speech was violated. Id.

ALA's Cases Pending Previews Illinois Supreme Court's September Term

Fri, 16 Sep 2016 07:24:36 GMT

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s September Term that began Monday, September 12, 2016, with oral arguments scheduled for September 13, 14, and 15 and September 20, 21 and 22, 2016. A total of 21 cases will be heard – 11 civil and 10 criminal. Here are the civil cases with the dates of oral argument:

In re M.I., a Minor—No. 120232—September 14

Schweihs v. Chase Home Finance, LLC—No. 120041—September 15

Wardwell v. Union Pacific Railroad Co. —No. 120438—September 15

The Hertz Corp. v. City of Chicago—No. 119945, 119960—September 20

Bueker v. Madison County—No. 120024—September 20

Beggs v. Board of Education of Murphysboro Community Unit School District No. 186—No. 120236—September 21

Blanchard v. Berrios—No. 120315—September 21

Murphy-Hylton v. Lieberman Management Services, Inc. —No. 120394—September 21

Zahn v. North American Power & Gas, LLC—No. 120526—September 21

Village of Bartonville v. Lopez—No. 120643—September 22

Grimm v. Calica—No. 120105—September 22

Below are abbreviated summaries for two of these cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

TORTS – FEDERAL EMPLOYERS’ LIABILITY ACT

No. 120438

Christopher Wardwell v. Union Pacific Railroad Company

This petition raises the question of whether a defendant railroad may, under the Federal Employers’ Liability Act (“FELA”), offer evidence at trial that a third party was the sole cause of a plaintiff’s injury. Under FELA, a railroad employer is deemed fully liable for all of a plaintiff’s injuries if any of those injuries were sustained as a result of a defendant’s negligence, regardless of the comparative fault of other parties.

In the proceedings below, Plaintiff Christopher Wardwell, an employee of Defendant Union Pacific Railroad (“UPRR”), sustained injuries after being struck by a drunk driver while riding as a passenger in a vehicle operated by a UPRR-contracted driver. Plaintiff contended that because the driver of the vehicle – indisputably an agent of UPRR – acted negligently by failing to check the vehicle’s blind spots prior to the accident, UPRR should be held fully liable for his injuries, notwithstanding the actions of the drunk driver.

UPRR took the position at trial that the drunk driver’s actions were the sole cause of Plaintiff’s injuries such that no liability could be imposed on it under FELA. The jury agreed and returned a verdict in favor of UPRR. Plaintiff’s post-trial motion was denied and he appealed.

Reversing, two justices of the Fifth District Appellate Court concluded that because the jury was presented with some evidence that UPRR acted negligently, the jury verdict was in error. Specifically, the appellate court held that in a FELA action involving a railroad, evidence of a third party’s negligence is inadmissible where there is circumstantial evidence establishing that the railroad contributed to the injury.

ppellate Court Decision: 2016 IL App (5th) 140461. Goldenhersh, J., with Stewart, J., concurring and Moore, J., dissenting.

STATUTORY IMMUNITY – SNOW AND ICE REMOVAL ACT

No. 120394
Murphy-Hylton v. Lieberman Management Services, Inc.

This issue in this case concerns the scope of the immunity provided under the Snow and Ice Removal Act, 745 ILCS 75/1, et seq. (“the Act”). The Act immunizes property owners and maintenance companies from negligence claims arising out of personal injuries caused by the snowy or icy condition of a sidewalk.

On February 18, 2011, Plaintiff Pamela Murphy-Hylton (“Murphy-Hylton”) slipped and fell while walking on the sidewalk outside of her condominium in Carol Stream. Murphy-Hylton sued Lieberman Management Services, Inc. (“Lieberman”), the management company responsible for maintaining the common areas of the property, and Klein Creek Condominium (“Klein”), alleging that negligent landscaping design or maintenance created an unnatural accumulation of ice and snow which caused her injury. Murphy-Hylton did not allege that Lieberman or Klein negligently attempted to remove natural accumulations of snow and ice on the property. Lieberman and Klein moved for summary judgment arguing that, under the Act, they were entitled to immunity. The circuit court agreed and granted summary judgment for Lieberman and Klein.

The Illinois Appellate Court reversed. The court held that the Act protects property owners from allegations of negligence arising out of acts or omissions in actual snow removal efforts. However, the Act does not protect property owners from allegations of negligence arising out of negligent maintenance, defective design, or defective construction. In this case, Murphy-Hylton alleged that she was injured as a result of an unnatural accumulation of snow and ice and that Lieberman and Klein had notice of property defects which created the unnatural accumulation. Murphy-Hylton did not allege negligence in actual snow removal efforts. Therefore, the court concluded, the Act did not apply and Lieberman and Klein were not entitled to immunity.

Appellate Court Decision: 2015 IL App (1st) 142804. Connors, J. with Liu, P.J., and Cunningham, J., concurring.

Seventh Circuit Dismisses Plaintiff's Appeal After District Court Erroneously Granted Extension of Time to File Notice of Appeal

Wed, 14 Sep 2016 19:25:00 GMT

By Kevin R. Malloy
Partner, Forde Law Offices LLP

In Federal Court, one cannot simply rely upon a district court granting an extended deadline in which to file a notice of appeal. You had better check and make sure the extension is within the time limit set forth in Federal Rule of Appellate Procedure 4(a)(3)(C). The Seventh Circuit’s decision in Hamer v. Neighborhood Housing Services of Chicago, No. 15-3764, 2016 WL 4536523 (7th Cir. Aug. 31, 2016), shows that the consequences of failing to do so can be fatal to your appeal.

In Hamer, the plaintiff, Charmaine Hamer, lost on summary judgment, and her original deadline in which to file a notice of appeal was October 14, 2015. On October 8, her counsel filed a “Motion to Withdraw and to Extend Deadline for Filing Notice of Appeal.” The district court granted the motion and extended the deadline by 61 days to December 14. Hamer filed her notice of appeal on December 11. Even though Hamer filed her notice of appeal three days earlier than the extended deadline ordered by the district court, the Seventh Circuit held that the notice was filed too late and dismissed the appeal. Id. at *2.

Timeliness was not raised until the Seventh Circuit sua sponte asked for briefing on the issue. The appellees argued the notice was untimely under Federal Rule of Appellate Procedure 4(a)(5)(C), which states: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.”

Hamer argued, however, that (1) the extension was proper under 28 U.S.C. § 2107(c), which provides that “[t]he district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause,” (2) the district court did not consider Rule 4(a)(5)(C) when it granted the extension and therefore it did not apply; and (3) the appellees waived their timeliness challenge by not initially challenging it. Hamer, 2016 WL 4536523 at *1.

In rejecting Hamer’s arguments and holding her notice of appeal was untimely, the Seventh Circuit cited the Supreme Court’s holding in Bowles v. Russell, 551 U.S. 205 (2007), wherein it held that the statutory requirement for filing a timely notice of appeal is “mandatory and jurisdictional” and explained the relationship between the 30-day statutory filing period set out in § 2107(a) and the district court’s authority to extend that period under § 2107(c) and Federal Rule of Appellate Procedure 4. Hamer, 2016 WL 4536523 at *1.

In Bowles, the Supreme Court explained that Rule 4 “carries § 2107 into practice,” and in particular, Rule 4(a)(6), which concerns the district court’s authority to reopen and extend the time for filing after the lapse of the usual 30 days, is limited by § 2017(c). Id. (quoting Bowles, 551 U.S. at 208, 213). Since “Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule,’” and an “when an ‘appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.’” (Emphasis in original, internal citation omitted.) Id. (quoting Bowles, 551 U.S. at 213).

Using the Bowles analysis, the Seventh Circuit stated “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits the district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Hamer,2016 WL 4536523 at *2. Thus, the district court was in error in granting “an extension that exceeded the Rule 4(a)(5)(C) time period by almost 30 days.” Id.

The Seventh Circuit acknowledged that Hamer relied upon the district court’s order in thinking she had until December 14, 2015, to file her notice of appeal, but nevertheless noted that it “simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.” Id.

Finally, the court of appeals rejected Hamer’s waiver argument, since the filing error was one of “jurisdictional magnitude,” and thus could not be waived or forfeited. Id.

Certainly, the equities of this situation favored Hamer. Her former counsel moved for an extension beyond the jurisdictional time limit and the district court erroneously allowed the extension, without any objection from the other side. Hamer met that deadline, but she still was out of luck. Hamer shows that any extensions of a deadline for filing a notice of appeal should be double-checked against the statutory requirement, not just a court’s order.

Don't Miss Out on the ALA's September Events

Mon, 29 Aug 2016 13:14:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On September 12, 2016, the ALA will host a luncheon featuring the clerks of the Illinois Appellate Court: Steven M. Ravid of the First District, Robert J. Mangan of the Second District, Barbara Trumbo of the Third District, Carla Bender of the Fourth District, and John J. Flood of the Fifth District.

At the luncheon, the clerks will provide practice pointers for attorneys as well as provide an update on e-filing in their district. The luncheon will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE credit.

For more information and to register, please click here.

Splitting from the Second District, the First District Clarifies That a “Motion to Reconsider” Seeking to Amend a Pleading Following Dismissal with Prejudice Does Not Extend the Time for Filing a Notice of Appeal

Thu, 18 Aug 2016 20:04:00 GMT

By Jonathan B. Amarilio
Associate, Taft Stettinius & Hollister LLP

The case of Brennan v. Travelers Home & MarineInsurance Company, 2016 IL App (1st) 152830, recently presented the appellate court with an interesting question: “What happens when, following the dismissal of a complaint with prejudice, the plaintiffs file a postjudgment motion titled ‘Motion to Reconsider,’ but seek as relief only permission to file an amended complaint?” Justice Neville, with Justices Hyman and Simon concurring, answered that question, holding that a motion for leave to file an amended complaint does not extend the time for filing a notice of appeal because the motion does not qualify as a motion directed against the judgment, regardless of its title.Id. ¶ 2. But that was not the most intriguing part of the opinion.

The facts of the case, which concern an automobile insurance dispute, are not particularly remarkable. What is more interesting is that, in reaching its decision, the reviewing court weighed in on an apparent—but previously unnoticed—conflict between a nearly half-century old Supreme Court case, Fultz v. Haugan, 49 Ill. 2d 131 (1971), and a much more recent appellate court case, Muirfield Village-Vernon Hills, LLC v. K. Reinke, Jr. & Co., 349 Ill. App. 3d 178 (2d Dist. 2004). Unsurprisingly, the court found it was compelled to follow the Supreme Court’s decision in Fultz and reach the holding described above.

In Fultz, the Supreme Court’s holding was straightforward. “A motion for leave to file an amended complaint is not … a motion ‘directed against the judgment,’ ” and therefore, the filing of such a motion does not toll the 30-day period for filing a notice of appeal under Supreme Court Rule 303. Fultz, 49 Ill. 2d at 136. However, in Muirfield Village, the Second District reasoned that because the plaintiff requested leave to amend following dismissal of his claim, which necessarily included a request to reinstate the case, the plaintiff was really seeking to modify or vacate the trial court’s judgment, and therefore, the motion was properly understood as one “directed against the verdict” for purposes of Rule 303. Muirfield Village, 349 Ill. App. 3d at 185.

Observing this difference, and the fact that Muirfield Village did not discuss Fultz, the court in Brennan found that the divide between the cases could not be bridged or otherwise explained. “Every time a plaintiff files a motion for leave to file an amended complaint after the circuit court has dismissed the complaint with prejudice, the plaintiff implicitly requests reinstatement of the case and modification of the dismissal order …. If the request for such relief makes the motion one ‘directed against the judgment,’ then every postjudgment motion for leave to file an amended complaint would count as a motion directed against the judgment.” 2016 IL App (1st) 152830, ¶ 12.

Given the vintage of Fultz and the now clear district split, this case may well be further appealed for purposes of clarification. Either way, practitioners would do well to follow Brennan (and Fultz) for now.

Illinois Supreme Court Amends Rule 367 Effective Immediately

Tue, 16 Aug 2016 00:21:00 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On August 15, 2016, the Illinois Supreme Court amended Rule 367, which guides a party's request for a rehearing in either the Illinois Supreme Court or Illinois Appellate Court.

Subsection (c) of the rule was amended to account for the new address of the Reporter of Decisions, which now is 301 N. 2nd Street, Springfield, IL 62702. The amended Rule 367(c) now reads:

"The number of copies of the petition, and of any answer or reply (see paragraph (d)), the form, cover and service shall conform to the requirements for briefs (see Rule 341), except that, in the Supreme Court, petitions for rehearing shall be delivered or mailed by first-class mail or delivered by third-party commercial carrier, and a copy of the petition or any motion seeking to change the time for filing the petition shall also be delivered or mailed by first-class mail or delivered by third-party commercial carrier to the Reporter of Decisions, 301 N. 2nd Street, Springfield, IL 62702, and a certificate of mailing or delivery shall be supplied to the clerk of the Supreme Court."

The amendment became effective immediately, and the order can be found here.

Mandated Bar to Decide New Issues? In Frank v. Walker, the Seventh Circuit Explores When a District Court is Precluded from Hearing New Arguments on Remand

Tue, 09 Aug 2016 23:25:00 GMT

By Louis J. Manetti

Attorney, Codilis and Associates, PC

To what extent are litigants allowed to raise new issues on remand from an appeal? The Seventh Circuit recently offered some insight into the scope of a district court’s authority to decide issues on remand in Frank v. Walker, 819 F. 3d 384 (7th Cir. 2016).

The case began in the district court of Wisconsin when consolidated plaintiffs argued that Act 23—a Wisconsin law passed in 2011 that required residents to present photo identification in order to vote—violated the Fourteenth Amendment and Section 2 of the Voting Rights Act. Frank v. Walker, 17 F. Supp. 3d 837, 842 (E.D. Wis. 2014).

Prophetically, the Court acknowledged that, “by not addressing all constitutional claims, I am leaving the door open to successive appeals.” Id. at 843. The district court reasoned that Act 23 would be invalid if it imposed burdens on a subgroup of Wisconsin’s voting population that were not outweighed by the state’s justifications for the law. Id. at 847. It held that Act 23 unjustifiably burdened a subgroup—low-income eligible voters. Id. at 862. The district court held that invalidating Act 23 was the only practical way to remove the unjustified burdens on low-income voters (id. at 863), and it permanently enjoined the state’s officers and agents from conditioning access to a ballot on presenting photo identification. Id. at 880.

On appeal, the Seventh Circuit determined that the district court’s holding ran contrary to United States Supreme Court precedent. Frank v. Walker, 768 F. 3d 744, 745-46 (7th Cir. 2014). As a result, it declared that Act 23 was constitutional and reversed the district court’s judgment. Id. at 755.

On remand in the district court, the plaintiffs tried a different tack: They sought relief for voters “who lack photo ID and face systemic practical barriers to obtaining an ID.” Frank v. Walker, 141 F. Supp. 3d 932, 935 (E.D. Wis. 2015). The plaintiffs identified this class as voters: (1) having to deal with name mismatches or other errors in an underlying document needed to obtain an ID; (2) having to obtain an underlying document from an agency other than the Wisconsin Department of Motor Vehicles; and (3) needing an underlying document that does not exist. Id. n.1. The district court held that it could not grant relief to those voters because theirs was “not a claim I left unresolved in my prior decision. It is the constitutional claim on which I granted relief: I found that Act 23 imposed unjustified burdens on voters who currently lack photo ID and will face heightened barriers to obtaining ID.” Id. It reasoned that the Seventh Circuit “did not, for example, vacate the injunction and remand with instructions to consider granting some other remedy,” and concluded, “I am not free to disregard this holding on remand.” Id. The order prompted another appeal to the Seventh Circuit.

In the second appeal, the Seventh Circuit was faced with the issue of whether its prior decision precluded the district court from granting relief to the three groups of voters identified on remand. It referred to the groups collectively as those who were unable “to obtain a qualifying photo ID with reasonable effort.” Frank, 819 F.3d at 386. [1] The Court instructed, “[t]he scope of an appellate mandate depends on what the court decided—and we did not decide that persons unable to get a photo ID with reasonable effort lack a serious grievance.” Id. Instead, the district court originally determined that “because some voters face undue difficulties in obtaining acceptable photo IDs, Wisconsin could not require any voter to present a photo ID.” (Emphasis in original.) Id.

This broad holding included people “who could get a state-issued photo ID but disliked the hassle.” Id. The district court could resolve the claims brought by the unable-despite-reasonable-effort voters because “[t]he argument plaintiffs now present is different.” Id. That is, instead of arguing that the burden on a subgroup means that nobody should be forced to present a photo ID, the plaintiffs were arguing that high hurdles for some eligible voters entitled those particular persons to relief from Act 23. Id. The Court determined that this new argument was compatible with its prior opinion and mandate. Id. at 386-87. It rejected the state’s claim that the plaintiffs needed to raise the new argument in the prior appeal as an alternative reason to affirm the injunction for two reasons. First, the injunction prohibited the requirement of any voter to present a photo ID, so an alternative argument about the unable-despite-reasonable-effort voters would not have supported the much broader injunction. Id. at 387. Second, an alternative argument in support of a district court’s judgment is a privilege, not an obligation. Id. As a result, the Seventh Circuit reversed the district court’s judgment and remanded for further proceedings on the new argument. Id. at 388.
---------------------------
[1] The court identified a “gastonette” in the second category of voters (those needing a credential from another agency that would not issue the credential without a photo ID). For an entertaining recount of the word’s etymology, see Jon O. Newman, Birth of Word, 13 Green Bag 2d 169 (2010) (available at http://www.greenbag.org/v13n2/v13n2_newman.pdf (last accessed August 3, 2016)).

Seventh Circuit Remands Case to District Court To Determine Whether Appellate Should Receive Extension of Time to File a Notice of Appeal

Wed, 27 Jul 2016 15:05:51 GMT

By Josh Wolff

Research Attorney, Illinois Appellate Court, First District

In Bell v. McAdory, No. 15-1036, Timothy Bell was civilly detained as a result of being adjudicated sexually dangerous. At a treatment facility, he violently attacked a security guard. He was subsequently convicted and sentenced to prison. Once he completed his prison term, he returned to the treatment facility. There, he refused to cooperate with intake procedures, threatened guards, placed paper over his windows to prevent monitoring and disrupted the facility's normal operations. After being insubordinate for 20 days, guards moved Bell into a secure room at the center's infirmary and took away his clothes. Bell spent the next eight days in the room naked, and according to him, uncomfortably cold. On the ninth day, he agreed to cooperate and in return, he was given clothes and returned to the general population.

As a result of his eight-day confinement, Bell filed a lawsuit under section 1983 against various security personnel of the facility, arguing his confinement in the infirmary without a hearing violated the Due Process Clause of the United States Constitution's Fourteenth Amendment. On August 11, 2014, the United States District Court for the Central District of Illinois granted summary judgment in favor of the defendants.

Bell then had until September 8 to file a motion to reconsider or September 10 to file the notice of appeal, the latter necessary to confer appellate jurisdiction. Bell did neither. Instead, on September 11, he filed a motion which the district court treated as one under Rule 60(b) of the Federal Rules of Civil Procedure as requesting relief from a final judgment.

The district court denied the Rule 60(b) motion, which itself was separately appealable. Although Bell did not file a proper notice of appeal from the Rule 60(b) denial, the Seventh Circuit Court of Appeals found a document he filed subsequent to the denial contained sufficient information as required by Rule 3(c) of the Federal Rules of Appellate Procedure to be treated as a notice of appeal. Consequently, the Seventh Circuit had jurisdiction over the matter, although its jurisdiction was limited to reviewing the Rule 60(b) denial.

On appeal, however, Bell wanted to challenge the district court's finding of summary judgment in favor of the defendants. Consequently, he argued his failure to timely appeal the underlying judgment was due to his mistake as to when the period to file the notice of appeal began to run. The Seventh Circuit, however, concluded that to allow review of the underlying judgment "would be equivalent to accepting a jurisdictionally untimely appeal," citing Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n.7 (1978). Furthermore, the Seventh Circuit noted "there can be no equitable exceptions to the time for appeal" because "[t]hat's what it means to call the time limit jurisdictional."

Bell proffered two arguments around this jurisdictional predicament. First, he argued Rule 60(b)(1) of the Federal Rules of Civil Procedure—grounds for relief from a final judgment based on "mistake, inadvertence, surprise, or excusable neglect"—the subsection he argued his motion came under, should be treated differently from Rule 60(b)(6) of the Federal Rules of Civil Procedure—grounds for relief from a final judgment based on "any other reason that justifies relief"—the subsection involved in Browder. Second, Bell argued the district court effectively reopened his time to appeal because in the order denying his Rule 60(b) motion, the court stated its original judgment was correct.

The Seventh Circuit found both arguments meritless, as they would require the court to overturn Supreme Court precedent and unjustly give litigants a second opportunity to appeal. Despite rejecting Bell's arguments, the Seventh Circuit found relief was available to Bell under Rule 4(a)(5) of the Federal Rules of Appellate Procedure.

Under Rule 4(a)(5)(A)(i), the district court may extend the time period to file a notice of appeal for 30 days if the would-be appellant requests an extension within 30 days "after the time prescribed by" Rule 4(a) expires. The Seventh Circuit wondered why the district court did not treat Bell's September 11 motion as one for an extension of time under Rule 4(a)(5), noting the district court treated the motion originally as one under Rule 60 despite the motion being captioned a Rule 59 motion. The Seventh Circuit further observed that only the district court could grant relief under Rule 4(a)(5).

Therefore, because Bell's September 11 motion was filed within the time prescribed by Rule 4(a)(5)(A)(i) and the rule contains no "outer limit" for when the district court must act, the Seventh Circuit found the district court could still afford Bell extra time to appeal the underlying judgment. Accordingly, the Seventh Circuit remanded the matter to the district court to determine whether Bell should be granted an extension of time to file a notice of appeal against the district court's grant of summary judgment in favor of the defendants.

Joanne R. Driscoll Installed as Association's 49th President

Wed, 20 Jul 2016 14:57:05 GMT

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On June 24, 2016, the Association held its annual Installation luncheon. The occasion celebrated the end to a terrific bar year and welcomed a new slate of Officers and Directors.

Outgoing Association President Michael A. Scodro began the festivities by welcoming ALA members and guests, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Circuit Court of Cook County. President Scodro proceeded to recap the many successful Association events from the past year which, in addition to the traditional favorites such as the annual roundtable luncheons and the Illinois Supreme Court Year in Review, featured speakers from across the country. Notable speakers included New York Times reporter Adam Liptak and Professor David Strauss of the University of Chicago Law School, both of whom discussed noteworthy United States Supreme Court cases.

President Scodro also thanked outgoing Directors Matthew D. Elster, John M. Fitzgerald, and E. King Poor, and presided over the election of Officers for the upcoming bar, which include Evan Siegel as Vice President, Clare J. Quish as Secretary, and Gretchen Harris Sperry as Treasurer.

Justice Mason and Joanne R. Driscoll

Thereafter, President Scodro introduced Justice Mary Anne Mason of the Illinois Appellate Court, First District, to administer the oath of office to Joanne R. Driscoll. In doing so, Justice Mason recounted President Driscoll's storied career, which includes serving as a law clerk on two separate occasions--including as a law clerk to the first woman justice on the Illinois Appellate Court; her tenure as the Executive Director of the Lawyers Assistance Program; her many accomplishments in the private sector as an attorney with Forde Law Offices LLP; and her significant commitment to charitable organizations (such as serving as the president of the Woman's Bar Foundation).

After being Installed as the Association's 49th President, President Driscoll thanked her many family members and friends in attendance, which included the "three men in her life," i.e, her sons Jonathan, Michael, and Jimmy. She also thanked her colleagues at Forde Law Offices, many of whom were also in attendance.

President Driscoll then laid out a clear vision for the upcoming bar year. She discussed initiatives to improve the Association's policies to make it more practical, efficient, and better able to serve its members; and toward that end, President Driscoll is in the process of forming a committee to review and update the Association's bylaws. President Driscoll noted that, while the Association will continue to provide its traditional programming, it will also present "out of the box" events, such as a seminar featuring a panel comprised of the clerks from each of Illinois' five appellate districts. Finally, President Driscoll advised that the Association will seek to co-sponsor more events with other bar associations, which will promote the Association's dedication to excellence in appellate law and may also provide ALA members with opportunities to attend additional functions.

The Association thanks President Scodro and the outgoing Directors for their tireless work, and looks forward to another successful bar year.

Mindful of Mootness: DJL Farms LLC v. USEPA, 813 F.3d 1048 (7th Cir. 2016)

Tue, 12 Jul 2016 14:50:47 GMT

By E. King Poor
Partner, Quarles & Brady LLP, Chicago

Cases can become moot at anytime—even on appeal. And the Seventh Circuit’s recent decision in DJL Farms LLC v. USEPA, 813 F.3d 1048 (7th Cir. 2016) is a reminder of that.

In DJL Farms, a developer sought permits from the United States Environmental Protection Agency to construct a near-zero emission coal-burning facility to produce electricity. The facility required injecting massive amounts of carbon dioxide into deep subsurface wells over a 20-year period. Id. at 1049.

Nearby landowners challenged the project before the EPA which overruled their objections and issued the necessary permits. The landowners then sought administrative review before the Seventh Circuit. Id. at 1050.

Shortly before oral argument, the developer lost the funding for the project and requested that the EPA cancel the projects’ permits, and moved, along with the EPA, to dismiss the appeal as moot. The landowners argued that the case was not moot because it was akin to merely a “voluntary cessation” of activity and it was unclear if the cancelled permits still might be transferred, sold, or reissued. Id.

The Seventh Circuit held that the appeal was moot. It began its analysis with the fundamental principle that federal courts lack subject matter jurisdiction when a case becomes moot, and must therefore dismiss an action when it is “impossible for the court to grant any effectual relief whatever to a prevailing party.” Id. And though the Supreme Court has long imposed a “strident standard” when determining if a case has been mooted by voluntary conduct, in this case, the Seventh Circuit held that the developer and the EPA met that burden because (a) the order was not “separately reviewable,” but was a “prerequisite to seeking judicial review,” and (b) under the EPA’s own regulations, the permits could not be transferred or reissued. Id. at 1051. Accordingly, it dismissed the appeal as moot.

The DJL Farms decision provides another illustration that appellate lawyers should be mindful of events that might render a case moot after the filing of a notice of appeal. Mootness may arise at any point—even on appeal.

The Seminal Appellate Oral Argument Decalogue: A Summary of John W. Davis’ The Argument of an Appeal

Mon, 20 Jun 2016 14:44:56 GMT

By Louis J. Manetti
Attorney, Colidis and Associates, P.C.

In The Argument of an Appeal, 26 ABA J. 895, 895-99 (Dec. 1940), former United States Solicitor General John W. Davis laid out a seminal “Decalogue” of principles to guide oral argument before an appellate court. The article, which was originally an address delivered to the New York City Bar Association on October 22, 1940, has been called “[o]ne of the best, if not the best, single article on appellate arguments[.]” Frederick Wiener, Effective Appellate Advocacy 127 (Revised ed. 2004); see also Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 522 n.4 (2001) (calling Davis’ speech a “touchstone” for another well-regarded speech by Justice Robert Jackson and stating that other similar lists have followed).

Davis begins the article by noting, in a cleverly self-deprecating manner, that a discourse on the argument of an appeal would be delivered with superior force from a judge, “who is in his judicial person the target and the trier of the argument[.]” Davis, supra, at 895. He analogizes the art of appellate advocacy to fishing, and offers, “supposing fishes had the gift of speech, who would listen to a fisherman’s weary discourse on . . . all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach.” Id. (Notably, Appellate Lawyers Association roundtable events offer just that: an opportunity to informally speak with both state and federal judges—in Davis’ vernacular, the fish.) Keeping with the fish analogy, Davis claims that the appellate advocate is constantly angling for the judicial mind, and “[w]hatever tends to attract judicial favor to the advocate’s claim is useful. Whatever repels it is useless or worse.” Id.

Davis assumes for the purposes of his discussion that the briefs have been submitted and the appeal is procedurally at argument. Borrowing a quote from Chief Justice Hughes, he notes that the value of oral argument on appeal is, “a great saving of the time of the court in the examination of extended records and briefs, to obtain the grasp of the case that is made possible by oral discussion and to be able more quickly to separate the wheat from the chaff.” Id. at 896. Davis then sets out ten principles that should govern appellate oral argument.

The first, and “cardinal rule,” Davis espouses is “[c]hange places (in your imagination of course) with the Court.” Id. Judges, he notes, will not have lived with the case like the lawyers have, and simply want to reach a correct conclusion, so the appellate advocate must give them the “implements of decision.” Id. That is, you must ask: If you were the judge, what would you want to know first about the case; in what order would you want the argument to unfold; and what would make your approach to the true solution easier. Id.

Davis’ second rule is “[s]tate first the nature of the case and briefly its prior history.” Id. This point is eminently practical. He explains that by simply mentioning the general legal field that is implicated at the argument’s outset, the judges are able to recall their general knowledge of the topic, bringing the points that follow immediately into focus. Id.

Next, Davis recommends that the advocate “[s]tate the facts.” Id. He advises, “the statement of the facts is not merely a part of the argument, it is more often than not the argument itself. A case well stated is a case far more than half argued.” Id. He surmises, “[e]x facto oritur jus [the law arises from fact], and no court ever forgets it.” Id. Davis suggests “three C’s” guide the advocate in stating the facts—chronology, candor, and clarity. Id. Chronology, he states, is the natural way of telling any story; candor is the “telling the worst as well as the best, since the court has the right to expect it”; and clarity is the supreme virtue in how to communicate thought. Id. He attributes a quote to Daniel Webster that he insists should be on the walls of every law school, courtroom, and law office: The power of clear statement is the great power at the bar. Id.

The fourth principle is “[s]tate the applicable rules of law on which you rely.” Id. Davis reiterates that a correctly composed statement of facts will have done most of the heavy lifting already, and he warns that, however adequate shelter strong prior decisions may convey, “the advocate must be prepared to meet any challenge to the doctrine of the cases on which he relies and to support it by original reasoning.” Id. Next, he advises to “[a]lways go for the jugular vein.” Id. That is, to find the “cardinal point around which lesser points revolve like planets around the sun[.]” Id.; see also Waxman, supra, at 530 (Waxman calls this “planting the kernel,” and advises, “however difficult the kernel may be to discern, and however late it reveals itself [he relays a story about how one time the kernel only became apparent the night before an oral argument], you must have it in mind when you appear before the court.”)

For his sixth principle, Davis insists that the advocate “[r]ejoice when the Court asks questions.” Davis, supra, at 897. First, he states that, if nothing else, it assures the advocate that the court is not comatose. Id. Second, “a question affords you your only chance to penetrate the mind of the court.” Id. He counsels the advocate to not evade or postpone answering questions, no matter how embarrassing or how much it interrupts the thread of the argument. Id. Next, Davis states that advocates should “[r]ead sparingly and only from necessity.” Id. at 898. He stresses eye contact with the judges, and argues that “the speaker does not live who can long hold the attention of any audience without looking it in the face.” Id. Davis’ eighth principle is to “[a]void personalities.” Id. The advocate’s goal is to keep the mind of the court on the issues at hand without distraction, and personal attacks “can irritate, [but] they can never persuade.” Id.

The ninth principle is “[k]now your record from cover to cover.” Id. Davis acknowledges that this advice “might properly have headed the list for it is the sine qua non of all effective argument.” Id. (In the invaluable work Effective Appellate Advocacy, Frederick Wiener characterizes complete knowledge of the record as “the advocate’s secret weapon.” Wiener, supra, at 177.) Davis notes that, in the heat of appellate argument, at any moment the advocate may be called to correct some misstatement of the opposing side, or may be called on to answer a question that will both put the question to rest and enhance the advocate’s credibility with the judges. Davis, supra, at 898. Otherwise admirable arguments, Davis states, have been destroyed because advocates failed to provide apt references to the record. Id.

Finally, the tenth principle Davis espouses is to “[s]it down.” Id. Even with brief page limits and oral argument time restrictions, “[t]he mere fact that you have an allotted time does not constitute a contract with the Court to listen for that length of time.” Id.

For principles that were relayed over 75 years ago, these rules remain practical and valuable guidelines for advocates facing appellate oral argument in 2016.

Chief Judge Diane Wood Offers Insights from the Bench at Annual Seventh Circuit Roundtable Luncheon

Thu, 09 Jun 2016 14:40:58 GMT

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On May 24, 2016, the ALA hosted its annual luncheon honoring the judges of the United States Court of Appeals for the Seventh Circuit. Held at the Union League Club in downtown Chicago, the luncheon was attended by many of the judges who currently sit on the court, and each judge sat at an individual table alongside ALA members and guests. Also in attendance were many court personnel.

ALA President Michael A. Scodro began the luncheon by welcoming the judges and guests. Thereafter, President Scodro introduced Chief Judge Diane P. Wood, the luncheon's keynote speaker, who offered insights from the bench's perspective with respect to both brief writing and oral arguments.

Chief Judge Wood opened her remarks by noting that Federal Rule of Civil Procedure 1 was amended in 2015 to provide that both the courts and parties share in the responsibility of the efficient administration of justice. Toward that end, judges recognize the difficulty in preparing briefs and preparing for oral arguments.

Chief Judge Wood stressed that brief writing should be a top priority, as it is the case's first introduction to the court. Attorneys should "focus, focus, focus" their writing, tell a story and "let it flow," and address the other side's arguments. Stated differently, "briefs should not be ships passing in the night."

Regarding oral argument, Chief Judge Wood advised the parties to "bite the bullet" when it comes to answering difficult questions, including hypotheticals. The best practice is to answer questions directly with a "yes" or "no" and then explain why this specific case is different. In addition, Chief Judge Wood advised the audience that if a case is cited anywhere in the brief, a party should be prepared to discuss it at oral argument. However, if a case was not cited in a brief and an attorney is not familiar with the holding, the attorney should not wing it but instead ask for supplemental briefing.

Chief Judge Wood closed her remarks with a Q&A, in which she addressed topics ranging from the use of pictures and images in briefs to petitions for rehearing (which she noted are not granted often).

The ALA thanks the judges from the Seventh Circuit for another engaging and insightful luncheon.

Don't Miss Out on the ALA's June Events

Mon, 06 Jun 2016 14:38:16 GMT

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association will host two events during the rest of the month of June.

On June 9, 2016, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court, Third District. The luncheon will focus on “things you want to know about the court” and provide an opportunity for attendees to ask questions of the justices in a collegial and informal setting. The luncheon will be held at the Uptown Grill in LaSalle and run from noon t0 2 p.m. Attendees will receive one hour of MCLE credit.

On June 24, 2016, the ALA will host the “Installation Luncheon of Joanne R. Driscoll” at the Union League Club in Chicago. At the luncheon, Joanne R. Driscoll will be installed as the 49th President of the ALA. Additionally, the ALA’s Nominating Committee will introduce the following officers and directors for election at the meeting:

Officers (2016-2017)

Vice-President: Evan Siegel

Secretary: Clare Quish

Treasurer: Gretchen Harris Sperry

Directors (2016-2018)

Director (1st Dist.): Leah Bendik

Director (1st Dist.): Keely Hillison

Director (3d Dist.): Emily Sutton

Director (1st Dist.): Adam Vaught

For more information and to register, please click here.

SCOTUS: Sixth Circuit Did Not Apply Appropriate "Fairminded Jurist" Standard Under Antiterrorism and Effective Death Penalty Act of 1996

Thu, 02 Jun 2016 14:35:05 GMT

The Supreme Court of the United States recently concluded in a per curiam decision that the Sixth Circuit Court of Appeals did not apply the appropriate "fairminded jurist" standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) after Timothy Etherton sought federal habeas relief pursuant to AEDPA. In turn, the High Court found it was not objectively unreasonable for Etherton's direct appellate counsel to refrain from raising Confrontation Clause and ineffective assistance of trial counsel claims where trial counsel failed to object to the admission of an anonymous tip.

Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), involved an anonymous tip that led Michigan law enforcement officers to discover 125.2 grams of cocaine in car being driven by Etherton. The lone passenger in the car was Ryan Pollie. Etherton was tried in state court for possession with intent to deliver cocaine. The central issue in the trial was whether the cocaine belonged to Etherton or Pollie; the facts reflected in the tip were not contested. Woods, 578 U.S. at ___, 136 S. Ct. at 1150. Pollie testified against Etherton pursuant to a plea agreement, claiming that Etherton left him at a restaurant at one point during their trip and returned around 45 minutes later. Pollie further claimed he had no knowledge of Etherton's intent to obtain cocaine, and he learned of the cocaine only after the pair left the restaurant and Etherton revealed its presence. Three officers testified to the content of the tip, which included a claim that two white males would be carrying cocaine while traveling in a white Audi. Etherton's trial counsel raised only one hearsay objection during the third officer's testimony, but the prosecutor agreed to move on and no ruling was made on the objection. A jury convicted Etherton, his conviction was affirmed on direct appeal, and the Michigan Supreme Court denied him leave to appeal. Id.

Etherton next sought post-conviction relief in state court, claiming, inter alia, that appellate counsel was ineffective for failing to raise the Confrontation Clause and related ineffective assistance of trial counsel issues. Id. The state court rejected this claim, noting that trial counsel may have made a strategic decision to forgo any objections because the reference to "two men" suggested Pollie's prior involvement in the crime, which arguably contradicted Pollie's claims that he had no knowledge of the cocaine and Etherton was alone when he picked up the cocaine. Woods, 578 U.S. at ___, 136 S. Ct. at 1151.

The next step for Etherton was to seek federal habeas relief under AEDPA, which allows for such relief where the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Where a state court determines that a claim lacks merit, federal habeas relief will not be available so long as " 'fairminded jurists could disagree' " on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The District Court denied relief, but a divided Court of Appeals for the Sixth Circuit reversed, with the majority concluding that Etherton's appellate counsel had been constitutionally ineffective, and that no fairminded jurist could conclude otherwise. Woods, 578 U.S. at ___, 136 S. Ct. at 1152. In concluding that Etherton's right to confrontation had been violated, the majority first noted that the contents of the tip were discussed by three witnesses and mentioned by the prosecution during closing argument. Thus, the majority held, the state's use of the evidence went beyond the details that were necessary merely for background, and the contents of the tip were therefore admitted for the truth. See Crawford v. Washington, 541 U.S. 36, 60, n. 9 (2004) (observing that the Confrontation Clause of the Sixth Amendment prohibits an out-of-court statement only if it is admitted for its truth).

Regarding the issue of whether Etherton had been prejudiced by the violation (see Strickland v. Washington, 466 U.S. 668, 687 (1984) (showing of prejudice required to demonstrate ineffective assistance of counsel)), the majority acknowledged the evidence of Etherton's guilt: Etherton owned the car; he was driving at the time of the arrest; and the cocaine was found inches away from him in a driver side compartment. The majority held, however, that the evidence was insufficient to convict Etherton without the tip, and because Pollie's testimony was reflected in the tip, the jury may have improperly concluded that Pollie was testifying truthfully. Accordingly, the majority found that Etherton had been prejudiced by appellate counsel's failure to challenge the forfeited Confrontation Clause objection or the ineffectiveness claim. Woods, 578 U.S. at ___, 136 S. Ct. at 1152.

The Supreme Court disagreed with the Sixth Circuit, holding that the majority did not apply the appropriate "fairminded jurist" standard of review under AEDPA. The High Court concluded that, because the veracity of facts pertaining to the tip was not in dispute, a fairminded jurist might find that the repeated testimony of the tip was not introduced to establish the truth. Furthermore, a fairminded jurist might find that Etherton was not prejudiced when Pollie testified consistently with the uncontested facts of the tip, as Pollie himself was aware of the information contained in the tip. This may have rendered Pollie's testimony unremarkable and not pertinent to his credibility. Id. Thus, given the deference afforded trial counsel (see Strickland, 466 U.S. at 690), it would not be objectively unreasonable for a fairminded jurist to conclude that no objection was raised in the trial court because the facts in the tip were uncontested and consistent with Etherton's defense. Woods, 578 U.S. at ___, 136 S. Ct. at 1152-53. Therefore, a fairminded jurist could similarly conclude that it was objectively reasonable for appellate counsel to reach the same conclusion.

For these reasons, the Supreme Court granted petition for certiorari and reversed the judgment of the Court of Appeals for the Sixth Circuit. Woods, 578 U.S. at ___, 136 S. Ct. at 1153.

Seventh Circuit Holds Order Denying Plaintiff’s Motion to Proceed Anonymously Is Immediately Appealable Under Collateral Order Doctrine

Wed, 18 May 2016 14:33:00 GMT

By Paul Berks
Massey & Gail LLP

In Doe v. Village of Deerfield, No. 15-2069, __ F. 3d __ (2016), 2016 WL 1425854, the Seventh Circuit held that an order denying a plaintiff’s motion to proceed anonymously is immediately appealable under the collateral order doctrine. Though a matter of first impression in the Seventh Circuit, the court joined five other circuits, which had reached the same conclusion. Id. at *2 (citing Does I thru XXIII v. Advanced Textile Corp., 214 F. 3d 1058, 1067 (9th Cir. 2000); M.M. v. Zavaras, 139 F. 3d 798, 802 (10th Cir. 1998); James v. Jacobson, 6 F. 3d 233, 234 (4th Cir. 1993); Doe v. Frank, 951 F. 2d 320, 322 n.2 (11th Cir. 1992) (based on adoption of Fifth Circuit precedent); S. Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F. 2d 707, 712 (5th Cir. 1979)).

The issue arose in a complaint by an anonymous plaintiff against two individuals and the Village of Deerfield, alleging an equal protection violation and malicious prosecution. The plaintiff alleged the two individuals falsely accused him of wrongdoing, and the Village prosecuted him, even though it knew the allegations were false. After the criminal proceedings terminated in “Doe’s” favor, he filed this civil suit.

The defendants moved to dismiss under Federal Rule of Civil Procedure 10(a), which requires a party to include its true name in the caption of all filings. “Doe” opposed the motion and moved for an order permitting him to proceed anonymously, arguing that disclosure of his identity would subject him to embarrassment and possible retaliation. The District Court denied the motion to proceed anonymously and dismissed the complaint without prejudice, permitting “Doe” to re-file under his true name.

A dismissal without prejudice is not a final order. Therefore, as a general rule it is not immediately appealable. Doe, 2016 WL 1425854 *2 (citing Bastian v. Petren Res. Corp., 892 F. 2d 680, 682 (7th Cir. 1990)). However, in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949), the United States Supreme Court identified a “ ‘small class’ of nonfinal orders that are deemed final and immediately appealable.” Doe, 2016 WL 1425854 *2. To fall within this exception to the final order rule, the non-final order must meet three criteria, it must be “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.” Id. (quoting Mowhawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). These criteria must be applied to “the entire category to which the claim applies,” ignoring the individualized idiosyncrasies that arise in any specific case. Id. (quoting Mohawk, 558 U.S. at 107). Thus, the question presented was whether the denial of motions to proceed anonymously are categorically immediately reviewable.

Joining the unanimous chorus of five other circuits, the Court answered affirmatively, concluding that each of the criteria were met. The order on appeal conclusively resolved the issue of the plaintiff’s right to proceed anonymously. The propriety of anonymity was entirely separate from, and collateral to, the merits of “Doe’s” civil rights claims. And, if not reviewed immediately, the order effectively would be unreviewable. “If parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot.” Id. at *3 (citing Does I thru XXIII, 214 F. 3d at 1066). Thus, an order denying a motion to proceed anonymously falls within the collateral order doctrine enunciated in Cohen and is immediately reviewable.

Though “Doe” “won the jurisdictional battle, he has lost the war.” Id. at *1. After concluding it had jurisdiction to consider the issue on interlocutory appeal, the Court affirmed the District Court on the substance, agreeing that the plaintiff had not shown the exceptional circumstances necessary to justify proceeding anonymously. Nevertheless, the case remains noteworthy for identifying a rare example of the “small class” of orders that fall within the collateral order doctrine and are subject to immediate appeal.

A Nonparty’s Motion to Reconsider a Judgment Is Not a Final and Appealable Order

Thu, 12 May 2016 14:30:56 GMT

The First District Appellate Court recently held that the circuit court’s denial of a nonparty’s motion to reconsider a judgment was not a final and appealable order, leaving the appellate court without jurisdiction over the nonparty’s appeal of the denial of the motion to reconsider. The appellate court held that an order denying a nonparty’s postjudgment motion is not final and appealable because it does not terminate the litigation or dispose of the rights of the parties. Rejecting the appellant’s alternative argument that she was appealing the underlying judgment, the court further determined that a postjudgment motion filed by a nonparty does not toll the time for filing a notice of appeal from the judgment.

In MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, MidFirst Bank filed a complaint to foreclose a mortgage that became delinquent after the homeowner died. The complaint named the homeowner’s daughter, Devita McNeal, as the defendant, but only in her capacity as the executor of the estate. With the foreclosure action pending, the probate case was filed and McNeal was named as the estate’s independent executor. MidFirst Bank later prevailed in the foreclosure action on a summary judgment motion.

In her capacity as executor, McNeal moved to set aside the judgment of foreclosure, and her motion was denied on January 7, 2014. On February 14, 2014, again in her capacity as executor, McNeal filed a motion to reconsider the judgment, arguing that MidFirst Bank failed to comply with mortgage foreclosure laws because the property had been left to McNeal in her mother’s will and the bank had failed to serve her in her individual capacity. The property was sold and the court entered an order confirming the sale on October 25, 2014.

Just two days prior to the order confirming the sale, on October 23, 2014, McNeal, in her individual capacity, filed a motion to set aside a void judgment of foreclosure pursuant to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2012)), again arguing that MidFirst Bank violated foreclosure laws by failing to serve her in her individual capacity. The circuit court denied the motion because McNeal never sought to intervene in her individual capacity and the foreclosure case had proceeded before McNeal gained interest in the property.

McNeal appealed on the grounds that the foreclosure proceedings were improper because she was a known heir and never served. MidFirst Bank argued that McNeal lacked standing in the appeal because she was not, and had never been, a party to the case.

The appellate court agreed that, because McNeal never moved to intervene, she was not a party to the case. For this reason, the court determined, the circuit court should not have considered the postjudgment motion she filed in her individual capacity. The appellate court further determined that McNeal remained a nonparty in the appeal, but declined to dismiss the appeal on standing grounds.

Setting the standing issue to one side, the appellate court held that it lacked jurisdiction over the appeal because the order from which McNeal appealed — the circuit court’s denial of the postjudgment motion she filed in her individual capacity — was not final and appealable. The court concluded that because McNeal did not intervene in her individual capacity, the order denying her postjudgment motion did not terminate the litigation or otherwise dispose of the rights between the parties, as an order must do to be final or appealable. In so holding, the court described McNeal’s motion as a “nullity” that lacked “all the necessary prerequisites of a final judgment.” MidFirst Bank, 2016 IL App (1st) 150465, ¶ 24.

The court further rejected McNeal's alternative arguments that the appellate court should have construed her appeal as interlocutory under subsection (a) or (b) of Illinois Supreme Court Rule 304, explaining that McNeal had not demonstrated how the appeal fit within either provision and that neither could be applied. The appellate court also rejected her argument that she was actually appealing the order confirming the sale of the property, which concluded the foreclosure process. In doing so, the court explained that McNeal’s notice of appeal was filed well over 30 days after entry of that underlying judgment, and that her section 2-1203 motion did not toll her time to file a notice of appeal from that judgment because, by the statute’s express terms, only a “party” may file a section 2-1203 postjudgment motion. Id. at ¶ 31 (citing 735 ILCS 5/2-1203 (West 2012)). Accordingly, the court dismissed McNeal’s appeal for lack of jurisdiction.

ALA's Cases Pending Previews Illinois Supreme Court's May Term

Mon, 09 May 2016 14:23:33 GMT

Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term that began today Monday, May 9, 2016, with oral arguments scheduled for Tuesday, May 10, 2016; Wednesday, May 11, 2016; Tuesday, May 17, 2016; and Thursday, May 19, 2016. The Court will be hearing arguments at Benedictine University in Lisle, Illinois on May 19, 2016. A total of 8 cases will be heard – 4 civil and 4 criminal. Here are the civil cases with the dates of oral argument:

Ronald Bayer v. Panduit Corporation, No. 119553—May 11

James Kakos v. Jerry Bauer, No. 120377—May 11

William Bremer v. The City of Rockford, Nos. 119889, 119912 (cons.)—May 17

Randall W. Moon v. Clarissa F. Rhode, No. 119572—May 19

Two of the civil cases which will be heard include: James Kakos v. Jerry Bauer, which involves the constitutionality of the statute providing for six-person juries, and Moon v. Rhode, which addresses whether the discovery rule applies to wrongful death claims based on medical malpractice. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

CONSTITUTIONAL LAW – JURY DEMAND

No. 120377
Kakos v. Butler

This appeal concerns the constitutionality of P.A. 98-1132, which requires that all civil jury trials shall be tried by a jury comprised of six members, regardless of the amount in controversy.

In December of 2014, the General Assembly enacted P.A. 98-1132, which amended the statute governing jury demands. Before the amendment, the statue provided that in all civil jury cases seeking damages of $50,000 or less, the jury shall be comprised of 6 jurors, unless either party demands a jury of 12. The amendment changed the statute to require that all civil jury cases, regardless of the amount in controversy, shall be comprised of 6 jurors, with no option for either party to seek a 12-person jury.

Defendants filed a jury demand seeking a 12-person jury; however, the Clerk of the Circuit Court refused to accept the jury demand and payment. Defendants then challenged P.A. 98-1132 as unconstitutional on its face as being in direct conflict with article I, section 13 of the Illinois Constitution of 1970, which states: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Defendants argued that parties previously had the right to a 12-person jury.

The circuit court agreed, finding P.A. 98-1132 facially unconstitutional. It determined that article I, section 13 was ambiguous in its reference to the right “heretofore enjoyed” with respect to jury trials. It examined previous versions of the Illinois Constitution as well as the proceedings of the 1970 Constitutional Convention and concluded that the right to a 12-person jury has been “a continuous, unbroken right” for over 100 years. The court further noted that the Convention delegates considered mandating a 6-person jury and expressly rejected it. The court rejected Plaintiffs’ argument that the United States Constitution allows for 6-person juries, as the issue before the court is whether a statute is in conflict with a provision of the Illinois Constitution.

The circuit court further found P.A. 98-1132 unconstitutional as a violation of the separation of powers. It found that the judiciary alone has the power to regulate the conduct of trials and the statute conflicts with Illinois Supreme Court Rule 285, which permits a party to elect a 12-person jury. Finally, the court determined that based on research and other scholarship, allowing for a 12-person jury is good public policy.

Direct Appeal – Supreme Court Rule 302(a): 1/27/16

PROCEDURE – DISCOVERY RULE

No. 119572
Moon v. Rhode

The issue presented in this appeal is whether the discovery rule applies to wrongful death claims brought under the Wrongful Death Act and Survival Act when those claims are based on medical malpractice.

Plaintiff’s decedent developed complications post-surgery. Two CT scans were performed shortly before she died in May 2009. Plaintiff, a licensed attorney as well the decedent’s son, was appointed as executor of his mother’s estate. Plaintiff requested his mother’s records which he received in March 2010. The records were reviewed in April 2011, at which time Plaintiff received oral notification that there was negligent conduct in his mother’s care with respect to interpretation of the CT scans. Plaintiff received the written certificate of medical negligence in May 2011.

Plaintiff filed suit against Defendants in March 2013, almost four years after the decedent’s death. Defendants filed a motion to dismiss based on the statute of limitations, which the circuit court granted. The Illinois Appellate Court affirmed, holding that the discovery rule did not apply to claims brought under the Wrongful Death and Survival Acts. It further explained that under section 13-212(a) of the Code of Civil Procedure (the “Code”) (735 ILCS 5/13-212(a)), the statute of limitations begins to run upon knowledge of the death and not on knowledge of the negligent conduct.

In his petition for leave to appeal, Plaintiff argued that the appellate court erred in not applying the discovery rule to his Wrongful Death and Survival Act claims, where they are based on medical negligence to which the discovery rule applies. Plaintiff argued that the appellate court’s ruling creates an artificial distinction between personal injury actions premised on medical negligence that do not result in death and those that do. Plaintiff also argued that the reasoning adopted by the appellate court is at odds with existing appellate precedent, all of which applies the discovery rule to wrongful death and survival claims.

Appellate Court Decision: 2015 IL App (3d) 130613, 34 N.E.3d 1052. Schmidt, J., with McDade, J., concurring; Lytton, J., dissenting.

PLA Allowed: 09/30/15

Don't Miss Out on the ALA's May Events

Mon, 02 May 2016 14:19:43 GMT

The Association will host three events during the next month.

On May 13, 2016, the ALA’s annual roundtable luncheon featuring the justices of the Illinois Appellate Court, Fifth District, will be held at the Gateway Center in Collinsville. Attendees will receive 1 hour of MCLE credit. Following the luncheon, the ALA will host an appellate practice seminar featuring a panel of the Fifth District justices and presentations conducted by local appellate practitioners. Attendees will receive 3 hours of MCLE credit for the seminar.

On May 24, 2016, the ALA’s annual roundtable luncheon featuring the Judges of the United States Court of Appeals for the Seventh Circuit will be held at the Union League Club in Chicago. Attendees will receive 1 hour of MCLE credit.

Also on May 24, 2016, the ALA will host a roundtable luncheon and panel discussion featuring the justices of the Illinois Appellate Court, Fourth District, at the Second Presbyterian Church in Bloomington. Attendees will receive 1.75 hours of MCLE credit.

At all three events, attendees will have the opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere.

For more information and to register, please click here.

Successive Post-Trial Motion Does Not Toll the Time for Appeal under Supreme Court Rule 606(b)

Wed, 27 Apr 2016 14:12:47 GMT

The Illinois Appellate Court, Third District, recently dismissed a criminal appeal for lack of appellate jurisdiction after the defendant failed to file a notice of appeal within 30 days after the trial court denied a timely post-trial motion, but instead, filed a successive post-trial motion directed against the judgment. As discussed below, the reviewing court held that the successive post-trial motion did not toll the timeframe to file the notice of appeal.

In People v. Kibbons, 2016 IL App (3d) 150090, Williams Kibbons was charged with two counts of aggravated DUI and one count of leaving the scene of an accident involving personal injury or death. Kibbons pled guilty to one count of aggravated DUI in exchange for the State dismissing the other two counts and agreeing to a sentencing cap of eight years in prison. Kibbons was eventually sentenced to eight years in prison and was admonished of his appeal rights in accordance with Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) (“…prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion.”).

Defense counsel filed a motion to reconsider sentence within 30 days of sentencing. That motion was denied on October 18, 2013. Kibbons then retained new counsel, who filed a motion to withdraw the guilty plea on November 15, 2013, alleging that the State’s Attorney was conflicted because he had represented the defendant on a DUI case in 1997. The court denied the motion on April 24, 2014, but gave the defendant time for filing additional pleadings regarding the alleged conflict.

The defendant filed a motion to withdraw the guilty plea on May 22, 2014, alleging “actual prejudice.” The motion was once again amended on November 13, 2014 and ultimately denied on January 16, 2015. Kibbons appealed the denial of his motion to withdraw the guilty plea and his sentence after filing a notice of appeal on February 6, 2015.

The Third District Appellate Court dismissed Kibbons’ appeal for lack of jurisdiction. That State argued on appeal that the notice of appeal was untimely when it was not filed within 30 days of the trial court’s denial of Kibbons’ motion to reconsider sentence. To resolve the issue, the court looked to Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013), which provides that “[e]xcept as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.”

It was undisputed that the notice of appeal was not filed within 30 days of sentencing. Kibbons filed a timely motion to reconsider sentence, but this motion was improper because under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), a defendant who enters into a partially negotiated plea agreement must first move to withdraw his guilty plea before asking the court to reconsider sentence. Notwithstanding that Kibbons’ motion to reconsider sentence was not properly before the court, the Kibbonscourt still considered the motion to reconsider sentence a timely “motion directed against the judgment” for purposes of tolling the time for appeal under Rule 606(b).

Nonetheless, the Kibbons court did not consider the appeal perfected under 606(b) because the defendant filed a motion to withdraw guilty plea (which he should have done initially, under Rule 604(d)) within 30 days of the denial of the motion to reconsider sentence instead of a notice of appeal. That second motion post-trial motion, however, did not toll the timeframe for defendant to file a notice of appeal.

Thus, the notice of appeal that Kibbons filed on February 6, 2015 was untimely and the appellate court did not have jurisdiction to hear Kibbons’ appeal.

First District Appellate Court Reinforces Forfeiture Rule for Dismissed Breach of Contract Claim

Wed, 20 Apr 2016 13:52:19 GMT

The appellate court has again warned litigants and practitioners that when filing an amended complaint after the dismissal of a claim, in order to preserve appellate review of the claim’s dismissal, the claim must be, at a minimum, referred to in all subsequent amended complaints. In Rubin and Norris, LLC v. Panzarella, 2016 IL App (1st) 141315, ¶¶ 27-33, the First District Appellate Court held that plaintiff, Rubin and Norris, LLC,forfeited review of the dismissal of its breach of contract count because its amended complaint did not refer to or adopt the dismissed count. In doing so, the court, citing the Second District’s holding in Gaylor v. Campion, Curran, Rausch, Gummerson & Dunlop, P.C., 2012 IL App (2d) 110718, described three methods for preserving appellate review of a dismissed claim in a multi-count complaint.

First, the plaintiff may stand on the dismissed counts, take a voluntary dismissal of the remaining counts, and argue the matter on appeal. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 30. Second, the plaintiff may file an amended pleading that re-alleges, incorporates by reference, or refers to the dismissed counts. Id. As noted in Rubin and Norris, LLC, “[a] simple paragraph or footnote in the amended pleadings notifying defendants and the court that plaintiff is preserving the dismissed portions of the former complaints for appeal is sufficient.” Id. (quoting Tabora v. Gottlieb Memorial Hospital, 279 Ill. App. 3d 108, 114 (1996)). Third, the plaintiff may perfect an appeal from the dismissal order prior to filing an amended pleading that does not refer to or adopt the dismissed counts. Id.

In Rubin and Norris, LLC, the trial court dismissed plaintiff’s breach of contract claim in its original complaint with prejudice (id. ¶ 17), and plaintiff filed an amended complaint asserting only a quantum meruit claim and did not refer to or adopt the breach of contract claim. Id. ¶ 33. By doing so, the appellate court held plaintiff had “abandoned and withdrawn” the breach of contract claim, eliminating it from consideration on appeal.

Id.

The appellate court followed the Foxcroftforfeiture rule: “[w]here an amendment is complete in itself and does not refer to or adopt the prior pleading, the earlier pleading ceases to be a part of the record for most purposes, being in effect abandoned and withdrawn.” Foxcroft Townhome Owners Ass’n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 153-54 (1983). In addition to promoting the efficient and orderly administration of justice, the court explained, the forfeiture rule also preserves fairness for defendants and aids the court. Rubin and Norris, LLC, 2016 IL App (1st) 141315, ¶ 31.

When a plaintiff files an amended complaint that does not reference claims from an earlier complaint, a defendant can expect that those allegations are no longer at issue. And the appellate court should not have to guess whether or not claims are preserved for appeal. As the court noted, “[h]ad [plaintiff] intended to abandon the breach of contract claim that was dismissed with prejudice from the original complaint, the record in this case might very well look exactly the same.” Id. ¶

The court’s reminder is an important one. Something as small as a simple paragraph or footnote in the plaintiff’s amended complaint would have preserved the dismissal of the breach of contract count for appeal.

Illinois Supreme Court Amends Various Rules (March 2016)

Wed, 13 Apr 2016 13:12:41 GMT

Last month, the Illinois Supreme Court amended various rules governing appellate practice. Specifically, on March 8, 2016, the court amended Rules 304(b)(6) (Judgments and Orders Appealable without a Special Finding), 306(a)(5) (Interlocutory Appeals by Permission), 306(b) (Procedure for Interlocutory Appeals by Permission), 310.1 (Appellate Settlement Conference Program), 311 (Accelerated Docket), and 312 (Docketing Statement). These amendments became effective immediately. As noted in the respective committee comments, the amendments reflect the recent changes to the Illinois Marriage and Dissolution of Marriage Act, Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750 ILCS 5/101 et seq.), which changed the terms “Custody,” “Visitation” (as to parents) and “Removal” to “Allocation of Parental Responsibilities,” “Parenting Time” and “Relocation.”

Also on March 8, 2016, and effective immediately, the Supreme Court amended Rule 367(c), governing petitions for rehearing. The rule mandates that petitions for rehearing in the Supreme Court shall be mailed to the Report of Decisions at 207 W. Jefferson, Suite 305, Bloomington, Illinois 61701.

Finally, the Supreme Court amended Rule 604(d), which pertains to appeals by defendants from a judgment entered upon a guilty plea. The amendment removed the words "If a motion to withdraw the plea of guilty is to be filed[.]"

That portion of the rule now provides: "The defendant's attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by phone, mail, electronic means or in person to ascertain defendant's contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and both the report of proceedings of the plea of guilty and the report of proceedings in the sentencing hearing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings."

On March 15, 2016, the Supreme Court amended Rule 315 effective immediately. Subsection (d) and (f), respectively, each now allow for a 7,000 word limitation on petitions for leave to appeal and answers. Subsection (i) accounted for the amendments to the Illinois Marriage and Dissolution of Marriage Act noted above.

The amendments can be found here (March 8 order) and here (March 15 order).

Appeal from Order Entered in Post-Judgment Proceedings Denying Motion for Judgment Against Third-Party Citation Respondent Dismissed for Lack of Jurisdiction

Sat, 09 Apr 2016 13:08:38 GMT

In National Life Real Estate Holdings, LLC v. International Bank of Chicago, 2016 IL App (1st) 151446, the First District Appellate Court confronted an issue rarely tackled by Illinois appellate courts: When does an order entered in supplementary proceedings become “final” for purposes of Illinois Supreme Court Rule 304(b)(4) (eff. Feb. 26, 2010)? In National Life, after a $3,424,228.97 judgment had been entered against the defendant Ronald S. Scarlato (Scarlato) and two limited liability corporations, plaintiff National Life Real Estate Holdings, LLC (National Life) initiated supplementary proceedings and filed a third-party citation to discover assets against International Bank of Chicago (IBC). National Life, 2016 IL App (1st) 151446, ¶¶ 1, 3.

The citation stated that IBC was prohibited from “making or allowing any transfer or other disposition of, or interfering with, any property *** belonging to the judgment debtor.” Id. ¶ 3. Several months after IBC was served with the citation, IBC, Scarlato and others entered into a construction loan agreement and promissory note wherein IBC agreed to loan Scarlato and other entities $3.5 million. Id. ¶ 4. The loan proceeds were disbursed to various third parties, but none were distributed to Scarlato. Id.

Thereafter, National Life filed a motion for entry of judgment under section 2-1402 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1402 (West 2012)), claiming that IBC violated the prohibitive wording of the citation and the lien created thereby by transferring $3.5 million in assets that belonged to Scarlato. National Life, 2016 IL App (1st) 151446, ¶ 5. IBC opposed the motion on the grounds that the loan proceeds were not Scarlato’s “property,” and therefore, it did not violate the citation. Id.

Following an evidentiary hearing, the trial court denied National Life’s motion for entry of judgment against IBC, finding that the loan proceeds were neither Scarlato’s individually nor delivered to Scarlato. Id.¶¶ 5-6. The trial court’s written memorandum decision stated, “[T]he parties do have remedies remaining.” Id. ¶ 6. The order did not contain a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). National Life, 2016 IL App (1st) 151446, ¶ 11. National Life subsequently filed a notice of appeal. Id.¶ 7.

Addressing IBC’s jurisdictional challenge, the Appellate Court first examined the language of Rule 304(b)(4), which provides that “[a] final judgment or order entered in a proceeding under section 2-1402 of the Code” is appealable without the finding required for appeals under Rule 304(a). (Emphasis added). Id. ¶¶ 9-10. “An order in a section 2-1402 proceeding is said to be final when the citation petitioner [here, National Life] is in a position to collect against the debtor or a third[-]party, or the citation petitioner has been ultimately foreclosed from doing so.” Id. ¶ 10 (citing D’Agostino v. Lynch, 382 Ill. App. 3d 639, 642 (2008)). Thus, the Appellate Court had to determine “whether the court’s order denying entry of judgment against IBC put National Life in a position to collect against IBC, or whether National Life was ultimately foreclosed from doing so.” Id. ¶ 11.

After noting the sparsity of Illinois case law on the finality of orders entered in supplementary proceedings, the Appellate Court found In re Marriage of McElwee, 230 Ill. App. 3d 714 (1992) most analogous. National Life, 2016 IL App (1st) 151446, ¶¶ 12-13. McElwee involved an appeal from an order allowing the divorce respondent’s non-wage garnishment to go forward in order to collect a foreign judgment. Id. ¶ 13. Dismissing the appeal for lack of jurisdiction, the McElwee court reasoned: “What is essential for purposes of Rule 304(b)(4) is that there be finality with respect to the supplemental garnishment proceeding. * * * [The order] did not operate to terminate any part of the garnishment. Rather, its effect was simply to allow that garnishment to go forward.” Id. ¶ 13 (quoting In re Marriage of McElwee, 230 Ill. App. 3d at 719).

Likewise, the trial court’s order in National Life denying National Life’s motion for entry of judgment against IBC “simply allowed the supplementary proceeding to go forward and placed the parties at the beginning of the third-party citation proceedings, not the end.” Id. ¶ 14. The order did not “ultimately foreclose” National Life from proceeding against IBC or prohibit National Life from pursuing other post-judgment remedies pursuant to its third-party citation to discover assets against IBC, which was still pending. Id. ¶¶ 14-15. The court’s order did not dismiss National Life’s citation against IBC. Id. ¶16. Rather, the order simply denied the relief sought in National Life’s motion, i.e., the entry of judgment against IBC for violation of section 2-1402 of the Code. Id. ¶ 15.

Because National Life was not ultimately foreclosed from collecting against IBC, the trial court’s April 15, 2015 order denying National Life’s motion for entry of judgment was not final for purposes of Rule 304(b)(4). Id. ¶ 16. Accordingly, the Court dismissed National Life’s appeal for lack of jurisdiction. Id. ¶¶ 18-19.

Rule Change Introducing Word Limits to Appellate Briefs Offers Opportunity for More Font Variety, Increased Brief Readability

Tue, 05 Apr 2016 13:03:20 GMT

A recent rule change impacting appellate court briefs provides an opportunity for attorneys to experiment with typography—the general character or appearance of printed matter—and choose fonts with superior readability than Times New Roman.

Beginning on January 1, 2016, Supreme Court Rule 341(b) was amended to provide an alternate limit to an appellate brief’s length. Now, instead of solely being bound by page limits, litigants are alternatively bound by word limits—15,000 words for appellants’ and appellees’ briefs, and 7,000 words for reply briefs. Ill. S. Ct. R. 341(b). This rule change ends the need to use smaller, less readable typeface to meet page limits to avoid sacrificing arguments in a complex or multi-faceted appeal.

Typography impacts readability in brief-length documents. In Professor Ruth Anne Robbins’ article, Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents, she presents basic and valuable concepts of visual design such as contrast, organization, justification, and the use of all capital letters. Journal of the Association of Legal Writing Directors, Vol. 2, at 108-34 (2004). She notes that “the look of the words themselves affects visual perception. Thus, even with text alone, legal writers can create a picture using typography as paint on the canvas of the page.” Id. at 110. Simply put, “[t]he more readable the document, the more likely the reader will remember the content.” Id.

at 113.

Broadly speaking, fonts are distinguishable by two types of attributes. First, type can be proportionally spaced, meaning that the more narrow letters take up less space on the page, or monospaced, meaning that each letter takes up the same amount of width regardless of the natural letter shape. Id.at 121. Second, font can be “serif” or “sans serif.” A “serif” or “wing” font has small horizontal or vertical strokes at the ends of the lines that make up the letters. See id. at 119. Examples of “serif” fonts are Times New Roman and Garamond. “Sans serif” fonts, such as Arial, have no extra strokes at the end of the letter line. Id. Professor Robbins asserts that “[t]he popular view among graphic design experts is to use serif fonts” for large blocks of text. Id. at 119. The Seventh Circuit Court of Appeals even provides a link to Professor Robbins’ article on its homepage. See http://www.ca7.uscourts.gov/ (last accessed March 24, 2016).

The Seventh Circuit expounds on the choice of font in appellate briefs in its “Requirements and Suggestions for Typography in Briefs and Other Papers.” See http://www.ca7.uscourts.gov/Rules/type.pdf (last accessed March 24, 2016). It advises, “[y]ou can improve your chances by making your briefs typographically superior. It won’t make your arguments better, but it will ensure that judges grasp and retain your points with less struggle.” Id. at 4. It expressly criticizes Times New Roman as a font choice, noting that, “The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention.” Id. at 3. Instead, the Seventh Circuit suggests choosing font with a larger “x-height”—where the letter “x” is taller in relation to a capital letter. Id.at 5.

By way of example, the Seventh Circuit offers that both the United States Supreme Court and Solicitor General use Century font, and professional typographers set books in New Baskerville, Book Antiqua, Bookman Old Style, and many other proportionally spaced “serif” faces. Id. “Now that only words count,” it commends, “everyone gains from a more legible typeface, even if that means extra pages.” Id.

Now that Illinois courts of review accept word limits for briefs, practitioners should seize the opportunity to select what they believe is the most readable typeface. As the Seventh Circuit notes, it won’t guarantee victory, but enhanced ease of reading and increased retention for judges and their clerks can only benefit the appellate practitioner.

Illinois Supreme Court Directs Appellate Court to Hear Appeal Involving Kiosk-Filed Notice of Appeal

Fri, 01 Apr 2016 14:06:56 GMT

On March 30, 2016, the Illinois Supreme Court entered a supervisory order in a case involving the timeliness of a notice of appeal filed (and file-stamped) via a self-service kiosk made available through the Cook County Clerk's office.

In Daniel v. Ripoli, 2015 IL App (1st) 122607-U, the appellate court reviewed the issue of appellate jurisdiction on rehearing after having already ruled on the merits of the appeal (as well as a cross-appeal). The appellate court determined that the record failed to adequately demonstrate appellate jurisdiction over the primary appeal where the notice of appeal was filed at such a kiosk and the record did not contain other evidence of filing, such as a notice of filing or certificate of service. The potential for abuse and the absence of meaningful security measures in connection with the use of the kiosks, the court held, rendered the clerk's file-stamp, standing alone, insufficient to establish that the notice of appeal was timely surrendered to the "exclusive control of the clerk." Id. ¶ 73. The appellate court thus dismissed the primary appeal for want of appellate jurisdiction, and affirmed the trial court's ruling with respect to the issues raised on cross-appeal. Id. ¶¶ 87, 110. See ALA Blog Post, Illinois Appellate Court Rules That Filing Via Kiosk Fails to Establish Timely Notice of Appeal (Jan. 4, 2016).

The Illinois Supreme Court on March 30, 2016, denied the appellant's petition for leave to appeal but entered a supervisory order directing the appellate court to vacate its jurisdictional ruling and consider the appeal on the merits. It is unclear whether the supreme court's supervisory order signals an implicit recognition of the reliability of file-stamps obtained from such kiosks. Additionally, it remains to be seen whether the appellate court will address the jurisdictional issue on further consideration, and/or whether the appellate court will merely reinstate its prior merits-based ruling, which was entered before it reconsidered the issue of appellate jurisdiction.

Don't Miss Out on Association's April 2016 Events

Fri, 01 Apr 2016 00:56:09 GMT

The Association will host two events during the next month. On April 6, 2016, the ALA will host “Reel Appeal: Legal Ethics in the Movies,” moderated by Judge James E. Lockemy of the South Carolina Court of Appeals, at the John Marshall Law School. The event will use film as an avenue to discuss ethical questions appellate judges and attorneys face in their careers on a daily basis. The panelists will include Professor Paul Bergman of the UCLA School of Law and co-author of the book Reel Justice: The Courtroom Goes to the Movies, Kirsten M. Castañeda of Alexander Dubose Jefferson & Townsend LLP in Dallas, and Mark Kressel of Horvitz & Levy LLP in Los Angeles. Attendees will receive 1 hour of MCLE ethics credit.

On April 12, 2016, the ALA’s annual roundtable luncheon featuring the justices of the Illinois Appellate Court, Second District, will be held at The Centre of Elgin, Heritage Ballroom in Elgin. Space permitting, attendees will enjoy lunch with an individual justice, as each jurist will be seated at a separate table. Attendees will have the rare opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere. Attendees will receive 1 hour of MCLE credit.

For more information and to register, please click here.

Appellant Forfeits Argument Concerning Exception to Montreal Convention By Not Raising First in Trial Court

Sun, 27 Mar 2016 12:50:55 GMT

The Illinois Appellate Court recently issued an opinion finding that the appellant had forfeited an issue on appeal. Although the main issue of the case was whether the Montreal Convention - a treaty that governs the international carriage of passengers, baggage, and cargo - governed the parties' dispute, which the appellate court held it did, the case also demonstrates the importance of preserving issues for appellate review.

In El-Zoobi v. United Airlines, Inc., 2016 IL App (1st) 150813, plaintiff Sam El-Zoobi was a passenger on a United Airlines flight to China when an announcement was made asking all passengers to turn off their electronic devices. Id. ¶ 3. Flight attendant Janet Tucker observed defendant using his cell phone and asked him to turn it off. El-Zoobi told her the phone was in "airplane mode" and insisted that was sufficient. Id. Tucker alerted the lead flight attendant, Brenda Dismuke, who also told El-Zoobi to turn off his cell phone. El-Zoobi again refused. Id.

Dismuke told the plane's pilots about El-Zoobi and his refusal to turn off his cell phone. Id. A pilot went to speak with El-Zoobi, and when he returned to the cockpit, he told Dismuke that El-Zoobi was allegedly an employee of the Federal Aviation Administration (FAA). Id. Eventually, plaintiff told Dismuke that he turned off his cell phone, and the flight took off as planned. Id. At some point during the flight, Dismuke decided to report plaintiff to the FAA. Id. ¶ 4. When the plane landed and after she arrived at her hotel, she filed a complaint against El-Zoobi on the FAA's website. Id. ¶ 5.

Plaintiff filed a complaint in the circuit court of Cook County against United Airlines, alleging tortuous interference with a business relationship and intentional infliction of emotion distress. Id. ¶ 8. He stated that due to United Airlines' "false complaint," he lost an opportunity to be promoted, suffered a loss of other advancement opportunities and had severe emotional distress. Id.

In response, United Airlines filed a motion to dismiss El-Zoobi's compliant arguing his claim was governed by the Montreal Convention and he failed to state a valid claim for relief under the Convention. Id. The circuit court granted United Airlines' motion because El-Zoobi's alleged injury occurred on board an international flight, and thus, his claim was governed by the Convention (id.), which only allowed recovery for harm caused by accidents resulting in bodily harm. Id. ¶ 12. Furthermore, the Convention provides the sole remedy for passengers on board international flights. Id. ¶ 13. El-Zoobi appealed. Id. ¶ 8.

In addition to arguing on appeal that the Montreal Convention did not apply to his alleged injury (id. ¶ 10), El-Zoobi also argued that article 25 of the Montreal Convention contained an exception, allowing passengers to bring claims under local law if the alleged conduct if willful, including intentional tort claims. Id. ¶ 21. In addressing this argument, the appellate court found that El-Zoobi did not raise this argument in the circuit court, and accordingly, he forfeited arguing it on appeal. Id. The appellate court accordingly affirmed the circuit court's judgment, dismissing El-Zoobi's action.

Association Hosts Annual Luncheon Featuring Justices of the Illinois Appellate Court, First District

Wed, 23 Mar 2016 00:33:38 GMT

On Thursday, March 10, 2016, the Association hosted its annual roundtable luncheon featuring the justices of the Illinois Appellate Court, First District. Held at the Union League Club in Chicago, the luncheon offered ALA members and guests the opportunity to interact with reviewing court jurists and to gain practice pointers from the court's perspective, all while enjoying lunch in a cordial atmosphere.

ALA Vice President Joanne Driscoll welcomed the attendees, which included many justices from the First District. Thereafter, Justice Robert Gordon offered insight on current court initiatives. Specifically, Justice Gordon remarked that the court is implementing mandatory e-filing pursuant to the Illinois Supreme Court's directive and also discussed implications of pro se filings and the Illinois Access to Justice commission. Of note, Justice Gordon discussed the court's effort to expand its mediation program, stating that the program currently gets "very little business." Justice Gordon encouraged the audience to explore appellate court mediation with their clients and offered the reminder that the service is free to parties, most cases settle, and no justice involved in the mediation will be on the panel if the case does not settle.

The ALA thanks the justices of the Illinois Appellate Court, First District, for another engaging and insightful luncheon.

Judge Diane Woods, Chief Judge of the Seventh Circuit Court of Appeals, Discusses Supreme Court Vacancy and Immigration Debate on Chicago Tonight

Thu, 17 Mar 2016 17:07:43 GMT

Judge Diane Woods, Chief Judge of the Seventh Circuit Court of Appeals, appeared on Chicago Tonight recently to discuss various topics of interest to appellate lawyers.

In discussing the current vacancy at the United States Supreme Court, Judge Woods referred to the open seat as "a big loss," which, in the case of a 4-4 vote split, will leave the lower court's ruling in tact.

Judge Wood also described the Supreme Court vetting process as "very thorough," in which speeches from 20 years ago may be viewed and dissected.

The full video interview with Judge Wood is available here.

ALA's Cases Pending Previews Illinois Supreme Court's March Term

Mon, 14 Mar 2016 17:29:30 GMT

Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term that began today, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, March 15-17 and Tuesday, March 22, 2016. A total of 13 cases will be heard – 7 criminal and 6 civil. Here are the civil cases with the dates of oral argument:

Carney v. Union Pacific Railroad Co., No. 118984 – March 16

Fattah v. Bim, No. 119365 – March 17

Moline School District No. 40 Board of Education v. Hon. Pat Quinn, No. 119704 – March 17

Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 – March 17

Valfer v. Evanston Northwestern Healthcare, No. 119220 – March 22

J & J Ventures Gaming, LLC v. Wild, Inc., Nos. 119870, 119871, 119872, 119873, 119874 (cons.) – March 22

The Court will hear several cases of interest this term, including Fattah v. Bim involving the implied warranty of habitability and J & J Ventures Gaming, LLC v. Wild, Inc., a case interpreting the Illinois Gaming Act. Below are abbreviated summaries for these two cases. Summaries for all these cases can be accessed by ALA members on the ALA website by clicking on our Cases Pending publication.

CONSTRUCTION LAW – IMPLIED WARRANTY OF HABITABILITY

No. 119365
Fattah v. Bim

The issue presented in this appeal is whether a subsequent purchaser of a home is bound by the initial purchaser’s waiver of the implied warranty of habitability, such that the subsequent purchaser is precluded from suing the developer for latent defects.

Defendants were residential real estate developers and constructed a home for sale. They sold it to the initial purchaser, who executed a waiver and disclaimer of the implied warranty of habitability, which became part of the real estate contract by incorporation. The waiver stated that it was binding on the purchaser and her successors. Several years later, the initial purchaser sold the home to Plaintiff as-is. Four months after Plaintiff moved into the home, the porch collapsed. He sued Defendants asserting, among other things, a breach of the implied warranty of habitability. Following a bench trial, the circuit court found in favor of Defendants, concluding that Plaintiff was bound by the initial purchaser’s waiver of the implied warranty of habitability. Additionally, the court noted that Plaintiff purchased the home as-is.

The Illinois Appellate Court reversed, holding that the initial purchaser’s waiver was not binding on Plaintiff because he had no knowledge of the waiver executed by Defendants and the initial purchaser and was not a party to that agreement. Furthermore, the appellate court held that the as-is provision was an agreement between Plaintiff and the initial purchaser and was not a waiver of the implied warranty of habitability as to Defendants.

Appellate Court Decision: 2015 IL App (1st) 140171, 31 N.E.3d 922. Palmer, J., with McBride and Reyes, JJ., concurring.

PLA Allowed: 09/30/15

Oral Argument: 03/17/16

SUBJECT MATTER JURISDICTION – ILLINOIS GAMING ACT

Nos. 119870, 119871, 119872, 119873, 119874 (cons.)
J & J Ventures Gaming, LLC v. Wild, Inc.

This consolidated appeal concerns the circuit court’s subject matter jurisdiction over contract disputes arising out of the operation of video gaming terminals.

Under the Illinois Gaming Act (the “Act”) (230 ILCS 40/1 et seq.), the operation of a video gaming terminal is governed by a written use agreement between the owner of the terminal license and the owner of the establishment. Plaintiff J & J Ventures Gaming claimed to have an exclusive right to operate video gaming terminals at various establishments pursuant to its written use agreement with those establishments. Accel Entertainment Gaming, LLC likewise claimed that it had the right to operate video gaming terminals at those establishments under written use agreements it acquired by assignment. Plaintiff filed lawsuits in the circuit court against five establishments seeking a declaration that it was entitled to operate the video gaming terminals in those establishments. Accel Entertainment Gaming moved to intervene in each of those lawsuits. Following the decision in Triple 7 Illinois, LLC v. Gaming & Entertainment Management-Illinois, LLC, 2013 IL App (3d) 120860, the circuit court found in favor of Plaintiff.

On appeal, the Illinois Appellate Court, Fifth District, declined to follow Triple 7 and instead determined sua sponte that the Act granted the Illinois Gaming Board exclusive authority to decide the question of which written use agreement was controlling as a matter of administrative law. Accordingly, the appellate court determined that the circuit court lacked subject matter jurisdiction over Plaintiff’s declaratory judgment actions, vacated the circuit court’s orders, and dismissed the appeals. The appellate court then issued a certificate of importance in each case pursuant to Supreme Court Rule 316, allowing them to be heard by the Illinois Supreme Court.

Appellate Court Decision: 2015 IL App (5th) 140092, 38 N.E.3d 194. Stewart, J., with Goldenhersh and Schwarm, JJ., concurring.

Certified cases – Supreme Court Rule 316: 09/23/15

Oral Argument: 03/22/16

Contempt Order Must Set the Amount of Fees to be Appealable Under Supreme Court Rule 304(b)(5).

Wed, 09 Mar 2016 04:22:54 GMT

The case of Pedigo v. Youngblood, 2015 IL App (4th) 140222, makes clear that a contempt finding must be accompanied by a set, actual monetary sanction to be subject to direct appeal under Supreme Court Rule 304(b)(5).

In this matter, on March 4, 2014, the trial court orally pronounced defendant, Sean Youngblood, in contempt for failure to comply with discovery and ordered reasonable attorney fees as a sanction. On March 10, 2014, Youngblood filed a notice of appeal. On March 13, 2014, the trial court entered its written contempt order, stating in part that as a sanction for indirect civil contempt, “Youngblood shall pay reasonable attorney’s fees incurred by the plaintiffs as a result of his failure to answer plaintiffs’ first requests to produce.” Pedigo, 2015 IL App (4th) 140222, ¶ 14. The order further directed plaintiffs to file a fee petition for a determination of reasonable attorney fees. Id.

On appeal, the appellate court first dealt with the timing of Youngblood’s March 10, 2014, notice of appeal. The court noted Rule 303 provides that a notice of appeal filed after the trial court announces its decision, but before entry of the judgment or order, is treated as filed on the date of, and after entry of, the order. Id. ¶ 15. Accordingly, the appellate court treated the notice of appeal filed on March 10, 2014, as filed on the date of, and after entry of, the trial court's written order of March 13, 2014. The appellate court further treated the notice of appeal as referring to the written order. Id.

More problematic – and the real issue of the appeal – was whether a contempt order granting reasonable attorney fees in an amount later to be determined is directly appealable under Supreme Court Rule 304(b)(5). That Rule permits direct appeal from an order “finding a person or entity in contempt of court which imposes a monetary or other penalty.” Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010). The key part of the Rule is the imposition of the monetary penalty, as a contempt order which does not impose sanctions is not final and therefore not reviewable. Id. ¶ 17 (citing In re Estate of Hayden, 361 Ill. App. 3d 1021, 1026 (2005)).

In this matter, the amount of “reasonable attorney’s fees” remained pending and unresolved even by the time the record on appeal was prepared and certified. Id. ¶ 7. The Fourth District noted that because the trial court, in its March 13, 2014 written order, did not impose a “specific monetary sanction, we cannot review the appropriateness of the sanction.” Id. ¶ 17. Accordingly, because Youngblood appealed the contempt order prior to the trial court imposing a monetary sanction, the Fourth District ruled it “lack[ed] jurisdiction under Rule 304(b)(5) to entertain the merits of [this] appeal” (id. ¶ 18), and it dismissed Youngblood’s appeal. Id. ¶ 24.

As a postscript, the appellate court also considered plaintiffs’ request for sanctions pursuant to Supreme Court Rule 375. While Youngblood claimed he filed the appeal in a good-faith effort to address the underlying discovery issue, the appellate court determined the record “belies that assertion” since first, he originally withdrew his motion to vacate the order compelling discovery. Id. ¶ 21. Second, the appellate court noted this was, in fact, the third occasion that Youngblood pursued an appeal prematurely. Id. Accordingly, the appellate court granted plaintiffs’ motion for sanctions, stating the exact amount would be determined after plaintiffs’ submitted a statement of reasonable expenses and attorney fees in connection with the appeal, and after Youngblood had an opportunity to respond. Id. ¶ 22.

Don't Miss Out on Association's March 2016 Events

Tue, 01 Mar 2016 01:20:33 GMT

The Association will host two events during the next month. On March 10, 2016, the ALA's annual roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will be held at the Union League Club in Chicago. Space permitting, attendees will enjoy lunch with an individual justice, as each jurist will be seated at a separate table. Attendees will have the rare opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere. Attendees will receive 1 hour of MCLE credit.

On March 18, 2016, from 1 p.m. to 5 p.m., the Association will host a half-day advanced appellate practice seminar at the Chicago Bar Association. The seminar will feature various seasoned appellate practitioners, including ALA President and former Illinois Solicitor General Michael A. Scodro and past ALA president Michael W. Rathsack, among others. Topics will include discretionary appeals, motion practice before reviewing courts, post-judgment practice in anticipation of an appeal, petitions for leave to appeal, and appeal bonds. The seminar will also feature a mock oral argument. Attendees will receive 3.75 hours of MCLE credit.

For more information and to register, please click here.

Seventh Circuit Judges Sykes and Hamilton Share Insights and Humor in Presenting: “How Judges Judge: Text, Context, and Pretext.”

Mon, 22 Feb 2016 13:18:05 GMT

On February 17, 2016, the ALA convened for lunch at the Union League Club in Chicago and enjoyed an interesting discussion on theories of constitutional and statutory interpretation featuring Seventh Circuit Judges Diane Sykes and David Hamilton. The topic was particularly timely in light of the recent passing of Justice Antonin Scalia; no discussion of constitutional interpretation would be complete without frequent reference to Justice Scalia, to whom both speakers paid tribute, as did ALA President Mike Scodro in greeting the luncheon participants.

Judge Sykes began with an overview of the main theories of constitutional interpretation that historically have dominated American jurisprudence: the living constitutionalism of the Warren court, which brings to mind the approach of Justice William Brennan, that the meaning of the broad terms contained in the Constitution should evolve with changes in American society; the political process theory, which confers unrestrained power on the judiciary, an approach largely confined to academia; originalism, which tethers judges to the text of the Constitution and historical context; and pragmatism, an approach that focuses on the consequences of judicial decisions. Judge Sykes explained that pragmatism is prominently featured in the opinions of Seventh Circuit Judge Richard Posner and, to a lesser extent, Supreme Court Justice Stephen Breyer. As an example of how she and her colleagues implement a variety of these constitutional theories, Judge Sykes discussed the Seventh Circuit’s 2013 decision in Moore v. Madigan, which held 2-1 that Illinois was required under the Second Amendment to license the concealed carrying of firearms.

Judge Hamilton theorized that, regardless of the various manners of constitutional interpretation at play in a given case, a judge still must exercise discretion in wielding judicial power. While the originalism/textualism approach developed to rein in what some viewed as a power hungry judiciary in the Warren years, a judge's work still involves, in significant measure, the exercise of judgment and discretion. Making this point with humor, Judge Hamilton quoted Justice Scalia as saying, "I’m an originalist, but not a nut." Judge Hamilton also critiqued the decision in Bush v. Gore and provided examples of cases in which textualism and originalism conflict.

The Association thanks Judge Hamilton and Judge Sykes for the fascinating discussion and also thanks the ALA members and guests for attending the program.

Mandatory Statewide Electronic Filing: The Supreme Court of Illinois Really Means It Now

Thu, 18 Feb 2016 13:15:42 GMT

On January 22, 2016, the Supreme Court of Illinois ordered mandatory, statewide electronic filing in civil cases, expressly abandoning its prior policy of encouraging Illinois courts to voluntarily adopt such systems. (M.R. 18368.) In less than 2 years, each court of Illinois must implement an electronic filing system for civil cases; and participants, both lawyers and pro se litigants, will not be allowed to file anything in a civil case other than through the court’s electronic system, “except in the event of an emergency.” (Id. at 3.)

In 2002, the court noted, it began an effort to encourage a voluntary transition away from paper-based filing systems in favor of electronic filing systems. However, several years after 2002, only five counties were participating in that voluntary effort, according to the order. There are 102 counties in Illinois.

The high court also noted that it further encouraged the transition in 2012 by adopting standards and principles of electronic filing systems that were intended to guide and assist in the transition. The court noted with apparent dismay that as of the date of its order -- January 22, 2016 -- only 15 counties successfully adopted an electronic filing system. The court called the current use of electronic filing systems in Illinois “scant.” The court did not mention that the clerks of the circuit courts are elected by the citizens residing in each circuit, nor did it expressly claim (for itself or the judges of the circuit courts) supervisory authority over those elected circuit clerks. The clerks of the appellate and supreme courts are not elected officials, but appointees of their respective courts.

The court did acknowledge barriers to a statewide adoption of electronic filing, including variations in the ability of various circuit courts to access the necessary financial and technological resources, and the fact that there are currently 13 different case management systems in use by various parts of the state’s judicial system. Ultimately, the court agreed that “statewide e-filing efforts will develop if courts are mandated to e-file . . . .” (Id. (emphasis added).)

The court declared that its efforts to encourage voluntary adoption of electronic filing had not achieved the desired goal of state-ide e-filing on civil matters. (Id. at 2.) Accordingly, it concluded that “e-filing in civil cases in Illinois must be made mandatory.” (Id. at 2 (emphasis added).) The court’s conclusion was based on “the recommendations of multi-disciplinary committees, boards, and court staff who have spent years evaluating this issue.” (Id.)

The court’s order is addressed to all three levels of the Illinois court system, and requires the high court itself, and the appellate court, to make e-filing mandatory for civil cases by July 1, 2017. E-filing of civil cases will be mandatory in all circuit courts on January 1, 2018. Any circuit court which had not implemented their own e-filing system by January 22, 2016, must use a centralized electronic filing system that will be authorized by the court, and integrate their system with the centralized, statewide system.

In addition to requiring all of the courts of Illinois, including itself, to implement mandatory e-filing, the supreme court required that those courts “must provide designated space, necessary equipment, and technical support for self-represented litigants seeking to e-file documents during normal business hours.” (Id. at 3.) The court did not address what must be provided to attorneys to assist them with their e-filing needs, such as training or technical support.

Once each court is subject to mandatory e-filing, “attorneys and self-represented litigants may not file documents [in civil cases] through any [other] filing method, except in the event of an emergency.” (Id. (emphasis added).) “Emergency” is not defined in the order.

The very last sentence of the order provides the court with the power to extend the time for those courts that “cannot comply” with the deadline imposed on them. But those courts must petition the supreme court for an extension of time. (Id. at 3.) Such extensions “are not favored but may be granted for good cause shown.” (Id. (emphasis added).) The order does not specify what, if any, consequences might be imposed on courts that neither comply in time nor get an extension.

ALA President Michael Scodro and ALA Member Carolyn Shapiro Discuss the Legacy of Justice Antonin Scalia on Chicago Tonight

Wed, 17 Feb 2016 00:50:57 GMT

Yesterday, ALA President Michael Scodro, and Illinois Solicitor General and ALA member Carolyn Shapiro appeared on Chicago Tonight to discuss the legacy of Supreme Court Justice Antonin Scalia who passed away over the weekend. Joining Scodro and Shapiro on the panel were David Franklin and Andrew DeVooght. All four panel members previously clerked at the Supreme Court, though not for Justice Scalia, and each discussed a personal memory of him.

The panel discussed Justice Scalia's colorful writing, his renowned dissents and his interactions with other justices of the Court. The panel also discussed the future of the Court without Justice Scalia.

Please click here to watch the thoughtful and informative discussion.

"Cases Pending" Provides Information on Cases Pending and Decided by the Illinois Supreme Court

Thu, 11 Feb 2016 12:47:23 GMT

The Association recently updated Cases Pending, a resource that provide

ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated volume provides information on cases currently pending in and recently decided by the state's high court through February 3, 2016.

Complete access to Cases Pending is complimentary with ALA membership.

“Substantive” Summary Rulings Required to Resolve Disputes over the Existence and Enforceability of Arbitration Agreements

Tue, 09 Feb 2016 12:43:27 GMT

Mandatory individual arbitration agreements as a means of defeating class action lawsuits are a hot topic of late, and a recent decision from the Illinois Appellate Court has clarified the standard of proof and standard of decision parties and trial courts must meet to resolve disputes over the existence and enforceability of those agreements.

In Sturgill v. Santander Consumer USA, Inc., 2016 IL App (5th) 140380, Franklin Sturgill brought a putative class action lawsuit against Santander, a financing company, alleging the company failed to deliver the certificate of title to his truck within the time provided by law following the satisfaction of a lien placed on it at the time of purchase. In line with a litigation trend that has skyrocketed since the U.S. Supreme Court decision in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), Santander moved to compel individual arbitration and dismiss or stay the suit. Santander claimed that Sturgill agreed to mandatory arbitration as a term of the financing agreement with Santander’s predecessor in interest. Sturgill contested whether Santander had inherited the right to compel arbitration and argued that, either way, the arbitration provision did not apply because his cause of action arose after the installment contract was satisfied. Both Santander and Sturgill’s arguments depended on several unresolved factual and legal questions. The trial court thus ordered limited discovery to address those issues, but when the parties failed to comply, the court summarily denied the motion to compel arbitration.

New York Times Reporter Adam Liptak Shares Insight into SCOTUS at Association Luncheon

Thu, 28 Jan 2016 00:35:47 GMT

On January 21, 2016, the Association gathered at the Union League Club of Chicago to host "The Roberts Court at Ten: A Reporter's Reflections" featuring Adam Liptak, the United States Supreme Court reporter for the New York Times.

The Appellate Lawyers Association President Michael A. Scodro began the event by offering welcoming remarks as Association members and guests enjoyed lunch. President Scodro previewed future Association events, including one on February 17, 2016, at the Union League Club of Chicago, featuring Justices Diane Sykes and David Hamilton of the Seventh Circuit Court of Appeals, who will discuss the various approaches judges use in statutory and constitutional interpretation. President Scodro also took a moment to recognize former Association President Judge Jean Prendergast Rooney, a "driving force of the" Association, who recently passed away.

Liptak began his discussion previewing the three questions he intended to answer: (1) What the name the "Roberts Court" means? (2) What cases the United States Supreme Court has decided recently? and (3) What challenges he has faced covering the Supreme Court in an accelerated and fragmented news environment?

Liptak discussed the diversity, and in some ways the lack thereof, of the Supreme Court. Liptak observed that for the first time in the Court's history, there are three women justices and no Protestant members, remarking that currently there are six Catholic and three Jewish members. However, Liptak noted that all the justices had either attended law school at Harvard or Yale, and only one justice did not previously serve on a federal appellate court.

Currently, according to Liptak, there are five conservative members and four liberal members sitting on the Court. He noted that each liberal member had been appointed by a Democratic president while each conservative member had been appointed by a Republican president. Although this might seem customary, Liptak refuted that notion by pointing to various examples of liberal or moderate justices who were appointed by Republican presidents, such as Justice John Paul Stevens appointed by Gerald Ford, Justice David Souter appointed by George H.W. Bush and Justice Sandra Day O'Connor appointed by Ronald Reagan. Liptak explained that today, ideology appears to be the critical factor when appointing a justice to the Supreme Court rather than geographic diversity or judicial experience.

Liptak expressed various conclusions about the "Roberts Court." First, because of its conservative majority, the Court itself under Justice Roberts has leaned toward conservative rulings, highlighted by various decisions involving guns, voting rights and campaign finance. Liptak opined that the defining shift in the Roberts Court's ideology was in 2006, when Justice Antonin Scalia, a conservative, replaced Justice O'Connor, a moderate.

Finally, Liptak gave his unofficial slogan of the Roberts Court that "everything worth deciding is worth deciding twice," with the second decision often being the most impactful of the two. Liptak cited examples in campaign finance, voting rights, same-sex marriage and public unions.

The event concluded with a question-and-answer session.

The Association thanks Adam Liptak for an informative and enjoyable luncheon, and all of the guests for their attendance and participation.

SCOTUS Likely to Deal Unions Drastic Blow in Union-Fee Case

Thu, 14 Jan 2016 12:33:58 GMT

The Association's upcoming luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Over the years, Liptak has provided unique insight on how the High Court operates behind the scenes. His recent article featured the case, Friedrichs v. California Teachers Association, No. 14-915, whose oral argument was held on Monday.

In this highly anticipated case, the California law at issue requires public employees who do not join a union to still pay fees that compensate for the costs of collective bargaining. Ten California teachers contend they have a First Amendment right not to pay the union fees. The union argues that the non-members are trying to obtain a windfall, reaping the benefits of collective bargaining without paying for its costs.

The importance of the Court's outcome in the case, Liptak noted, is that a ruling in favor of the teachers would represent a drastic blow to unions.

Liptak observed that the Court's conservative majority seemed likely to agree with the teachers. The "best" hope unions have for a ruling in their favor, Liptak said, is Justice Antonin Scalia who has been sympathetic toward them in the past. However, Liptak observed a certain sense of hostility by Justice Scalia toward unions during oral arguments, especially when he proclaimed "[t]he problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition."

The liberal minority on the Court seemed focused, Liptak asserted, on a worthy reason to overturn past Supreme Court precedent, Abood v. Detroit Board of Education, which held in 1977 that forcing non-union members to pay for a union's collective bargaining efforts was constitutional.

ALA's Cases Pending Previews Illinois Supreme Court's January Term

Tue, 12 Jan 2016 12:22:35 GMT

Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry , has been updated to discuss the Illinois Supreme Court’s January Term that began Monday, January 11, 2016, with oral argumentsscheduled for Tuesday, January 12, 2016, and Thursday, January 14, 2016. A total of 5 cases will be heard – 2 civil and 3 criminal. Here are the civil cases with the dates of oral argument:

Jeffrey W. Vaughn v. The City of Carbondale, No. 119181—January 14

Michael Richter v. Prairie Farms Dairy, Inc., No. 119518—January 14

The Court will hear two civil cases of interest this term: Richter v. Prairie Farms Dairy, which involves res judicata as it pertains to involuntary dismissal of claims, and Vaughn v. City of Carbondale, which involves the Public Security Employee Benefits Act. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

PROCEDURE – RES JUDICATA

No. 119518

Richter v. Prairie Farms Dairy, Inc.

The issue in this case is whether an order dismissing a claim without prejudice under section 2-615 of the Code of Civil Procedure (the “Code”) (735 ILCS 5/2-615) becomes a final adjudication on the merits that bars any subsequent related litigation, where the dismissed claim is not refiled and the remaining claims are voluntarily dismissed after the time allowed for re-pleading expires.

Plaintiffs Michael and Denise Richter, doing business as Rich-Lane Farms, filed a three-count complaint against Defendant Prairie Farms Dairy, Inc., alleging various claims relating to consumer fraud and shareholder disputes. The fraud claims were dismissed under section 2-615 of the Code, with leave to replead within 30 days. Plaintiffs never refiled their fraud claims and, instead, proceeded on their claim seeking shareholder remedies. They subsequently voluntarily dismissed their shareholder remedies claims under section 2-1009 of the Code. Plaintiffs refiled their action less than one year later, again asserting claims for shareholder remedies and adding claims for fraud, misrepresentation, and breach of fiduciary duty. Defendant moved to dismiss the refiled case under section 2-619 of the Code, arguing that the circuit court’s order dismissing the fraud claims became a final adjudication on the merits after Plaintiffs failed to refile those claims and then voluntarily dismissed their remaining claims. According to Defendant, Plaintiffs’ refiled action was barred by the doctrine of res judicata. The circuit court agreed with Defendant and granted its motion to dismiss.

The Illinois Appellate Court reversed, holding that the circuit court’s order dismissing the fraud claims under section 2-615 was not a final judgment. The circuit court provided “no indication that anything was ‘absolutely and finally’ settled” when the fraud claims were dismissed; rather, by allowing Plaintiffs additional time to file amended claims, the circuit court concluded that Plaintiffs could cure their pleading defects. Because the dismissal was not a final adjudication on the merits, it did not become a final, appealable order on the entry of voluntary dismissal, and could not act as a bar in a refiled case under the doctrine of res judicata.

In its petition for leave to appeal, Defendant argued that the appellate court’s interpretation ignores the circuit court’s restrictions on Plaintiffs’ ability to replead. Defendant argued that when Plaintiffs failed to replead within the time allowed, they lost the right to do so and the dismissal order became final. Thus, Defendant argued, Plaintiffs’ claims were barred by the doctrine of res judicata following their voluntary dismissal.

Appellate Court Opinion: 2015 IL App (4th) 140613, 34 N.E.3d 617. Pope, P.J., with Turner, J., and Steigmann, J., concurring.

PLA Allowed: September 30, 2015.

PUBLIC SAFETY EMPLOYEE BENEFITS ACT

No. 119181

Vaughn v. City of Carbondale

The issue presented in this appeal is whether Plaintiff was entitled to a permanent injunction requiring the City of Carbondale to provide him and his spouse with lifetime health insurance benefits under the Public Safety Employee Benefits Act (the “Act”) (820 ILCS 320/10).

Plaintiff, a Carbondale police officer, was injured when he hit his head on his patrol car as he responded to a non-emergency call from a dispatcher. Plaintiff completed his shift and then sought medical attention. Plaintiff was removed from duty due to his injury. Plaintiff later applied for and received an in line of duty pension. The City of Carbondale also provided family health insurance while Plaintiff received his pension. Plaintiff was then asked to submit to a medical examination. He complied and was found fit to return to duty as a police officer. The City of Carbondale then terminated his pension. The decision was affirmed on administrative review but later reversed by the Fifth District Appellate Court which reinstated the pension based on a failure to provide Plaintiff due process.

Plaintiff in the meantime sought a permanent injunction against the City of Carbondale requiring it to permanently provide him and his family with lifetime health insurance benefits under the PSEBA. The circuit court found that Plaintiff did not suffer a catastrophic injury and dismissed the injunction complaint. The Fifth District Appellate Court reversed and held that because Plaintiff was injured when he was responding to a dispatcher’s call, which could have been an emergency, he was entitled to benefits under the Act.

The City of Carbondale argues in its petition for leave to appeal that Plaintiff did not satisfy the criteria to qualify for benefits under the Act. Although the City acknowledged that while Plaintiff’s injury may have been “catastrophic” under section 10(a) of the Act, he was not injured while in fresh pursuit; was not responding to an emergency; was not injured while responding to an unlawful act of another; or injured in the investigation of a criminal act as expressly required under section 10(b) of the Act. To the contrary, the City argues that the Fifth District Appellate Court created a new basis not provided for in the statute—that injuries sustained in responding to any call from a dispatcher, even if not an emergency, satisfies the section 10(b) criteria entitling an officer and his family to lifetime health insurance benefits.

The City also argues that its ability to terminate benefits is not limited to a showing of fraud in the initial procurement of benefits, as the Appellate Court held. The City instead contends that benefits may be terminated if Plaintiff is no longer eligible for such benefits or the benefits were improperly extended in the first instance.

Appellate Court Opinion: 2015 IL App (5th) 140122. Welch, J., with Cates, P.J., and Goldenhersh, J., concurring.

PLA Allowed: September 30, 2015.

Appellate Court Opinion: 2015 IL App (4th) 140613, 34 N.E.3d 617. Pope, P.J., with Turner, J., and Steigmann, J., concurring.

PLA Allowed: September 30, 2015.

PUBLIC SAFETY EMPLOYEE BENEFITS ACT

No. 119181

Vaughn v. City of Carbondale

Appellate Court Opinion: 2015 IL App (5th) 140122. Welch, J., with Cates, P.J., and Goldenhersh, J., concurring.

PLA Allowed: September 30, 2015.

ALA To Host 2015 Illinois Supreme Court Civil Cases Year-In-Review

Sun, 10 Jan 2016 06:04:46 GMT

The Association will once again host the Illinois Supreme Court Civil Cases Year-in-Review, an information-packed seminar featuring Illinois Appellate Court Justice Ann B. Jorgensen of the Second District, along with past ALA presidents J. Timothy Eaton and Michael T. Reagan. The panel will discuss the significant civil cases decided by the Illinois Supreme Court during the past year.

As in years' past, the seminar will be presented in multiple locations. The initial presentation will be held on January 21, 2016, at Maldaner’s Restaurant in Springfield. The panel will also present the seminar on January 28, 2016, in Chicago at Neal Gerber & Eisenberg LLP and on February 4, 2016, in Wheaton at the DuPage County Judicial Center.

Justice Jorgensen began her practice as an assistant State’s Attorney in DuPage County. She then entered private practice before beginning her career in the judiciary as an Associate Judge in the 18th Judicial Circuit. In 2008, the Illinois Supreme Court appointed Justice Jorgensen to the Illinois Appellate Court, Second District.

J. Timothy Eaton is a partner at Taft Stettinius & Hollister LLP in Chicago where he concentrates his work in appellate practice, litigation, and energy and regulated industries. He was president of the ALA in 1989 and 1990.

Michael T. Reagan has his own law firm in Ottawa where he focuses on appellate law and civil litigation. He was president of the ALA in 1995 and 1996.

The ALA welcomes all to join our three speakers for an informative and engaging luncheon. For more information and to register, please click here.
Participants will earn 1.5 hours of MCLE credit.

Illinois Appellate Court Rules That Filing Via Kiosk Fails To Establish Timely Notice of Appeal

Mon, 04 Jan 2016 06:37:50 GMT

In Daniel v. Ripoli, 2015 IL App (1st) 122607-U, the appellate court dismissed an appeal for lack of appellate jurisdiction because a date stamp obtained from a self-service filing kiosk utilized by the Cook County Clerk’s office was not a sufficiently reliable indicator that the notice of appeal had been filed in a timely manner.

The Daniel case involved a business dispute among members of an accounting firm formed as a limited liability company. The estate of a deceased member sued both the LLC and the other members to recover distributions allegedly owed under the LLC’s operating agreement. The defendants contended that the operating agreement had been modified by a subsequent written agreement that permanently changed the distribution percentages to account for disparities in business production. The trial court rejected this contention, held that the changes effected by the subsequent agreement were not permanent, and awarded judgment in favor of the estate and against the LLC in the amount of $179,089.75. The trial court also rejected the estate’s attempt to impose individual liability on the other members of the LLC, and its request for distributions owed upon the death of plaintiff’s decedent. Both parties appealed.

The appellate court originally ruled in favor of defendants. In a published decision dated January 28, 2015 (2015 IL App (1st) 122607), the court determined, among other things, that the parties’ later agreement permanently reduced the distributive share of the plaintiff’s decedent. The appellate court accordingly reversed the trial court’s judgment in favor of the plaintiff estate; the court affirmed the other aspects of the trial court’s rulings. Id. ¶¶ 106-109.

Regarding appellate jurisdiction, the appellate court observed in its original disposition that the defendants’ notice of appeal bore a filing stamp dated within thirty days of the trial court’s final judgment. Id. ¶ 56. Although it acknowledged that there was a “dearth of authority directly so holding,” the court observed that “the file-stamp date has generally been considered by this court as the time of receipt by the clerk of the court.” Id. ¶ 57. The appellate court rejected the estate’s argument that this general rule should not apply because the file-stamp in Daniel was obtained at a self-service kiosk: “We find no supreme court rule or precedent holding that such file stamps are somehow ineffective or are not construed in the same manner as having a court clerk physically file-stamp a notice of appeal.” Id. ¶ 58.

Following the issuance of its decision, the court reconsidered, and reversed, its determination that the record established the existence of appellate jurisdiction. Based in part of the Illinois Supreme Court’s 2014 decision in Huber v. American Accounting Association, 2014 IL 117293 (holding that a label purchased from an automated postal center was not sufficient to establish proof of mailing under Supreme Court Rule 373’s so-called “mailbox rule”), the appellate court in Daniel held on rehearing that a file stamp obtained from a self-service filing kiosk did not sufficiently establish that the notice of appeal was timely surrendered to the “exclusive control of the clerk.” Daniel, 2015 IL App (1st) 122607-U, ¶ 73. The absence of both security against abuse and meaningful procedures for the retrieval and filing of documents deposited in such kiosks, the court held, renders such filings unreliable, standing alone, to establish a filing date. The court noted several possibilities that undermined such reliability by allowing for a delay between a party’s stamping of the document and the clerk’s actual possession of it (for example, stamping a document one day and depositing it for filing on a subsequent day). Id. ¶ 74. The court also noted that the record did not contain a notice of filing or certificate of service regarding the notice of appeal, id. ¶ 81, a fact the court found “particularly vexing,” – “so that even if we decided that the word of an officer of the court overcomes our reluctance to rely on the kiosk stamp, in this case we do not have the documents of record to make that determination.” Id. ¶ 86.

The court thus dismissed the defendants’ appeal for lack of appellate jurisdiction. The court stated: “We caution that relying on the date stamp from a self-service kiosk, particularly on time-sensitive documents, without more, is an invitation to trouble.” Id. ¶ 57. The court then addressed, and affirmed the trial court’s rulings with respect to, the estate’s cross-appeal. Id. ¶¶ 87-109. The Rule 23 Order did not address appellate jurisdiction to entertain the cross-appeal where the primary appeal was dismissed.

January ALA Luncheon to Feature New York Times Supreme Court Correspondent Adam Liptak

Wed, 23 Dec 2015 15:07:00 GMT

On January 21, 2016, the Association will host a luncheon at the Union League Club in Chicago featuring Adam Liptak of the New York Times. Liptak will speak about the United States Supreme Court the past 10 years under Chief Justice John Roberts. Not only will Liptak discuss the impactful stories from the Court the past decade, but he will also reflect on his own experiences covering the Court.

Liptak, an attorney by trade, joined the Times in 2002, first covering the Court in the fall of 2008. Liptak was a finalist for the 2009 Pulitzer Prize in explanatory reporting for his series, "American Exception," which explored the differences between the American legal system and those of other developed nations.

Liptak originally was a copyboy for the Times after graduating from Yale University. He eventually returned to Yale, and in 1988, he graduated from its law school. After law school, Liptak spent four years working as a litigation associate at Cahill Gordon & Reindel in New York City, specializing in First Amendment cases. In 1992, he returned to the Times, working in its legal department. Liptak has taught media law at Columbia University's School of Journalism, the University of California, Los Angeles, School of Law and Yale Law School.

The ALA welcomes all to join Adam Liptak for an informative and engaging luncheon. For more information and to register, please click here.

Participants will earn one hour of MCLE credit.

SCOTUS to Decide Whether Refusing Body Chemical Tests Can Be a Crime

Sun, 20 Dec 2015 16:28:00 GMT

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Last week, Liptak wrote an article focused on controversial state laws that make it a crime for motorists suspected of driving drunk to refuse blood, breath or urine tests. Currently, 13 states have such laws.

The Court consolidated three different cases into one: Bernard v. Minnesota, No. 14-1470. In Bernard, William Bernard refused to take a breath test after his arrest for suspected drunk driving. In Minnesota, it is a crime for someone arrested for driving while impaired to refuse to submit to a chemical test of that person's blood, urine or breath to detect the presence of alcohol. Bernard challenged the Minnesota law. In rejecting his challenge to the law, the Minnesota Supreme Court reasoned that because Bernard was arrested, the search of his person was permissible in connection therewith.

Liptak said that the defendants in the consolidated case are being represented by lawyers affiliated with Yale Law School's Supreme Court Clinic. The defendants noted that review of these laws are necessary because they " 'affect many thousands of people every year.' "

SCOTUS Contemplates "One Person, One Vote" and Re-Considers Race in Higher Education Application Process

Tue, 15 Dec 2015 00:57:00 GMT

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Timesjournalist who covers the United States Supreme Court. Last week, Liptak wrote multiple articles on oral arguments before the Court, including on Fisher v. University of Texas, No. 14-981 and Evenwel v. Abbott, No. 14-940. Liptak's article on Fisher may be found here while his article on Evenwel may be found here.

In Fisher, the plaintiff, Abigail Fisher, a white student, alleged that the University of Texas denied her admission because of her race. She challenged the school's admission plan which did not make race a deciding factor, but rather one element in considering the applicant's attractiveness. Liptak noted that based on the justices' "skeptical" questions to the attorneys representing the University of Texas, it appeared that the University's affirmative action plan would be held unconstitutional.

Justice Scalia suggested that minority students with inferior academic credentials might do better at "a less advanced school" or "a slower-track school." Chief Justice Roberts wondered "[w]hat unique perspective does a minority student bring to a physics class?"

Liptak noted that, in particular, Justice Kennedy appeared "frustrated" that the Court had encountered the Fisher case again. After all, in 2013, the Court remanded Fisher back to the United States Court of Appeals for the Fifth Circuit so that it could apply the proper strict scrutiny analysis to the University's plan. However, Fisher made its way back to the Court, where Justice Kennedy opined that "[w]e’re just arguing the same case … as if nothing had happened."

Some of the liberal justices, specifically Justice Breyer, wondered if the Court was about to "kill affirmative action through a death by a thousand cuts."

Justice Kagan recused herself from the case because of her involvement in the case as Solicitor General of the United States.

Also noteworthy was that oral arguments lasted 95 minutes, where a typical case is argued in only 60 minutes.

In Evenwel, Liptak observed that the question presented is what the "one person, one vote" principle means when creating voting districts. Do states and other localities count all residents or merely eligible voters? The current practice is to count all residents.

The case was brought by individuals who were challenging voting districts for the Texas Senate.

Liptak noted that people living in the United States who are ineligible to vote—for example, children and immigrants—usually are concentrated in urban areas which tend to favor Democrats. Meanwhile, rural areas, which tend to favor Republicans, tend to have a higher percentage of eligible voters. Thus, he observed, the resolution of the case has the potential to provide a "big boost to Republican voters in state legislative races in large parts of the nation."

Liptak also observed that the justices' particular political leanings were indicative of whether they thought counting all residents or only eligible voters was proper. During oral arguments, the Court's four Democratic appointees asked questions suggesting that counting all residents was the proper protocol while the Court's five Republican appointees asked questions suggesting that counting just eligible voters was proper.

Chief Justice Roberts opined, "[i]t is called 'one person one vote,' " which "seems designed to protect voters."

Justice Sotomayor differed, stating "[t]here is a voting interest, but there is also a representation interest." Liptak suggested that Justice Sotomayor meant that politicians do not just represent eligible voters, but rather all constituents.

Illinois Supreme Court Adopts New Rules Affecting Appellate Practice

Sat, 12 Dec 2015 14:40:00 GMT

On December 9, 2015, the Illinois Supreme Court announced a series of amendments to the Illinois Supreme Court Rules. A full set of those rule amendments can be found here:

A number of those amendments affect appellate practice, principally in the following ways:

1. New word limits for appellate briefs: The Court amended Rules 341 and 367 to provide word limits for appellate briefs. Practitioners are given the alternative of complying with the new word limits or complying with the pre-existing page limits. The word limits are: 15,000 words for the appellant’s brief and the appellee’s brief; 7,000 words for the appellant’s reply brief; an additional 8,400 words for cross-appellants and cross-appellees; an additional 7,000 words for the cross-appellant’s reply brief; 8,000 words for a rehearing petition and an answer to a rehearing petition; and 3,500 words for a reply in support of a rehearing petition. The amendment will be effective January 1, 2016.

The ALA endorsed the adoption of word limits at the Supreme Court Rules Committee’s public hearing in July, based on our members’ widely shared view that word limits, as opposed to page limits, would encourage practitioners to use more reader-friendly formats and fonts. ALA member Alyssa Reiter has been championing this change for a long time and deserves much credit for paving the way for this development.

The proposal that the Supreme Court adopted today was made by the CBA’s Special Committee on Appellate Practice, which is co-chaired by past ALA Presidents Tim Eaton and Mike Rathsack. ALA Rules Committee member Jon Amarilio also was instrumental in the adoption of this proposal.

2. E-mail service: Rule 11 has been amended to mandate the inclusion of an attorney’s email address on his or her appearance and on “all pleadings filed in court,” and otherwise to streamline the rules governing electronic service. The Court also adopted the ALA’s proposed amendments to Rules 306(b), 307(d)(1) and 307(d)(2), which were intended to clarify that service via e-mail is permitted. This amendment will also be effective on January 1, 2016.

Illinois Supreme Court Adopts New Rule To Protect Personal Information in Documents Before Reviewing Courts

Mon, 07 Dec 2015 13:14:00 GMT

On December 3, 2015, the Illinois Supreme Court adopted a new rule designed to protect personal information in cases before both the Illinois Appellate Court and Illinois Supreme Court. The new rule, Illinois Supreme Court Rule 364, will become effective July 1, 2016. The rule applies to all documents and exhibits filed in civil and criminal cases before Illinois’ reviewing courts.

The rule aims to protect personal identifiers, such as social security numbers, taxpayer-identification numbers, financial account numbers, and debit and credit card numbers. Additionally, the rule was designed to protect the names of juveniles and recipients of mental health services as referenced in Illinois Supreme Court Rule 341(f).

Documents or exhibits filed with such personal identifiers are permissible if the information is redacted. For example, a party may redact the last four digits of a social security or individual taxpayer-identification number, the last four digits of a driver’s license or state identification card number, the last four digits of a financial account number, and the last four digits of a debit and credit card number. For juveniles and recipients of mental health services, generally, the use of the individual's first name and last initial will suffice.

If the filing of documents or exhibits with personal identifiers is required by court order, law or otherwise necessary, the party filing the documents must file a form in substantial compliance with the model form appended to Rule 364. Afterward, the notice and any other attachments will remain under seal and unavailable for public access, except as the court may order. Subsequent documents filed in the case must then only contain redacted personal identifiers and if necessary, appropriate references to the sealed documents containing the unredacted personal identifiers.

In discussing the rule, Chief Justice Rita B. Garman said the "new rule protects the privacy of parties, witnesses, and others involved in cases before the Illinois Supreme Court and the appellate court while ensuring that necessary personal information is available to those with a legitimate reason to access it."

Rule 364 was modeled after Illinois Supreme Court Rule 138, which was adopted in 2012, and aimed to prevent the disclosure of personal information in civil cases in Illinois circuit courts. The Illinois Supreme Court also amended Illinois Supreme Court Rule 612 to apply Rule 364 to criminal appeals.

Rule 364 may be read here.

SCOTUS: Injured Plaintiff Cannot Sue Austrian Railroad Company in American Court For Injuries Occuring in Austria

Fri, 04 Dec 2015 16:23:00 GMT

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. In his most recent article, Liptak noted that the Supreme Court ruled on Tuesday that a California woman injured in a train accident in Austria cannot sue in an American court. The woman lost her legs after trying to board a moving train in Innsbruck. She argued that she should be allowed to sue the railroad in federal court in California because she bought her Eurail pass on the Internet while located in the United States from a travel agent in Massachusetts.

Chief Justice John G. Roberts, writing for the Court, stated that the crucial events all took place in Austria. The United States Court of Appeals for the Ninth Circuit, in San Francisco, allowed the woman to proceed based on the fact that she purchased the Eurail pass in the United States. The Supreme Court disagreed, noting that “the conduct constituting the gravamen of [the woman’s] suit plainly occurred abroad.” The Court found that there was nothing wrongful about the sale of the Eurail pass standing alone. This case, which was the first one argued this term, resulted in a unanimous decision by the Court. The case is OBB Personenverkehr A.G. v. Sachs, No. 13-1067, and can be accessed here.

Chicago-Kent College of Law Wins National Moot Court Competition

Tue, 01 Dec 2015 14:16:00 GMT

During the first week of November, the Association gathers to host its annual moot court competition. Like previous years, this year's competition attracted teams from across the country, ranging from New York to California, and included many teams from Chicago-area schools. Consistent with the Association's goals of promoting excellence and civility in appellate practice, the competition affords law students the opportunity to prepare briefs on novel legal issues and present oral arguments before esteemed jurists in a collegial environment.

This year's problem asked the competitors to argue a complicated issue involving the extraterritorial reach of the Racketeer Influenced and Corrupt Organizations statute. The problem required the students to understand the three different approaches adopted by the federal district courts in answering such an inquiry. On a more practical level, participants were asked to address whether, under Federal Rules of Civil Procedure Rule

11, a letter to an opposing counsel requesting that a frivolous pleading be withdrawn was sufficient to comply with Rule 11's procedural requirements, or whether Rule 11 requires strict compliance and a request for sanctions to be brought in a separate motion.

As in years past, both the final bench and semifinal rounds consisted of a who's who of judges and appellate practitioners. Judge William J. Bauer of the United States Court of Appeals for the Seventh Circuit, Judge Edmond E. Chang of the United States District Court for the Northern District of Illinois, and Judge William E. Holdridge of the Illinois Appellate Court, Third District, presided over the final round. Judges for the semifinal rounds included Judge Maureen E. Connors of the Illinois Appellate Court, First District, Association President and former Illinois Solicitor General Michael Scodro, and former Association president Steven F. Pflaum. Many Association members graciously served as judges for the preliminary rounds.

In the final round, two local schools went toe-to-toe, as Justin Joffe and Matthew Smart of the Chicago-Kent College of Law narrowly bested Patrick Simonaitis, Haley Wasserman, and Michael Ovca of the Northwestern University School of Law. The Association also recognized various individual achievements, including best oralist during the preliminary, semifinal, and final rounds.

The Association congratulates all participants for their hard work and superior advocacy, the Association's Moot Court Committee for organizing the popular competition, and the Association members and others who served as judges.

Dean Daniel Hamilton Enlightens ALA Members and Guests on the Federal Appellate Courts' History

Fri, 20 Nov 2015 02:47:00 GMT

On November 18, 2015, the Association hosted a luncheon at the Union League Club in Chicago featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada-Las Vegas).

Dean Hamilton brought many Association members and guests back to their law school days, as he delivered an educational presentation on the history of the United States and its federal court system. During the late 1700’s and the 1800’s, the United States Supreme Court was not regarded as an equal to the President or Congress. Many Association members and guests were taught that the landmark case of Marbury v. Madison established that Court’s power as the final arbiter on the law and the meaning of the Constitution, but Dean Hamilton noted that academia no longer views the Marbury decision in that light. He said the strength of the Court has always depended upon the will of the people, who at that time viewed the President as more powerful. Had the President publicly criticized that decision, the public would likely have followed the president.

Dean Hamilton also noted that public perception of the Court has grown out of its decisions directed at commerce. Dean Hamilton suggested that there was concern about the public outcry after the Bush v. Gore and Citizens United v. Federal Election Commission decisions. Dean Hamilton believed that Chief Justice John Roberts is currently attempting to recapture some public support for the Court (and its powers) through its recent decisions concerning the Patient Protection and Affordable Care Act.

The ALA thanks Dean Hamilton for a dynamic and enthusiastic luncheon, and all of the guests for their attendance.

January ALA Speaker Adam Liptak Previews Whole Woman’s Health v. Cole - SCOTUS' Newly Accepted Abortion Case

Tue, 17 Nov 2015 04:31:00 GMT

The Association’s upcoming January luncheon will feature Adam Liptak, New York Times reporter who covers the United States Supreme Court. In his Friday article, Liptak noted that the Supreme Court agreed to hear its first major abortion case since 2007, Whole Woman's Health v. Cole, No. 15-274. Many states have enacted restrictions that test the limits of the constitutional right to abortion established in the seminal case of Roe v. Wade in 1973. The Cole case is a challenge to a Texas law that would reduce the number of abortion clinics in the state from 40 to 10. One part of the law requires all clinics in the state to meet the standards for "ambulatory surgical centers," and another part requires doctors performing abortions to have admitting privileges at a nearby hospital. Officials in Texas claimed that the provisions are needed to protect women's health, while abortion providers responded that the regulations are "expensive, unnecessary, and intended to put many of them out of business."

Liptak opined that the "future of abortion rights in the United States probably rests almost entirely in [Justice Anthony M. Kennedy's] hands, given the deadlock on the court between conservatives and liberals." Liptak based this opinion on the fact that Justice Kennedy helped write the controlling opinion in the 1992 case of Planned Parenthood v. Casey, which said states may not place undue burdens on the constitutional right to abortion before fetal viability.

The Cole case, which will likely "produce the term's most consequential and legally significant decision," will probably arrive in June.

January ALA Speaker Adam Liptak Reveals How SCOTUS Chief Justice Roberts Delegates Cases

Thu, 12 Nov 2015 03:58:00 GMT

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Over the years, Liptak has provided unique insight on how the High Court operates behind the scenes, and his most recent article revealed how Chief Justice Roberts assigns opinions to the other Supreme Court justices. A new study, prepared by Harvard Law Professor Richard J. Lazarus, revealed that every justice gets very close to the same number of majority opinions. However, Liptak stated that Chief Justice Roberts “plays favorites” by giving major assignments and unappealing assignments to certain justices “with keen attention to strategy.” Namely, Chief Justice Roberts assigned about a third of the most important opinions to himself, and another third to Justice Kennedy. According to Professor Lazarus, the assignments to Justice Kennedy have a distinct purpose – "to lock in his vote in close cases."

Liptak noted that perhaps the most surprising finding in Professor Lazarus’ study was that Justice Scalia, who joined the court in 1986 and is its longest-serving current member, received the same percentage of assignments in big cases as Justice Alito, who did not join the court until 2006. Lazarus opined that the reason behind this was that Justice Alito was more apt to write opinions of the sort Chief Justice Roberts prefers – “incremental, without rhetorical flourishes, and able to command five votes.” Liptak noted that the special role of Justice Alito was evident when the justices announced the last two decisions of the term on June 30, 2014. The cases, concerning contraception and public unions, were decided by 5-to-4 votes with the Court’s conservatives in the majority. Chief Justice Roberts spoke first stating, “Justice Alito has the opinion of the court in our remaining two cases this morning.”

Dean Daniel Hamilton of the William S. Boyd School of Law to Discuss Federal Appellate Courts' History at ALA Event on November 18

Tue, 10 Nov 2015 16:30:00 GMT

On November 18, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada-Las Vegas). Dean Hamilton will speak about the history of the federal courts of appeal.

Dean Hamilton is an expert on constitutional law, legal history and property law. He joined the faculty at the William S. Boyd School of Law in July 2013 from the University of Illinois College of Law where he was the Associate Dean for Faculty Development and Professor of Law and History. Prior to teaching at the University of Illinois, Dean Hamilton taught at the Chicago-Kent College of Law.

Dean Hamilton graduated with honors from Oberlin College with a degree in history. He then received his J.D. from George Washington University and later obtained a Ph.D. in American legal history from Harvard University.

Dean Hamilton is also an accomplished legal writer. His research and writing interests include American property ideology and various legal and constitutional issues from the Civil War. His work had been published in the Akron Law Review, Chicago-Kent Law Review, Journal of Supreme Court History, Journal of National Security Law, and University of Tulsa Law Review, among many others.

The ALA welcomes all to join Dean Hamilton for an informative and engaging luncheon. For more information and to register, please click here.

Participants will earn one hour of MCLE credit.

ALA Cases Pending Previews Illinois Supreme Court's November Term

Mon, 09 Nov 2015 14:24:09 GMT

The Illinois Supreme Court’s November Term begins today, November 9, 2015, with oral arguments scheduled for Tuesday and Thursday, November 10 and 12, and next Tuesday, November 17. A total of eight cases will be heard – two civil and six criminal. Here are the civil cases with the dates of oral argument:

Jones v. Municipal Employees’ Annuity and Benefit Fund of Chicago, Nos. 119618, 119620, 119638, 119639, 119644 (cons.)—November 17

Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings, No. 117720—November 17

Below are abbreviated summaries for these two cases. Summaries for all other cases currently pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on our website.

CONSTITUTIONAL LAW – PENSION REFORM LITIGATION

Nos. 119618, 119620, 119638, 119639, 119644 (cons.)

Jones v. Municipal Employees’ Annuity and Benefit Fund of Chicago

This appeal concerns the constitutionality of Public Act 98-641 (Public Act), which amended the Illinois Pension Code (40 ILCS 5/8-101 et seq.) (Code) as it pertains to the Municipal Employees’ Annuity and Benefit Fund of Chicago (MEABF) and the Laborers' Annuity and Benefit Fund of Chicago (LABF), which are both public employee pension funds.

The pension funds are funded through contributions made by the employer and the employee as specified in the Code. The Code also provided that upon retirement, the pension funds must make certain benefit payments to the employees based on their salary, age at retirement, and years of service. The Code also provided for an automatic 3% increase in benefit payments each year. The Public Act amended the Code by increasing the contributions required of employers and employees, reducing benefit payments, and eliminating the automatic annual increase entirely for certain years.

Plaintiffs are participants in the pension funds. They filed a lawsuit challenging the constitutionality of the Public Act on the ground that it violates the pension protection clause of the Illinois Constitution (Ill. Const. 1970, art. XIII, § 5), which guarantees that public pension benefits shall not be diminished or impaired. Defendants, including the City of Chicago and the pension funds, argued that because the Public Act imposed new payment obligations on the City that eliminated the potential for insolvency and contained enforcement mechanisms, Plaintiffs actually received a net benefit rather than an unconstitutional diminishment of their benefits. Defendants also argued that because the City and the labor unions negotiated these new terms, the Public Act was a bargained-for exchange rather than a unilateral diminishment of benefits.

The circuit court found that the Illinois Supreme Court’s holding in In re Pension Reform Litigation, 2015 IL 118585, controlled the analysis. As in that case, the circuit court found that the changes to the funding and payment calculations contained in the Public Act were an unconstitutional diminishment of public pension benefits. The circuit court rejected Defendants’ argument that the City’s new payment obligations resulted in a net benefit to Plaintiffs because the funding sources are not constitutionally protected, while pension benefits are. The court also concluded that under the circumstances, the unions did not have the authority to bargain away their members’ individual constitutional rights. Because the Public Act expressly provided for nonseverability, the court held the entire Public Act unconstitutional.

Direct Appeal – Supreme Court Rule 302(a): 7/30/15

ADMINISTRATIVE LAW

No. 117720

Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings

The main issue in this case is whether a corporation is required to be represented by an attorney in administrative hearings.

In 1999, a City building inspector found several building code violations in a building owned by Plaintiff Stone Street Partners, LLC. Rather than mailing a notice of violation and a summons for an administrative hearing to Stone Street’s registered agent or its business address, as required by a City ordinance, the City sent the notice to the property itself. At the hearing, a person named Keith Johnson, a non-attorney, appeared on Stone Street’s behalf. Stone Street claimed that the violations had been cured and submitted a photograph and work order for repairs. The hearing officer found Stone Street liable for various violations and assessed penalties and costs of $1,050. In 2009, the City recorded the court’s judgment with the Cook County Recorder of Deeds. In October 2011, Stone Street moved the Department of Administrative Hearings to vacate the 1999 order, arguing that it never received notice of the 1999 violations. Stone Street also claimed that Johnson was never authorized to represent Stone Street. The Department struck the motion, finding that it lacked jurisdiction to reach the merits because it could only consider vacating default judgments and Johnson’s participation meant that Stone Street had not defaulted, but lost on the merits. Stone Street then filed suit in the circuit court, seeking administrative review of the Department’s 2011 order and a declaratory judgment that the 1999 judgment was invalid. The circuit court dismissed the complaint upon the City’s motion.

The Illinois Appellate Court, First District, affirmed in part, reserved in part and remanded the case for further proceedings. The appellate court found that, ordinarily, vacating judgment after the passage of years was virtually impossible due to the presumptions of validity that apply to the judicial process, but the City had made two critical errors which invalidated the judgment. First, the City served the defendant corporation, not through its registered agent as is required by the City Ordinance, but at its property address. Second, the City’s administrative hearing officer allowed a non-attorney to appear and litigate the case on behalf of the corporation. The appellate court held that the City’s administrative hearings were similar to judicial proceedings as they involved the admission of evidence and the examination and cross-examination of sworn witnesses, and that those actions constituted the practice of law. The appellate court was not persuaded by the City’s argument that these hearings were so inconsequential that corporations need not be represented by licensed attorneys. Representation of corporations at administrative hearings ‑ particularly those which involve testimony from sworn witnesses, interpretation of laws and ordinances, and can result in the imposition of punitive fines ‑ must be made by a licensed attorney at law. The Department correctly determined that it had no jurisdiction to consider Stone Street’s motion to vacate because its jurisdiction was limited to default orders, and the circuit court correctly confirmed that administrative decision on review. The court also held that the complaint and affidavits set forth sufficient facts to support a valid claim based on voidness of the 1999 order, reversed the circuit court’s order dismissing this claim, and remanded the case.

Appellate Court Decision: 2014 IL App (1st) 123654, 12 N.E.3d 691.

PLA Allowed: 09/24/14

Seventh Circuit Joins Two Other Circuits and Holds that NTSB Reports are Not Final and Reviewable

Sat, 07 Nov 2015 02:29:00 GMT

On September 25, 2015, the United States Court of Appeals for the Seventh Circuit held that reports issued by the National Transportation Safety Board (NTSB) are not final orders. In doing so, the Seventh Circuit joined the United States Court of Appeals for the District of Columbia and the United States Court of Appeals for the Ninth Circuit in concluding that such reports do not confer appellate jurisdiction.

In Helicopters, Inc. v. NTSB, No. 15-3028 (7th Cir. 2015), two people were killed in a helicopter crash in Seattle. Helicopters, Inc. (petitioner), an Illinois corporation, owned the helicopter. Pursuant to its statutory duty, the NTSB investigated the circumstances surrounding the incident, as NTSB investigations are used to "ascertain measures" to prevent future incidents. At the end of the investigation, the NTSB publishes a final report that includes factual findings, a probable cause determination, and safety recommendations.

In early September 2015, the NTSB released its factual report outlining the information it had gathered during its investigation, although it had not yet released its probable cause report. Three days later, petitioner sent the NTSB a letter asserting that its factual report omitted significant information, which would render it impossible for the NTSB to reach an accurate determination in its probable cause report. The NTSB responded that it would issue a final accident report which would contain all relevant facts and the probable cause of the accident, and if petitioner disagreed with the final report, it could file a petition for rehearing with the NTSB.

Thereafter, petitioner filed a petition for review with the Seventh Circuit, asking the court to enter a "final judgment" requiring the NTSB to rescind the factual report. To establish jurisdiction, petitioner relied on 49 U.S.C § 1153, which provides federal circuit courts with jurisdiction to review an NTSB "final order."

The Seventh Circuit concluded that it lacked jurisdiction. In so finding, it agreed with the D.C. Circuit and the Ninth Circuit that NSTB factual and probable cause reports are not final orders because they do not create any legal repercussions for the petitioner. Specifically, the Seventh Circuit noted that in Joshi v. NTSB, 791 F.3d 8 (D.C. Cir. 2015), the D.C. Circuit specifically rejected a petitioner's argument that reputational, emotional, or informational harm stemming from a report transformed the report into a final agency order. Thus, the Seventh Circuit rejected petitioner's argument that it would suffer "commercial and reputational harm," opining that the concern was a "practical consequence" as opposed to a legal harm.

Further, the Seventh Circuit relied on the D.C. Circuit's conclusion that the NSTB's denial of a petition for reconsideration was also not reviewable because it was just another stage in the accident investigation procedure and did not impose any legal consequences.

Finally, the Seventh Circuit noted that, if it were to review the report, it would necessarily have to determine whether the factual findings were inaccurate. Therefore, it would be forced to speculate as to whether the future NTSB's probable cause report would be inaccurate.

Recommended Citation: Charlie Ingrassia, Seventh Circuit Joins Two Other Circuits and Holds that NTSB Reports are Not Final and Reviewable, The Brief, (November 6, 2015), http://applawyers-thebrief.blogspot.com/2015/11/seventh-circuit-joins-two-other.html.

Justices Lavin and Mason Share Their Insight on the Finer Points of Writing

Sat, 31 Oct 2015 15:06:00 GMT

On October 28, 2015, the Association gathered at the Union League Club in Chicago to host “The Finer Points of Writing: A View from Both Sides of the Bench” featuring Justices Terrence Lavin and Mary Anne Mason of the Illinois Appellate Court, First District.

ALA President Michael A. Scodro began the event by offering welcoming remarks as ALA members and guests enjoyed lunch. In doing so, President Scodro previewed future ALA events, including the next event in November, featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada – Las Vegas), who will speak about the history of the federal appellate courts.

Justices Lavin and Mason then began their discussion on legal writing. Justice Lavin spoke about his process of drafting an opinion, from the beginning to the end product. He observed the entire process of “brief dissection, record exploration and opinion construction” has been rewarding. Justice Lavin said he has learned a lot since his appointment to the appellate court, including when to tone down an opinion. He explained that when a fellow justice writes, “I concur in the judgment only,” he knows it is time to tone down his writing. Justice Lavin described his “prolixity” as a weakness of his early opinion writing and he now knows that “less is more.”

Briefly changing topics, Justice Lavin spoke highly of oral arguments because of his affinity to engage with the lawyers. However, he admitted that argument seldom changes the outcome of a case.

Justice Mason opened her remarks by stating she is the “luckiest lawyer” because she has a job she loves. She focused her discussion on suggestions to appellate lawyers to improve their briefs. She described brief writing as truly an “art.”

In the nature of the case section of a brief, Justice Mason said this is the party’s first opportunity to tell the justices what is important. She suggested improving this section by including specific facts relevant to the nature of the case, not merely a generic boilerplate paragraph.

Justice Mason moved on to the statement of facts section of a brief. She advised against serial narration of facts. Instead, brief writers should put the reader into the moment of the action and “tell a story.” She also suggested to use the parties’ names in the statement of facts and to avoid at all costs acronyms and the generic “defendant,” “defendant’s mom,” etc. When necessary, an “understandable shorthand” is acceptable. Justice Mason’s most important advice was to make sure that every fact included in the statement of facts could be cited to the record. Justice Mason gave her own initialism for the statement of facts: “AAFF,” or “assiduously avoid fudging the facts.” She also recommended that the appellee avoid a completely new recitation of the facts in its brief. Instead, an appellee should point out what is missing or incorrect about the appellant’s brief. By approaching a statement of facts in this manner, Justice Mason said you can already highlight to the court your opponent’s weaknesses.

In discussing the argument section of a brief, Justice Mason urged the audience to trust the reader to remember the statement of facts and to avoid unnecessarily repeating material. Justice Mason also suggested distinguishing opponents’ cases more succinctly in order to keep the brief focused.

The event concluded with a question-and-answer sessions, with the ALA members and guests having the unique opportunity to ask the Justices questions.

The ALA thanks Justices Lavin and Mason for an informative and enjoyable luncheon, and all of the guests for their attendance and participation.

Supreme Court Amends Rules to Civil Appeals

Wed, 21 Oct 2015 20:42:00 GMT

On October 15, 2015, the Illinois Supreme Court amended three rules applicable to civil appellate practice and procedure. The following is a brief synopsis of those amendments.

The amended Rule 308 extends the time for filing an application for leave to appeal from 14 days to 30 days after the entry of the certified question in the trial court.

The amended Rule 324 now requires the clerk of the circuit court to accept for inclusion in the record any pleading that carries an original filing stamp of the clerk. Additionally, notice of filing must be given to all parties of record.

The amended Rule 335 provides that a petition for review be filed in the appellate court within 35 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of an administrative agency, unless another time period is specifically authorized by the law authorizing review.

ALA Rules Committee Co-Chair John Fitzgerald testified on the ALA's behalf at the public hearing regarding the changes. ALA Rules Committee member Jon Amarilio also participated. Past ALA presidents Tim Eaton and Mike Rathsack testified on behalf of the CBA.

Court Strictly Enforces Rule 59(e) Deadline Against Pro se Litigant

Mon, 19 Oct 2015 21:09:00 GMT

In Robinson v. Sweeny, 794 F.3d 782, 2015 WL 4477987 (7th Cir. 2015), the Court of Appeals for the Seventh Circuit dismissed a pro se litigant’s appeal as untimely based on what the court called a “pitfall” of Fed. R. Civ. P. 59(e) and 6(b)(2).

In this “odd and confused case” (794 F.3d at 783), plaintiff, a prisoner in an Illinois jail, was attacked by a fellow prisoner while in custody. Plaintiff filed a pro se Section 1983 action against the guards and security personnel for failing to protect him. The district court granted summary judgment in favor of the defendants.

Two days before plaintiff’s deadline to file a Rule 59(e) motion, plaintiff moved to extend the deadline to file such a motion, unaware that under Rule 6(b)(2), that deadline could not be extended. Plaintiff then missed the deadline to file a Rule 59(e) motion.

Nonetheless, the district court ruled a month later that, although it could not extend plaintiff’s deadline to file a Rule 59(e) motion, it would treat plaintiff’s motion for an extension as a timely filed Rule 59(e) motion and ordered plaintiff to supplement that motion with substantive grounds for relief. When plaintiff failed to supplement, the court denied the “Rule 59(e)” motion. Twelve days after that ruling, plaintiff filed another such motion, which the district court construed as a Rule 60(b) motion and denied. Plaintiff then filed a notice of appeal.

In an opinion authored by Judge Posner, the Seventh Circuit dismissed the appeal as untimely. The court noted that, while a “proper and timely Rule 59(e) motion freezes the time for appeal until the judge decides the motion,” the plaintiff’s Rule 59(e) motion was not proper. The court explained that the plaintiff “missed the 28-day deadline for making a genuine Rule 59(e) motion and therefore could obtain no relief under that rule.” Id. Noting that procedural rules apply with equal rigor to pro se litigants (id. at 784), the court nonetheless lamented that no one had explained the hard deadline to the plaintiff. The court suggested that in the future, district courts should take care to advise pro se litigants of “the options and associated deadlines for reconsideration or appeal of the judgment.” Id.

Recommended Citation: Charles E. Harper and Daniel Lewin, Court Strictly Enforces Rule 59(e) Deadline Against Pro se Litigant, The Brief (October 19, 2015), http://applawyers-thebrief.blogspot.com/2015/10/court-strictly-enforces-rule-59e.html.

ALA Updates Cases Pending Resource

Fri, 16 Oct 2015 12:17:00 GMT

The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated volume provides information on cases currently pending in and recently decided by the state's high court through October 14, 2015. Complete access to Cases Pending is complimentary with an ALA membership.

Appellate Court Justices to Share Tips on Legal Writing at Next ALA Luncheon

Tue, 13 Oct 2015 15:46:00 GMT

On October 28, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Justices Terrence Lavin and David Ellis of the Illinois Appellate Court, First District. Justices Lavin and Ellis will discuss the finer points of legal writing, as well as the importance of writing in the legal profession.

Justices Lavin and Ellis will bring their perspectives on writing from both the judiciary's perspective and their experience in private practice before joining the bench.

Justice Lavin was a civil litigator for 27 years prior to his appointment as a Justice of the Illinois Appellate Court. Justice Lavin also taught legal writing to third-year law students at the Chicago-Kent College of Law for nine years. Additionally, Justice Lavin has published more than 50 articles on civil trial practice.

Justice Ellis was an experienced commercial and constitutional law litigator before being elected to the Illinois Appellate Court. In addition to his legal writing background, Justice Ellis is an award-winning author, publishing more than 10 novels.

The ALA welcomes all to join Justices Lavin and Ellis for an informative and engaging luncheon. For more information and to register, please click here.

Participants will earn one hour of MCLE credit.

Professor David Strauss Previews United States Supreme Court Term at ALA Luncheon

Thu, 08 Oct 2015 11:00:00 GMT

The Association recently kicked off the bar year with a luncheon featuring Professor David Strauss of the University of Chicago Law School. Held on October 1, 2015, at the Union League Club in Chicago, attendees earned valuable CLE credit as Professor Strauss provided keen insight on significant cases the Supreme Court will decide this term.

ALA President Michael A. Scodro opened the luncheon by welcoming ALA members and guests, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, and the Illinois Appellate Court.

Thereafter, Professor Strauss—who has argued 18 cases before the High Court and also serves as co-editor of the Supreme Court Review—began his remarks by noting that, while the upcoming term may not involve a once-in-a-lifetime decision, the Supreme Court will address many significant issues. Of note, the Court will hear two seemingly repeat cases from recent terms.

In Fisher v. University of Texas at Austin, 14-981, the justices will once again consider affirmative action in university admissions under the equal protection clause and the Fourteenth Amendment. In Friedrichs v. California Teachers Association, 14-915, the Supreme Court will again take up the issue of whether mandatory public sector union dues violate the First Amendment. Professor Strauss commented that it is unusual for the Court to revisit issues from previous terms, but cautioned that it could not serve as a prediction for how the Court will ultimately rule.

Professor Strauss also discussed the Supreme Court’s decision to address the one-person, one-vote doctrine under the equal protection clause. In Evenwel v. Abbott, 14-940, the justices will decide whether the doctrine is based on total population, or must be based on total voter population, when apportioning state legislative districts. Professor Strauss noted that the case could have major political implications, as non-citizens historically tend to congregate toward urban areas.

Professor Strauss closed the luncheon with a question-and-answer session. In doing so, Professor Strauss agreed with a questioner that the Supreme Court appears to be more willing to take a case from the top down, that is, use concurring and dissenting opinions to signal to the bar that an issue is ripe for review.

The Association thanks Professor Strauss for his engaging and insightful comments.

ALA President Mike Scodro Discusses Illinois Supreme Court in Chicago Daily Law Bulletin

Thu, 01 Oct 2015 02:00:00 GMT

The September 29, 2015 issue of the Chicago Daily Law Bulletin (accessible at the Law Bulletin's website through a paywall subscription) featured a front page story on the unanimous nature of a large percentage of opinions issued by the Illinois Supreme Court, particularly in civil appeals. The article noted that, according to some court watchers, 86 percent of recent opinions were unanimous.

The story quoted ALA President Michael A. Scodro, former Illinois Solicitor General and currently of Jenner & Block LLP. Scodro noted that unanimous decisions present the state high court with the opportunity to speak "with one voice," which is particularly helpful in cases where lawyers or the public predict a fractured court. The story also quoted past ALA President J. Timothy Eaton, who shared his belief that the supreme court strives to be unanimous on interpretation of both common law and statutory law "so practitioners in the state can know what to expect."

New Issue of Cases Pending Highlights Court's September 2015 Term

Fri, 18 Sep 2015 10:58:00 GMT

As a reminder, ALA members enjoy complimentary and exclusive access to Cases Pending, a publication that provides extensive information on cases currently pending before the Illinois Supreme Court. Edited by ALA Treasurer Clare Quish (pictured on left) and former ALA Director Gretchen Sperry (pictured on right), Cases Pending can be accessed at the Association’s website.

The Illinois Supreme Court’s September Term that began Monday, September 14, 2015, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, September 15-17, 2015, and next Tuesday, Wednesday, and Thursday, September 22-24, 2015. A total of 22 cases will be heard – 9 civil and 13 criminal.

Here are the civil cases with the dates of oral argument:

Commonwealth Edison Co. v. Illinois Commerce Commission, No. 118129—September 17

The Board of Education of the City of Chicago v. The Illinois Educational Labor Relations Board, Nos. 118043, 118072 (cons.)—September 22

The State of Illinois v. American Federation of State, County and Municipal Employees, No. 118422—September 23

Petrovic v. The Department of Employment Security, No. 118562—September 23

Blumenthal v. Brewer, No. 118781 – September 23

Christopher B. Burke Engineering, Ltd. v. Heritage Bank of Central Illinois, No. 118955 – September 23

1010 Lake Shore Association v. Deutsche Bank National Trust Co., No. 118372—September 24

People of the State of Illinois ex rel. Patrick McGuire v. Cornelius, No. 118975—September 24

Bowman v. Ottney, No. 119000—September 24

To read previews for two of these cases, please continue reading this post.

The Court will hear several cases of interest this term, including Blumenthal v. Brewer, which involves property rights for same-sex domestic partners, and a case addressing the State’s obligation to pay increased wages under a collective bargaining agreement although the legislature did not appropriate sufficient funds to do so. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

UNJUST ENRICHMENT – SAME-SEX DOMESTIC PARTNERS

No. 118781

Blumenthal v. Brewer

The issue in this case is whether the Appellate Court properly disregarded the 1979 Illinois Supreme Court case of Hewitt v. Hewitt, 77 Ill. 2d 49 (1979) and permitted claims for implied contract arising out of the parties’ non-marital cohabitation to proceed.

The parties in this case are two same-sex partners who were involved in a long-term relationship of 26 years. During that time, the parties raised several children together and “intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship.” Upon the dissolution of their relationship, the plaintiff sued to partition a home she jointly owned with the defendant. The defendant counterclaimed, alleging that she was entitled to a portion of the parties’ jointly acquired assets under theories of constructive trust, unjust enrichment, and quantum meruit. Relying on our Supreme Court’s decision in Hewitt, which prohibited such claims between unmarried cohabitants, the trial court dismissed the defendant’s counterclaims and she appealed.

The Illinois Appellate Court, First District, found that much of Hewitt’s underlying authority had been abandoned or superseded, noting that subsequent amendments to the Illinois Parentage Act of 1984 (750 ILCS 45/3 (West 2012)), the Illinois Probate Act (755 ILCS 5/2-2 (West 2012)), and the Illinois Pension Code (40 ILCS 5/1-104.2 (West 2012)) have extended certain rights to the children of unmarried parents, implicitly signaling a shift in Illinois public policy away from disfavoring such relationships. Accordingly, the First District reversed the trial court’s dismissal of the defendant’s counterclaims for equitable relief and remanded with instructions to consider the plaintiff’s remaining arguments regarding the sufficiency of those claims.

In her petition for leave to appeal, the plaintiff argues that the First District acted beyond its jurisdiction by refusing to follow Hewitt, and further reinstated the concept of common-law marriage by potentially affording rights previously only available to married parties (such as the right to an equitable division of property pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503 (West 2012)) to the litigants below.

Appellate Court Opinion: 2014 IL App (1st) 132250, 24 N.E.3d 168. McBride, J. with Gordon and Reyes, J.J., concurring.

PLA Allowed: 03/25/15

ARBITRATION

No. 118422

State of Illinois v. American Federation of State County & Municipal Employees, Council 31

The issue in this case is whether section 21 of the Public Relations Act (5 ILCS 315/21 (West 2012)) (the “Act”) requires the State to spend more than $52 million in public funds pursuant to an arbitration award without a legislative appropriation.

In 2008, the Illinois Department of Central Management Services (“CMS”), on behalf of several state agencies, and the American Federal of State County & Municipal Employees, Council 31 (“AFSCME”), on behalf of employees at the state agencies, entered into a collective bargaining agreement that provided, among other things, for scheduled wage increases in each year of the agreement. After the State budget for fiscal 2012 did not include appropriations sufficient to cover the wage and salary amounts provided in the agreement, CMS suspended scheduled wage increases for that year. An arbitrator ruled that the State was obligated to pay the increases and the circuit court affirmed in part, but postponed full enforcement until the legislature appropriated additional funds. Both parties appealed. The Illinois Appellate Court, First District, held that the Act required immediate payment regardless of whether the funds were appropriated.

The State argues that the Appellate Court disregarded the Appropriations Clause of the Illinois Constitution (Ill. Const. 1970, art. VIII, § 2(b)) by holding that a statutory contracting authority is not limited to the amount of actual legislative appropriations. It argues that this holding is in conflict with Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465 (1987); People ex rel. Board of Trustees of University of Illinois v. Barrett, 382 Ill. 321 (1943); Cook County v. Ogilvie, 50 Ill. 2d 379 (1972); and American Federation of State, County and Municipal Employees, AFL-CIO v. Netsch, 216 Ill. App. 3d 566 (4th Dist. 1991) (per curiam).

Appellate Court Opinion: 2014 IL App (1st) 130262, 19 N.E.3d 1127. Neville, J., with Simon, P.J., and Pierce, J., concurring.

PLA Allowed: 03/25/15

Appellant Counsel: Lisa Madigan, Attorney General of State of Illinois, Carolyn E. Shapiro, Solicitor General, Richard S. Huszagh, Assistant Attorney General, 100 West Randolph Street, 12th Floor, Chicago, Illinois 60601, (312) 814-2587.

Watch "Unexpected Justice: The Rise of John Paul Stevens" This Weekend on WTTW

Wed, 16 Sep 2015 03:22:00 GMT

"Unexpected Justice: The Rise of John Paul Stevens," is a documentary about the historic 1969 investigation of a bribery scandal in the Illinois Supreme Court. The investigation, led by then-attorney John Paul Stevens, was a remarkable chapter in the history of the Chicago bar and was a catalyst for Stevens' judicial career.

The film will be broadcast on WTTW, the PBS station in Chicago, on Friday, September 18th at 7:30 p.m. and on Sunday, September 20th at 5:30 pm.

The ALA thanks Butler Rubin Saltarelli & Boyd LLP, which generously funded the "Illinois Justice" Documentary Film Project.

To view a short clip of the film, click here.

University of Chicago Law Professor David Strauss to Speak at ALA October Luncheon

Sun, 13 Sep 2015 01:20:00 GMT

On October 1, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Professor David Strauss of the University of Chicago Law School. Professor Strauss, who has argued 18 cases before the United States Supreme Court and is co-editor of the Supreme Court Review, will share his insight on the High Court's upcoming term, which begins in October.

The ALA welcomes all to join Professor Strauss for an informative and engaging luncheon. For more information and to register, please click here.

Mere Involvement of a Foreign Government Does Not Fulfill the “Collateral Order” Criteria for an Interlocutory Appeal

Sun, 06 Sep 2015 01:07:00 GMT

Under the “collateral order” doctrine, a non-final district court order may be appealable despite the “final order” requirement of 28 U.S.C. § 1291, if certain criteria are met. In general, the order must be conclusive; it must resolve an important issue apart from the merits; and it must be effectively unreviewable on an appeal in the underlying action.

In United States of America v. Sinovel Wind Group Co., Ltd., 2015 U.S. App. LEXIS 12694 (7th Cir. July 23, 2015), the Seventh Circuit Court of Appeals rejected application of the collateral order doctrine and found that an appeal by a partially owned Chinese corporation lacked jurisdiction. The court also rejected use of a mandamus to obtain appellate review.

In June of 2013, the United States Department of Justice attempted to serve Sinovel Wind Group Company (“Sinovel”), a Chinese corporation with 18% government ownership, with a criminal summons, by serving its wholly owned U.S. subsidiary, Sinovel USA, in Texas. The summons revealed that Sinovel had been indicted in the Western District of Wisconsin for criminal copyright infringement and trade secret theft involving computer software.

Sinovel specially appeared in district court to file a motion to quash service of the summons, complaint and indictment for lack of personal jurisdiction under applicable federal criminal rules. It contended that service on Sinovel USA was not the equivalent to service on Sinovel itself. Id. at *4. The district court found that Sinovel USA was the alter ego of Sinovel and denied the motion. Id. Sinovel filed a notice of appeal in September of 2014. It also filed a petition for writ of mandamus directly with the Seventh Circuit.

In an opinion authored by Chief Judge Diane P. Wood, the Seventh Circuit dismissed the appeal and denied the writ of mandamus. She first addressed appealability, noting that the order appealed from was not “final” for purposes of 28 U.S.C. § 1291. After outlining the parameters of the collateral order doctrine, she turned to Sinovel’s arguments for why the district court order should be treated as a collateral order.

Sinovel basically argued the importance of the district court ruling based upon the Chinese government’s partial ownership. It further contended that the order was practically unreviewable, at least until conclusion of the criminal proceeding, and that prosecution of the case could imperil foreign relations.

Chief Judge Wood pointed out, however, that litigants routinely raise personal-jurisdiction objections that are not reviewable until after the merits of the litigation have been resolved. She further noted that special rights for foreign-government-owned corporations are not triggered under the Foreign Sovereign Immunities Act unless the foreign government owns a majority interest.In addition, she observed that the fact that the Executive Branch, through the U.S. Department of Justice, had made the decision to prosecute the case constituted adequate consideration of the impact on foreign relations.

Ultimately, Chief Judge Wood found that the district court’s jurisdiction decision was not unreviewable after final judgment, and that the appeal therefore lacked jurisdiction.

Some of these considerations overlapped with Wood’s evaluation of the petition for the writ of mandamus. She noted, for example, that such writs do not issue unless the petitioner has no other adequate remedy and has demonstrated a “clear and indisputable” right to the relief sought. Wood ultimately found that no compelling reason for immediate action existed here and that Sinovel would have an adequate remedy in an appeal after final judgment.

Accordingly, the court dismissed the appeal and denied the petition for a writ of mandamus.

Recommended Citation: Don R. Sampen, Mere Involvement of a Foreign Government Does Not Fulfill the “Collateral Order” Criteria for an Interlocutory Appeal, The Brief (September 5, 2015), http://applawyers-thebrief.blogspot.com/2015/09/mere-involvement-of-foreign-government.html#more.

ALA President Michael Scodro to Speak at Seventh Circuit Bar Association Seminar

Mon, 31 Aug 2015 03:03:00 GMT

On September 25, 2015, the Seventh Circuit Bar Association will sponsor a program offering insight on how to successfully practice before the United States Court of Appeals for the Seventh Circuit. The all-day seminar will feature judges from the Seventh Circuit - including Chief Judge Diane P. Wood and Judges William J. Bauer, Richard A. Posner, Frank H. Easterbrook, and Michael S. Kanne - as well as appellate practitioners who regularly appear before the court. The program will offer presentations and panel discussions on a variety of topics related to appellate practice and procedure, including electronic case filing, motions practice at the Seventh Circuit, and the importance of standards of review, among others.

Of note, ALA President Michael A. Scodro, former Illinois Solicitor General and currently of Jenner & Block, will speak on legal writing. Current Illinois Solicitor General Carolyn Shapiro will interview Judge Posner; and ALA member Mary Welsh, also of the Illinois Attorney General's office, will speak on the responsibilities of counsel when an adversary appears pro se.

The ALA encourages its members to attend the seminar, which will take place at The John Marshall Law School in Chicago. For more information and to register, please click here.

Condominium Property Act Allows a Right of Action for Post-closing Conduct

Wed, 05 Aug 2015 02:49:00 GMT

The Second District considered whether a failure to provide the requisite disclosures under section 22.1 of the Condominium Property Act gives rise to a right of action where the failure to disclose is discovered post-closing. D’Attomo v. Baumbeck, 2015 IL App (2d)140865. The court held that such a right of action does exist for post-closing conduct because to find otherwise would nullify the intended purpose of section 22.1 of the Act.

The plaintiffs in D’Attomo purchased a condominium unit from the defendant in June 2013 which they intended to lease until they retired and sold their existing residence. D’Attomo, 2015 IL App. (2d) 140865, ¶ 4. The plaintiffs made a “22.1 Disclosure” request seeking copies of the condominium declarations, by-laws, budget, financial statements and board meeting minutes. Id. The defendant seller (Baumbeck) provided the plaintiffs with a copy of the 2002 Declarations, which expressly permitted the unit owners to lease their respective units. Id. ¶ 5. The defendant, a member of the association board, did not provide the plaintiffs with notice of a 2010 amendment to the 2002 Declarations that included a Rental Limitations that precluded owners from leasing their individual units. Id.¶ 7. The defendant voted against this amendment in his capacity as a board member and so was aware of the change in the rules. Id.The plaintiffs discovered the 2010 amendment after the sale closed. Id. They were forced to terminate a prospective lease and sell the unit. Id. They then filed suit against the defendant in his capacity as the seller, as a member of the board. The plaintiffs also sued the board and the association. Id. ¶ 8.

The counts against the defendant seller alleged a violation of section 22.1 of the Act, breach of contract, breach of the implied covenant of good faith and fair dealing, fraudulent concealment, fraudulent misrepresentation, breach of fiduciary duty and constructive fraud. The latter two counts were directed against the defendant in his capacity as a board member. The plaintiffs alleged breach of fiduciary duty and constructive fraud against the board and the association. Id. ¶¶ 8-14.

The board and association filed a section 2-615 motion to dismiss the counts against them arguing that they owed no fiduciary duty to the plaintiffs because they were not owners until after the closing and no fiduciary duty could have existed until that time. D’Attomo, 2015 IL App (2d) 140865, ¶ 15. The trial court granted the motion to dismiss the counts against the board and the association without prejudice and with leave to re-plead on February 27, 2014. Id. ¶ 16.

The defendant seller filed a separate motion to dismiss the counts against him under section 2-619(a)(9). D’Attomo, 2015 IL App (2d) 140865, ¶ 17. The defendant argued there was no cause of action under section 22.1 of the Act for post-closing conduct and that plaintiffs otherwise failed to timely request the documents to be able to trigger application of the Act. He further argued that there was no breach of contract claim absent a timely request for a 22.1 disclosure and there is otherwise no cause of action for breach of the implied warranty of good faith and fair dealing. He next contended that the fraudulent concealment and misrepresentation claims failed as both theories were premised on implied obligations. He also claimed that the fiduciary duty and constructive fraud claims based on his status as a board member failed because no fiduciary duty was owed to the plaintiffs until after the closing, the alleged failure to disclose occurred pre-closing and he was no longer a member of the board at that time. Id. ¶ 18.

The trial court granted the defendant’s motion and dismissed the complaint against him in its entirety with prejudice on April 24, 2014. The order stated that it was final and appealable. A motion to reconsider was denied on August 5, 2015. This order stated that the April 24, 2014 order statement regarding finality was intended to be a Rule 304(a) finding. Id. ¶ 19. The plaintiffs then appealed from both the February 27 and April 24 orders.

The appellate court first determined that it had no jurisdiction to review the February 27, 2014 order dismissing the complaint as to the board and the association. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 22-28. The court observed that the February 27 dismissal was without prejudice which indicated it was not final. Id. ¶ 24. This much was confirmed by the trial court’s statements to the plaintiffs allowing them leave to re-plead. Id. ¶ 26. Finally, the fact that Rule 304(a) language attached to the April 24 order did not affect the non-appealability and non-finality of the February 27 order because there was no reference to the dismissal of the board or association, parties who were dismissed via a separate motion. Id. ¶ 27. The record also showed that the Rule 304(a) language was invoked because the defendant filed a fee petition. Id. The court then turned to the merits of the plaintiff’s appeal from the order dismissing the counts against defendant seller. Id. ¶ 30.

The court first examined section 22.1 of the Act and noted that its purpose was to fully inform condominium purchasers from buying a unit without being fully informed of the rules, regulations and financial stability of the management. D’Attomo, 2015 IL App (2d) 140865, ¶ 34. Adopting the reasoning set out in Nikolopulos v. Valaudos, 245 Ill. App. 3d 71 (1993), the court concluded that a right of action exists where the requested documents were concealed and the concealment is not revealed until after the closing. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 35-38. The court acknowledged that Nikolopulos considered pre-closing conduct but found that the reasoning in that case applied equally to post-closing conduct. To conclude otherwise would render section 22.1 ineffective. Id. ¶¶ 38-39. In so concluding, the appellate court rejected the defendant’s argument that the Act’s reference only to pre-closing remedies precluded a recognition of a post-closing remedy. Id. ¶¶ 43-44. The court also rejected the defendant’s timeliness argument, finding he waived that objection by formally responding to the plaintiff’s 22.1 disclosure request. Id. ¶ 45.

As for the breach of contract claim, the court found that, because the obligations to provide full disclosure under section 22.1 of the Act were incorporated into the contract to sell the condominium unit as a matter of law, the defendant’s failure to disclose the 2010 amendment and Rental Limitation could support a breach of contract claim. Id. ¶¶ 49-52. The court, however, agreed with the defendant that there was no independent cause of action for the breach of the implied covenant of good faith and fair dealing. Id. ¶ 53.

The court next affirmed dismissal of the fraudulent concealment counts citing the absence of a fiduciary relationship between the defendant and the plaintiffs. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 57-60. The court reasoned that, because the first element of a fraudulent concealment claim requires proof of concealment when there is a duty to speak, a fiduciary or confidential relationship must exist for that duty to speak to arise. Id. ¶ 59. The court observed that, although the plaintiffs alleged that the defendant had a duty to disclose under section 22.1 of the Act, there were no allegations that the defendant was the plaintiff’s fiduciary or in a position of superior influence over them. Id. ¶ 60. To the contrary, the plaintiffs could have discovered the 2010 amendment through their own reasonable inquiry, which was another basis to support a dismissal of this count. Id. The fact that the plaintiffs did not allege that they could not have discovered the 2010 amendment through their own reasonable inquiry also defeated the fraudulent misrepresentation count. Id. ¶ 61.

Finally, the court affirmed dismissal of the breach of fiduciary duty and constructive fraud counts against the defendant in his capacity as a board member because no fiduciary relationship with the plaintiffs could have existed until after the closing at which time the defendant was no longer a member of the board. D’Attomo, 2015 IL App (2d) 140865, ¶¶ 67-74. While the plaintiffs alleged both pre and post-sale misconduct, the failure to disclose happened pre-sale before a fiduciary duty could have arisen. Id. ¶ 67. Similarly, since constructive fraud “springs” from a breach of fiduciary duty, that claim was also properly dismissed because no such duty existed when the concealment occurred. Id. ¶ 73-74.

The court reversed the dismissal of the section 22.1 claim and the breach of contract count, affirmed dismissal of the remainder of the complaint as to the defendant seller and remanded for further proceedings. D’Attomo, 2015 IL App (2d) 140865 ¶ 76. The appeal from the order dismissing the board and the association was dismissed.

Recommended Citation: Rosa M. Tumialán, Condominium Property Act Allows a Right of Action for Post-closing Conduct, The Brief, (August 4, 2015), http://applawyers-thebrief.blogspot.com/2015/08/condominium-property-act-allows-right.html#more.

Court Warns Litigants to Address Errors in District Court Final Orders Below

Thu, 23 Jul 2015 10:58:00 GMT

In Bell v. Taylor, No. 14-3099 (7th Cir. June 29, 2015), the Court of Appeals for the Seventh Circuit admonished litigants that, rather than embarking on a lengthy appellate process and risking dismissal for lack of appellate jurisdiction, they should bring inadvertent errors in district courts’ final judgment orders first to the attention of a district court judge, so that the errors may be promptly corrected. In Bell, the Seventh Circuit dismissed for lack of appellate jurisdiction an appeal in a copyright infringement case, where the district court’s purported final judgment order failed to address the copyright owner’s outstanding request for declaratory and injunctive relief. Id. at 7-8.

In Bell, a copyright owner brought an action against three Indiana businesses for the unauthorized use of his photograph, featuring a daytime Indianapolis skyline, on their websites. Id. at 2-3. While recognizing the plaintiff’s legitimate ownership of copyright in the image, the district court nonetheless dismissed, on summary judgment, all claims against the defendants and entered final judgment against the plaintiff. See Bell v. Taylor, No. 13-cv-798, 2014 WL 4250110 (S.D. Ind. Aug. 26, 2014). The court ruled that, with respect to a computer repair company’s website, the plaintiff failed to state a cause of action under Rule 12(b)(6) because he attached the wrong photograph to his complaint, that is, the website used an image of a nighttime Indianapolis skyline, not the daytime skyline. Id. at *3. With respect to an insurance agent’s website, the court ruled that the plaintiff could not establish damages because the website generated no traffic and was swiftly shut down. Id. at *4. Even though the real estate agent’s website displayed the copyrighted image, without permission, between 2009 and 2011, the court ruled that the plaintiff could not establish a causal link between the agent’s gross revenues and the unauthorized use of the image, and thus could not show damages. Id. at *5. The district court then entered a purported “final judgment” order, which Bell appealed to the Seventh Circuit under 28 U.S.C. §1291 governing appeals from all final decisions of the district courts.

In a unanimous decision, the Seventh Circuit dismissed the appeal for lack of appellate jurisdiction and remanded to the district court. Bell v. Taylor, No. 14-3099 (7th Cir. June 29, 2015). The Seventh Circuit ruled that the district court’s ruling on summary judgment was not final because it did not resolve Bell’s claim for injunctive relief. Id. at 5. The Court pointed out that, because defendants sought summary judgment only on the issue of damages, the district court did not have a chance to decide whether Bell’s claim warranted injunctive relief. Id. Accordingly, Bell’s copyright claim “was still alive” and there was no final judgment for purposes of 28 U.S.C. §1291. Id. at 6.

Defendants argued that the issue of injunctive relief was moot because they had already removed Bell’s photos from their websites. Id.at 8 fn. 1. The Seventh Circuit, however, declined to address the mootness issue in the absence of a final judgment from the district court. Id.

The Seventh Circuit pointed out that the case did not have to go through a lengthy appeal process, which lasted almost nine months, to correct the district court’s error. Id. at 7. The Federal Rules of Civil Procedure 60(a) and 60(b) were available to the plaintiff to bring the error to the district court’s attention, as they authorize district courts to correct orders entered by “oversights,” “mistake,” and “inadvertence.” But Bell neglected to bring the error to the district court’s attention, instead opting to address it before the Seventh Circuit. Id.

Alternatively (and even though not mentioned by the Seventh Circuit), Rule 54(b) was available to the plaintiff to pursue an appeal from a final judgment as to one or more, but fewer than all, claims or parties, upon the district court’s express finding that there was no just reason to delay the appeal. Instead of utilizing various procedural vehicles to either correct the error below or to pursue an appeal from a part of the final judgment order, the plaintiff chose to press with an appeal from a defective order, which resulted in a waste of the parties’ and judicial resources.

Recommended Citation: Irina Y. Dmitrieva, Court Warns Litigants to Address Errors in District Court Final Orders Below, The Brief (July **, 2015), http://applawyers-thebrief.blogspot.com.

Scribes Awards Luncheon Coming to Chicago

Sat, 18 Jul 2015 13:45:00 GMT

On August 1, 2015, Scribes, The American Society of Legal Writers, will host its annual awards luncheon in Chicago during the American Bar Association's annual meeting. The luncheon will be held at the Swiss ô tel, and Brian A. Garner, editor-in-chief of Black'sLaw Dictionary and author of several books on legal writing, will give thekeynote address. Garner will also present the Scribes Lifetime Achievement Award to Lord Woolf, who was the Lord Chief Justice of England and Wales from 2000 until 2005. Among his many contributions to the art of legal writing, Lord Woolf authored the Woolf Reforms, which has simplified the legal vocabulary in the United Kingdom.

Also during the luncheon, Justice Michael B. Hyman of the Appellate Court, First District, will be installed as president of the Scribes organization.

For more information and to register, please click here.

Illinois Supreme Court to Conduct Public Hearing on Proposed Rule Changes

Fri, 10 Jul 2015 01:40:00 GMT

On Wednesday, July 22, 2015, the Illinois Supreme Court will conduct a hearing in Chicago regarding changes to its Rules. This hearing, which is open to the public, will take place at 10 a.m. in Room C-500 of the Michael A. Bilandic Building at 160 N. LaSalle Street. The proposed amendments must be approved by the Illinois Supreme Court before they can take effect. Those rules pertaining to appellate practice include the following:

The proposed amendment to Rule 308 seeks to extend the time for filing an application for leave to appeal from 14 days to 30 days after the entry of the certified question in the trial court.

The proposed amendment to Rule 324 seeks to require the clerk of the circuit court to accept for inclusion in the record any pleading that carries an original filing stamp of the clerk and that notice of filing be given to all parties of record.

The proposed amendment to Rule 335 seeks to provide that a petition for review be filed in the appellate court within 30 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of an administrative agency.

The proposed amendment to Rule 341 seeks to limit appellant and appellee briefs to no more than 14,000 words, instead of the current 50-page limit. Briefs from cross-appellants and cross-appellees would be similarly changed from a page limit to a word count.

The proposed amendment to Rule 345 seeks to prohibit briefs of amicus curiae submitted in support of petitions for leave to appeal to the Illinois Supreme Court.

For more information, please see the official notice of the hearing or visit the Supreme Court's website.

Attorney General Administers Oath of Office to New ALA President Michael Scodro

Tue, 07 Jul 2015 01:11:00 GMT

On June 11, 2015, the Association installed Michael Scodro, former law clerk for Justice Sandra Day O'Connor of the United States Supreme Court, former Illinois Solicitor General, and current partner at Jenner & Block LLP, as its 48th President. Held at the Union League Club in Chicago, the luncheon was a festive occasion that also celebrated outgoing President Steven F. Pflaum's many accomplishments over the prior bar year; and featured the Installation of Clare J. Quish as the the Association's new Treasurer, and Don. R. Sampen, Elizabeth Butler, Kimberly Jansen, and Beth A. Bauer as Directors.

Outgoing president Steven F. Pflaum opened the luncheon by welcoming the many distinguished guests in attendance, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Cook County Circuit Court. Also in attendance were eight judges from the Republic of Gabon, including the equivalent of that country's Chief Justice. Finally, Pflaum recognized some very special guests - Michael Scodro's family, including his wife, Tracey, and their children, as well as Scodro's former boss, Illinois Attorney General Lisa Madigan.

President Pflaum then recapped the many successes over the past year, including unique luncheons that covered a wide-ranging topics germane to appellate advocacy and writing, and the ALA's commitment to improving the administration of justice. Pflaum noted that the Association had established an exploratory committee to help assist pro se parties on appeal in the First Appellate District and that the Association had implemented a program focused on playing a constructive role in reforming how reviewing court jurists in Illinois are selected. In his closing remarks as president, Pflaum noted that Michael Scodro was both incredibly accomplished and down to earth, and that he always brings out the best in people.

Thereafter, Attorney General Madigan administered the oath of office. In introducing President Scodro, the Attorney General noted that his resume is "triple platinum" and that his talents match his credentials. The Attorney General recalled that President Scodro served as a zealous appellate advocate, and that he argued the most complex cases before the highest courts. Most important, the Attorney General noted, is that, in addition to his many talents, President Scodro is "incredibly down to earth."

After being sworn in, President Scodro thanked past President Pflaum and the Attorney General, and also thanked his family. In doing so, President Scodro recalled some pithy advice that his son, who was then 7 years old, shared as Scodro prepared for an oral argument before the United States Supreme Court: "Dad, don't screw this up."

President Scodro shared his vision for the upcoming bar year. Scodro noted that the Association is an intimate bar group with members who are dedicated to the craft of appellate advocacy. The Association and its members continue to strive for creative ways to hone their unique skills and to also improve the system. Toward that end, the Association will continue to host many informative events throughout the state focusing on appellate practice and procedure; continue its commitment to improving the system by reaching out to law students and helping pro se litigants navigate the system; and continue to learn from our colleagues on the bench and

First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal

Fri, 19 Jun 2015 10:43:00 GMT

In In re Estate of York, 2015 IL App (1st) 132830, the Illinois Appellate Court, First District, cautioned litigants to “adhere to appellate filing deadlines, to timely file requests for extensions of time with good cause shown, and to specify all grounds of appeal in the notice of appeal.” Id. ¶ 1. The court ultimately took the case on the appellant’s brief alone, dismissed the appeal for lack of jurisdiction, and remanded for further proceedings. Id. ¶¶ 48-51.

The appeal arose out of a proceeding administering an estate. The executor of the estate of Mary York sought through a citation to recover assets to recover the balance of a loan that York had made to Rosemary Mulryan, her former law partner. In re Estate of York, 2015 IL App (1st) 132830, ¶10. Mulryan moved to dismiss the citation (id. ¶ 11), and the circuit court granted the motion “with prejudice” with respect to counts I through IV relating to the loan (id. ¶ 13). The court dismissed all other counts “without prejudice” and with leave to replead. Id. ¶ 13. The executor filed a notice of appeal. Id. ¶ 14. Mulryan did not file a response brief, so the appellate court entered an order taking the case for consideration on the executor’s brief alone. Id. ¶ 15. After the appellate court entered that order, Mulryan moved for an extension of time and for leave to file a motion to dismiss for lack of jurisdiction, which the court took with the case. Id.

The appellate court first rejected Mulryan’s argument that the appellate court lacked jurisdiction under Illinois Supreme Court Rule 304(b)(1) (eff. Feb. 26, 2010), which permits an interlocutory appeal as of right without the special finding required for appeals under Rule 304(a), when the appeal is from “a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party.” In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 18-20. The court explained that Rule 304(b)(1) applies to orders that finally resolve an ultimate right, and held that the dismissal with prejudice of counts I through IV relating to the loan finally determined the estate’s right to that money. Id. ¶¶ 21-24. Thus, that part of the dismissal order was immediately appealable under Rule 304(b)(1). Id. ¶ 25.

The appellate court then addressed Mulryan’s failure to timely file a response brief or motion for extension of time. In re Estate of York, 2015 IL App (1st) 132830, ¶ 25. Mulryan asserted that she had felt it was unnecessary to file these because the lack of jurisdiction was “obvious” (id. ¶¶ 2, 25), but after the court entered its order taking the case on the executor’s brief alone, Mulryan then moved to dismiss for lack of jurisdiction and sought leave to file a response brief (id. ¶ 25). The court held that Mulryan had caused unnecessary delay in the disposition of the case, denied her motion for extension of time, and followed its prior order to proceed on the executor’s brief alone. Id.

Next, the appellate court considered whether the notice of appeal conferred appellate jurisdiction--an issue that the parties did not raise. In re Estate of York, 2015 IL App (1st) 132830, ¶ 27. The court explained that the executor’s notice of appeal specifically stated that the executor appealed only from the dismissal of count II. Id. ¶¶ 31, 36. Because a notice of appeals confers jurisdiction to consider only the judgment or parts of the judgment specified in the notice of appeal, the appellate court had jurisdiction only over the portion of the judgment dismissing count II. Id. ¶¶ 32-37. As the court explained, the notice of appeal was “highly specific,” and sought relief only from the ruling dismissing “count II *** with prejudice, pursuant to section 2-615.” Id. ¶ 27. Yet, the executor presented no argument on appeal with respect to count II; instead, the executor’s brief argued for reversal of the dismissal of count I. Id. ¶¶ 28, 30, 39. The court held that because the notice of appeal was solely from the ruling dismissing count II, it lacked jurisdiction to review the dismissal of count I. Id. ¶ 40.

The executor’s brief also challenged the circuit court’s ruling with respect to a motion to strike Mulryan’s affidavit in support of her section 2-619 motion. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 28, 42. The appellate court concluded that it lacked jurisdiction to review the ruling on the motion to strike the affidavit as well. Id. ¶¶ 44-46. The court reiterated that the executor appealed only from the section 2-615 dismissal of count II. Id. ¶ 43. The ruling concerning the affidavit therefore could be reviewed only if it was a “step in the procedural progression leading to the dismissal of count II with prejudice.” Id. But it was not, because affidavits are considered only in connection with section 2-619 dismissals, and the circuit court did not consider the affidavit in its dismissal ruling. Id. ¶¶ 44-45. Because the executor raised no issue that the appellate court had jurisdiction to review, the court dismissed the appeal. In re Estate of York, 2015 IL App (1st) 132830, ¶¶ 46, 49. The court remanded the case because the circuit court had allowed the executor to replead the other counts. Id. ¶ 50.

Recommended Citation: Myriam Z. Kasper, First District Serves a “Cautionary Tale To Litigants” Regarding Filing Deadlines and Specifying Grounds of Appeal In the Notice of Appeal, The Brief, (June 19, 2015).

Updated Edition of Cases Pending

Mon, 15 Jun 2015 02:54:00 GMT

The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated edition provides information on cases pending before the state's high court through June 5, 2015. Complete access to Cases Pending is complimentary with ALA membership.

ALA members can access Cases Pending via the Association's website.

Seventh Circuit Judges Share Tips for Focusing Issues on Appeal

Sat, 06 Jun 2015 14:35:00 GMT

On May 28, 2015, the Association gathered at the Union League Club in Chicago to host its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. Many of the judges from the Seventh Circuit were in attendance, as well as a number of special guests, which guests included judges from the Illinois judiciary and Michael Dreeben, Deputy Solicitor General at the United States Department of Justice.

Association President Steven F. Pflaum began the festivities by offering welcoming remarks, as ALA members and guests enjoyed lunch. Attendees had the unique opportunity to sit at a table with an individual Seventh Circuit judge, and were able to engage in casual conversation as well as inquire about practice pointers.

Thereafter, Chief Judge Diane P. Wood along with Judges Diane S. Sykes and David F. Hamilton participated in a panel discussion. President Pflaum moderated the discussion, which addressed how appellate attorneys can focus issues on appeal. Chief Judge Wood noted that this was a "painful part" of appellate practice and urged appellate practitioners to take a careful look at what occurred at the trial court and the standard of review. Judge Sykes reiterated Chief Judge Wood's suggestion to look at the standard of review, which Judge Sykes noted is often decisive, and also encouraged attorneys to consider whether a trial court error was "an error of consequence." Judge Hamiliton offered the helpful reminder that attorneys on appeal should make sure that the any objection was preserved.

The panel discussed a number of other topics, including how many issues should typically be raised on appeal. The panel agreed that three to five issues should be the "rule of thumb." Judge Hamilton noted that the district court judges are "usually good" and unlikely to make 10 to 12 errors, and Judge Sykes later quipped, "nine grounds for reversal usually means none." The panel also offered tips for oral argument from both the appellants' and appellee's perspective. Chief Judge Wood noted that, if the district court wrote a sound opinion, "don't overlook this gift."

The ALA thanks the judges of the Seventh Circuit for an enjoyable and informative luncheon, as well as the many guests who attended.

Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal Case

Sun, 31 May 2015 19:04:00 GMT

In People v. Moore, 2015 IL App (5th) 130125, Sammy Moore was charged with aggravated battery after striking a corrections officer at the Pinckneyville Correctional Center. The trial court held a preliminary hearing 31 days after the charges were filed against Moore. Moore, acting pro se, objected to the timeliness of the hearing, arguing that the incident occurred on March 2,2007; he was arrested and booked on March 2, 2007; but charges were not brought until August 23, 2007; and the September 24, 2007, hearing date was beyond the 30-day statutory period. The court held the preliminary hearing anyway and found probable cause.

Moore waived his right to a jury trial and agreed to a stipulated bench trial on November 12, 2008. The court informed Moore that, if he was found guilty of aggravated battery, it would sentence him to two years in the Department of Corrections, to run consecutive to the term that he was already serving. The court found Moore guilty and imposed the sentenced that it had indicated.

The court gave the following admonishment, in pertinent part, to Moore after being sentenced:

“In order to appeal this sentence you must first file in this trial court within 30 days of today's date a written motion to withdraw your consent to the stipulated bench trial and give me a very good reason for allowing me to do so. If that motion is denied you still have 30 days from the date of that denial to file your written appeal in the Appellate Court in Mt. Vernon. You must first file a notice of appeal in the Office of the Circuit Court here in Perry County…."

The defendant stated that he understood the instructions.

On January 11, 2013, more than four years after he was convicted and sentenced, Moore filed a pro se petition entitled “Petition for Leave to File An Untimely Post Trial Motion And Notice of Appeal,” seeking leave to file an untimely notice of appeal “on the ground that it was not due to his culpable negligence that the documents were not timely filed.” Moore explained in his petition that he had intended to appeal the denial of his pro se motion to dismiss related to the preliminary hearing issue and that he thought that defense counsel had filed a posttrial motion and notice of appeal, but only later learned that defense counsel failed to do so. Moore also filed a motion to dismiss based on the preliminary hearing issue and a notice of appeal seeking to appeal the court’s September 24, 2007, order denying his previously filed motion to dismiss.

The trial court denied Moore’s petitions, finding that "[d]efendant cannot merely make vague or conclusory assertions but must clearly demonstrate his diligent efforts to uncover matters he now claims entitle him to relief" (citing People v. Gunartt, 327 Ill. App. 3d 550 (2002)). The court held that Moore did not do so and therefore was not entitled to relief. The court dismissed the petition but granted Moore leave to refile it within 30 days, with a showing that the delay in the late filing was not due to his culpable negligence, that is, he "must allege facts showing the delay was not due to his negligent or reckless disregard of the time constraints and other circumstances of filing a timely post-conviction relief petition." Moore, 2015 IL App (5th) 130125, ¶ 13.

Moore filed a motion to reconsider, arguing that Gunartt applied only to post-conviction petitions. Moore argued that his filings should not have been characterized as a post-conviction petition and that they should have been reviewed under Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). The court denied the motion to reconsider, stating that it had characterized Moore’s filings as a post-conviction petition because the it did not have jurisdiction to consider a posttrial motion filed more than 30 days after the entry of judgment and sentence on November 12, 2008. Moore appealed.

On appeal, Moore conceded that his petition for leave to file an untimely posttrial motion and notice of appeal was filed well beyond 30 days after judgment was entered, but he argued that the court nonetheless still had jurisdiction to consider his petition because he was not properly advised of his appeal rights. The appellate court disagreed.

The appellate court began by noting that Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001) sets forth the admonishments regarding the right to appeal that a criminal defendant is to receive after judgment and sentence. Moore, 2015 IL App (5th) 130125, ¶ 21 (citing People v. Henderson, 217 Ill. 2d 449, 455 (2005)). Defendants who have been found guilty following a trial are to be given admonishments pursuant to Rule 605(a), while those who have pleaded guilty should be given admonishments pursuant to Rule 605(b) and (c). Id. If stipulated evidence is introduced and the trial court finds the defendant guilty based on that evidence, the defendant is considered to have been found guilty, rather than pleading guilty, and he should be admonished under Rule 605(a). Moore, 2015 IL App (5th) 130125, ¶ 22 (citing People v. Horton, 143 Ill. 2d 11, 20-22 (1991)). However, if the defendant stipulates that the evidence presented at the stipulated bench trial is sufficient to convict, the stipulated bench trial is “tantamount to a guilty plea,” and the defendant should be admonished pursuant to Rule 605(b) and (c). Id.

Moore did not stipulate that the evidence given at trial would be sufficient to convict. Therefore, he should have been admonished pursuant to 605(a). Instead, the trial court gave him a modified admonishment under Rule 605(b) and (c) when it “told the defendant that prior to appealing, and within 30 days, he must first file a ‘written motion to withdraw [his] consent to the stipulated bench trial.’ ” Moore, 2015 IL App (5th) 130125, ¶ 25. Moore argued that “the admonition exception adopted by the supreme court in People v. Foster, 171 Ill. 2d 469 (1996), should be applied to appeals from faulty Rule 605(a) admonitions so that the appellate court can reach the merits of an appeal.” Id. ¶ 26.

The Foster court explained that the admonition exception “allows the appellate court to entertain appeals in cases where the defendant did not comply with Rule 604(d)'s written-motion requirement because the trial court failed to provide Rule 605(b) admonitions.” Foster, 171 Ill. 2d at 473. The “admonition exception allows appellate courts to entertain appeals in those circumstances because if a defendant is not admonished of the necessary steps to appeal from a sentence imposed upon a plea of guilty as required by Rule 605(b), it would violate procedural due process to hold a defendant responsible for noncompliance with the strictures of Rule 604(d).” Id.

Moore conceded that the admonition exception had not previously been extended to incorrect admonishments under Rule 605(a), but he urged the court to do so here, arguing that an incorrect 605(a) admonition provided him with unlimited time to appeal his conviction. The appellate court, however, declined, noting that the “supreme court has made it clear that the admonitions exception does not extend the time allowed for the defendant to perfect an appeal.”  Moore, 2015 IL App (5th) 130125, ¶ 27.

The appellate court held the trial court lacked jurisdiction when Moore filed his petition for leave to file an untimely posttrial motion and notice of appeal. Relying on People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34 (2011), the court reasoned that “the admonition exception is for the appellate court to apply when the defendant files a timely notice of appeal, even though he did not comply with any conditions precedent as required by the supreme court rules.” Moore, 2015 IL App (5th) 130125, ¶ 30 (citing Skryd, 241 Ill. 2d at 42). Because there was no timely notice of appeal in Moore’s case, the admonition exception did not apply, even though Moore did not receive proper appeal admonishments. This is because the “admonition exception cannot restore jurisdiction to the circuit court after 30 days from the entry of judgment.” Id. The appellate court affirmed the trial court, concluding that it had properly dismissed Moore's motion for leave to file an untimely posttrial motion and notice of appeal where the admonition exception did not extend its jurisdiction to adjudicate the posttrial pleadings that the defendant had filed four years after judgment became final.

Recommended Citation: Nate Nieman, Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal Case, The Brief, (May 31, 2015), http://applawyers-thebrief.blogspot.com.

Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock

Sat, 16 May 2015 13:58:00 GMT

In JPMorgan Chase Bank, N.A. v. Ontiveros, 2015 IL App (2d) 140145, the Illinois Appellate Court addressed whether a trial court lacked subject-matter jurisdiction to enter a judgment on a foreclosure and ensuing sale because the plaintiff was an unlicensed debt collector. While the opinion primarily focused on whether the trial court's order was void pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2012)), the reviewing court provided a helpful reminder that successive postjudgment motions do not toll the clock to file a notice of appeal.

Procedural Background

In Ontiveros, the plaintiff brought a foreclosure complaint. The defendants appeared pro se, but did not answer. Thereafter, on November 7, 2012, the trial court entered a judgment of foreclosure, which judgment did not contain a finding of immediate appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).

One month later, the defendants appeared through counsel, moved to vacate the judgment of foreclosure, and claimed several defenses. The trial court denied the motion to vacate.

On February 4, 2013, the trial court approved the confirmation of the sale. The defendants filed a timely postjugment motion seeking to vacate the confirmation. On July 5, 2013, with the motion to vacate still pending, the defendants filed a petition pursuant to section 2-1401, attacking the judgment as void. On July 16, 2013, the trial court "struck" the petition. One week later, on July 24, 2013, the trial court denied the defendants' motion to vacate but gave them leave to renotice their petition pursuant to section 2-1401, which defendants did.

On January 29, 2014, the trial court denied the defendants' petition. Within 30 days, the defendants filed a notice of appeal, seeking review of the January 29 order, the July 16 order, and the November 7 order.

The Court' s Jurisdictional Analysis

The reviewing court began its analysis by addressing the defendants' argument that their 2-1401 petition constituted a second postjudgment motion, and therefore, tolled the appeal clock for all orders. The court disagreed.

The court noted that "it has long been the case" that a successive postjudgment motion is improper and does not toll the time to file a notice of appeal. In this case, the defendants' motion to vacate, which they timely filed after the trial court approved the confirmation of the sale, was the only motion that tolled the appeal clock. The trial court denied that motion on July 16, 2013, but the defendants did not file their notice of appeal until February 2014. Therefore, the reviewing court did not have jurisdiction to review the trial court's February 4 order confirming the sale.

Regarding the November 7 order, the reviewing further noted that a judgment of foreclosure is not final until the trial court enters an order approving the sale and ordering distribution. As a result, absent a Rule 304(a) finding, that order did not become appealable until the trial court approved the confirmation of sale.

The reviewing court further noted that, because the defendants filed their 2-1401 petition more than 30 days after the trial court's order confirming the sale and timely appealed after the trial court denied their petition, jurisdiction was proper for that issue.

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock, The Brief, (May 16, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-offers.html.

New Issue of Cases Pending Available

Wed, 13 May 2015 02:05:00 GMT

Cases Pending, edited by ALA Secretary Joanne R. Driscoll and Clare J. Quish, has been updated to discuss the Illinois Supreme Court’s May Term that began this week. Oral arguments are scheduled for Tuesday, Wednesday, and Thursday, May 12-14; and next Tuesday, Wednesday, and Thursday, May 19-21, 2015. A total of 24 cases will be heard – 16 civil and 8 criminal.

Here are the civil cases with the dates of oral argument (two case excerpts are provided below the page break and Association members can access the full issue at the ALA website):

Walker v. McGuire, No. 117138 – May 13

McElwain v. Office of the Secretary of State, No. 117170—May 14

Matthews v. Chicago Transit Authority, Nos. 117638, 117713, 117728 (cons.) – May 14

Folta v. Ferro Engineering, No. 118070—May 14

Price v. Philip Morris, Inc., No. 117687 – May 19

Nelson v. Enterprise Leasing Co. of Chicago, No. 118058 – May 19

Lake Environmental, Inc. v. Arnold, No. 118110--- May 19

Commonwealth Edison Co. v. Illinois Commerce Comm'n, No. 118129—May 19

The Henderson Square Condominium Ass’n v. LAB Townhomes, L.L.C., No. 118139—May 19

The Village of Vernon Hills v. Heelan, No. 118170—May 20

Klaine v. Southern Illinois Hospital Services, No. 118217—May 20

O’Toole v. The Chicago Zoological Society, No. 118254—May 20

Gurba v. Community High School District No. 155, Nos. 118332, 118369 (cons.)—May 20

Seymour v. Collins, No. 118432—May 21

Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc., No. 118644—May 21

Stevens v. McGuireWoods L.L.P., No. 118652—May 21

The Court will hear several cases of interest this term, including Price v. Philip Morris and a case interpreting the Tort Immunity Act. Below are abbreviated summaries for these two cases.

PROCEDURE – SECTION 2-1401 PETITIONS

No. 117687

Price v. Philip Morris Inc.

This case presents the issue of what criteria must be considered in determining whether to vacate a final judgment entered in 2006 after remand from a 2005 decision of the Illinois Supreme Court. In its 2005 decision, the Supreme Court reversed a $10.1 billion consumer fraud judgment on grounds of federal implied preemption, namely, that the FTC has authorized the use of “lights” descriptors for cigarettes sold by the defendant. In December 18, 2008, plaintiffs filed a petition for relief from judgment under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401), alleging that new evidence – the United States Supreme Court’s decision in Altria Group Inc. v. Good, 555 U.S. 70 (2008), decided on December 15, 2008, and the FTC’s amicus brief filed in that case, showed that the Illinois Supreme Court’s preemption analysis was flawed. The circuit court dismissed plaintiffs’ petition as untimely, but the Illinois Appellate Court, Fifth District, reversed and remanded the matter for further proceedings. Price v. Philip Morris, Inc., 2011 IL App (5th) 130017-U.

On remand, plaintiffs amended their petition, relying solely on the FTC’s statements in its amicus brief in Good that the FTC believed that it had never authorized the use of “lights” descriptors. Although the circuit court found that this “new evidence” was meritorious, it denied plaintiffs’ amended petition, finding that they could not show that the outcome likely would have been different. The circuit court predicted that it was likely that the Illinois Supreme Court still would have reversed the $10.1 billion judgment but on other grounds, namely, plaintiffs’ inability to prove damages.

On appeal, the appellate court found that plaintiffs’ petition was timely, that the FTC’s statements constituted “newly discovered” evidence, that plaintiffs acted diligently to obtain that evidence, and that the Supreme Court would have reached a different conclusion on the preemption issue. The appellate court reversed the circuit court’s judgment and granted the section 2-1401 petition, holding that it exceeded its authority in predicting that the Supreme Court still would have reversed the $10.1 billion judgment. The appellate court then concluded that the effect of granting the section 2-1401 petition and vacating the circuit court’s 2006 dismissal order was to reinstate the verdict.

Appellate Court Decision: 2014 IL App (5th) 130017, 9 N.E.3d 599. Chapman, J., with Stewart and Schwarm, JJ., concurring.

PLA Allowed: 09/24/14

Oral Argument: 05/19/15

TORT IMMUNITY ACT – PUBLIC BUSINESS

No. 118254

O’Toole v. The Chicago Zoological Society d/b/a Brookfield Zoo

The issue in this case is whether the Brookfield Zoo (“Zoo”) is considered a “local public entity” that is entitled to the protections of the Local Government and Governmental Employees Tort Immunity Act (“Act”) (745 ILCS 10/1-206).

Plaintiff sued the Zoo for negligence after she allegedly tripped and fell on the Zoo’s premises. The Zoo filed a motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619 (a)(5)), asserting that plaintiff’s lawsuit was filed beyond the one-year statute of limitations provided for in section 8-101 of the Act (745 ILCS 10/8-101). The Zoo attached a copy of the agreement between the Chicago Zoological Society and the Forest Preserve District of Cook County (“District”), which established that the Chicago Zoological Society would maintain and operate the Zoo on public land for the public’s benefit. The circuit court granted the Zoo’s motion to dismiss with prejudice.

The Illinois Appellate Court reversed, holding that the Zoo was not a local public entity under the Act because its operations were not “tightly enmeshed with government” and, therefore, it was not engaged in “public business” that entitled it to the protections of the Act, as is required for non-profit entities under the Act. According to the court, the Zoo was not directly owned by the government, nor did the government have operational control over the business. Under the operating agreement, the District delegated control of daily operations and maintenance of the land and the collections to the Zoo. Furthermore, the Zoo was entitled to appoint its board and managers and provide their salaries, not the District. Moreover, the Zoo was not subject to regulations typical of governmental units. Therefore, the Zoo’s operations were not tightly enmeshed with government.

Appellate Court Decision: 2014 IL App (1st) 132652, 17 N.E.3d 869. Lavin, J., with Fitzgerald Smith and Epstein, JJ., concurring.

PLA Allowed: 11/24/14

Oral Argument: 05/20/15

Please Join Us at the All Bar Social on May 13

Wed, 06 May 2015 17:53:00 GMT

Please join the Young Lawyers Section of the Chicago Bar Association at its annual All Bar Social on Wednesday, May 13, 2015, from 6:00-8:00 p.m., at Rockit Bar & Grill, 22 W. Hubbard in Chicago. Mingle and network with local legal professionals while enjoying complimentary hors d'oeuvres and drinks. The Association is cosponsoring the event with the CBA and other bar associations, including the Filipino American Lawyers Association of Chicago, the Indian American Bar Association, and the Puerto Rican Bar Association.

The All Bar Social is a wonderful opportunity for members of all bar associations to come together in a casual environment and discuss how all of us can work together.

We hope that you will join us on May 13th.

Illinois Appellate Court Discusses Whether Trial Court Orders Were Injunctive for Purposes of Interlocutory Appeal Under Rule 307

Wed, 06 May 2015 10:39:00 GMT

As any experienced appellate practitioner knows, Rule 307(a) permits an appeal as a matter of right in cases involving seven separate categories of interlocutory orders, including orders “granting, modifying, refusing, dissolving, or refusing or dissolve or modify an injunction.” Ill. S. Ct. Rule 307(a)(1). While this rule historically has been broadly interpreted, in The Raymond W. Pontarelli Trust v. Pontarelli, 2015 IL App (1st) 133138, the court held that two orders did not qualify as injunctions, and thus were not appealable under Rule 307(a)(1). Id. ¶ 1. Accordingly, the court dismissed the appeal for lack of jurisdiction. Id. ¶¶ 1, 18.

In Pontarelli, a widow and two trusts, of which she was the trustee and sole income beneficiary, brought an action against her deceased husband’s children from a prior marriage, as well as others. Plaintiffs sought various forms of relief relating to various real properties and entities in which she or the trusts had an interest. Id. ¶ 4. Defendants counterclaimed for, among other things, the removal of the wife as trustee of the trusts, as well as an accounting. Id. ¶ 6. After the trial court entered a temporary restraining order barring the wife from acting as trustee and barring the sale of two condominium units owned by the trusts, the court entered three orders: (1) an order establishing the wife’s right to receive income from the trusts during the litigation (the “income order”), (2) an order allowing defendants to lease the condominium units, but imposing restrictions on the leases and prohibiting construction on the units, and ordering an accounting for rents and expenses (the “leasing order”), and (3) an order denying defendants’ motion to dismiss. Id. ¶¶ 1, 7, 8-15, 18. Defendants appealed, and the appeals were consolidated. Id. ¶ 16.

In reviewing the income order and the leasing order for purposes of determining whether jurisdiction under Rule 307(a)(1) existed, the appellate court began its analysis with the familiar rule that a court “must look to the substance of the action, not its form” in determining what constitutes an appealable injunctive order. Id. ¶ 21. Citing the Illinois Supreme Court’s decision in In re A Minor, 127 Ill. 2d 247, 261 (1989), the court defined an injunctive order as one which requires a party to do a particular thing, or to refrain from doing a particular thing, “the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” 2015 IL App (1st) 133138, ¶ 21. However, “orders properly characterized as ‘ministerial’ or ‘administrative’ are not subject to interlocutory appeal as of right because they only regulate the procedural aspects of the case before the court.” Id.

In explaining its findings that neither the income order nor the leasing order were nature injunctive, the court reasoned that those orders do not “regulate[] the parties’ conduct in their everyday activities outside the litigation, and they are a valid exercise of the court’s power under” the Trusts and Trustees Act (760 ILCS 5/1 et seq. (West 2012)). Pontarelli, 2015 IL App (1st) 133138, ¶¶ 24-25. Rejecting defendants’ argument that the fact that the income and leasing orders contained restrictions and requirements made them injunctive in nature, the court explained, “[v]irtually every order entered by a court compels a party to do or prohibits a party from doing something. But that does not make every order an injunction.” Id. ¶ 25. Rather, the court concluded, the leasing and income orders “were necessary and appropriate in the administration of the litigation” to ensure that the trusts’ operations continue during the litigation and that the wife received what she was due, particularly the income from the trusts for which it was undisputed that she was the sole beneficiary. Id. ¶ 25, 36.

The court also found that none of the three orders were appealable under Rule 304(b)(1), which allows for the immediate appeal without a special finding from orders entered “in the administration of an estate, guardianship, or similar proceeding which finally determine[] a right or status of a party.” Pontarelli,2015 IL App (1st) 133138, ¶ 26 (citing Ill. S. Ct. R. 304(b)(1)). With respect to the income and leasing orders, neither order purported to “fully resolve any matters or issues regarding the rights of any of the parties, properties, or corporations at stake.” Pontarelli, 2015 IL App (1st) 133138, ¶¶ 26, 27. As for the order denying defendants’ motion to dismiss, that order, too, was not appealable under Rule 304(b)(1) because the trial court did not make any final determination regarding the wife’s capacity to act as trustee. Id. ¶¶ 29, 30. Indeed, as the trial court noted, the issue of the wife’s competence as trustee was an issue that would not be properly disposed of on the pleadings and a single affidavit, as the court “could never reach a complicated issue about somebody’s mental health condition on a 2-619 motion to dismiss.” Id. ¶ 30.

Finally, the court found that the filing of three interlocutory appeals by defendants’ counsel (including a previous appeal of the wife’s guardianship proceedings, which had also been dismissed for lack of jurisdiction) warranted the imposition of sanctions pursuant to Rule 375(b). Id. ¶¶ 32-39. Finding that the premature filing of the appeals was “not simply zealous advocacy in action,” the court characterized the appeals “frivolous,” “unjustified,” and indicative of “a lack of good faith,” among other choice words. Id. ¶¶ 34, 38-39.

Recommended Citation: Katherine A. Grosh, Illinois Appellate Court Discusses Whether Trial Court Orders Were Injunctive for Purposes of Interlocutory Appeal Under Rule 307, The Brief, (May 6, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-discusses.html.

Association Hosts Advanced Appellate Practice Seminar

Sun, 03 May 2015 00:15:00 GMT

On April 20, 2015, the Appellate Lawyers Association hosted more than 75 attorneys, Appellate Court Justices, and law professors at its Advanced Appellate Practice Seminar, which focused on a variety of legal topics for the appellate practitioner. In the first session, an esteemed panel featuring past ALA president Ted Kionka, Seminars co-chair Jonathan Loew, and ALA Vice President and former Illinois Solicitor General Michael Scodro, discussed techniques and strategies for collaborating with trial counsel or co-counsel on appellate brief writing and oral argument. Justice John Simon of the Illinois Appellate Court, First District, also presented an “insider’s view” of the collaborative writing process undertaken by a panel of Appellate Court Justices. ALA Board Member Gretchen Sperry moderated the panel. Mike Scodro also led a discussion on preparing for oral argument, particularly in the context of preparing newer attorneys for their first argument. ALA President Steve Pflaum and First District Appellate Court Justice Nathaniel Howse gave a thought-provoking presentation on legal ethics and issues that arise specifically in the context of appellate practice. First District Appellate Court Justice Margaret Stanton McBride also presented a discussion on interlocutory appeals, specifically interlocutory appeals as of right under Illinois Supreme Court Rule 307.

The seminar also featured substantive theoretical discussions of the practice of appellate law. Past ALA President J. Timothy Eaton discussed how recusals by Illinois Supreme Court Justices may affect cases pending before it. Eaton suggested that there be a mechanism by which the Supreme Court may assign an Appellate Court justice to replace a Supreme Court justice who recuses to maintain a composition of seven justices to hear cases, as is done in other states. Dr. Peter Koelling of the American Bar Association also gave a fascinating presentation on the Future of Appellate Practice, in light of advances in technology.

The ALA thanks all of the presenters and attendees for participating in the seminar. We also thank the Chicago Bar Association for hosting the event.

Watch ALA Vice President and Former IL Solicitor General Michael Scodro on Chicago Tonight

Wed, 29 Apr 2015 15:20:00 GMT

Yesterday, ALA Vice President Michael Scodro appeared on Chicago Tonight to discuss the oral arguments before the United States Supreme Court on the right of same-sex couples to marry. Scodro, who served as a law clerk to Justice Sandra Day O'Connor and previously served as Illinois Solicitor General, was joined by ALA member Carolyn Shapiro, who succeeded Scodro as Solicitor General and also served as a law clerk on the High Court. (Solicitor General Shapiro was the featured speaker at a recent ALA luncheon.) Two other former United States Supreme Court law clerks joined Scodro and Solicitor General Shapiro on the panel.

Please click here to watch the thoughtful and informative discussion.

Listen to 98.7 WFMT Promoting the Upcoming ALA Luncheon

Tue, 28 Apr 2015 00:54:00 GMT

Over the next few days, the Association will be advertising on 98.7 WFMT, Chicago's classical music station. The advertisements will focus on the ALA's upcoming luncheon featuring attorney and author Robert Dubose, who will discuss tips for writing documents that are primarily read by others on screens or tablets. The advertising campaign will seek to reach both practicing attorneys and other writers and professionals who are likely to benefit from the program. For more information about the program and to register, please click here.

The Association encourages its members to keep an ear out for the ads while listening to wonderful music by tuning into WFMT, which is available at radio station 98.7 or on your device at wfmt.com.

Parties on Appeal Beware: Failure to Comply With Supreme Court Rules on Content of Briefs May Result in Dismissal

Tue, 21 Apr 2015 17:24:00 GMT

Failure to comply with the requirements of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013), which governs the form and content of appellate briefs, may result in the dismissal of your appeal. In McCann v. Dart, 2015 IL App (1st) 141291, the plaintiff Brian McCann appealed from the circuit court’s grant of defendant Thomas Dart’s motion to dismiss plaintiff’s petition for mandamus and declaratory relief pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2012)). On appeal, plaintiff contended that the circuit court erred in dismissing his complaint for lack of standing and that defendant failed to fulfill a legal duty pursuant to several immigration statutes. McCann, 2015 IL App (1st) 141291, ¶ 1.

However, the appellate court never reached the merits of this case, instead exercising its discretion in striking plaintiff’s brief and dismissing his appeal for failure to comply with Rule 341(h). The court began by noting that plaintiff’s appellant brief was a “scant eight pages.” Id. ¶ 11. It then reiterated the familiar maxim that compliance with procedural rules was mandatory, and that the court may, in its discretion, strike a brief and dismiss an appeal based on the failure to comply with the applicable rules of appellate procedure. Id. ¶ 12.

The reviewing court remarked that plaintiff’s opening brief violated Rule 341(h)(5), which provides that, “[i]n a case involving the construction or validity of a statute, *** ordinance, or regulation,” the appellant’s brief “shall” include “the pertinent parts of the provision verbatim, with a citation of the place where it may be found, all under an appropriate heading, such as ‘Statutes Involved.’ ” Ill. S. Ct. R. 341(h)(5). The court noted that plaintiff’s entire complaint was based on the federal immigration statutes, yet plaintiff never referenced or provided a citation to those statutes, and his opening brief was entirely devoid of any indication of which statutes or ordinances he may have invoked in the circuit court. Id. ¶ 13.

The reviewing court further found that plaintiff failed to comply with Rule 341(h)(6), which requires that an appellant include a “Statement of Facts, which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.” Plaintiff’s “Statement of Facts” was a mere sentence in length, did not reference the pertinent federal immigration statutes under which he was claiming to be entitled to relief, did not reference any ordinances, and did not provide any of the case’s procedural background. Id. ¶ 14.

Plaintiff also failed to comply with Rule 341(h)(7), which requires the appellant to present reasoned argument, as well as citation to legal authority and to specific portions of the record in support of his claim of error. Ill. S. Ct. R. 341(h)(7). The court noted that this rule was especially important since the appellate court begins with the presumption that the circuit court’s ruling was in conformity with the law and the facts. Moreover, the court noted that it is entitled to have the issues clearly defined, and to be cited pertinent authority. Id. ¶ 15. Plaintiff cited to the record only three times, and cited to several Illinois cases, none of which involved the federal immigration statutes under which plaintiff was seeking relief. Id. ¶ 16. The court found that the “subject of plaintiff’s actual argument is completely and conspicuously missing from his opening brief,” and that the appellate court was not a depository in which the burden of argument and research may be dumped. Id. ¶ 18.

Finally, the court stated that plaintiff referenced the federal immigration statutes for the first time in his reply brief. However, Rule 341(h)(7) specifically states that “[p]oints not argued [in the opening brief] are waived and shall not be raised in the reply brief.” Accordingly, the court found that because plaintiff did not argue the merits of his underlying claim in his opening brief, he waived consideration of the merits on appeal. Id. ¶ 19. The court acknowledged that it seldom enters an order dismissing an appeal for failure to comply with supreme court rules, but found that it was in its discretion to do so, and that plaintiff’s brief warranted dismissal of his appeal. Id. ¶ 20.

Recommended Citation: April Oboikowitch, Parties on Appeal Beware: Failure to Comply With Supreme Court Rules on Content of Briefs May Result in Dismissal, The Brief, (April 21, 2015), http://applawyers-thebrief.blogspot.com/2015/04/parties-on-appeal-beware-failure-to.html.

ALA Members, Don't Miss Out on the Updated Edition of Cases Pending

Sun, 19 Apr 2015 00:00:00 GMT

The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated edition, available through the ALA website, provides information on cases currently pending in and recently decided by the state's high court through April 10, 2015. The Cases Pending Committee is chaired by Joanne R. Driscoll (photo on left) and Clare J. Quish (photo on right), and complete access to Cases Pending is complimentary with ALA membership.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

SCOTUS Addresses Fourth Amendment Implications of Satellite-Based Tracking

Thu, 16 Apr 2015 14:02:00 GMT

In Grady v. North Carolina, 575 U.S. ___ (per curiam) (decided March 30, 2015), the U.S. Supreme Court confirmed the scope of its recent jurisprudence concerning the Fourth Amendment implications of law enforcement’s use of satellite-based technology, and important for appellate practitioners, also reiterated that the reasonableness or unreasonableness of a search generally is not an issue that can be suitably resolved in the first instance on appeal.

Under North Carolina law, a recidivist sex offender may be ordered by a court to wear a satellite-based tracking device at all times. Torrey Dale Grady, a recidivist sex offender, argued that this monitoring would violate his Fourth Amendment rights. The trial court rejected his argument. So did the North Carolina Court of Appeals, apparently on the theory “that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.” (Slip Op. at 2.) The North Carolina Supreme Court declined to hear Grady’s appeal.

When Grady petitioned the U.S. Supreme Court for certiorari, the State of North Carolina did not file any substantive response until the Court ordered it to do so. Then, in a single per curiam decision, the U.S. Supreme Court not only granted certiorari, but also vacated the North Carolina Supreme Court’s judgment and remanded the case for further proceedings, even without entertaining merits briefing or hearing oral argument.

As the Court explained, the “theory” that forced satellite-based monitoring does not constitute a search “is inconsistent with this Court’s precedents.” (Slip Op. at 2-3.) In United States v. Jones, 565 U.S. ___ (2012), the Court had held that the Government’s installation of a GPS tracking device on a vehicle constituted a search for Fourth Amendment purposes because, when it installed the device, the Government “physically occupied private property for the purpose of obtaining information.” (Slip Op. at 3 (quoting Jones)). Similarly, in Florida v. Jardines, 569 U.S. ___ (2013), the Court applied the same standard and concluded that the State of Florida had engaged in a search when its drug-sniffing dog sniffed around someone’s front porch. In that case, the State likewise had obtained information “by physically entering and occupying” private property. (Slip Op. at 3 (quoting Jardines)). “In light of these decisions,” the Grady Court explained, “it follows that a State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” (Slip Op. at 3.)

The Court easily dispensed with the arguments raised in the State’s response to Grady’s certiorari petition. Contrary to the State’s argument, it did not matter whether the forced monitoring was deemed civil, as opposed to criminal, in nature. (Slip Op. at 3-4.) The State also attempted to create some ambiguity as to whether “its program for satellite-based monitoring of sex offenders collects any information.” (Slip Op. at 4 (emphasis in original)).

That argument, unsurprisingly, was not persuasive. The obvious point of the monitoring was to gather information about the whereabouts of sex offenders.

Thus, the satellite-based monitoring constituted a search for Fourth Amendment purposes. But that finding did not resolve the case. Of course, the “Fourth Amendment prohibits only unreasonable searches.” (Slip Op. at 5 (emphasis in original)). Because the “reasonableness of a search depends on the totality of the circumstances,” and because the Court was unwilling to make findings on the search’s reasonableness in the first instance on appeal, the Court remanded the case for further proceedings.

Now the focus will shift to whether the satellite-based monitoring of a recidivist sex offender’s movements is a reasonable search. Grady’s victory may turn out to be short-lived.

Recommended Citation: John M. Fitzgerald, SCOTUS Addresses Fourth Amendment Implications of Satellite-Based Tracking, The Brief, (April 16, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-addresses-fourth-amendment.html#more.

ALA's Advanced Appellate Practice Seminar to Feature a Who's Who of Appellate Jurists and Practitioners

Mon, 13 Apr 2015 11:04:00 GMT

On Monday, April 20, 2015, the Association will host an Advanced Appellate Practice Seminar. The half-day seminar will bring together a distinguished group of appellate jurists and practitioners who will participate in panel discussions on various topics related to advocacy before reviewing courts. Panelists will include Justices John Simon, Nathaniel R. Howse, and Margaret McBride, all of the Illinois Appellate Court, First District. Other speakers will include ALA President Steven Pflaum, ALA Vice President and former Illinois Solicitor General Michael Scodro, ALA Director Gretchen Sperry, past ALA President Timothy Eaton, and past ALA Director Jonathan Loew. Also speaking will be past ALA President Edward Kionka, Professor Emeritus at Sourthern Illinois University School of Law, and Peter Koelling, Director and Chief Counsel of the Judicial Division at the American Bar Association.

Presentation topics will include collaboration between the appellate bench and bar, legal ethics in the appellate courts, the future of appellate practice, discretionary state court appeals, replacement of recused supreme court justices, and preparing newer attorneys for oral argument. The seminar will be held at the Chicago Bar Association in Chicago and attendees will receive 3.75 hours of CLE credit, which includes .75 hour of professionalism credit.

For more information and to register, please click here.

SCOTUS Clarifies When a District Court Order is Final and Appealable in Consolidated, Multidistrict Litigation

Fri, 10 Apr 2015 13:31:00 GMT

In Gelboim v. Bank of America Corp., 573 U.S. ---, 135 S. Ct. 897 (2015), the United States Supreme Court held that a district court order dismissing the sole claim in a single-claim action is a final and appealable order, even when that claim is consolidated with other actions in multidistrict litigation.

The petitioners—Ellen Gelboim and Linda Zacher—filed a class action suit in the United States District Court for the Southern District of New York that was consolidated for pretrial proceedings with 60 other cases. The other cases were proceeding in various jurisdictions that included California, Iowa, Illinois, Texas, and Virginia, among others. The Judicial Panel on Multidistrict Litigation (JPML) consolidated these cases because they all involved allegations that the defendant-banks understated their borrowing costs, which depressed the London InterBank Offered Rate (LIBOR), a benchmark interest rate disseminated by the British Bankers’ Association. Understating their borrowing costs allegedly enabled the banks to pay lower interest rates. The petitioners raised a single claim that the banks, acting in concert, had violated federal antitrust law. However, once the district court determined that no plaintiff could assert a cognizable antitrust injury, it dismissed the Gelboim-Zacher case in its entirety.

Gelboim and Zacher appealed the district court’s order. The district court assumed that the petitioners were entitled to an immediate appeal under 28 U.S.C. § 1291 and granted other plaintiffs Rule 54(b) certifications authorizing them to appeal the dismissal of their antitrust claims—even when the other plaintiffs still had separate claims pending in the district court. The United States Court of Appeals for the Second Circuit dismissed the petitioners’ appeal for lack of jurisdiction, however, because the order appealed from did not dispose of all claims from all cases in the consolidated action.

The Supreme Court, in a unanimous decision, reversed and held that the order dismissing Gelboim and Zacher’s case removed them from the consolidated proceedings, thereby triggering their right to appeal under 28 U.S.C. § 1291. Justice Ginsburg, writing for the Court, reasoned that the petitioners’ right to appeal ripened when the district court dismissed their case, not upon the eventual completion of multidistrict proceedings in all of the consolidated cases.

The Court emphasized the language and purpose of 28 U.S.C. § 1291 and Federal Rule of Civil Procedure 54(b). Section 1291 gives the courts of appeals jurisdiction over appeals from “all final decisions of the district courts.” Therefore, the statute’s core application is to rulings that terminate an action, such as the ruling against Gelboim and Zacher. Rule 54(b), though, permits district courts to authorize immediate appeal of dispositive rulings on separate claims in a civil action raising multiple claims. This rule, Justice Ginsburg explained, “relaxes the former general practice that, in multiple claim actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them.” Thus, Rule 54(b) aimed to expand, not diminish, appeal opportunity.

The specific question before the Court, then, was whether the right to appeal secured by § 1291 is affected when a case is consolidated for pretrial proceedings in multidistrict litigation. To this, the Court soundly answered no—consolidation offers convenience for the parties and promotes judicial efficiency, but it does not meld the petitioners’ action and others into a single unit. The major practical effect of taking the banks’ position—that plaintiffs whose actions have been dismissed must await the termination of all pretrial proceedings in each consolidated case before appealing—would be uncertainty as to which event triggers the plaintiffs’ 30-day appeal clock. Therefore, the “sensible solution to the appeals-clock trigger” was, according to the Court, “evident.” That is, when a transferee court overseeing pretrial proceedings in a multidistrict litigation grants a defendant’s dispositive motion on all issues in some transferred cases, those cases become immediately appealable. However, cases in the multidistrict litigation that have unresolved issues would not be appealable at that time.

(The author would like to thank his colleague, Thomas McDonell, for his assistance in preparing this post.)

Recommended Citation: Charles E. Harper, SCOTUS Clarifies When a District Court Order is Final and Appealable in Consolidated, Multidistrict Litigation, The Brief, (April 10, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-clarifies-when-district-court.html.

Fourth District Appellate Court Sits for Oral Arguments Before Annual Roundtable Luncheon

Tue, 07 Apr 2015 23:04:00 GMT

On March 30, 2015, the Association hosted its annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. Held at the University of Illinois Springfield, the Sangamon County Bar Association and the University of Illinois Springfield College of Public Affairs and Administration co-sponsored the event.

Prior to the luncheon, the Fourth District Appellate Court heard oral arguments on two criminal matters at the university. Ordinarily, oral arguments before the Fourth District Appellate Court are heard at the courthouse in Springfield, but each year, the Fourth District holds arguments at a local university. In previous years, the court has held oral arguments at the University of Illinois in Champaign, Illinois State University in Bloomington/Normal, Quincy University, Danville Area Community College, and Eastern Illinois University. Holding oral arguments at various locations within the district provides attorneys, students, and members of the public with convenient access to observe the court.

During the luncheon, ALA members and guests, which included students from several of the university's departments, were encouraged to interact with the Justices and other court personnel. The roundtable luncheon also included a judicial panel discussion featuring the Justices of the Fourth District Appellate Court. The panel featured Justices M. Carol Pope, Thomas R. Appleton, Thomas M. Harris, Lisa Holder White, James A. Knecht, and John W. Turner; Fourth District Research Director Shirley Wilgenbusch; and Fourth District Clerk Carla Bender. ALA president Steve Pflaum moderated the discussion, which included procedural issues and practical advice germane to appellate practice and procedure.

The ALA thanks the Justices of the Fourth District Appellate Court for another informative and enjoyable roundtable luncheon.

SCOTUS Explains When a Winning Party Must Cross-Appeal

Fri, 03 Apr 2015 11:52:00 GMT

It’s a common question at the beginning of an appeal: Having won in the trial court, when must a party cross-appeal? Recently, in Jennings v. Stephens, 135 S. Ct. 793 (2015), the United States Supreme Court observed that while the basic rule is familiar, “that familiarity and clarity do not go hand-in-hand.”

In Jennings, the court reached back to its precedent of some 90 years ago (United States v. American Ry. Express Co., 265 U.S. 425 (1924)(Brandeis. J.)) to repeat the familiar rule that a party may argue to affirm a judgment in its favor based on any grounds supported by the record, even if that may “involve an attack upon the reasoning of the lower court.” Only if the prevailing party seeks to enlarge its own rights or lessen those of the losing party, must it take a cross-appeal.

In the Jennings case, a Texas inmate won a federal habeas case overturning his death sentence. The state appealed and the inmate defended the appeal on two grounds that he had prevailed on in the trial court, as well as on a third ground on which he had lost. The court of appeals reversed on the two grounds that the trial court had relied on and also ruled that it did not have jurisdiction to decide the third ground because the inmate failed to take a cross-appeal as to that.

In a 6-3 decision, the Supreme Court reversed. The court reasoned that the inmate was not required to cross-appeal as to the third ground because that did not enlarge his rights or lessen the state’s rights under the judgment. Writing for the majority, Justice Scalia explained that the inmate sought the same relief under all three theories: a new sentencing hearing. “Whether prevailing on a single theory or all three, [the inmate] sought the same indivisible relief.”

In reaching this conclusion, the court emphasized that a “prevailing party seeks to enforce not a district court’s reasoning, but its judgment.” It is only a judgment that defines the rights and liabilities of the parties, not the reasons given in an opinion. Because the inmate challenged only the reasoning of the lower court without seeking to enlarge his rights under the judgment or lessen the state’s, he was permitted to argue an alternative theory to affirm the judgment without taking a cross-appeal.

The dissent argued that habeas cases arise in a “unique context” and the inmate’s raising of the third ground amounted to an additional constitutional argument that “would modify the prisoner’s rights flowing from that order.” The majority maintained that there was nothing particular about a habeas proceeding that would alter the basic rule for cross-appeals. Moreover, the court also pointed out that though relying on a different theory may alter any issue-preclusive effect in future proceedings, that should not be confused with the rights obtained under a judgment. Since the inmate did not seek to alter those rights, he was not required to cross-appeal.

In the wake of the Jennings decision, federal courts of appeal have already applied it beyond the habeas context to general civil litigation. See Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015) (bank that prevailed against investor claims could urge affirmance on grounds that trial court did not reach); cf. BNSF R. Co. C. Alstom Transp., Inc., 777 F.3d 785 (5th Cir. 2015) (having failed to cross-appeal, prevailing party could not seek full rather than partial vacating of arbitration award).

The Jennings decision reinforces that after a notice of appeal is filed, the prevailing party in the trial court must promptly assess whether any arguments it might present on appeal will simply be alternative reasons to affirm or will actually enlarge its rights or lessen those of the other side. If they are the later, then it must timely file a cross-appeal.

(The author would like to thank his colleague, Thomas McDonell, for his assistance in preparing this post.)

Recommended Citation: E. King Poor, SCOTUS Explains When a Winning Party Must Cross-Appeal, The Brief, (April 3, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-explains-when-winning-party-must.html#more.

Justice Calvin Campbell Honored at First District Judicial Luncheon

Mon, 30 Mar 2015 17:40:00 GMT

On March 24, 2015, the Association gathered at the Union League Club in Chicago to honor the Justices of the Illinois Appellate Court, First District. The event, which allowed ALA members and guests to sit at a table with a Justice, also included a tribute to Justice Calvin Campbell, who served on the Appellate Court for 30 years.

ALA President Steven F. Pflaum opened the program by welcoming the Justices and the ALA members and guests. Thereafter, President Pflaum introduced Justice Shelvin Louise Marie Hall, who gave moving remarks on the passing of retired Justice Calvin Campbell. Justice Hall noted that Justice Campbell was elected to the First District in 1978, the fourth African American jurist to be elected to that court. Justice Hall recounted that Justice Campbell's "life was a lesson." He had a "genuinely courteous exterior," but would also exhibit a sharp elbow when necessary to defend his position. Justice Campbell was typically the first justice to welcome new members to the court, and he would often go out of his way to take a new justice to lunch. A veteran of World War II and an avid golfer, Justice Campbell was a passionate jurist who "left a mark of excellence."

Following Justice Hall's comments, President Pflaum encouraged attendees to continue their conversations with the Justices. To help facilitate the conversation, the Association provided a list of suggested questions related to appellate practice and procedure. The questions covered a range of topics, including how to approach seeking a certified question for interlocutory review and tips for oral arguments.

The Association thanks the Justices of the Illinois Appellate Court, First District for another enjoyable roundtable luncheon.

ALA Hosts Seminar on How to Advise Trial Attorneys and Clients

Thu, 26 Mar 2015 12:37:00 GMT

On March 4, 2015, approximately 40 litigators from all over Illinois attended the Association’s March brown bag luncheon: Appellate Practitioners’ Advice to Trial Attorneys. Baker & McKenzie hosted the event in its Chicago office. The panelists featured ALA Secretary Joanne Driscoll, partner at the Forde Law Offices; past ALA president Karen Kies DeGrand, partner at Donohue Brown Mathewson & Smyth, LLC; and past ALA president Michael Pollard, partner at Baker & McKenzie.

The well-received presentation was a mix of war stories and hard-learned lessons from a trio of litigators with roughly 90 years’ litigation experience between them. All of the presenters emphasized the importance of having an “appeals person” involved in litigation teams and client counseling. Pollard said, after a particularly colorful story wherein his calm advice ultimately won over his client’s trust, that an appellate lawyer’s greatest asset is the ability to “think globally and act locally.” That is, an appellate lawyer is trained to think beyond any one case, but can intercede with timely advice at the trial level in order to steer the matter towards a sustainable, and hopefully the most successful, outcome.

ALA President Steven F. Pflaum was on hand to lend a personal touch to the discussion, and sharing a quick story involving each of the three panelists. During the Q&A portion, the panelists discussed a wide range of topics including interlocutory appeals as a matter of right, certified question appeals, and issues concerning the preparation of the record on appeal.

The ALA thanks the speakers for their thoughtful insights and Baker & McKenzie for graciously hosting the event.

Illinois Appellate Court Holds That Order of Supervision Following Trial in Juvenile Proceeding is Interlocutory and Not Appealable

Sun, 22 Mar 2015 17:41:00 GMT

In re Henry B., 2015 IL App (1st) 142416, concerns whether an order of supervision entered pursuant to section 5-615 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-615 et seq. (West 2014)) after a minor’s criminal trial is appealable.  As discussed below, the short answer is “no.”

The State charged 12-year-old defendant, Henry B., as a juvenile with felony aggravated battery and misdemeanor battery. At the defendant’s bench trial, the court granted the defendant’s motion for a directed verdict on the felony count but found him guilty on the misdemeanor battery count. At sentencing, the court “did not enter either a finding of guilty or any judgment. The judge continued the case under supervision pursuant to section 5-615(1)(b) of [the] Act (705 ILCS 405/5-615(1)(b) (West 2014) (as amended by Public Act 98-062, eff. Jan. 1, 2014)) for a period of six months ***.” (Emphasis in original). Henry B., 2015 IL App (1st) 142416, ¶ 18.

The defendant appealed, seeking reversal of the juvenile court’s order of supervision. On appeal, the defendant argued that the State failed to prove him guilty beyond a reasonable doubt because the victim suffered no physical pain or injury as a result of the minor’s conduct. Id. ¶ 3. The State argued that the reviewing court lacked jurisdiction to entertain the appeal because the “Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision.” Id. ¶ 4. The Illinois Appellate Court, First District, agreed with the State.

In general, the appellate court has jurisdiction to review appeals from final judgments, and does not have jurisdiction to review an interlocutory order, unless jurisdiction is specifically provided for by supreme court rule. Henry B., 2015 IL App (1st) 142416, ¶ 21 (citing In re J.N., 91 Ill. 2d 122, 126 (1982)). Two Illinois Supreme Court rules provide for appeals in juvenile delinquency proceedings: Rule 660(a) (Ill. S. Ct. R. 660(a) (eff. Oct. 1, 2001)) and Rule 662 (Ill. S. Ct. R. 662 (eff. Oct. 1, 1975)). Henry B., 2015 IL App (1st) 142416, ¶ 22. Rule 660(a) deals with final judgments and provides that in juvenile delinquency proceedings “[a]ppeals from final judgments *** shall be governed by the rules applicable to criminal cases,” except where otherwise specifically provided. Henry B., 2015 IL App (1st) 142416, ¶ 23. Rule 662 specifically provides for interlocutory appeals in delinquency proceedings, but only under limited circumstances - when a dispositional order had not been entered within 90 days from either an adjudication of wardship or a revocation of probation or conditional discharge. Id. ¶ 24.

The defendant conceded that Rule 662 did not apply. Id. Instead, the defendant argued that his order of supervision was a “final judgment,” and therefore appealable under Rule 660(a). Henry B., 2015 IL App (1st) 142416, ¶ 26. The reviewing court disagreed, concluding “the juvenile court judge’s order continuing the case for supervision contained no finding of guilty and no judgment order.” Id. ¶ 27. The order continuing the case for supervision was therefore not final and appealable. Id. (citing Kirwan v. Welch, 133 Ill. 2d 163, 167 (1989) (“a disposition of supervision is not a final judgment," because "supervision does not dispose of the proceedings on the underlying offense but merely defers the proceedings until the conclusion of the period of supervision”); In re A.M., 94 Ill. App. 3d at 89-90 (holding that an order of supervision of a minor was a continuance of the cause and did not finally dispose of the delinquency petition on the merits and was not subject to appellate review).

The defendant argued in the alternative that the court had appellate jurisdiction under Rule 604(b) (eff. Feb. 6, 2013), but the court found that rule was not applicable to juvenile delinquency proceedings. Rule 604(b) permitted appellate review only for “conditions of supervision” that resulted from convictions (such as restitution), and not findings of guilt. Henry B., 2015 IL App (1st) 142416, ¶ 31. Unmoved by the defendant’s arguments, the reviewing court dismissed the appeal for lack of jurisdiction under both Rules 660(a) and 662, the only rules conferring jurisdiction to the appellate court in juvenile delinquency proceedings.

Recommended Citation: Nate Nieman, Order of Supervision Following Trial in Juvenile Proceeding is Interlocutory and Not Appealable, The Brief, (March 22, 2015), http://applawyers-thebrief.blogspot.com/2015/03/order-of-supervision-following-trial-in.html.

A “Clearly Erroneous” Standard Applies to a Court of Appeals’ Review of Factual Issues Underlying a Patent Claim

Tue, 17 Mar 2015 20:32:00 GMT

The construction of a patent is typically a matter for a judge to determine as a matter of law. Accordingly, the standard of review for a Court of Appeals reviewing a district court’s decision upholding or striking down the validity of a patent is de novo. On occasion, however, the district court must make factual findings concerning evidence extrinsic to the patent itself. The question then arises what standard of review applies to those findings.

That question now is resolved by Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (Jan. 20, 2015). The case involves a drug patent holder, Teva, that sued a generic manufacturer of the drug, Sandoz, for patent infringement, in which Sandoz raised a defense attacking the validity of the patent. In deciding validity, the district court heard conflicting expert evidence concerning the meaning of a term used in defining one of the patent claims, “molecular weight,” and whether that term was sufficiently definite in the context of the claim. Id. at 835-36. The court found that it was sufficiently definite and held the patent valid. Id.

On appeal to the Federal Circuit, however, that court applied a de novo review standard to all aspects of the district court’s decision. The Federal Circuit then found the term “molecular weight” too indefinite, and it held the patent invalid. Id. at 836. Teva petitioned for certiorari, which the Supreme Court allowed.

In an opinion by Justice Stephen Breyer, the Supreme Court reversed. He initially pointed to Fed. R. Civ. P. 52(a)(6), which states that a court of appeals “must not ... set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Id. at 836-37. That mandate, according to Breyer, applies both to subsidiary and ultimate facts. Id.

Rule 52(a)(6), moreover, is not inconsistent with statements by the Court in cases like Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), that patent claim construction falls exclusively within the province of the court. Id. at 837. Construction of patents, said Breyer, is akin to the construction of contracts and other written instruments that present questions solely of law. Id. 837-38. Where extrinsic evidence is used to determine the meaning of terms in the instrument, any factual finding regarding such evidence “precedes” the actual construction of the instrument and is reviewed for clear error like other factual findings. Id. at 837-38.

Breyer observed that this approach is consistent with the district court’s role in presiding over the entirety of the patent proceeding and the opportunity the court has to gain familiarity with live witness testimony. Id. at 838-39. He also rejected the parallel that Sandoz sought to draw to statutory construction, which is decided as a matter of law but may include consideration of extrinsic matters such as legislative hearings. Breyer said that statutes typically involve only “general facts” and do not involve private parties and experts. Id. at 840.

As for how the Federal Circuit must apply clear-error review of factual findings, Breyer observed that such review does not apply to evidence intrinsic to the patent. Rather it applies only to the “evidentiary underpinnings” of claim construction when extrinsic evidence is introduced, such as disputes between experts. Id. at 840-41. The Federal Circuit here, however, rejected the district court’s fact findings without determining that they were clearly erroneous. Id.

The Court therefore vacated the Federal Circuit’s judgment and remanded for further review.

Justice Clarence Thomas, joined by Justice Samuel Alito, dissented. They argued generally that Rule 52(a)(6) should not apply because the subsidiary findings underlying claim construction more closely resemble the subsidiary findings underlying the construction of statutes than those underlying the construction of contracts. See id. 847-48.

Recommended Citation: Don R. Sampen, A “Clearly Erroneous” Standard Applies to a Court of Appeals’ Review of Factual Issues Underlying a Patent Claim, The Brief, (March 17, 2015), http://applawyers-thebrief.blogspot.com/2015/03/a-clearly-erroneous-standard-applies-to.html#more.

Upcoming ALA Events Feature Roundtable Luncheons With Appellate Court Jurists

Fri, 13 Mar 2015 18:41:00 GMT

Each year, the Association sponsors a series of roundtable luncheons with the United States Court of Appeals for the Seventh Circuit and the five districts of the Illinois Appellate Court. Numbers permitting, the ALA typically seats one judge at each table, providing ALA members and guests with a unique opportunity to converse with a reviewing court jurist in a collegial and informal setting. The luncheons also typically include a panel discussion with the judges sharing their insights on appellate practice and procedure.

The roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will take place on March 24, 2015, at the Union League Club in Chicago.

The roundtable luncheon featuring the justices of the Illinois Appellate Court, Fourth District, will take place on March 30, 2015. The luncheon will be held at the University of Illinois at Springfield. A panel of the Appellate Court will sit for oral arguments before the luncheon, and an interactive judicial panel moderated by Association President Steven F. Pflaum will follow the luncheon.

The roundtable luncheon featuring the justices of the Illinois Appellate Court, Second District, will take place on April 7, 2015, at The Centre in Elgin, which is conveniently located across the street from the Appellate Court.

The luncheons for the remaining districts of the Appellate Court and the Seventh Circuit will be held later in the year.

CLE credit will be offered for each of the luncheons. For more information and to register, please click here.

ALA's Cases Pending Highlights Illinois Supreme Court's March Term

Tue, 10 Mar 2015 17:44:00 GMT

The Cases Pending Committee, co-chaired by Joanne R. Driscoll (photo on left) and Clare J. Quish (photo on right), provides Association members with valuable information regarding matters set to be heard by the Illinois Supreme Court. The Supreme Court’s March Term began this week, with oral arguments scheduled for Tuesday and Wednesday, March 10 and 11, and next Tuesday and Wednesday, March 17 and 18. The Court will hear a total of 11 cases – 6 civil and 5 criminal. Below is a list of the civil cases scheduled to be heard, with the dates of oral argument:

In re Marriage of Mueller, No. 117876 – March 11

One West Bank, N.A. v. Standard Bank & Trust Co., No. 117950 – March 11

In re Pension Reform Litigation, No. 118585 – March 11

Coleman v. East Joliet Fire Protection Dist., No. 117952 – March 17

Turcios v. The DeBruler Co., No. 117962 – March 17

McVey v. M.L.K. Enterprises, L.L.C., No. 118143 – March 18

The Court will hear two pension cases this term, including one concerning the constitutionality of the law affecting pensions of state workers. Summaries for all these cases can be accessed by ALA members on the Association

’s website by clicking on our Cases Pendingpublication. To read abbreviated summaries for the two pension cases, please continue reading this post.

CONSTITUTIONAL LAW – PENSION REFORM LITIGATION

No. 118585
In re Pension Reform Litigation

This case involves the direct appeal of five lawsuits, one filed in Cook County, three filed in Sangamon County, and one filed in Champaign County, which were consolidated and decided in Sangamon County. The lawsuits each alleged that Public Act 98-0599 (the “Act”) violated the pension protection clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, § 5), which prohibits the diminishment or impairment of any membership benefit in any pension or retirement system of the State. Relying on Kanerva v. Weems, 2014 IL 115811, the circuit court granted plaintiffs’ joint motions for partial summary judgment and judgment on the pleadings as to defendant’s affirmative defense or, in the alternative, to strike the affirmative defense that the Act is a justified exercise of the State’s reserved sovereign powers or police powers.

The circuit court found that the pension protection clause was plain and unambiguous in its prohibition against diminishing or impairing anything that qualifies as a benefit of an enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems. The court also rejected the State’s sovereign or police powers defense as being not legally valid, citing Kanerva’s holding that the court “may not rewrite the pension protection clause.” Because the Act expressly provided for nonseverability, the court held the entire Act unconstitutional.

Direct Appeal – Supreme Court Rule 302(a): 12/03/14

Oral Argument: 03/11/15

* * * * * *

FAMILY LAW – PENSION

No. 117876
In re Marriage of Mueller

The issue in this case involves whether the court can offset the value of a spouse’s pension in lieu of Social Security to put the spouse participating in a pension program in a similar position as the spouse participating in Social Security.

The parties married in 1992 and in 2012, the wife filed a petition for dissolution of marriage. The trial court awarded the wife a portion of the husband’s police pension benefits without considering the value of the wife’s anticipated Social Security benefits or offsetting the value of the husband’s pension benefits by the value of Social Security benefits he would have received had he participated in Social Security instead of the pension. The husband appealed.

The Illinois Appellate Court, Fourth District, affirmed, rejecting the husband’s argument that, because the trial court could not consider the wife’s Social Security benefits in determining the equitable distribution of marital property, fairness required the court to offset its valuation of the husband’s pension by the value of Social Security benefits he would have received had he participated. The court explained that the Illinois Supreme Court’s holding in In re Marriage of Crook, 211 Ill. 2d 437 (2004) that Social Security benefits may not be divided directly or used as a basis for an offset during dissolution proceedings, did not decide whether a spouse who participates in a pension system in lieu of Social Security must be placed in a position similar to that of the other spouse whose Social Security benefits will be statutorily exempt from equitable distribution, leaving that issue to another day. The appellate court deferred to the Illinois Supreme Court to determine whether that day had arrived and how to resolve the issue.

Appellate Court Decision: 2014 IL App (4th) 130918-U. Steigmann, J., with Knecht, J., concurring. Appleton, P.J., dissenting.

PLA Allowed: 09/24/14

Oral Argument: 03/11/15

Request for Prejudgment Interest Stops the Appeals Clock in Federal Court—Unlike Attorney Fees

Mon, 09 Mar 2015 12:45:00 GMT

A short opinion from the United States Court of Appeals for the Seventh Circuit serves as a reminder that until a plaintiff’s entire case has been decided—including any claim for prejudgment interest—there’s no final judgment for appeal. In Dual-Temp of Illinois, Inc. v. Hench Control, Inc., ___ F.3d ___, 2015 WL 304124 (7th Cir., 2015), the district court entered judgment after a trial and then checked a box on a judgment form indicating that no prejudgment interest would be awarded. Checking the box was an error, and 28 days later, the plaintiff moved the court to quantify prejudgment interest. But to avoid any issue about an untimely appeal, the defendant appealed the judgment following day.

Later, the district court agreed it would consider the plaintiff’s motion for prejudgment interest. As a result, the defendant informed the Seventh Circuit that its appeal should be deemed premature. The Seventh Circuit agreed and ruled that there was no final judgment because prejudgment interest “makes up part of a plaintiff’s damages.” Id. at * 1. The court explained that the district court must “quantify damages before a judgment can be final.” Also, it could not consider the judgment final on the ground that determining prejudgment interest is merely “mechanical and uncontroversial.” Accordingly, the court dismissed the appeal for lack of a final judgment.

The ruling in Dual-Temp is straightforward enough—there is no final judgment until there has been a ruling on prejudgment interest. But, at the same time, it is also well to pause and remember this rule differs significantly from a request for attorney fees. Last year, in Ray Haulch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014), the United States Supreme Court settled a split among the circuits and held that a request for attorney fees, by itself, does not toll the time for appeal. The court reasoned that even if the requested attorney fees arose from a contract, the request for fees was still collateral to the merits and did not prevent the judgment from becoming final for appeal. Id. at 780. The court noted, however, an exception under Fed. R. Civ. P. 58(e) under which a district court may allow a pending and undecided request for attorney fees to suspend the time to appeal. Id. at 781.

Thus, requests for prejudgment interest versus those for attorney fees — though they both might be viewed as collateral to the merits — actually affect finality differently. In short, a pending request for prejudgment interest stops the appeals clock, but a request for attorney fees generally will not.

Recommended Citation: E. King Poor, Request for Prejudgment Interest Stops the Appeals Clock in Federal Court—Unlike Attorney Fees, The Brief, (March 9, 2015), http://applawyers-thebrief.blogspot.com/2015/03/request-for-prejudgment-interest-stops.html.

In Criminal Case, Incorrect Advice From Trial Court Did Not Save Untimely Notice of Appeal

Fri, 06 Mar 2015 22:02:00 GMT

People v. Norton, 2015 IL App (2d) 130599, concerns whether a posttrial motion alleging ineffective assistance of counsel, filed after a motion to reconsider sentence, tolls the time period for filing a notice of appeal.

The defendant was convicted of two counts of aggravated battery. On May 11, 2012, following a sentencing hearing, the trial court sentenced defendant to prison and ordered him to pay $150,000 in restitution. On June 29, 2012, the court heard and denied a motion to reconsider sentence. Immediately following the court’s denial of that motion, defendant told the court that he wanted to assert a claim of ineffective assistance of counsel and asked the court how this would interact with his right to appeal. “The court advised defendant that if he filed the motion he had with him, ‘the notice of appeal is not filed,’ and after the court decided defendant’s motion defendant could ‘decide what [he] want[ed] to do.’ ” Upon further inquiry from defendant, the court clarified that “[i]f you file it now, I will consider this as part of a motion for a new trial, and I’ll deal with it here, right now before the appeal.” Defendant then filed his motion and the court appointed new counsel to represent him in connection with the motion.

Thereafter, defendant’s new attorney filed a “supplemental motion for a new trial, stating that it was his understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion.” The State asserted that the court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [court] would retain jurisdiction.” On May 3, 2013, following an evidentiary hearing, the court denied defendant’s supplemental motion for a new trial and defendant immediately filed a notice of appeal, challenging the court’s restitution order.

The appellate court, however, dismissed defendant’s appeal for lack of jurisdiction. Relying on People v. Serio, 357 Ill. App. 3d 806 (2005), the court in Norton determined that it lacked jurisdiction to entertain defendant’s appeal because the notice of appeal was not timely filed. The Serio court held that “a pro se motion asserting the ineffectiveness of counsel that is filed fewer than 30 days after the court has decided a postsentencing motion does not extend the time in which a defendant may appeal.” Norton, 2015 IL App (2d) 130599, ¶ 5 (citing Serio, 357 Ill. App. 3d at 817).

Recall that defendant’s conviction and sentence became final on June 29, 2012, yet his notice of appeal was not filed until May 3, 2013, nearly a year later. Although the trial court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [c]ourt would retain jurisdiction” and “understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion [filed by new defense counsel],” the court in Norton held that even though the trial court had both jurisdiction to consider a timely pro se motion alleging ineffective assistance of counsel and a duty to hear it, filing the motion did not operate to extend the time for filing a notice of appeal. Accordingly, the notice of appeal, even though it was filed immediately after the trial court disposed of defendant’s supplemental motion for new trial, was not timely. Further, because the time period in which the appellate court could grant a motion for leave to file a late notice of appeal pursuant to Illinois Supreme Court 606(c) (eff. Mar. 20, 2009), the appellate court lacked “any other possible basis to take jurisdiction of the appeal. ” Defendant’s appeal was, therefore, dismissed.

The court in the Norton recognized that “[t]he rule in Serio creates a conundrum for a defendant when, as here, the consideration of the pro se motion delays the notice of appeal more than 30 days after the denial of the first postjudgment motion. Here, the [trial] court did not assist defendant. Instead, it misadvised defendant that the time in which he could appeal was tolled when, as we have shown, it was not. Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.”

Recommended Citation: Nate Nieman, In Criminal Case, Incorrect Advice from Trial Court did not Save Untimely Notice of Appeal, The Brief, (March 6, 2015), http://applawyers-thebrief.blogspot.com/2015/03/in-criminal-case-incorrect-advice-from.html.

Illinois Solicitor General Reflects on Transition From Academia to Attorney General's Office

Tue, 03 Mar 2015 21:10:00 GMT

On February 18, 2015, the Association gathered at the Union League Club in Chicago for its February luncheon. The luncheon featured Illinois Solicitor General Carolyn E. Shapiro, who, in 2010, was appointed by Attorney General Lisa M. Madigan to serve as the top appellate lawyer in the Attorney General's office. Association President Steven F. Pflaum opened the luncheon by welcoming ALA members and guests, which guests included three of Shapiro's predecessors: Hon. Gary Feinerman of the United States District Court for the Northern District of Illinois, ALA Vice President Michael A. Scodro, and Joel D. Bertocchi. President Pflaum noted the Solicitor General's unique role within the public service sector, quipping that, unlike the Attorney General, Shapiro "actually" practices law and, unlike a United States attorney, she gets to practice in both federal and state courts.

Thereafter, Shapiro reflected on her transition from law professor to advocate representing the State in appellate matters. She noted that her office developed approximately 250 briefs during her first year, and given the breadth of matters involved, she has experienced a "tremendous learning curve," but that curve has made the job enjoyable. The wide range of matters can, at times, lead to interesting scenarios where attorneys in her office are representing opposing sides. Shapiro recounted one such situation where her office represented both the State and the Department of Children and Family Services; and to the audience's amusement, noted that her office "won."

The Solicitor General also shared insight into her office's structure and organization. She emphasized that her office is an "institutional litigant," and that maintaining credibility with the judiciaries is key and is also in her client's long-term interests. On a practical note, Shapiro shared that she tracks all office cases on a legal pad, and that she personally reviews all briefs filed before the United States Court of Appeals for the Seventh Circuit and the Illinois Supreme Court.

The Association thanks Solicitor General Shapiro for her engaging and insightful comments.

Association Honors Justice Hoffman at First District Judicial Reception

Fri, 27 Feb 2015 23:12:00 GMT

On February 4, 2015, the Association hosted a reception honoring the Justices of the Illinois Appellate Court, First District, at the Union League Club in Chicago. The biennial reception provided an opportunity for members of the bench and bar to socialize over cocktails and hors d'oeuvres in a collegial setting.

The reception honored Justice Thomas E. Hoffman's distinguished service on the First District Appellate Court. ALA President Steven F. Pflaum opened the festivities by welcoming members of the judiciary, who included members of the Illinois Supreme Court, Illinois Appellate Court, and the Cook County Circuit Court, ALA members, and guests. President Pflaum recounted Justice Hoffman's storied career in public service, which included service as a Chicago police officer, trial court judge, and appellate court justice. By Pflaum's count, Justice Hoffman had authored more than 700 opinions, special concurrences, and dissents. Drawing a large laugh from the many practitioners in the audience, Pflaum noted that Justice Hoffman had also authored countless Rule 23 orders, which he was not allowed to reference.

Thereafter, Justice Margaret Stanton McBride introduced Justice Hoffman. Justice Stanton spoke of Justice Hoffman's dedication to the judiciary and noted the admiration that she and her colleagues on the court have for him.

Justice Hoffman's heartfelt remarks expressed gratitude to his many colleagues and friends in attendance. True to his down-to-earth nature, Justice Hoffman candidly queried why he was being honored before noting that the highest professional compliment one can receive is recognition from the people one works with on a daily basis. Justice Hoffman noted the significant efforts of court personnel and his staff, including his dedicated law clerks, and thanked his judicial colleagues for their dedication and hard work.

The ALA congratulates Justice Hoffman for his well-deserved recognition; and thanks the members of the judiciary, ALA members, and guests for an enjoyable evening.

ALA Submits Proposals for Amendments to Supreme Court Rules 306 and 307

Tue, 24 Feb 2015 21:55:00 GMT

The Rules Committee of the Appellate Lawyers Association, chaired by Garrett L. Boehm, Jr. of Johnson & Bell, Ltd. (photo on left) and John M. Fitzgerald of Tabet DiVito & Rothstein LLC (photo on right), meets regularly to review recent changes to the Federal Rules of Appellate Procedure and Illinois Supreme Court Rules. The Committee also proposes to the Association amendments to existing rules in an effort to resolve ambiguities and address problems incurred under those rules.

Recently, the Association, at the recommendation of the Rules Committee, submitted a letter to the Illinois Supreme Court Rules Committee proposing amendments to Supreme Court Rules 306 and 307. The proposals seek to clarify that, under Rules 306(b), 307(d)(1), and 307(d)(2), documents may be served via email. The ALA's proposals also include amendments to Rule 307(a) to authorize the filing of a supporting record pursuant to Rule 328. Finally, the proposals seek to amend Rule 307(d) to provide that, in interlocutory appeals authorized under that rule, the notice of appeal shall be filed in the circuit court, and further, that Rule 373 (which authorizes the filing of documents via mail or delivery to a third-party commercial carrier) may be utilized in Rule 307(d) appeals.

To read the letter, please click here.

Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody Dispute

Mon, 23 Feb 2015 19:40:00 GMT

In re Marriage of Eckersall, 2015 IL 117922, a Cook County dissolution of marriage proceeding, was finalized in 2014. While the case was pending, the husband sought joint custody of the couple’s three children. When the parties did not meet the circuit court’s deadline for reaching a visitation agreement, the court entered a form order that restricted the parents’ conduct and communications with the children during the proceedings. Among other restrictions, the order prohibited the parents from using corporal punishment in disciplining the children, from discussing the pending litigation with them, and from removing the children from the state without the other parent’s consent or a court order. The wife objected to the order and pursued an interlocutory appeal under Supreme Court Rule 307(a) (eff. Feb. 26, 2010), which allows interlocutory appeals from injunctions. With one justice dissenting, the appellate court found that the order did not constitute an injunction and dismissed the appeal for lack of jurisdiction.

After accepting the wife’s petition for leave to appeal, the Illinois Supreme Court dismissed the appeal, but for a different reason than the appellate court had stated. By the time the supreme court addressed the substance of the appeal, the circuit court had entered its final dissolution order, which superseded the “form” order to which the wife had objected. Undisputedly, the form order that was the subject of the appeal was moot. The question for the supreme court, however, was whether the public interest exception to the mootness doctrine called for the court to address the substance of the superseded order.

The supreme court found that the form order, which was “generally only used” in Cook County dissolution proceedings when the parties could not agree on visitation terms, did not meet the first requirement for the public interest exception: the appeal presents an issue that has widespread effect on the public. The absence of conflicting authorities led the court to conclude that the second requirement, a need for authoritative determination, also was not present. Finally, the third factor, a likelihood of future recurrence, had not been met given the lack of past litigation involving this issue. Distinguishing this case from other cases presenting important issues involving minors, such as a minor’s physical safety or the protection of neglected or abused children, the supreme court found that the narrowly construed public interest exception to the mootness doctrine did not apply. The supreme court concluded “this type of ‘form’ order has a limited application and does not have a significant effect on the public as a whole.” Therefore, the petition for leave to appeal had been improvidently granted, and the high court dismissed the appeal as moot.

Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody Dispute, The Brief, (February 23, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-finds-public.html.

ALA and DuPage County Bar Association Cosponsor Supreme Court Civil Litigation Year in Review Seminar

Thu, 19 Feb 2015 21:05:00 GMT

For the third consecutive year, the ALA and the DuPage County Bar Association (DCBA) cosponsored the "Supreme Court Civil Litigation Year in Review" brown bag luncheon seminar. The popular program, which offered attendees 1.5 hours of valuable CLE credit, focused on Supreme Court Rule changes, statistics regarding petitions for leave to appeal, and opinions issued by the Illinois Supreme Court during the 2014 calendar year. The seminar was conveniently presented in both Wheaton and Chicago, and as a membership benefit, ALA and DCBA members could attend either seminar free of charge.

The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District, along with seasoned appellate practitioners J. Timothy Eaton of Taft Stettinius & Hollister LLP and Michael T. Reagan of Law Offices of Michael T. Reagan. The program began with an overview of Supreme Court Rule changes, many of which are germane to appellate practice and procedure. The panel noted that, for example, the supreme court amended Rules 138, 201, 303, 306, 308, 313, and 367, among others.

The panel then noted that, in 2014, 1,365 petitions for leave to appeal were filed, a decrease from years' past, and that the percentage of petitions granted slightly increased due to fewer petitions being filed. The panel noted that 85% of the petitions granted involved issues of statutory construction. Further, approximately 22% of the petitions granted resulted in an affirmance while approximately 78% resulted in a reversal (either in part or outright). Thus, it is reasonable to infer that, if the supreme court grants a petition for leave to appeal in a civil matter, some relief from the reviewing court's disposition is likely. Finally, emphasizing the uniformity of the court, the panel noted that, out of approximately 30 civil opinions, there were 5 dissents and 1 special concurrence.

Thereafter, the panel discussed supreme court opinions issued during the 2014 calendar year. The discussion covered a variety of substantive topics, including conflicts of law, forfeiture, mootness, personal jurisdiction, preservation of error, administrative law, pensions, real estate, retaliatory discharge, and tort law, among many others.

The ALA thanks the panel members for an information-packed seminar, the DCBA for cosponoring the seminar and hosting the Wheaton presentation, and Neal Gerber & Eisenberg LLP for graciously hosting the Chicago presentation.

No Cash on the Barrel-head, No Controversy, No Interpleader Jurisdiction

Sun, 15 Feb 2015 18:51:00 GMT

Subject matter jurisdiction over interpleader actions as well as the constitutional case-or-controversy requirement are at the center of a recent decision from the United States Court of Appeals for the Seventh Circuit. In State Farm Life Insurance Co. v. Jonas, __F.3d__, 2014 WL 7399115 (7th Cir. Dec. 31, 2014), a husband and wife named each other as beneficiaries of their life insurance policies. After they divorced, the policies remained in force and later the wife died. The husband then sought to collect the $1 million proceeds from his ex-wife’s policy. The insurer resisted paying because of its concerns that the couple’s children may have been the rightful beneficiaries under their mother’s policy.

But under the Texas law that governed, an insurer that fails to pay within 60 days of receiving a claim may be assessed interest at 18% a year, plus attorney fees. The only way to avoid such interest and fees under Texas law was to bring an interpleader action, and the insurer did so in federal court. And because the couple’s children did not make a competing claim in this action, the district court ordered the insurer to pay the husband. Yet the husband was dissatisfied that the district court did not also award attorney fees and interest and appealed.

But the Seventh Circuit never reached the merits and dismissed the case for lack of jurisdiction. First, the court pointed out that, though the parties satisfied the “minimal diversity” requirement under the federal interpleader statute (28 U.S.C. § 1335), the insurer failed to meet the requirement that it actually pay the proceeds into the court’s registry. Because the statute requires, in the court’s words, “cash on the barrel-head,” no jurisdiction existed under the interpleader statute.

The Seventh Circuit next considered whether the interpleader action could, in the alternative, be maintained under the general diversity jurisdiction statute (28 U.S. C. § 1332). The parties met the requirements of complete diversity and the jurisdictional amount. But diversity jurisdiction still failed because there was no actual dispute to meet the case or controversy requirement of Article III of the Constitution. The court first noted that there was no competing claim to the proceeds, and the insurer not being “comfortable” paying the proceeds to the husband was not enough.

The husband argued that there was a sufficient controversy because of the fees and interest that arose after he filed suit. That too failed because, “a case or controversy must exist when a suit begins — and on that date there was no live controversy.” The court stated that if disputes over attorney fees and interest “during litigation could create a justiciable controversy, then no case could be dismissed for lack of one,” since every prevailing party is entitled to some costs. Thus, the court concluded that a dispute over fees and interest arising during the litigation could not “retroactively create jurisdiction.”

Without the paid-in proceeds necessary for the statutory interpleader, and without a live controversy on the date when suit was filed, the Seventh Circuit vacated the district court’s judgment and dismissed the case for lack of subject matter jurisdiction.

Recommended Citation: E. King Poor, No Cash on the Barrel-head, No Controversy, No Interpleader Jurisdiction, The Brief, (February 15, 2015), http://applawyers-thebrief.blogspot.com/2015/02/no-cash-on-barrel-head-no-controversy.html.

Illinois Supreme Court Clarifies When Oral Judgment is "Entered of Record"

Wed, 11 Feb 2015 18:38:00 GMT

The Illinois Supreme Court’s opinion in Williams v. BNSF Railway Co., 2015 IL 117444, clarified when an oral judgment is “entered of record” for purposes of Rule 272, thereby triggering the 30-day appeal period.

The supreme court accepted BNSF’s petition for leave to appeal from the appellate court’s order dismissing the appeal for lack of jurisdiction. Williams, 2015 IL 117444, ¶¶ 2, 24. The appellate court dismissed the appeal, concluding that the oral ruling on April 18, 2012 denying BNSF’s posttrial motion was the final order that triggered BNSF’s time to appeal. Id. ¶¶ 21-22. The appellate court deemed BNSF’s appeal untimely because it was filed within 30 days of the written order entered on June 6, 2012 relating to one posttrial motion issue taken under advisement following the April 18 hearing. Id. ¶¶ 18, 21.

Before petitioning the supreme court for leave to appeal, BNSF petitioned for rehearing in the appellate court. Williams, 2015 IL 117444, ¶ 23. BNSF explained that the appellate court misapprehended that the April 18, 2012 oral ruling was entered of record on that date and then attempted to supplement the record with a certified copy of the law record, which reflected that the April 18, 2012 oral ruling was entered in the record on June 6, 2012. Id. ¶ 23. The petition for rehearing and motion to supplement the record were denied.Id. ¶ 24.

BNSF’s petition for leave to appeal was accompanied by the motion to supplement the record with the law record. Williams, 2015 IL 117444, ¶ 26. The motion and objections thereto were taken with the case. Id. ¶ 28.

The supreme court rejected the objections to BNSF’s motion to supplement, finding that BNSF was not remiss in seeking leave to include the law record. The supreme court also observed that there was no contention that the proffered law record was inaccurate.Id. ¶¶ 33-34. The court then turned to the merits.

The supreme court first found that the April 18, 2012 oral ruling was not entered of record until June 6, 2012, as reflected in the law record. Williams, 2015 IL 117444, ¶ 45. The court examined Rule 272 as well as case law construing the phrase “entered of record” to conclude that rendering an oral ruling did not constitute entering the judgment of record for purposes of Rule 272. Id. ¶¶ 35-45.

The supreme court court next considered when the time to appeal began to run. Id. ¶ 46. The plaintiff claimed that Rule 272 did not apply to posttrial motions but instead only final judgments. Id. The high court disagreed, observing that, since a timely postjudgment motion tolls the time to appeal until disposition of that motion, it was necessary to look to Rule 272 to determine that date. Id. ¶¶ 47-48. The court held that a ruling on a postjudgment motion constitutes a judgment under Rule 272. Id. ¶ 49. The court then found that BNSF’s notice of appeal filed within 30 days of the June 6, 2012 order was timely. Id. ¶¶ 50-52. The court however, declined BNSF’s invitation to consider issues briefed but not decided by the appellate court and instead remanded the case to the appellate court to consider the merits of BNSF’s appeal.

Recommended Citation: Rosa M. Tumialán, Illinois Supreme Court Clarifies When Oral Judgment is "Entered of Record", The Brief, (February 11, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-clarifies-when.html.

Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final Judgment

Mon, 09 Feb 2015 17:32:00 GMT

In Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction the interlocutory appeal of the Diocese from the order denying its motion for summary judgment, holding that the collateral-order doctrine did not apply because the order was not effectively unreviewable on appeal from a final judgment. Id. at 1090-92.

Herx worked as a teacher for a Catholic school. Herx, 772 F.3d at 1086. She was discharged because she underwent in vitro fertilization in violation of the moral teaching of the Catholic Church. Id. at 1087. Herx sued, and the Diocese moved for summary judgment. Id. The district court denied summary judgment in part. Id. The Diocese filed an interlocutory appeal, invoking the collateral-order doctrine of appellate jurisdiction, and Herx moved to dismiss the appeal. Id. at 1088.

The Seventh Circuit granted Herx’s motion and dismissed the appeal. The reviewing court explained that the collateral-order doctrine “confers finality – and thus immediate appealability -- on a small category” of interlocutory orders. Herx, 772 F.3d at 1088. There are three “stringent” conditions for collateral-order review. Id. at 1089. It requires: “(1) a conclusive decision; (2) on an important issue that is conceptually separate from the merits ... (3) that is effectively unreviewable on an appeal from a final judgment.” Id. In determining whether these requirements are met, the court does not engage in an “individualized jurisdictional inquiry,” but focuses instead “on the entire category to which a claim belongs.” Id. Citing United States Supreme Court precedent, the court emphasized that the doctrine is “narrow” and “modest” in scope. Id. The court explained that the categories of claims to which the doctrine has been applied are those that involve an immunity from trial, such as a public official’s claims of absolute or qualified immunity, a State’s claim of Eleventh Amendment immunity, a foreign government’s claim of sovereign immunity, or an order denying a criminal defendant’s claim of double jeopardy. Id.

The Seventh Circuit focused on the third condition – whether the challenged order would be effectively unreviewable on appeal after final judgment – and explained that the Supreme Court has held that the “crucial question” is “whether deferring review until final judgment so imperils” the interest at stake “as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” Id.at 1090 (citations and internal quotation marks omitted). In cases where collateral-order review has been allowed, the court explained, “some particular value of a high order was marshaled in support of the interest in avoiding trial,” including “honoring the separation of powers, preserving the efficiency of government and the initiative of officials, respecting a State’s dignitary interests, and mitigating the government’s advantage over the individual.” Id. (citations and internal quotation marks omitted).

The Seventh Circuit held that the Diocese’s appeal failed to satisfy this third condition. Although the Diocese had asserted important statutory and constitutional rights in defense against Herx’s claims, it could not assert any immunity from the burdens of trial. Herx, 772 F.3d at 1091. The court also rejected the Diocese’s argument that collateral-order review was necessary to avoid an encroachment on its First Amendment interests in religious liberty, explaining that the district court had not ordered a religious question submitted to the jury and would instruct the jury accordingly. Id. Thus, none of the interests the Diocese asserted would be irreparably harmed by enforcing the ordinary rule that appeals may be taken only after final judgment. Id. at 1091-92.

Because the district court’s decision was not effectively unreviewable after final judgment, the collateral-order doctrine did not apply, and the court dismissed the appeal for lack of jurisdiction. Herx, 772 F.3d at 1092.

Recommended Citation: Myriam Zreczny Kasper, Seventh Circuit: Collateral-Order Doctrine Did Not Apply Because District Court’s Denial of Summary Judgment Was Not Effectively Unreviewable on Appeal From Final Judgment, The Brief, (February 9, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-collateral-order.html.

Seventh Circuit Underscores – Again – The Need to File a Notice of Appeal Within 30 Days of Judgment

Wed, 04 Feb 2015 17:02:00 GMT

In Satkar Hospitality, Inc. v. Fox Television Holdings, No. 11-3572, the United States Court of Appeals for the Seventh Circuit underscored – yet again – the importance of timely filing a notice of appeal. Satkar arose from an alleged “pay to play” scenario that sounds all too familiar in Illinois. In 2007, Satkar (which owned and operated a Schaumburg hotel) won a property tax appeal before the Cook County Board of Review (the Board of Review). In 2009, two news outlets reported that an Illinois State Representative had engineered successful property tax appeals in return for campaign contributions. They identified Satkar and its owners as participants in that scheme. The Board of Review reacted by reversing its 2007 ruling.

Outraged, Satkar and its owners brought suit against the Board of Review, its members, and the media outlets. The plaintiffs brought claims under 42 USC § 1983, and state law claims for defamation and false light. In September 2011, the District Court dismissed the state law claims on the ground that those claims were barred by Illinois’ Anti-SLAPP statute. The state law claims and defenses asserted in the trial court presented interesting legal issues. Ultimately, however, none of those issues were heard by the Seventh Circuit.

When the district court dismissed the plaintiffs’ state law claims on September 21, 2011, it entered a judgment under Rule 54(b), thus starting the 30-day appellate clock. However, a week later, during a September 27, 2011 status conference on the remaining claims, the district court judge (in an apparent moment of confusion) suggested he had not issued a Rule 54(b) finding, and invited the parties to request such a finding. Ultimately, in November 2011 (i.e., well after the expiration of the time for appealing the September 21 judgment), the plaintiffs sought an extension of time to file a notice of appeal. The plaintiffs claimed their delay in filing was due to confusion stemming from the court’s comments at the September 27 hearing. The district court granted the extension, and the plaintiffs filed a notice of appeal.

In a September 10, 2014 opinion, the Seventh Circuit dismissed the plaintiffs’ appeal for lack of jurisdiction. The Seventh Circuit began its analysis by reiterating that the timely filing of a notice of appeal is a jurisdictional requirement, and that the “excusable neglect” exception to the 30-day filing requirement is narrowly construed. Id. The Seventh Circuit further noted that the “unique circumstances” exception to the 30-day requirement (which the trial court relied on as a basis for granting the plaintiffs' motion for an extension of time) had been foreclosed by the United States Supreme Court in Bowles v. Russell, 551 U.S. 205 (2007). Thus, the plaintiffs had to live (or die) based on their ability to demonstrate “excusable neglect.”

The Seventh Circuit held that “excusable neglect” may arise from “misrepresentations by judicial officers” or “plausible misinterpretations of ambiguous rules.” However, the court emphasized that a misunderstanding of an unambiguous order or rule does not rise to the level of excusable neglect. Rather, to establish “excusable neglect” a party must “demonstrate genuine ambiguity or confusion about the scope or application of the rules or some other good reason for missing the deadline.”

The Seventh Circuit did not believe that the plaintiffs met that standard. While acknowledging the trial court’s erroneous statements, the Seventh Circuit noted that those statements, when taken in context, did not create ambiguity. The district court’s September 21 judgment (and the entry on the docket) very clearly reflected a Rule 54(b) finding. The plaintiffs also acknowledged they understood the requirement that a notice be filed within 30 days of a Rule 54(b) finding. Finally, the plaintiffs did nothing to clear up any “confusion” at the September 27 hearing or thereafter. In the face of those facts, the Seventh Circuit found that plaintiffs simply could not claim they had been duped or confused by the trial court’s statements. Accordingly, their appeal was dismissed.

Recommended Citation: Timothy D. Elliott, Seventh Circuit Underscores – Again – The Need to File a Notice of Appeal Within 30 Days of Judgment, The Brief, (February 4, 2015), http://applawyers-thebrief.blogspot.com/2015/02/seventh-circuit-underscores-again-need.html.

Family Feud: Illinois Appellate Court Applies Mootness and Release of Errors Doctrines in Case Involving Family Estate

Sat, 31 Jan 2015 05:29:00 GMT

In Ghantous v. Ghantous, 2014 IL App (3d) 130792, the Illinois Appellate Court discussed the doctrines of mootness and release of errors in the context of a family dispute. The father, Camille Ghantous, died in 2010. In Camille’s probate case, his wife, Souad, was named administrator of the estate. Id. ¶ 7. As administrator, Souad discovered that she and Camille did not have any ownership interest in the apartment building for which they had given their son, Leo, $1.1 million toward the purchase price. Id. ¶¶ 9, 11.

Thereafter, Souad filed a breach of fiduciary duty action against Leo, alleging that Leo, a licensed attorney, persuaded her and Camille to personally borrow $1.1 million to contribute toward the purchase price of an apartment building as a family business, and use their own multiple properties as collateral. Id. Souad alleged that she discovered that she and Camille did not have any ownership interest that corresponded to the percentage of funds they had contributed to the purchase price of the apartment building. Id. ¶ 11. Leo then initiated three separate lawsuits of his own involving financial disputes with his siblings in the law division. Id. ¶ 7.

On April 8, 2013, Souad sent an offer letter to Leo detailing terms for a proposed global settlement agreement to resolve the family disputes pending in the chancery action, the probate proceeding, and the three pending lawsuits among her children. Id. ¶ 13.

On April 15, 2013, Leo’s attorney sent a draft release and settlement agreement incorporating the agreed terms for Souad’s signature. Id. ¶ 14. Souad did not sign and return the proposed release form, so Leo’s attorney filed a motion to enforce on June 12, 2013, in all five pending cases. Souad responded to the motion by alleging that the parties had not reached an agreement because Leo’s proposed release and settlement agreement included language which deviated from Souad’s April 8 offer letter. Id. ¶ 16.

The trial court found that Leo’s draft release and settlement agreement set forth all the terms of the global settlement agreement. The court ordered all parties to execute the release and settlement agreement and to comply with its terms.

Souad then filed a motion to reconsider in all five cases, attaching a document, drafted by her attorney and listed as Exhibit G, which was a modified release and settlement agreement. Leo agreed that Exhibit G more accurately reflected the agreed terms of the April 8 letter. On September 24, 2013, the court entered an order, which included all five case numbers, denying Souad’s motion to reconsider. The court then directed the parties to execute the release and settlement agreement prepared by Souad (Exhibit G), with some modifications. Id. ¶ 20. The court entered the same order in all five cases.

Souad filed a notice of appeal only in the chancery case, arguing that the release and settlement agreement Leo submitted for her signature operated as an acceptance of the terms proposed by Souad in her April 8 offer letter to settle all five cases. Leo contended that the appellate court must decline to exercise its appellate jurisdiction because the doctrines of mootness and release of errors precluded appellate review. Id. ¶ 24. Leo argued that all five cases were functionally consolidated in the trial court and that Souad must comply with the same global release agreement pursuant to the same order entered in all five cases. Souad responded that the five lawsuits were not functionally consolidated.

The Appellate Court found that, even assuming that the five cases were not functionally consolidated for settlement purposes, the doctrines of mootness and release of errors applied. Id. ¶ 25. Regarding mootness, the reviewing court noted that an appeal is considered moot where events occur that make it impossible for the appellate court to grant effectual relief or where the issues have ceased to exist. Id. ¶27. Because the trial court entered an order simultaneously enforcing the same global release and settlement agreement in the chancery case and the probate case, it would be impossible for the court to effectuate the relief Souad sought without seeking similar relief in the probate action. Id. The court noted that to date, Souad had not sought to avoid the impact of the release and settlement agreement with respect to the probate action.

Accordingly, even if the appellate court had directed the trial court to vacate the order enforcing the global release and settlement agreement in the chancery case, thereby vacating the court order dismissing this lawsuit against Leo, Souad would still be compelled by court order in the probate case to dismiss the chancery lawsuit as part of the global release and settlement agreement that remained viable in the probate matter. Id. ¶ 30. The appellate court found that the issue raised in the appeal was moot since another identical order was binding on Souad in the probate action. Id.

Regarding the doctrine of release of errors, the appellate court noted that a litigant was barred or estopped on appeal from attaching a decree or judgment if the same litigant has enjoyed the benefits of that judgment and the opposing party would be placed at a distinct disadvantage upon reversal. Id. ¶ 33. The court found that, in this case, Leo would be at a distinct disadvantage if the court vacated the global release and settlement agreement because that agreement required dismissal of Leo’s three cases against his siblings, which directly impacted the proceedings involving Souad’s husband’s estate. Id. ¶ 36.

Further, the appellate court found that the order enforcing the global release and settlement agreement entered by the trial court in the probate division required Leo to abandon his active approach to the probate action, which directly benefited Souad. Accordingly, the appellate court concluded that the doctrine of release of errors estopped Souad from attempting to obtain a reversal of the order dismissing her chancery lawsuit since she had accepted the benefits of a similar order enforcing the very same global release and settlement agreement in the probate action. Id. ¶ 39.

Recommended Citation: April Oboikowitch, Family Feud: Illinois Appellate Court Applies Mootness and Release of Errors Doctrines in Case Involving Family Estate, The Brief, (January 30, 2015), http://http://applawyers-thebrief.blogspot.com/2015/01/family-feud-illinois-appellate-court.html#more.

Association Hosts Criminal Law Seminar

Mon, 26 Jan 2015 20:03:00 GMT

On January 15, 2015, the Association hosted its annual "2014 Criminal Law Supreme Court Year in Review" seminar at the offices of Hinshaw & Culbertson in Chicago. The program featured a lively panel discussion on important criminal law decisions issued by the Illinois Supreme Court during 2014. Justice Daniel L. Schmidt of the Illinois Appellate Court, Third District; retired Justice Warren D. Wolfson of the Illinois Appellate Court, First District; Leah M. Bendik, Assistant Attorney General; and James E. Chadd, Deputy Illinois Appellate Defender participated in the panel. ALA Vice President Michael A. Scodro of Jenner & Block LLP served as moderator. Each panel member shared her or his unique insight into a substantive area of criminal law and procedure, paying particular attention to recent cases from the state's high court.

Justice Schmidt opened the discussion with a moving tribute to the late Justice Patrick J. Quinn of the Illinois Appellate Court, First District. Referring to him as one of the "best and brightest," Justice Schmidt noted that Justice Quinn, a regular participant in this seminar, had a storied career as a prosecutor and a jurist. Thereafter, Justice Schmidt focused his comments on searches and seizures under the fourth amendment. Justice Schmidt voiced his disagreement with the supreme court's holding in People v. Cummings, 2014 IL 115769, a case in which the court suppressed evidence after holding that an otherwisie valid traffic stop should not have been prolonged after the initial reasons for the stop had evaporated. Deputy Defender Chadd cordially disagreed with Justice Schmidt, commenting that Cummings was a "sensible and practical" decision.

Justice Wolfson discussed the confrontation clause, quipping that the sixth amendment "has become his favorite amendment" because the United States Supreme Court had issued three opinions on this topic in the past five years. Justice Wolfson traced the evolution of the confrontation clause from Crawford v. Washington, 541 U.S. 36 (2004), to its application with respect to forensic evidence at issue in Williams v. Illinois, 132 S. Ct. 2221 (2012). Justice Wolfson advised attendees to watch out for Ohio v. Clark, No. 13-1352, (cert. granted, Oct. 2, 2014), where the United States Supreme Court is expected to discuss the meaning of "targeted individuals."

Assistant Attorney General Bendik discussed searches incident to arrests, noting that such searches have two components: the person being arrested and the area within the person's control. Bendik emphasized that criminal attendees should pay attention to which type of search incident to arrest was at issue. Bendik also discussed the aftermath of People v. Aguilar, 2013 IL 112116, where the Illinois Supreme Court held that a state statute banning the carrying of ready-to-use guns was unconstitutional under the second amendment.

Deputy Defender Chadd focused his comments on postconviction petitions, including the appropriate standard for a successive postconviction petition involving the cause-and-prejudice test as discussed in People v. Smith, 2014 IL 115946. Chadd also discussed other noteworthy cases in the postconviction context, including People v. Hommerson, 2014 IL 115638, where the supreme court held that the failure to attach a statutorily mandated affidavit was a procedural defect that did not warrant dismissal at the first stage of the proceedings.

The ALA thanks the panel members for their insightful remarks and Hinshaw & Culbertson for hosting the program.

Making Oral Argument Productive: Judges' Edition

Thu, 22 Jan 2015 20:16:00 GMT

The following article first appeared in "Circuit Rider," the official publication of the 7th Circuit Bar Association. Brian J. Paul authored the article and has kindly allowed us to republish his article.

MAKING ORAL ARGUMENT PRODUCTIVE: JUDGES’ EDITION
Lawyers are taught early on what judges expect of them at oral argument. Much has been written on this topic. Know the record backwards and forwards, and stay within it. Answer the question asked, not the question you wish had been asked. Be civil to opposing counsel, and be respectful to the court. These are some of the basics.
But just as judges have certain expectations of the lawyers who will argue a case, lawyers have certain expectations of the judges who will conduct the argument. Much less has been written on this topic. So allow this lawyer to make a few suggestions along those lines.

1. Be active. I know that some cases are yawners, but we can’t address your concerns if you don’t tell us what they are. If you don’t have concerns, then maybe you have a question about the facts, or perhaps you need clarification on a point of law. Whatever it is, please ask us. Allowing us to give an uninterrupted speech probably doesn’t help you, and it doesn’t really help us either. We genuinely want to make the case easier to decide.

2. Presume good faith. We lawyers sometimes say things in argument that may not ring true, but in my experience most lawyers don’t lie. We may have convinced ourselves of own nonsense, and you’re right to call us on it. But resist the urge to think that we’re trying to pull the wool over your eyes, because we’re probably not. We’re more likely just trying to do the best we can with what we’ve got, even if our efforts may appear misguided. We are confined by the record, and as a result sometimes we feel compelled to try to force a square peg into a round hole.

3. Allow us to answer the question until we actually don’t. I have heard some arguments in which a judge asks a question, and just a few words into the answer the judge accuses the lawyer of being evasive. Lawyers should immediately answer the question asked, and as directly as possible. Most lawyers try to do that. But sometimes we think we’re answering the question when we aren’t, perhaps because we’ve misunderstood. So before cutting us off in exasperation, on the assumption we’re being less than forthcoming, consider asking the question a different way; give us a second chance.

4. Accept that we’ve answered your question even if you don’t like our answer. We all know judges occasionally try to make a point with their colleagues through their questions. We also know judges often come to oral argument predisposed to decide one way or another. That’s only natural if you’ve already read the briefs, and that’s fine. But if we give you an answer that doesn’t advance your point or confirm your initial views, and if it doesn’t appear you can shake us from our answer, consider moving on. Oral arguments, like cross-examinations, get bogged down if the questioner isn’t willing to recognize that some answers just aren’t going to change.

5. Warn us ahead of time if you think we’ve missed something critical, or if, in a case involving several issues, there are only one or two that really interest you. It goes without saying that we should be well prepared to handle questions on all topics related to our case. But sometimes everyone involved will have missed a fundamental issue. Subject matter jurisdiction comes to mind; there have been some cases in recent years where the plaintiff and the defendant both have just flat missed the boat on jurisdiction. If you think we’ve all blown it, or if you believe a particular issue requires more attention than others, consider giving us a heads up before oral argument—maybe a notice of some sort. “Be prepared to address X” is all the notice needs to say. That way we know to be particularly prepared to discuss X, and, in turn, you’re more likely to benefit when you question us about X.

6. Try to remain even-tempered even when things have gone south. I can only imagine how frustrating oral argument is at times for appellate judges. You want help deciding cases, and sometimes, for one reason or another, we fail to give you that help. It probably happens more often than we lawyers would care to admit. But berating an attorney in open court for the faults of his presentation (or worse, because he’s got a bad case) isn’t likely to help matters. Nor will disengaging. Instead, consider firmly but calmly pointing out the problem, and then switching topics. Maybe the lawyer is woefully unprepared to address issue 1 but fully prepared to address issue 2. Through measured persistence, you may find the argument can be salvaged after all.

7. Recognize that hypotheticals can get rather far afield. This generally isn’t a problem unless you’re using the hypothetical to determine whether a lawyer will admit defeat on a particular point. Remember that our responses to hypothetical questions go only so far; they may help you with your analysis, but they generally do not decide the case.

8. Bear in mind that our clients are watching. No matter how badly someone may want to win, litigants usually can accept defeat if they genuinely think they’ve gotten a fair shake. Not only is it important to be evenhanded, then, it is important to display evenhandedness. After all, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). This may require, for example, asking tough questions of both sides even if you think one side or the other should clearly win. It is also helpful to demonstrate that you have a solid understanding of the case. This will go a long way to convincing the parties that you’ve given thoughtful consideration to their arguments.

It has been said that a good oral argument isn’t so much an argument but a conversation. That’s true, and when both sides thoughtfully engage in that conversation, oral argument is at its most productive. This article has offered some suggestions for judges on how to foster a truly productive conversation. Next time, I’ll focus on some suggestions in the same vein for lawyers.

Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil Cases

Mon, 19 Jan 2015 14:35:00 GMT

In People v. Denson, 2014 IL 116231, the Illinois Supreme Court held that a criminal defendant properly preserved an issue for appellate review where the State filed a motion in limine to admit co-conspirator statements, the defendant filed a response, and the trial court granted the motion after a full hearing. Forfeiture did not apply even though the defendant did not file his own motion in limine or make a contemporaneous objection at trial. The high court's opinion clarified that a defendant is not required to bring his or her own motion in limine so long as the evidentiary issue is litigated in limine, and further, a contemporaneous trial objection following the denial of a motion in limine is required in civil cases but not criminal cases.

In Denson, a jury convicted the defendant of first-degree murder, armed robbery, and home invasion. Prior to trial, the State filed a six-page motion in limine to admit certain hearsay statements made by the defendant's co-conspirators. The trial court conducted a hearing on the motion and afforded both sides an opportunity to present arguments. The trial court granted the State's motion.

On appeal, the defendant argued that the trial court erred in granting the motion. The Appellate Court held that the defendant had forfeited this contention because he (1) did not file his own motion in limine to exclude the statements, and (2) did not raise a contemporaneous objection when the statements were admitted at trial. The reviewing court further held that, with one harmless exception, all of the statements were properly admitted.

The Supreme Court rejected the Appellate Court's forfeiture holding. The court first noted that, with respect to motions in limine, a criminal defendant preserves an issue for review by raising an objection in either a motion in limine or through a contemporaneous trial objection, and including the objection in a posttrial motion. The Supreme Court rejected the Appellate Court's conclusion that a criminal defendant must raise the objection in his own motion in limine, as opposed to raising it in response to the State's motion in limine. The Supreme Court concluded that the Appellate Court's emphasis on which party filed the motion in limine, as opposed to an objection being raised in a motion in limine regardless of the filing party, elevated form over substance. The purpose of forfeiture rules is to encourage defendants to raise an issue at trial to ensure both that the trial court had an opportunity to correct any errors before an appeal is taken and that a defendant does not obtain a reversal through his or her own inaction. The court noted that, regardless of which party initiated the motion in limine, the interests served were exactly the same.

Regarding a contemporaneous objection at trial, the Supreme Court emphasized that it has consistently held that, to preserve an issue for review, a criminal defendant must raise the objection in either a motion in limine or object at trial, and raise the objection in a posttrial motion. The Supreme Court noted that the Appellate Court correctly concluded that, "in other cases," the denial of a motion in limine was not enough to preserve an issue for review and that a contemporaneous objection at trial was necessary. However, the Appellate Court "went astray" in failing to recognize that those were civil cases and that "the forfeiture rules for civil and criminal cases are different."

After concluding that the defendant properly preserved the issue for review, the Supreme Court affirmed his conviction.

Recommended Citation: Charlie Ingrassia, Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil Cases, The Brief, (January 19, 2015), http://applawyers-thebrief.blogspot.com/2015/01/supreme-court-clarifies-distinction.html#more.

Public Comment Period for Proposed Amendments to Federal Rules of Appellate Procedure Closes Next Month

Thu, 15 Jan 2015 23:19:00 GMT

The Association reminds the appellate bar that the public comment period for proposed amendments to the Federal Rules of Appellate Procedure closes on February 17, 2015. The proposed amendments include changes to rules governing tolling motions (Rule 4); length limits pertaining to appeals by permission (Rule 5); motions (Rule 27); cross-appeals (Rue 28.1); and petitions for panel rehearing (Rule 40); amicus curiae briefs (Rule 29); and computing and extending time (Rule 26); along with other proposals.

Please click here for a complete list of proposed amendments and for information on how to submit a public comment.

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's January Term

Mon, 12 Jan 2015 00:08:00 GMT

The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters pending before the Illinois Supreme Court. The updated edition provides disposition information on decisions from the state's high court through December 18, 2014, and also highlights a number of important cases scheduled for oral argument during the court's January 2015 term.

To read an excerpt from Cases Pending discussing two cases set to be heard during the court's January term, please continue reading this post. Complete access to Cases Pending

is complimentary with ALA membership.

INSURANCE – DUTY TO PROCURE INSURANCE

No. 117021
Skaperdas et al. v. Country Casualty Ins. Co.

The issue in this appeal is whether insurance agents owe a duty of ordinary care to their insureds under section 2-2201 of the Code of Civil Procedure (“Code”) (735 ILCS 5/2-2201 (West 2010)).

Plaintiff Steven Skaperdas purchased an auto insurance policy from Country Casualty Insurance Co. (“Country Casualty”). Plaintiff asked his insurance agent, Defendant Tom Lessaris, to add his girlfriend and her son to the policy, but Defendant failed to do so. When Plaintiff later made a claim following an accident involving his girlfriend’s son, Country Casualty denied it. Plaintiff then sued Defendant for negligence for failing to add his girlfriend and her son to his policy. The circuit court dismissed the claim, reasoning that because Defendant was an insurance agent, rather than a broker, he did not owe Plaintiff a duty of care in procuring insurance.

The Illinois Appellate Court, Fourth District, reversed. It recognized that under common law, an insurance agent owed a duty to the insurer by which it was employed, and an insurance broker owed a duty directly to an insured. However, since the enactment of section 2-2201 of the Code, that distinction no longer existed. Section 2-2201(a) states that an “insurance producer” shall exercise ordinary care and skill in procuring insurance. Although section 2-2201 does not define “insurance producer,” section 500-10 of the Illinois Insurance Code (215 ILCS 5/500-10 (West 2010)) defines the term as “a person required to be licensed *** to sell, solicit, or negotiate insurance.” Reading those statutes together, the court concluded that both agents and brokers were “insurance producers” and both owed a duty of ordinary care to the insured. Its holding was further supported by section 2-2201(b), which removed the common law basis for distinguishing between brokers and agents by barring any claims for breach of fiduciary duty against any insurance producers.

In his petition for leave to appeal, Defendant argues that Illinois cases and other legal authorities have continued to honor the agent-broker dichotomy subsequent to the enactment of section 2-2201. He also argues that the legislative history of section 2-2201 demonstrates that it was intended to insulate brokers from liability for breach of fiduciary duty, but did not intend to create a new duty for agents.

Appellate Court Decision: 2013 IL App (4th) 120986, 996 N.E.2d 1071. Steigmann, J., with Appleton and Pope, J.J., concurring.

PLA Allowed: 01/29/14

Oral Argument: 01/13/15

* * * * * *

PROCEDURE – RULE 224 DISCOVERY

No. 118000

Hadley v. Subscriber Doe

This case raises several issues concerning the proper procedures for seeking the identity of unknown persons, here, an Internet subscriber who posted alleged defamatory matter about the plaintiff during his political campaign.

The circuit court found that Plaintiff had adequately pled defamation per se and granted Plaintiff relief under Rule 224, ordering disclosure of the identity of Subscriber Doe. The court also made a Rule 304(a) finding with respect to its ruling granting Rule 224 relief.

The appellate court affirmed both with respect to how Plaintiff invoked Rule 224 and the sufficiency of Plaintiff’s defamation per se allegations. The court found that it had jurisdiction to hear the appeal because Rule 224 orders are considered final for purposes of appeal, but because the defamation claim remained pending, a Rule 304(a) finding was necessary.

The dissent disagreed, contending lack of jurisdiction because: (1) the appealed-from order did not result from a Rule 224 proceeding and, thus, could not be appealed under Rule 301 as an independent action; and (2) the appealed-from order is an ordinary discovery order that is not final or amenable to appeal pursuant to Rule 304(a).

The petitioner argues that the appellate court decision brings confusion to the requirements of a Rule 224 proceeding and violates the Illinois Supreme Court’s decision in Bogseth v. Emanuel, 166 Ill. 2d 507 (1995), that makes any suit filed against a defendant “whose legal name is unknown” a nullity. The petitioner further argues that the decision conflicts with Guava LLC v. Comcast Cable Communications, LLC, 2014 IL App (5th) 130091, on the issue of whether the identity of someone associated with a given I.P. Address is a proper subject for a Rule 224 petition when an I.P. Address is frequently a shared portal to the Internet. Lastly, the petitioner argues that the circuit and appellate courts erred in sanctioning the use of extra-judicially acquired information to supplement the complaint’s defamation allegations to reject application of the innocent construction rule and First Amendment protections of speech.

Appellate Court Decision: 2014 IL App (2d) 130489, 12 N.E.3d 75. Jorgensen, J. with Zenoff, J., concurring. Birkett, J., dissenting.

PLA Allowed: 09/24/14

Oral Argument: 01/22/15

Upcoming ALA Events Will Recap Significant Illinois Supreme Court Decisions From 2014

Thu, 08 Jan 2015 21:38:00 GMT

The Association begins 2015 with events in January featuring Illinois Appellate Court Justices and seasoned appellate practitioners offering their unique insight on important Illinois Supreme Court decisions issued in 2014. The events are part of the ALA's brown-bag luncheon series, which ALA members can attend for free, and will cover both criminal and civil cases.

On January 15, 2015, the Association will host the "Illinois Supreme Court Criminal Law Update" at the offices of Hinshaw & Culbertson in Chicago. The event will feature a panel consisting of Justice Daniel L. Schmidt, Illinois Appellate Court, Third District; retired Justice Warren D. Wolfson, Illinois Appellate Court, First District; Leah M. Bendik, Assistant Attorney General; and James E. Chadd, Deputy Illinois Appellate Defender. ALA Vice President Michael A. Scodro of Jenner & Block LLP will moderate the panel discussion.

On January 29, 2015, the Association, along with the DuPage County Bar Association, will present the "Illinois Supreme Court 2014 Civil Litigation Year in Review" at the DuPage County Judicial Center in Wheaton. The program will feature Illinois Appellate Court Justice Ann B. Jorgensen, together with ALA past presidents J. Timothy Eaton and Michael T. Reagan, presenting a panel discussion on the significant civil litigation cases decided by the Illinois Supreme Court in 2014. The discussion will also include an overview of Illinois Supreme Court Rule changes from 2014.

For more information and to register, please click here.

The Illinois Supreme Court Reinstates an Appeal Dismissed for Lack of Jurisdiction Where a Petitioner Satisfied the Notice Requirement for Invoking Special Statutory Jurisdiction for Judicial Review of an Electoral Board Ruling

Tue, 06 Jan 2015 23:25:00 GMT

In Bettis v. Marsaglia, 2014 IL 117050, the Illinois Supreme Court reversed the appellate court’s dismissal of an appeal of a administrative ruling of an electoral board. Interpreting a provision of the Election Code and resolving a split among appellate districts, the supreme court found that a petitioner seeking judicial review of an electoral board’s denial of a request to submit a public question for referendum satisfied the statutory service requirement. The Election Code, 10 ILCS 5/10-10.1(a) (West 2012), provides that a candidate or objector seeking judicial review of an electoral board’s decision must serve a copy of the petition upon the electoral board. The petitioner, Carolyn Bettis, wished to challenge a resolution of the Macoupin, Montgomery, and Sangamon counties’ school district to issue working cash bonds in the amount of $2 million. Bettis petitioned her local election board to place the issue on the ballot for an April 9, 2013 election. When the board sustained the objections of two individuals to Bettis’ request, she sought judicial review and served a petition on all of the members of the electoral board at their homes, but did not separately serve the board itself.

Before considering the statutory jurisdictional question, the supreme court found that two of the three issues raised in the appeal could be considered even though the election date had passed and the questions generally would be considered moot. The public interest exception to the mootness doctrine saved the service issue and a question raised by the objectors in a cross appeal, whether the petition should have been dismissed because Bettis did not name the electoral board as a party to the petition for circuit court review. The court reasoned that questions relating to election law inherently implicate matters of public concern. Moreover, the fact that the same issues had generated conflicting appellate decisions in earlier cases established that the issues likely would recur. The court classified a third issue - whether the petition should have been dismissed because it was not numbered or securely bound – as moot, because it presented only a case specific fact question.

On the merits, the court began its analysis by observing that a court has jurisdiction over election cases only when the legislature confers jurisdiction. A party seeking to invoke such special statutory jurisdiction must strictly adhere to the procedure established by the General Assembly. In this instance, the court determined that section 10-10.1(a) clearly required that the electoral board be served, but did not clearly state how the electoral board had to be served. Ultimately, the court determined that service on the individual board members constituted service on the electoral board; separate service on the entity would be duplicative, in the court’s view. In reaching its decision, the court noted the statutorily defined membership of the board and importance of providing the public with ballot access.

The supreme court also rejected the objectors’ argument that the dismissal should be affirmed based on Bettis’ failure to name the electoral board or its members and failed to attach to the petition a copy of the electoral board’s decision. The court reasoned that the statute did not contain these requirements.

The court reversed the appellate court’s judgment dismissing the appeal, but did not remand the case to the circuit court for consideration of the petition on the merits, as Bettis requested. The only remaining question had been mooted by the passage of the one and only election Bettis had specified in her petition.

Justice Mary Jane Theis dissented. Finding no lack of clarity in the statute, Justice Theis would have affirmed the dismissal of the appeal for lack of jurisdiction, because Bettis failed to serve the electoral board.

Recommended Citation: Karen Kies DeGrand, The Illinois Supreme Court Reinstates an Appeal Dismissed for Lack of Jurisdiction Where a Petitioner Satisfied the Notice Requirement for Invoking Special Statutory Jurisdiction for Judicial Review of an Electoral Board Ruling, The Brief, (January 6, 2015), http://applawyers-thebrief.blogspot.com/2015/01/the-illinois-supreme-court-reinstates.html#more.

SCOTUS Holds Restrictions on Defendant’s Closing Argument are not Clearly Structural Error

Fri, 02 Jan 2015 18:26:00 GMT

In Glebe v. Frost, 574 U.S. --- (2014) (per curiam), the U.S. Supreme Court held that it is not clearly established that restrictions on a defendant’s closing argument constitute structural error. At trial, Frost admitted his involvement in a series of robberies, but testified that he acted under duress. Defense counsel, however, wanted to argue in closing both that the State failed to prove its case and that Frost acted under duress. The trial court ordered that defense counsel could not present both of these alternative arguments in closing, and counsel only discussed duress. Frost was convicted of several felonies. On direct appeal, the Washington Supreme Court held that the trial court’s restriction on closing argument violated the Federal Constitution’s Assistance of Counsel Clause, but held that the error was harmless beyond a reasonable doubt.

Frost sought habeas relief under 28 U.S.C. § 2254. He argued that the Washington courts violated clearly established federal law by treating the restriction on closing argument as trial error (subject to harmless-error review) rather than structural error (which requires automatic reversal). The district court denied his petition, but the 9th Circuit, en banc, reversed.

The U.S. Supreme Court, in a brief per curiam opinion, reversed, holding that it does not violate clearly established federal law to treat a restriction on closing argument as trial error, rather than structural error. The Court rejected the 9th Circuit’s reasoning that the Washington Supreme Court contradicted Herring v. New York, 422 U.S. 853 (1975), which held that total denial of closing argument violates the Assistance of Counsel Clause. The Supreme Court reasoned that, even if Herring held that total denial of closing argument constituted structural error (and the Court seemed skeptical that it did), this case involved only a restriction on closing argument. And while the 9th Circuit had previously held that such a restriction constitutes structural error, the Court noted that “circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court” under § 2254(d)(1).

The Court also swiftly rejected the 9th Circuit’s argument that this restriction on closing argument amounted to a coerced confession or directed verdict. The Court explained that Frost was not prevented from arguing that the prosecution failed to prove its case; rather, he simply could not make that argument simultaneously with his duress defense. And at any rate, the Court explained, the introduction of an actual coerced confession is still only trial error, subject to harmless-error review, under Arizona v. Fulminante, 499 U.S. 279, 310 (1999). A “tacit” confession could not therefore be structural error.

Ultimately, the Court remanded for the lower court to determine whether it was reasonable to find the error harmless, which the 9th Circuit had not considered.

The Court did not hold outright that a restriction on closing argument is trial error, rather than structural error. Because the matter came to the Supreme Court on a petition for writ of habeas corpus, the Court only asked whether it was already clearly established that closing-argument restrictions are structural error, and held that it was not. Nonetheless, the Court gave a strong indication about how it might rule on direct review. The Court reiterated that “only the rare type of error” required automatic reversal, stressing that this is a “narrow category.” Further, by noting that introducing a coerced confession is not trial error and expressing skepticism that even total denial of closing argument is structural error, the Court seemed to signal that this kind of restriction on summation would not be structural error, if it is error at all.

Recommended Citation: Charles E. Harper, SCOTUS Holds Restrictions on Defendant’s Closing Argument are not Clearly Structural Error, The Brief, (January 2, 2015), http://applawyers-thebrief.blogspot.com/2015/01/scotus-holds-restrictions-on-defendants.html#more.

“Mailbox Rule” Does Not Apply to Tax Appeals to Kane County Board of Review Sent by Third-Party Commercial Carrier Rather Than U.S. Mail

Mon, 29 Dec 2014 14:11:00 GMT

In BLTREJV3Chicago, LLC v. Kane County Board of Review, 2014 IL App (2d) 140164, the Illinois Appellate Court, Second District, confronted the issue of whether tax appeals for 72 separate properties that were sent to the Kane County Board of Review (“Board”) on the due date for filing an appeal of a property tax assessment were considered timely when they were deposited with FedEx (a third-party commercial carrier) rather than the United States mail. Id. ¶ 11. Notwithstanding the 2013 amendments to Illinois Supreme Court Rules 11 and 12 (eff. Jan. 1, 2013) allowing the use of third-party commercial carriers as an acceptable method for the service of documents pursuant to the “mailbox rule,” the court ruled that the Supreme Court Rules did not control over the Board’s own rules on filing appeals, which state that only documents transmitted by United States mail will receive the benefit of the “mailbox rule.” Id. ¶¶ 13-15. Accordingly, the court held that the tax appeals were untimely because they were sent via FedEx, rather than United States mail.

In explaining its reasoning, the reviewing court began its analysis with an examination of Section 16-55 of the Illinois Property Tax Code (“Tax Code”), which provides that “[a] complaint to affect the assessment for the current year shall be filed on or before 30 calendar days after the date of publication of the assessment list * * *.” Id. ¶ 12 (citing 35 ILCS 200/16-55 (West 2012)). Section 9-5 of the Tax Code provides that each county assessor, board of appeals, and board of review “shall make and publish reasonable rules for the guidance of persons doing business with them and for the orderly dispatch of business.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (quoting 35 ILCS 200/9-5 (West 2012)). Pursuant to this provision, the Board adopted and published rules of procedure that incorporated the Statute on Statutes’ “mailbox rule,” which provides that a document is deemed “filed” as of the date of mailing via United States mail. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (citing 5 ILCS 70/1.25 (West 2012)). The Board’s rules further state that the provision that “communications transmitted through the United States mail shall be deemed filed with or received by the Board on the date shown by the post office cancellation mark stamped * * * does not apply to communications delivered by Federal Express, UPS, DHL, or any other commercial or non-commercial delivery entity.” BLTREJV3 Chicago, 2014 IL App (2d) 140164 ,¶ 13, (citing Kane County Board of Review 2014 Rules and Procedures, section R.A.5.a.; http://www.kanecountyassessments.org/rules.pdf (last visited August 27, 2014)). The Board’s rules also reference the Second District Appellate Court’s opinion in Baca v. Trejo, 388 Ill. App. 3d 193, 198 (2009), where the court decided that only the use of the United States mail triggers the mailbox rule. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 13.

Rejecting Petitioners’ argument that Illinois Supreme Court Rules 11 and 12 supersede the Board’s rules on filing appeals because, inter alia, they were amended subsequent to Baca, the reviewing court stated: “the statutory language itself gives the best indication of legislative intent. Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions.” Id. ¶ 14 (quoting Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997)). Under the rule of statutory construction expressio unius est exclusio alterius, the lack of any negative words of limitation is of no moment because “an explicit statement of such intent is unnecessary.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14 (citing Aldridge, 179 Ill. 2d at 152). Rather, “all omissions should be understood as exclusions.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14.
The court also rejected Petitioners’ claim that because Illinois Supreme Court Rules 11 and 12 “apply to the practice of law,” they must apply to the tax appeals. Id. ¶ 15. “[S]ervice is not equivalent to filing,” the court stated. Id. (citing Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) 120412, ¶ 11). In reiterating its conclusion that Illinois Supreme Court Rules 11 and 12 do not control the Board’s rule-making powers, the court explained that the Board’s authority to make reasonable rules does not require it to make rules that are identical to another particular set of rules. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 15. The court further stated: “Petitioners employ faulty logic in suggesting that the Board is usurping the power of the supreme court by adopting its own rules.” Id. ¶¶ 15-16. Rather, the court explained, “[b]y establishing these rules, the Board is complying with the requirements of the Tax Code.” Id. ¶ 16 (citing People ex rel. Courshon v. Hirschfield, 43 Ill. App. 3d 432, 435 (1976)).

“[U]ntil the board amends its rules to apply the ‘mailbox rule’ to third-party commercial carriers, appeals must be sent by the United States mail to benefit from the rule.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 19. Appeals sent by any other means must be actually received on or before the due date to be considered timely filed. Id.

Recommended Citation: Katherine A. Grosh, “Mailbox Rule” Does Not Apply to Tax Appeals to Kane County Board of Review Sent by Third-Party Commercial Carrier Rather Than U.S. Mail, The Brief, (December 29, 2014), http://applawyers-thebrief.blogspot.com/2014/12/mailbox-rule-does-not-apply-to-tax.html#more.

Seventh Circuit: In Criminal Case, No Appellate Jurisdiction Over Indictment Dismissed Without Prejudice By Nate Nieman

Tue, 23 Dec 2014 21:07:00 GMT

United States v. Davis, 766 F.3d 722 (7th Cir. 2014), concerned the government’s appeal from a district court’s pre-trial discovery order entered in cases involving several defendants charged with conspiring to rob a non-existent “stash house” that the defendants believed contained many kilograms of cocaine. The defendants successfully obtained an order from the district court requiring the government to produce documents and data related to the exercise of the government’s law enforcement and prosecutorial discretion with respect to criminal charges based on non-existent stash houses. The government filed a “‘position paper’ in which it indicated that it would not comply with the discovery order and suggested that the court should dismiss the indictment without prejudice as a sanction for its noncompliance, thereby creating a final order” that could be appealed. The district court obliged the government’s request and the government appealed pursuant to 18 U.S.C. § 3731. However, the Seventh Circuit ultimately dismissed the government’s appeal for lack of appellate jurisdiction after concluding that the district court’s order dismissing the indictments without prejudice was not a final, appealable order.

The reviewing court began its analysis by noting that “The United States ‘has no right of appeal in a criminal case absent explicit statutory authority.’” Section 18 U.S.C. § 3731 explicitly authorizes the government to appeal from a dismissed indictment. Nevertheless, the defendants argued that the government could not appeal the district court’s order dismissing the indictment because the dismissed the indictment without prejudice. As a result, the government could re-indict the defendants regardless of any outcome on appeal. Thus, the dismissal of the indictment without prejudice was not a final and appealable order and, accordingly, not subject to appellate review.

The Government argued that it was following “established practice” in seeking dismissal of the indictment without prejudice as a means of facilitating appellate review, and the reviewing court acknowledged that the government was correct that “an indictment need not necessarily be dismissed with prejudice in order to be subject to appeal.” The Seventh Circuit had previously found jurisdiction to entertain an appeal from an indictment dismissed without prejudice. Nonetheless, the court in this case was particularly concerned with the finality of the decision, regardless of the label given to it. The court noted that “With limited exceptions, our appellate jurisdiction is limited to review of ‘final decisions’” of the district court. While section 18 U.S.C. § 3731 allows the government to appeal from some orders that are non-final—such as orders suppressing or excluding evidence—such orders are exceptions to the rule that the order must otherwise be final in order to be appealable. Id.

Specifically, the reviewing court’s concern was that, “unless the dismissal solicited by the government is genuinely final, invited dismissal will essentially permit any number of interlocutory appeals that section 3731 does not otherwise authorize.” Discovery orders, the court noted, “are a prime example of pretrial decisions that are entrusted to the district court’s ample discretion in the first instance and that are ordinarily not subject to review, if at all, until a final judgment in the case has been rendered.”

In sum, the district court’s dismissal of the indictment in this case was not final, and therefore not appealable, because:

“Although the government’s decision to request dismissal of the indictment has ended—for now—the proceedings in the district court, the fact that the dismissal was without prejudice leaves the door open to reindictment. Obviously, if we were to reach the merits of the appeal and reverse both the dismissal and the underlying discovery order that prompted it, that step would be unnecessary. But even if we affirmed the discovery order as a reasonable exercise of the district court’s discretion, and in turn sustained the dismissal, nothing other than the statute of limitations would prevent the government from reindicting the defendants and complying with the discovery order.”

As a result, the Seventh Circuit dismissed the appeal for lack of jurisdiction.

Recommended Citation: Nate Nieman, Seventh Circuit: In Criminal Case, No Appellate Jurisdiction Over Indictment Dismissed Without Prejudice, The Brief, (December 23, 2014), http://applawyers-thebrief.blogspot.com/2014/12/seventh-circuit-in-criminal-case-no.html#more.

Supreme Court Amends Rules to Both Civil and Criminal Appeals

Thu, 18 Dec 2014 15:56:00 GMT

On December 11, 2014, the Illinois Supreme Court amended a number of rules applicable to appellate practice and procedure, for both civil and criminal appeals. The following is a brief synopsis of those amendments.

Rule Amendments in Civil Cases

Rule 303, governing appeals from the trial court in civil cases, was amended to include language providing that a notice of appeal may be filed by any party or any attorney representing a party, regardless of whether that attorney filed an appearance before the trial court.

Rule 308(c), governing the application and answers for a certified question, was amended to provide that an adverse party has 21 days from the application's due date to file an answer. The prior version of the rule provided that a party had 14 days to file an answer.

Rule 315(f), providing that a respondent may file an answer to a petition for leave to appeal from the Appellate Court to the Supreme Court, was amended to provide that a respondent may file an answer within 21 days, as opposed to 14 days, after the expiration of the time for filing the petition for leave.

Rule 361(b), governing motions in the reviewing court, was amended to include language providing that a response shall be filed within 5 days of email service of the motion. The prior version of the rule permitted only personal or facsimile service, while the amended rule permits service by all three.

Rule 367(d), governing rehearing in the reviewing court, was amended to provide that an answer to a petition for rehearing shall be limited to 27 pages and that a reply shall be limited to 10 pages, unless authorized by a court or a judge thereof. Both the answer and the reply must be supported by a certificate of compliance as provided in Rule 341(c).

The amendments to these rules become effective on January 1, 2015.

Rule Amendments in Criminal Cases

Rule 604(d), governing a defendant's appeal from a judgment entered upon a guilty plea, was amended to provide that, when a defendant files a motion to withdraw a guilty plea or to reconsider the sentence, and that motion is based on facts not appearing in the record, a pro se filing the motion from a pro se correctional institution may submit a supporting certification pursuant to section 1-109 of the Code of Civil Procedure (the Code) (735 ILCS 5/1-109) in lieu of an affidavit.

Rule 606(c), governing the perfection of appeal and extensions of time in certain circumstances, was amended to provide that a pro se defendant filing from a correctional institution may file a certification pursuant to section 1-109 of the Code in lieu of an affidavit.

Rule 608(d), governing the record on appeal and extensions of time, was amended to provide that, when a motion for such an extension is filed, a pro se defendant filing from a correctional institution may, in lieu of a supporting affidavit, submit a certification pursuant to section 1-109 of the Code.

Rule 610, governing motions in the reviewing court, provides that motions for extensions of time may be supported by a certification pursuant to section 1-109 of the Code when the motion is filed by a pro se defendant filing from a correctional institution.

The rule amendments relating to criminal appeals became effective on December 11, 2014.

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules to Both Civil and Criminal Appeals, (December 18, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/12/supreme-court-amends-rules-to-both.html#more.

Illinois Supreme Court Upholds a Statutory Deadline, Longer Than the 30 Days Allowed by Rule 303, for Filing a Notice of Appeal Seeking Review of an Administrative Ruling

Fri, 12 Dec 2014 18:49:00 GMT

In People ex rel. Madigan v. Illinois Commerce Commission, 2014 IL 116642, the Illinois Supreme Court recognized the General Assembly’s constitutional authority to enact rules for governing review of administrative decisions. Explaining the interplay between supreme court rules that set a 30-day deadline for filing a notice of appeal of final judgments and specific legislative enactments pertaining to time deadlines for review of administrative decisions, the supreme court revived an appeal brought under the Public Utilities Act (220 ILCS 5/10-201(a) (West 2010)). Under section 10-201(a), a notice of appeal filed 35 days after the denial of a request for rehearing of an Illinois Commerce Commission ruling was timely filed. Under Supreme Court Rule 303(a), it was not. The Illinois Appellate Court held that the 30-day deadline applied and dismissed the appeal.

The supreme court began its analysis with the observation that, under the Illinois Constitution, the state’s reviewing courts are empowered to review, as a matter of right, only final judgments of the circuit courts. The courts may review administrative actions only “as provided by law.” The General Assembly has enacted laws establishing procedures for obtaining judicial review of an administrative decision and thus confers “special statutory jurisdiction” with such provisions.

The supreme court has concurrent constitutional authority with the legislature to promulgate rules for appellate court review of administrative decisions. Supreme Court Rule 335 applies certain other rules governing appeals – including Rule 303 - to review of administrative decisions. Rule 335, however, does not require courts to apply the 30-day provision in Rule 303(a) to the review of all administrative orders by the appellate court. Rather, Rule 335(1)(i) applies Rule 303 to the review of administrative rulings only “insofar as appropriate,” meaning when the legislature has not explicitly stated a deadline for seeking appeal of a particular type of administrative decision. In this case, section 10-201(a) provided a deadline, so the notice of appeal was timely filed. In reversing the dismissal for lack of jurisdiction, the supreme court observed that the appellate court had relied on two earlier appellate decisions that failed to take into account the concept of special statutory jurisdiction.

Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Upholds a Statutory Deadline, Longer Than the 30 Days Allowed by Rule 303, for Filing a Notice of Appeal Seeking Review of an Administrative Ruling, The Brief, (Dec. 12, 2014), http://applawyers-thebrief.blogspot.com/2014/12/illinois-supreme-court-upholds.html#more.

A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered

Mon, 08 Dec 2014 02:11:00 GMT

In a decision released December 2, 2014, the Illinois Appellate Court, Second District, held that a nunc pro tuncorder that added Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to a previously entered final, but not appealable, dismissal order, was ineffective to confer appellate jurisdiction to review the original order. As a result, the appellate court concluded it lacked jurisdiction to consider the appeal and dismissed the case.

In Harreld v. Butler, 2014 IL App (2d) 131065, the trial court entered an order on September 16, 2013, granting the motion of the third-party defendant, the City of Elgin, to dismiss the third-party complaint filed by DVBC, Inc. The September 16 order did not contain a finding pursuant to Rule 304(a), despite other claims pending. On October 10, DVBC filed a notice of appeal. On November 21, on DVBC’s motion, the trial court entered an agreed order correcting the September 16 order nunc pro tunc, and specifically found that the September 16 order was a final and appealable order, and that there was no just reason to delay enforcement or appeal, or both. DVBC did not file an amended notice of appeal.

In addressing sua sponte the question of its jurisdiction, the appellate court ultimately concluded that it lacked jurisdiction to reach the merits. The appellate court noted that the trial court’s September 16 dismissal order did not originally contain a finding pursuant to Rule 304(a). It then concluded that “our jurisdiction depends on whether the dismissal order was properly corrected nunc pro tunc to include a Rule 304(a) finding.” Id. ¶ 12.

In reviewing the law respecting nunc pro tunc orders, the appellate court observed, “[a] nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then.” Id. ¶ 13 (Emphasis in original) (citing Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055 (1979)). The court noted that, because a nunc pro tuncamendment may reflect only what was actually done by the court but was omitted due to clerical error, “a nunc pro tunc amendment must be based on some note, memorandum, or other memorial in the court record.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citingPagano v. Rand Materials Handling Equipment Co., 249 Ill. App. 3d 995, 998-99 (1993)). Moreover, the court noted that a nunc pro tunc order “may not be used to cure a jurisdictional defect, supply omitted judicial actions, or correct a judicial error under the pretense of correcting a clerical error.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citing In re Marriage of Takata, 304 Ill. App. 3d 85, 92 (1999)).

Against this backdrop, the appellate court pointed out that DVBC had attempted to “correct” the September 16 dismissal order by supplying an omitted judicial action – adding Rule 304(a) language. Yet the record, it was noted, was devoid of any indication that the trial court had actually made such a finding or that the original order lacked a Rule 304(a) finding due to a clerical error. “[T]he order made no reference to Rule 304(a) and the record does not contain a transcript of the hearing on the motion to dismiss.” Harreld, 2014 IL App (2d) 131065, ¶ 14. Given these findings, the court concluded that the failure to include the Rule 304(a) finding in the original order was not a clerical error but instead was an omitted judicial action. As a result, “adding a Rule 304(a) finding is outside the power of a nunc pro tunc order.” Id.

The court found support for its determination in Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995), from the Illinois Appellate Court, First District, which found that, based on similar facts, a nunc pro tunc order was ineffective to confer a jurisdictionally satisfactory Rule 304(a) finding.

The Harreld court noted that a party may, at any time, request the circuit court to enter a Rule 304(a) finding as to a final order. Harreld, 2014 IL App (2d) 131065, ¶¶ 16-17. According to the court, “[h]ere, instead of requesting that the trial court enter a Rule 304(a) finding as to its dismissal order, DVBC sought to correct the order nunc pro tunc, despite the record being devoid of any indication that the absence of a Rule 304(a) finding in that order resulted from a clerical error. Thus, as in Shanklin, there was no proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack jurisdiction.” Id. ¶ 17.

Justice Zenoff authored a special concurrence, agreeing that the parties and trial court improperly used a nunc pro tunc order to “add” a Rule 304(a) finding to the original dismissal order. Id. ¶ 23. The special concurrence first questioned the reliance on the Shanklincase, since it had been decided prior to the 2007 amendments to Rule 303(a)(2), which provide a safety valve for prematurely filed notices of appeal. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008). Justice Zenoff observed that Rule 303(a)(2)’s saving provision applied in two scenarios: (1) when a notice of appeal is filed before the last pending post-judgment motion is resolved, or (2) when a notice of appeal is filed when other claims remain pending. Id. ¶ 25. The saving provision provides that a prematurely filed notice of appeal “becomes effective” in the second scenario when a final judgment as to all pending claims is entered. The second scenario, the special concurrence noted, is concerned with jurisdiction pursuant to Rule 304(a), which generally provides that a court lacks jurisdiction where a party appeals from “a final judgment as to one or more but fewer than all of the parties or claims” unless the trial court has made “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a). However, “if a litigant files a notice of appeal from a final judgment that neither resolves all pending claims nor contains a Rule 304(a) finding, then Rule 303(a)(2) steps in to ‘save’ the notice of appeal by making it effective when a final judgment is entered as to all remaining claims.” Harreld, 2014 IL App (2d) 131065, ¶ 26.

Justice Zenoff said that, “[w]hat DVBC should have done *** was to file a motion for a Rule 304(a) finding,” and in its motion explain why a Rule 304(a) finding was warranted. Id. ¶ 30. “Had DVBC filed a motion for a Rule 304(a) finding ***, and had the trial court granted it, then DVBC's premature notice of appeal would have become effective on the date the trial court made the finding.” Id. ¶ 31.

Although seemingly placing form over substance, the Harreld decision suggests that in future scenarios, the better course of action is to simply move in the trial court for entry of a Rule 304(a) order, and then either amend the original notice of appeal, or file a new notice of appeal from the order containing the Rule 304(a) language. It is also at least open for thought as to whether an amended notice of appeal would suffice. The court mentions that DVBC failed to do so and then again makes note of this omission when discussing the Shanklin decision. However, the court’s ultimate ruling seems to foreclose this option.

In the Harreld case, it seems the court may have lost sight of the fact that there was, indeed, a Rule 304(a) finding made, regardless of whether it was in a fresh order or part of the original order via the nunc pro tunc order. This author believes that the details of how it came about should be irrelevant. Had the attempt to affect jurisdiction truly affected a party’s right, the given interpretation may well have been warranted. But DVBC will likely simply move to have a new Rule 304(a) finding made, and then file a new notice of appeal, after which the case will return to the appellate court on the merits. Indeed, the special concurrence even notes this likelihood, stating, “[w]e presume that DVBC can timely file a new notice of appeal once the trial court either enters a final judgment resolving all pending claims or enters a proper Rule 304(a) finding.” Id. ¶ 32. Moreover, “if during the pendency of this appeal the trial court has resolved all pending claims or entered a proper Rule 304(a) finding, and the time for filing a new notice of appeal has expired, then DVBC can file a petition for rehearing and to supplement the record, thereby establishing the effectiveness of the present notice of appeal.” Id.

Recommended Citation: Brad Elward, A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered, (December 7, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/12/a-nunc-pro-tunc-order-cannot-be-used-to.html#more.

Association Honors Soon-to-be-Retired Judge Tinder of the Seventh Circuit Court of Appeals

Wed, 03 Dec 2014 16:24:00 GMT

How does advancing technology affect the judicial process? How do jurors react when, after having near-constant access to smart phones, being able to frequently check email, and being able to make decisions in a fraction of a second, they are placed in a courtroom, where evidence slowly unfolds and they are required to make decisions based on instructions that a judge provides? In a society where people primarily communicate through technological devices, will jurors' ability to assess a witness's tone and body language decrease? Will judges be able to make credibility determinations as interpersonal communication and interaction decrease? And, important for appellate practitioners, if a reviewing court can be virtually where the trial court was through technological innovation, will that affect the deference trial courts are afforded for factual determinations?

These are just a few of the thought-provoking questions posed by Judge Daniel Tinder of the United States Court of Appeals for the Seventh Circuit during a recent ALA luncheon. Held on November 19, 2014, at the Union League Club in Chicago, the ALA hosted the luncheon in honor of Judge Tinder's many years of service on the federal bench. Judge Tinder has announced that he will retire early next year.

The festivities began with Association President Steven F. Pflaum welcoming ALA members and guests, who included judges from the Seventh Circuit, the Illinois Appellate Court, and the Cook County Circuit Court. Thereafter, President Pflaum introduced Judge Tinder, noting that he has dedicated his career "almost exclusively" to public service. Before being appointed to the federal bench by President Reagan, Judge Tinder had served as a public defender and as the United States Attorney for the Southern District of Indiana, among other positions.

Judge Tinder began his remarks by sharing with the audience that he told his wife that his plan for retirement was to "drink beer and play golf." His wife responded, "that is a fantasy, not a plan." Judge Tinder also reflected on his talent of interpreting the language of judges, which he characterized as "exotic and nuanced." For example, when a judge says, "counsel, this is a fairly obscure area of law," the judge is really saying, "I have absolutely no clue what you are talking about." When a judge says, "I have read the briefs and I have a good handle on the issue," the judge is really saying, "I have a tee time."

Turning to a more serious note, Judge Tinder focused his remarks on the judicial process in the Internet era. He noted metaphorically that children today are born with a smart phone in one hand and that increased access to technology and information influences everyone, including judges and jurors. He noted studies showing that the average person checks his or her email 30 times per hour, only 4% of website page views last longer than 10 seconds, and the average attention span in 2013 was 8 seconds (by comparison, Judge Tinder noted, a goldfish has an attention span of 9 seconds). Judge Tinder advised the audience that the next generation of judges will bring these experiences with them to the bench, which could significantly impact how controversies are adjudicated.

Judge Tinder closed his remarks by reflecting on his retirement plans, which include taking some time off, consulting lawyers, partaking in arbitrations, and speaking out on public policy issues. Drawing a large laugh from his many colleagues in attendance, Judge Tinder advised that he will not be arguing cases before the Seventh Circuit.

The Association thanks Judge Tinder for his engaging remarks and for his many years of service on the bench, and wishes him the very best during retirement.

Hometown Team Wins Annual Moot Court Competition

Tue, 25 Nov 2014 04:52:00 GMT

During the first weekend in November, the Association convened in Chicago to host its annual moot court competition. The two-day event draws law students from across the country - from New York to California. The competition provides the students with an opportunity to draft an appellate brief and present oral arguments. ALA members serve as judges during the preliminary rounds, while members of the Illinois judiciary mainly comprised the bench for the semi-final and final rounds.

The competitors were asked to argue a challenging hypothetical involving two issues on appeal. The first issue involved whether the trial court erred in denying a defendant's motion suppress evidence of certain statements the defendant made during a search of his home, which included whether the defendant was "in custody" for the purposes of Miranda, whether the defendant's silence should have been admissible as evidence of guilt, and whether the public safety exception to Miranda applied. The second issue involved whether the trial court erred in concluding that a federal agent's testimony was admissible as opinion testimony under Federal Rule of Evidence 701. The hypothetical was fact intensive and required students to address conflicting case law from the federal circuits. It also required the students to address different standards of review and be able to comprehend the deference a reviewing court must afford the trial court based on the issue presented.

In the final round, a hometown team from Loyola University Chicago comprised of Jon Puskar and Scott Kater, bested a strong team from Western State College of Law, which is based in Fullerton, California. The Western State participants were Kylie Starr, Lynet Shigg, and Alexander Shaaban. The Association also presented awards for the best oral arguments and best briefs.

The ALA thanks our many sponsors, which included Neil, Gerber & Eisenberg LLP (platinum sponsor); Sidley Austin LLP (gold sponsor); Adler Murphy & McQuillen LLP, Donohue Brown Mathewson & Smyth LLC, Forde Law Offices LLP, Hall Prangle and Schoonveld LLC, Law Offices of Michael W. Rathsack, and Quarles & Brady LLP (silver sponsors); and Kavanagh Grumley & Gorbold LLC (bronze sponsor). The Association congratulates all participants for their hard work and the moot court committee on another successful competition. The Association also thanks members of the judiciary, ALA members, and appellate practitioners who served as judges.

Become an ALA Member and Enjoy Exclusive Access to Cases Pending

Mon, 17 Nov 2014 13:35:00 GMT

Staying apprised of recent developments in the state’s high court is a necessity for both trial and appellate practitioners. By simply becoming an ALA member, you can enjoy complimentary and convenient access to Cases Pending, a must-have resource that compiles and synthesizes data from the Illinois Supreme Court’s docket to provide ALA members with up-to-date information about current civil, criminal and disciplinary matters before the court. Chaired by seasoned appellate practitioners Joanne R. Driscoll and Clare J. Quish, the Cases Pending committee publishes the catalogue five times each year.

To view two excerpts from the recent edition of Cases Pending, please continue reading this post. The excerpts discuss In re Marriage of Eckersall, No 117922, which will address whether a custody and visitation order was injunctive and immediately appealable under Rule 307(a)(1), and Anthony Williams v. BNSF Railway Co., No. 117444, which addresses whether a notice of appeal was timely filed. Both cases are scheduled for oral argument on Thursday, November 20, 2014.

FAMILY LAW – JURISDICTION

No. 117922
In re Marriage of Eckersall

The issue in this case is whether a trial court’s interlocutory order imposing certain restrictions on the parents when the minor children were with them during the pendency of divorce proceedings constitutes an injunction under Supreme Court Rule 307(a).

In 2013, Raymond Eckersall filed a petition for the dissolution of his marriage, and his wife, Catherine, filed a counter petition. Raymond moved out of the family home and filed a petition to set up a temporary parenting schedule. At the status hearing, the parties could not reach an agreement, so the court entered an order that prohibited the parents from engaging in certain conduct with their children, including: interfering with their minor children’s personal liberty; discussing any aspect of the ongoing litigation in the presence of the children; questioning the children about their preference with custody or visitation; and engaging in any kind of electronic surveillance of the children. This order was entered over Catherine’s objection that it infringed upon her right to parent and communicate with her children. Catherine appealed under Supreme Court Rule 307, arguing that the order was an injunction.

The Illinois Appellate Court, First District, dismissed the appeal for lack of jurisdiction, holding that the trial court’s order did not constitute an injunction and thus, jurisdiction was not proper under Rule 307(a). The court explained that what constitutes an appealable injunctive order under Rule 307(a) depends on the substance of the action, not its form. There was no indicia of injunctive relief and no evidence suggesting the minor children’s representative or either party sought an injunction. Rather, the function of the order more closely conformed to appropriate temporary relief set forth in the Illinois Marriage and Dissolution of Marriage Act. The order was intended to place restrictions on the parents during visitation and was not the equivalent of a preliminary injunction.

Justice Mason dissented, stating that the appellate court had jurisdiction to review the “broad-ranging injunction” entered by the trial court. She explained that the very definition of restraining Catherine or Raymond from engaging in certain behavior constituted an injunction. Further, she concluded that the order was overly broad and defective on both procedural and substantive grounds.

Appellate Court Decision: 2014 IL App (1st) 132223. Hyman, P.J. with Pucinski, J., concurring. Mason, J., dissenting.

PLA Allowed: 07/24/2014

Appellant Counsel: Benton H. Page, Pamela Hutal, David Friedman, LLP, 135 South LaSalle Street, 36th Floor, Chicago, Illinois 60603, (312) 782-2220.

Amicus Curiae: Illinois Chapter of the American Academy of Matrimonial Lawyers.

* * * * * *

APPELLATE JURISDICTION

No. 117444

Williams v. BNSF Railway Co.

The issue in this case is whether the 30-day period for filing the notice of appeal began to run when the circuit court orally denied the defendants’ post-trial motions, leaving open a request for setoff (which was not directed at the judgment), or when the court subsequently entered a written order addressing the setoff issue.

In November 2011, the circuit court entered judgment on the jury’s verdict in favor of the plaintiff, assigning 50% fault to the plaintiff, 37.5% to BNSF and 12.5% to a third-party defendant, Quality Terminal Services, LLC (“QTS”). It also denied BNSF’s separate claim against QTS for contractual indemnity. QTS and BNSF filed post-trial motions. BNSF sought a new trial or judgment notwithstanding the verdict. It also sought a remittitur of the award for lost wages or Railroad Retirement Board (“RRB”) disability payments to Williams and a setoff for the RRB taxes that BNSF would be required to pay on the award of lost wages.

On April 18, 2012, at the hearing on post-trial motions, the circuit court orally denied the post-trial motions with the exception of BNSF’s taxation issue, taking that issue under advisement. No entry was made on the court docket reflecting these rulings. On June 6, the circuit court heard additional argument on the remittitur issue (noting that it had already denied that request) and the taxation issue. A written order was entered on that day stating, in part, “For the reasons stated by the Court, on record, on June 6, 2012, post-trial motions related to disability payments [and] taxes are denied.” The order also stated, “This order is final and appealable.” BNSF filed its notice of appeal on June 29, 2012. Williams moved to dismiss BNSF’s appeal, joined by QTS, arguing that BNSF’s notice was untimely because it was not filed within 30 days of April 18.

The appellate court initially denied the motion to dismiss; but, after merits briefing in which Williams again raised jurisdiction, the appellate court dismissed BNSF’s appeal holding that the April 18 oral ruling was effective on that date and that the 30-day period to appeal began to run from that date. The court reasoned that the circuit court unequivocally denied the post-trial motions on April 18, did not refer to or request preparation of a written order, and if there was any question as to finality, it was incumbent on BNSF to seek clarification within 30 days of April 18. The court also reasoned that BNSF’s pending setoff request did not make the April 18 ruling nonfinal because it was not post-trial relief directed at the judgment and that the circuit court’s reconsideration of BNSF’s remittitur argument on June 6 did not delay finality because the court lacked jurisdiction to consider that issue after 30 days from April 18.

BNSF contends that the appellate court’s opinion violates Supreme Court Rule 272 and conflicts with Swisher v. Duffy, 117 Ill. 2d 376, 378-80 (1987) and Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App. 3d 971, 983-84 (1st Dist. 1975), in which the courts held that when the trial court does not require the submission of a written judgment order, an oral judgment does not become final until the clerk makes an entry on the official docket. It further argues that the appellate court’s opinion renders the effective date of judgments uncertain whenever the trial court issues an oral ruling.

Appellate Court Decision: 2013 IL App (1st) 121901, 998 N.E.2d 543.

PLA Allowed: 05/28/14

Appellant Counsel: Raymond H. Groble III, Sean M. Sullivan, Jeffrey J. Scolaro, Daley Mohan Groble P.C., 55 West Monroe Street, Suite 1600, Chicago, Illinois 60603, (312) 422-9999.

As a Means to Appeal, District Court Grants Summary Judgment Over Stipulated Judgment

Thu, 13 Nov 2014 17:58:00 GMT

In a patent infringement lawsuit, prior to trial on the merits, the federal district court typically conducts a hearing in which the court examines evidence concerning the meaning of the patent’s claims. The court then issues a claim construction opinion that provides the context for trial of the infringement claims.

In BRK Brands, Inc. v. Nest Labs, Inc., No. 13 C 7900, 2014 WL 2854493 (N.D. Ill. June 24, 2014), Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit, sitting as a district court judge, issued a claim construction opinion that undermined the basis for much or all of the plaintiffs’ patent infringement claims. Rather than continue to litigate in the district court, the parties entered into a stipulation for the entry of judgment against the plaintiffs. Pursuant to the stipulation, the parties then requested the court to enter judgment, which the plaintiffs intended to appeal to the Federal Circuit.

Posner observed that, unless his claim construction ruling was reversed, the infringement claims were doomed, and that the plaintiffs did not want to spend money continuing to litigate in the district court. He further noted the high rate of reversal of claim construction rulings by the Federal Circuit, and the fact that the Federal Circuit entertained appeals from cases in this procedural posture.

He expressed concern, however, that no basis existed for appealing from a stipulated judgment of non-infringement under the federal civil rules. He referred to such an appeal as a “back-door method of interlocutory appeal.” By contrast, said Posner, a federal criminal rule, Rule 11(a)(2), allows a criminal defendant to enter a conditional plea of guilty, while reserving the right to have an appellate court review an adverse pretrial determination, and then withdraw the guilty plea if successful. No such procedure for appealing a “death knell” interlocutory order applied on the civil side. Allowing the appeal, moreover, could leave the final judgment rule provided in 28 U.S.C. § 1291 “in tatters.”

Here, the parties agreed that the stipulated judgment was equivalent to the grant of summary judgment in favor of the defendant. Posner took that concept a step further and cited authority for the proposition that a court can grant summary judgment even though neither party has moved for it, so long as the party against whom judgment is entered has had an opportunity to be heard.

Ultimately, Posner said that he preferred the summary judgment approach over a stipulated judgment. Since the plaintiffs conceded that they had no basis for opposing summary judgment, he therefore denied the motion for a stipulated judgment and granted summary judgment in favor of the defendants.

Recommended Citation: Don R. Sampen, As a Means to Appeal, District Court Grants Summary Judgment Over Stipulated Judgment,The Brief, (Nov. 13, 2014), http://applawyers-thebrief.blogspot.com/2014/11/as-means-to-appeal-district-court.html#more.

Practical Tips From the Press at the October Luncheon

Mon, 10 Nov 2014 20:37:00 GMT

Pat Milhizer is the editor of the Chicago Daily Law Bulletin and Chicago Lawyer magazine. Before becoming editor, his beat was the Daley Center, where he covered the Cook County Circuit Court and Illinois Appellate Court. Teddy Greenstein is a sportswriter for the Chicago Tribune, and his beat covers Chicago sports and Northwestern-Big Ten football and basketball. On October 30 at the Union League Club in Chicago, they discussed a common concern with all of us: writing under pressure.

Pat Milhizer described deadline pressure at its height--when Rahm Emanuel was thrown off the ballot for mayor. His article's first sentence read that the race for mayor had just gotten more interesting. He thought about his readers: lawyers, including those interested in municipal law. He thought not only about the key facts but also what the appellate court had decided. This was important because it was a 2-1 decision. He wanted to get the important content "high up," present the impact of the court's decision, and then transition to the rest of the article.

Teddy Greenstein similarly explained that our job is to make people wantto read what we write. He encouraged the audience to "go the extra mile" and do something different. He provided an example of an enterprise story in which he followed baseball's Frank Thomas to Las Vegas and turned it into a story. One of the best lessons he has learned is to "show, don't tell," that is, don't tell your reader that a person is generous, explain the conduct of the person so the reader will understand the person's generosity.

Past ALA president Mike Rathsack moderated the discussion and next asked them about overcoming the pressure of writing under time constraints. Pat Milhizer discussed some of the things we can do to put ourselves in a position to succeed, such as limiting distractions, clearing our mind, and prewriting arguments or issues. Next, he talked about "barstooling"--sitting down and telling the story as if we were in a bar talking to someone. Teddy Greenstein told the audience, with respect to word count, to write 1,000 words and revise that to a great 500 words. Keep revising; avoid adjectives, be concise, and use the most important facts. When you're finished writing, edit the work product by checking facts and trimming the unnecessary portions of quotations. Pat cautioned though, to ask for help when writing about unfamiliar topics or issues.

Mike Rathsack asked how to handle the one thing we all encounter: criticism. Pat Milhizer responded that he treats all criticism seriously. If there is an error, then it must be corrected. But when there is a misunderstanding or someone misreads the content, then

there is not much he can do other than to focus on the reality of the facts. Rather than being defensive, Teddy Greenstein offers an apology and says that he will try harder the following week. But both agree it was necessary to let the person have his or her say. Mike also asked how they dealt with difficult people, and Teddy encouraged the audience to do the research before talking to the personalities; show that you put in the work to learn about them or the issues. In working with lawyers who do not wish to discuss a particular ruling, Pat stressed the need for accuracy in reporting, so his goal is to better understand what the ruling means.

Discussing the division of labor between writing and editing, Pat explained that the Law Bulletin was based on a time schedule. He suggested staggering the deadlines to decrease the pressure. Teddy discussed the various formats, such as his blog, in which he can post something quick but then add more later, such as a video clip.

The Association thanks Pat Milhizer and Teddy Greenstein for sharing their experiences and providing a refreshing viewpoint of writing under various constraints. The Association also thanks Mike Rathsack and Karen DeGrand for their service in organizing the program.

Association Teams Up with SIU School of Law to Present Appellate Practice Seminar

Thu, 06 Nov 2014 18:11:00 GMT

The Association continued its tradition of sponsoring an Appellate Practice Seminar at the Southern Illinois University School of Law in Carbondale. As in years’ past, the October 29, 2014, event coincided with the Illinois Appellate Court, Fifth District, sitting for oral argument at the law school. The seminar featured presentations from experienced appellate practitioners and law professors dealing with writing style and ethics, followed by a judicial panel discussion.

Illinois Supreme Court Justice Lloyd Karmeier, together with Justices Bruce Stewart and S. Gene Schwarm of the Illinois Appellate Court, Fifth District and Fifth District Appellate Court Clerk John Flood participated in a panel discussion moderated by past ALA president Bill Hardy. The panel covered a wide range of topics germane to appellate practice and procedure, and also entertained questions from attendees.

ALA President Steve Pflaum presented a discussion on ethics. The topics covered included the rules applicable to attorney communications concerning members of the judiciary, responsibility of candor to the tribunal, and duty regarding ethical practice of fellow lawyers. Consistent with the seminar taking place in a law school setting, President Pflaum ’s presentation included challenging hypotheticals that sparked audience participation.

Professor Cheryl L. Anderson, of the SIU School of Law, presented a writing instruction lecture that encouraged attention to active voice and avoidance of noun nominalization. Titled “Zombie Nouns and Other Impediments to Persuasive Written Advocacy,” Professor Anderson used references and clip art that hinted at a Halloween theme, which added fresh humor to her interactive discussion.

The Association thanks the SIU School of Law for graciously hosting the seminar and all participants for an instructive and engaging program.

ALA November Luncheon

Tue, 04 Nov 2014 08:00:00 GMT

The Association’s November luncheon will feature Judge John Daniel Tinder of the United States Court of Appeals for the Seventh Circuit. Judge Tinder will present “The Language of Judges,” which will focus on understanding comments from the bench that might help to guide litigation strategy. Judge Tinder will also entertain questions from the audience.

The luncheon will be held on Wednesday, November 19, 2014, at the Union League Club in Chicago. For more information and to register, please click here.

"Any Point, Ground, or Relief" - Posttrial Motions Require Careful Attention

Sun, 02 Nov 2014 14:50:00 GMT

Seasoned appellate practitioners know that an issue needs to be properly preserved in the trial court if a reviewing court is to address it. The basics are simple. Litigants usually cannot raise an issue for the first time on appeal or appeal from the admission of evidence not properly objected to at trial. Most know that a party must also obtain a ruling on the objection.

But sometimes attorneys need to know more than the basics.

To preserve an issue that arises in a jury trial, a timely and proper posttrial motion is mandatory. The precise content of the motion is specified by law. The requirements for that content are enforced strictly. Errors and omissions in posttrial motions after a jury trial can derail the strongest appeals–even appeals that would have been successful absent such an error or omission in the posttrial motion.

Section 12-1202(b) of the Code of Civil Procedure provides:

“Relief desired after trial in jury cases *** must be sought in a single posttrial motion. *** The posttrial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and must state the relief desired, as for example, the entry of a judgment, the granting of a new trial or other appropriate relief.” (Emphasis added.) 735 ILCS 5/12-1202(b) (West 2012).

Illinois Supreme Court Rule 366(b)(2)(iii) further provides:

“A party may not urge as error on review of the ruling on the party's post-trial motion any point, ground, or relief not specified in the motion.” (Emphasis added.) Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994).

“[A]ny point, ground, or relief.” Each of those words is loaded with meaning. Most importantly, the use of the word “or” expands the requirements. All points, grounds, and forms of relief must be specified. Just specifying the points and grounds is not enough.

Hamilton v. Hastings, 2014 IL App (4th) 131021, involved a negligence action and is a recent example of the stringent requirements regarding posttrial motions. At the close of the evidence in a jury trial, the plaintiff unsuccessfully moved for a directed verdict on the issue of liability. The jury then rendered a verdict for the defendant.

The plaintiff’s posttrial motion raised seven points, but asked for only one form of relief – a new trial. One of the seven points was that “the [c]ourt erred in failing to direct a verdict for the [p]laintiff at the close of evidence.” The trial court denied the motion, noting “the verdict may have been different than I personally would have entered if I was the finder of fact ***.”

The plaintiff appealed only “from the trial court’s denial of his posttrial motion.” The plaintiff sought “judgment of liability against the defendant *** and a remand for trial on damages only” on appeal. Consistent with the plaintiff appealing from the denial of his posttrial motion, the plaintiff’s brief argued only for a new trial. Apparently, the plaintiff’s brief on appeal did not expressly seek judgment in his favor on the issue of liability. Nonetheless, the reviewing court noted, the plaintiff was “essentially asking this court to enter a judgment” in his favor on the issue of liability, calling it “a judgment n.o.v.”

The reviewing court explained that the plaintiff's failure to request a judgment n.o.v. was not a mere technical failure because the “supreme court has carefully preserved the distinction in the evidentiary standard courts apply to each.” Specifically, on the one hand, a directed verdict (or judgment n.o.v.) is proper when all of the evidence, viewed in the aspect most favorable to the opponent, so overwhelming favors the movant that no contrary verdict based on the evidence could stand. On the other hand, a motion for a new trial is proper when the trial court, after weighing the evidence, concludes that the verdict is contrary to the manifest weight of the evidence. A motion for a new trial, the reviewing court noted, would not implicate the same evidentiary standard for a judgment n.o.v., and therefore, the trial court did not have the opportunity to reconsider its decision to deny the plaintiff's request for a directed verdict. The reviewing court concluded that, because the plaintiff did not request a judgment n.o.v. in his posttrial motion, the plaintiff was “precluded from asking this court to enter judgment on liability.”

Important for both trial and appellate practitioners alike, the reviewing court conceded that the plaintiff wrote in his posttrial motion that the trial court erred in denying his motion for a directed verdict on the issue of liability. But that was not enough; it was a “mere allegation.” The reviewing court concluded that the plaintiff also had to specifically ask for that directed verdict in his posttrial motion.

The plaintiff raised the issue of the judgment he sought in his posttrial motion as a “point” and probably a “ground,” but fatally omitted to specifically request that judgment n.o.v. – the form of the “relief” he sought during the trial when he moved for a directed verdict. Two out of three may not be that bad in love songs, but it will not preserve an issue for appeal in a posttrial motion. See Meat Loaf, “Two Out of Three Ain’t Bad,” Bat Out of Hell (1977).

The reviewing court, however, did consider the plaintiff's appeal as framed by the notice of appeal, that is, the trial court's denial of his posttrial motion for a new trial. The court noted that, because the plaintiff did not sufficiently develop his argument regarding the trial court’s denial of his posttrial motion in his brief, it would have been justified in declining to address that issue pursuant to Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). Nonetheless, because the defendant decided to brief the issue as framed by the notice of appeal, he would not be prejudiced if the reviewing court decided that issue. The reviewing court concluded that the trial court did not abuse its discretion in denying the plaintiff's posttrial motion for a new trial.

Posttrial motions require careful attention. Including the points and grounds is the easy part. Specifically asking for all the particular forms of relief requested–by name–requires more thought. And is required.

Recommended Citation: Lawrence A. Stein, "Any Point, Ground, or Relief" - Posttrial Motions Require Careful Attention, The Brief, (November 2, 2014), http://applawyers-thebrief.blogspot.com/2014/11/any-point-ground-or-relief-posttrial.html#more.

Seventh Circuit Invokes Pendent Appellate Jurisdiction, the “Embattled Doctrine”

Tue, 28 Oct 2014 12:20:00 GMT

The Seventh Circuit had the opportunity to consider the contours of pendent appellate jurisdiction in Allman v. Smith, 764 F. 3d 682 (7th Cir. 2014). The matter involved a ruling from a motions panel reviewing the district court’s denial of a motion to stay proceedings pending an interlocutory appeal. The case is important for appellate practitioners because it highlights that, although pendent appellate jurisdiction is “an embattled doctrine,” it will be invoked when compelling reasons exist.

In Allman, the plaintiffs, former employees of a city in Indiana, sued both the mayor and the city claiming that they were fired because of their political affiliations. The mayor argued that he violated no constitutional rights; and alternatively, even if the firings violated the employees’ constitutional rights, the doctrine of qualified immunity applied and absolved him from liability. The city, whose liability was derivative, claimed that the mayor’s actions did not constitute a constitutional violation and also moved for summary judgment. The district court granted the mayor’s motion for summary judgment based on qualified immunity as to some plaintiffs, but denied the mayor’s motion for summary judgment as to two of the plaintiffs after finding that an issue of fact existed. The district court further denied the mayor’s motion that the proceedings be stayed pending appeal. The district court denied the city’s summary judgment motion as well as the city’s motion to stay further proceedings against it.

The Seventh Circuit first noted that there was no question that the mayor was entitled to a stay because of the qualified immunity claim. However, the more interesting question for the court was whether the city, who could not rely on qualified immunity, was entitled to a stay under pendent appellate jurisdiction.

The reviewing court observed that pendent appellate jurisdiction is “an embattled doctrine” that is significantly narrow in scope. It requires a compelling practical reason to allow an appeal from a ruling where there is otherwise no independent jurisdictional basis. The court found that the posture of the city’s case represented a compelling practical reason to stay further proceedings relative to the city pending resolution of the mayor’s appeal. The court noted that claims against the city depended on the outcome of the mayor’s appeal—if the merits panel agreed with the mayor’s principle argument that there was no constitutional violation, then the city would also be relieved of liability. Absent a stay, any proceedings against the city would have been for naught. The court also commented that the plaintiffs’ desire to proceed against the city pending the mayor’s appeal could result in two trials involving the same facts and witnesses—an outcome that the court deemed unattractive. Also unattractive was the possibility that there would be conflicting findings on the nature of the mayor’s conduct if the case against the city was to be tried while the mayor’s appeal remained pending. The court then concluded that a stay of proceedings as to the city was warranted due to the city’s claimed status as party “ ‘pendent’ because of its interdependence with the mayor’s appeal.” But the court cautioned that the pendent jurisdiction of the city’s claim was limited to asking for review of the denial of its motion to stay. It emphasized that it lacked jurisdiction over of the city’s appeal from any district court rulings other than the district court’s denial of the city’s motion to stay.

The net result was that the proceedings against both the mayor and the city were stayed pending the mayor’s appeal. The outcome of the mayor’s appeal will then determine whether a trial against the city will be necessary, and if so, the scope of issues to be tried.

Recommended Citation: Rosa M. Tumialán, Seventh Circuit Invokes Pendent Appellate Jurisdiction, the “Embattled Doctrine”, The Brief, (October 29, 2014), http://applawyers-thebrief.blogspot.com/2014/10/seventh-circuit-invokes-pendent.html#more.

Association Hosts Appellate Practice Seminar in Champaign

Wed, 22 Oct 2014 00:19:00 GMT

The ALA is committed to fostering and encouraging the highest professional and ethical standards within the appellate bar. Pursuant to that commitment, the Association sponsored an Appellate Practice Seminar at the University of Illinois College of Law in Champaign. Held on October 8, 2014, the event featured an interactive panel discussion, presentations by seasoned appellate attorneys, a luncheon, and an informal social gathering attended by ALA members, University of Illinois law school faculty, and law students.

Appellate Court Justice Robert Steigmann of the Fourth District, moderated the panel discussion. The panel also included Justices Mary K. O'Brien and Daniel Schmidt of the Third District Appellate Court; Justices Lisa Holder White and Thomas Harris of the Fourth District Appellate Court; and Justice S. Gene Schwarm of the Fifth District Appellate Court. The panel covered a wide range of topics germane to appellate practice and procedure, and answered questions from attendees.

The seminar also featured ALA President Steve Pflaum and ARDC Ethics Director Peter Rotskoff present a discussion on ethics. ALA Vice President Michael Scodro, drawing on his experience as the former Illinois Solicitor General, offered a discussion focusing on tips for presenting oral arguments. Seminar participants were also invited to join the College of Law for their annual luncheon, which followed the Fourth District Oral Argument also held at the law school that morning.

The ALA thanks the Appellate Court Justices and the other speakers for their participation, and also thanks the University of Illinois College of Law.

ALA President Steven F. Pflaum Honored in Magazine Profile

Sun, 19 Oct 2014 22:26:00 GMT

ALA President Steven F. Pflaum was recently named Lawyer of the Month by Attorney At Law Magazine, which highlights his career accomplishments and contributions to the legal profession. In addition to representing clients like municipalities, media entities, and hospitals at trial and on appeal, President Pflaum has dedicated his career to "raising the bar" for both practitioners and the bench. He "devotes a substantial amount of time to activities intended to improve the administration of justice and the regulation of the legal profession." Toward that end, President Pflaum has held various positions related to both judicial and legal ethics, including serving as the current chair of the Illinois Judicial Ethics Committee.

The article also shares insight into President Pflaum's activities outside of the law. An avid cyclist and tennis player, President Pflaum lives by the motto "Work hard, play hard, hardly sleep." Between zealously representing clients, giving back to the legal community, cycling, playing tennis, and spending time with his wife Karen and their family, including six children, President Pflaum's only complaint is that "there are rarely enough hours in the day.”

President Pflaum's many friends at the Association congratulate him on this well-deserved accomplishment. To read the full article, please click here.

Supreme Court Amends Rules 12 and 373

Fri, 17 Oct 2014 03:09:00 GMT

Effective September 19, 2014, the Supreme Court has amended Rules 12 and 373. Rule 12 governs proof of service in the trial court and reviewing courts. The amendment pertains to subsection (4), which now provides that "in the case of service by mail by a pro se petitioner from a correctional institution," proof of service may be established by an affidavit or "by certification as provided in section 1-109 of the Code of Civil Procedure" of the person who deposited the document in the institutional mail. The certification should state the time and place of deposit, as well as the complete address to where the document was delivered.

Rule 373 governs filing papers in reviewing courts. The Rule specifies that proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). The amendment added language providing that the rule applies to "a motion directed against the judgment" as well as to the notice of appeal filed in the trial court.

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules 12 and 373, (October 16, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/10/supreme-court-amends-rules-12-and-373.html.

Association Supports 2014 Pro Bono Week

Mon, 13 Oct 2014 15:33:00 GMT

The Appellate Lawyers Association is pleased to support The Chicago Bar Association and The Chicago Bar Foundation's 10th Anniversary Celebration: 2014 Pro Bono Week "Lifting Lives, Strengthening Access," which will take place during the week of October 20, 2014 through October 24, 2014. For more information, please visit The Chicago Bar Association by clicking here.

Judge Easterbrook on Replacing Page Limits With Word Limits in Federal Rules of Appellate Procedure

Fri, 10 Oct 2014 17:12:00 GMT

Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit recently commented that replacing page limits with word limits in all Rules of Appellate Procedure was sensible. Nonetheless, the remaining question was what the limit should be. He recounts the process that led to the 14,000-word limit for principal briefs that currently exists. He further shares his opinion that a reduction of the word limit to 12,500 at the intermediate appellate level while, at the same time, the United States Supreme Court replaced the 50-page brief limit with a 15,000-word limit "would create an unjustified difference."

You can read his comments by clicking here. Via How Appealing.

Professor Geoffrey Stone Provides the Association With a Glimpse Into the NSA

Tue, 07 Oct 2014 23:18:00 GMT

Professor Geoffrey Stone of the University of Chicago Law School was the feature speaker at our September 22 meeting. He provided us with a fascinating look at his work as a member of a five-member Review Group appointed by President Obamato advise him on the activities of the National Security Agency. Professor Stone is the former Dean of the University of Chicago Law School, a former provost of the entire University, and the Edward H. Levi Distinguished Service Professor of Law.

Among other matters examined by the Review Group was the controversial surveillance program of the NSA authorized by section 215 of the Patriot Act of 2001. Under this program, the NSA on a daily basis collects metadata -- consisting of phone numbers and connections but no identities of callers or conversations -- on millions of American's phone calls from telephone providers. Professor Stone explained that the NSA holds and processes the metadata on its own computers. When NSA analysts determine that a particular phone number is associated with terrorism, the agency "queries" the database to find out related phone numbers from the database.

In 2012, according to Professor Stone, the NSA queried the database for 288 different numbers. In 16 instances the suspect number was found to be in touch with another suspect number in the United States. Those 16 instances were turned over to the FBI for further investigation. In the seven years since the program was created, however, it has not provided any link that has proved critical in preventing a pending terrorist attack.

Despite the lack of measurable success to date, Professor Stone said that the Review Group was of the view that the program should continue. But at the same time it recognized the danger of government abuse. Ultimately, the Review Group recommended to the President that the metadata should be held, not by the government, but by private parties -- either the telephone providers or a newly created private entity charged with overseeing the database. In addition, the Review Group recommended that no one should be able to access the database without a court order.

Following the making of these recommendations, President Obama accepted them and directed that steps be taken to transition to the new model. Professor Stone, who is a card-carrying member of the ACLU, regarded this as a huge step forward.

The presentation provided a rare glimpse into some of the workings of the NSA. The ALA and those attending the presentation are very grateful to Professor Stone both for his service on the Review Committee and for taking time to share his experience with our group.

Recommended Citation: Don Sampen, Professor Geoffrey Stone Provides the Association With a Glimpse Into the NSA, The Brief, (October 7, 2014), http://applawyers-thebrief.blogspot.com/2014/10/professor-geoffrey-stone-provides.html.

Let's Roon ALS: A Fundraiser for John Rooney

Sun, 05 Oct 2014 18:56:00 GMT

ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord. Also known as Lou Gehrig's disease, ALS is a crippling and fatal disease that quickly and systematically eliminates the body's ability to use its muscles. The disease has received worldwide attention in recent months with the ALS Ice Bucket Challenge.

Sadly, a member of the Illinois legal community has been inflicted with the disease. John Rooney, a longtime reporter for the Chicago Law Bulletin who has covered state and federal appeals, was diagnosed with ALS in March. A "Let's Roon ALS" fundraiser will be held on Sunday, October 19, 2014, in Merrionette Park, IL. The fundraiser will take place during a Chicago Bears game and, among other features, will include a buffet lunch, live entertainment, auction, and raffles. The proceeds will go towards John's medical costs, which given the nature of ALS, are likely to be high.

For more information on the fundraiser and to purchase tickets, please click here.

Don't Miss Out on These Upcoming ALA Events

Fri, 03 Oct 2014 22:07:00 GMT

The Association will present the following seminars and luncheons during the month of October.

October 8, 2014: Fourth District Appellate Seminar and Reception.
- Held at the University of Illinois College of Law in Champaign, the event will feature a panel discussion by justices from the Third, Fourth, and Fifth districts of the Appellate Court; an ethics discussion featuring Association President Steve Pflaum and ARDC Litigation Chief Peter Rotskoff; and former Illinois Solicitor General and Association Vice President Michael Scodro discussing tips for presenting oral arguments. The seminar will also include a roundtable luncheon with the Appellate Court justices and an informal gathering following the event. The seminar will run from 10:30 a.m. until 4:15 p.m. and offer 3.5 MCLE hours, including 1 hour of ethics.

October 29, 2014: Third Annual SIU/ALA Seminar. Writing Tips and Professionalism for the Appellate Practitioner.
- Held at the Southern Illinois University School of Law in Carbondale, the event will feature justices from the Illinois Supreme Court and Illinois Appellate Court, Fifth District; Professor Cheryl L. Anderson of SIU School of Law presenting “Zombie Nouns and Other Impediments to Persuasive Written Advocacy”; and Association President Steve Pflaum presenting “Professional Responsibility for Appellate Lawyers.” The event starts at 1 p.m. and ends at 4:20 p.m., and will offer 3 MCLE hours.

October 30, 2014: First District Luncheon Learn from the Press: Honing Writing Skills Under Pressure.
- Pat Milhizer, the editor and a former reporter for the Chicago Daily Law Bulletin, and Teddy Greenstein, a longtime sports columnist for the Chicago Tribune, will offer the view from a different writing perspective. They will discuss how journalists gather relevant facts, think of a plan of attack, and then generate a concise discussion with a point, all the time under critical review by editors and a vocal public. The luncheon will be at the Union League Club in Chicago from 12 p.m. until 1:45 p.m. and offer 1 MCLE hour.

For more information on these events and to register, click here.

You've Got Mail: First District Discusses the Requirements of Rules 373 and 12(b)(3) to Non-Attorneys

Wed, 01 Oct 2014 17:31:00 GMT

In re Marriage of Sheth, 2014 IL App (1st) 132611, examines the technical requirements for filing a notice of appeal by mail. Respondent, Sushil Sheth, was a cardiologist in the Chicago area who had been federally charged with healthcare fraud on January 28, 2009, and sentenced to 60 months' imprisonment in the federal corrections center on August 10, 2010. His wife, Anita Sheth, filed a petition for dissolution of marriage approximately six months after Sushil was charged. Sushil was originally represented by an attorney in the dissolution proceedings, but eventually proceeded pro se. During the dissolution proceedings, a dispute regarding disbursement of monies to their children arose. On May 13, 2013, and while incarcerated, Sushil filed a motion by mail resisting the disbursement of funds and seeking a continuance. Sushil’s motion went ignored, and on May 15, 2013, the trial court granted Anita’s motion to disburse the children’s funds into a trust administered by her brother. On June 4, 2013, Sushil filed a motion to reconsider by mail. On June 28, 2013, the trial court denied the motion to reconsider.

Sushil filed a pro se notice of appeal by mail. The notice of appeal was received and filed by the clerk on August 13, 2013. The notice of appeal contained a “Certificate of Service,” which was signed by Sushil and dated July 22, 2013, certifying that he placed the notice of appeal in the prison’s legal mailbox, with United States “First Class Certified Mail, Return Receipt Requested,” postage affixed, addressed to the circuit clerk of Cook County. The Certificate of Service, which was also file-stamped with a date of August 13, 2013, was signed by Sushil but, important to this appeal, not notarized. Also attached to the notice of appeal and Certificate of Service was tracking information showing that documents had been processed through the USPS sort facility in Indianapolis on July 24, 2013, and delivered in Chicago on July 29, 2013.

Before reaching the merits, the reviewing court, as it was required to do, considered whether it had jurisdiction. This inquiry required the court to consider whether Sushil’s pro se notice of appeal received and filed by the clerk on August 13, 2013, was timely. The court noted that, under Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008), Sushil’s notice of appeal was required to be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the judgment or order, which would have made the notice of appeal due on Monday, July 29, 2013. However, Sushil’s notice of appeal was not received and filed by the clerk until August 13, 2013, almost two weeks beyond the due date.

Nonetheless, the reviewing court noted that Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009) provides that, when a notice of appeal is mailed, the time of mailing shall be deemed the time of filing if it is received after the due date. Therefore, the court opined, Sushil had to rely on Rule 373 for his notice of appeal to be considered timely. For a party to rely on Rule 373, it must also file proper proof of mailing or delivery to a third-party commercial carrier as required by Rule 12(b)(3), which provides:

“(3) in case of service by mail or by delivery to a third-party commercial carrier, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail or delivered the document to a third-party commercial carrier, stating the time and place of mailing or delivery, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid[.]” Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4, 2013).

The reviewing court concluded that Sushil’s certificate of service attached to the pro se notice of appeal, which was signed but not notarized, failed to meet the requirement of an “affidavit of a person other than the attorney” under Rule 12(b)(3). Citing Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009), and People v. Tlatenchi, 391 Ill. App. 3d 705 (2009), the court in Sheth emphasized affidavits must be sworn to by a party before a person who has legal authority to administer oaths. Because the certificate of service was signed but not notarized, the notice of appeal received by mail after the 30-day period was untimely, and the Sheth court dismissed the appeal for lack of jurisdiction.

Recommended Citation: Nate Nieman, You've Got Mail: First District Discusses the Requirements of Rules 373 and 12(b)(3) to Non-Attorneys, The Brief, (October 1, 2014), http://applawyers-thebrief.blogspot.com/2014/10/youve-got-mail-first-district-discusses.html.

Fifth District Appellate Court Explains When Trial Court Order Remanding an Administrative Agency's Decision Is Final for Purposes of Appellate Jurisdiction

Sat, 20 Sep 2014 18:16:00 GMT

In Lake Environmental, Inc. v. Arnold, 2014 IL App (5th) 130109, the Illinois Appellate Court, Fifth District, engaged in a discussion regarding whether appellate jurisdiction is proper when the trial court reverses an administrative agency’s decision and remands the matter for further proceedings by that agency. Although the court’s jurisdictional discussion was brief, the opinion provides valuable insight regarding when such an order is final for purposes of appellate jurisdiction.

In this case, the plaintiff, Lake Environmental,was working on an asbestos removal project when the Illinois Department of Public Health (IDPH) issued an emergency work stop order. The IDPH eventually issued a final administrative decision that revoked the plaintiff’s license. Thereafter, a complaint for administrative review was filed in the circuit court.

The trial court ordered IDPH to reinstate the plaintiff’s license pending its decision on the merits. The court then entered an order reversing the revocation of the plaintiff’s license and remanded the case for further proceedings to determine whether or not the plaintiff’s license “should be suspended or revoked.” Thereafter, the plaintiff filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), and the court held a hearing on the matter and ultimately entered an order providing, “[p]laintiff’s request for sanctions pursuant to Rule 137 is denied.” The plaintiff appealed.

The defendants contended that reviewing court did not have jurisdiction because, when a trial court reverses an administrative agency’s decision and remands the matter for further proceedings, the trial court’s order is not final for purposes of appellate jurisdiction. The court noted, however, that if on remand the agency has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters, or merely make a mathematical calculation, then the order is final for purposes of an appeal. Id. ¶ 6 (citing Edmonds v. Illinois Workers' Compensation Comm'n, 2012 IL App (5th) 110118WC ¶ 19).

The defendants argued that, in the case at bar, the trial court’s order appeared “patently non-final” by ordering a remand that authorized more than ministerial action. The plaintiff responded that the order fully adjudicated all of the issues, found IDPH’s purported justifications for revoking the plaintiff’s license to be without merit, and therefore left IDPH with no discretion on remand and no choice but to reinstate the plaintiff’s license. The plaintiff further responded that, by the time the trial court ruled on its request for sanctions, the remand had been completed and its license had been reinstated. The reviewing court agreed with the plaintiff on both points and concluded that it had jurisdiction over the appeal.

The reviewing court ultimately reversed the case and found that, when a trial court rules on a motion for sanctions pursuant to Rule 137, that judge “must provide specific reasons for his or her ruling, regardless of whether sanctions are granted or denied.”

Recommended Citation: April Connley, Fifth District Appellate Court Explains When Trial Court Order Remanding an Administrative Agency's Decision Is Final for Purposes of Appellate Jurisdiction, The Brief, (September 20, 2014), http://applawyers-thebrief.blogspot.com/2014/09/fifth-district-appellate-court-explains.html.

University of Chicago Law School Professor Geoffrey Stone to Speak at ALA September Luncheon

Fri, 12 Sep 2014 22:50:00 GMT

On Monday, September 22, 2014, the ALA will kick off the bar year with a luncheon at the Union League Club in Chicago featuring University of Chicago Law Professor Geoffrey Stone. Attendees will have the unique opportunity to hear Professor Stone discuss his recent service on President Obama's Review Group concerning the National Security Agency, data collection, and privacy.

Parmalat Capital Finance Ltd. v. Grant Thornton Int’l: Legendarily Complex Litigation Nears Its Conclusion

Thu, 11 Sep 2014 17:25:00 GMT

In a case that could easily compete with Jarndyce v. Jarndyce for longevity and complexity, the Seventh Circuit held that the U.S. District Court for the Northern District of Illinois erred by failing to adhere to an earlier ruling in the same case by the Second Circuit. If that sounds unusual, welcome to the long-running Parmalat litigation. As Judge Posner noted in his preface to a summary of the case’s procedural history, “The litigation is highly complex; we’ll simplify ruthlessly.” Parmalat Capital Finance Ltd. v. Grant Thornton Int’l, 756 F.3d 549, 550 (7th Cir. 2014) (decided June 25, 2014).

Parmalat, a food company, entered the Italian bankruptcy system. Parmalat’s “extraordinary commissioner” (which, Judge Posner noted, was the “Italian equivalent of a bankruptcy trustee”) filed two lawsuits. First, he filed a proceeding in the bankruptcy court of the Southern District of New York to enjoin litigation against Parmalat with respect to property involved in the Italian bankruptcy proceedings. Second, he filed a tort suit in the Circuit Court of Cook County, Illinois, against Grant Thornton, an accounting firm that, the commissioner alleged, had performed fraudulent audits of Parmalat.

Grant Thornton removed the Cook County lawsuit to the U.S. District Court for the Northern District of Illinois under 28 U.S.C. § 1334(b). That provision, Judge Posner explained, “confers original though not exclusive federal jurisdiction” over civil suits that are related to bankruptcy cases, and the commissioner’s Cook County lawsuit related to the bankruptcy proceeding. Once removed to the U.S. District Court for the Northern District of Illinois, the commissioner’s suit against Grant Thornton was then transferred by the Judicial Panel on Multidistrict Litigation to the U.S. District Court for the Southern District of New York.

Once the Grant Thornton lawsuit was transferred to the Southern District of New York, the commissioner asked the federal district court judge there to abstain from deciding the case pursuant to 28 U.S.C. § 1334(c)(2). Section 1334(c)(2) provides:

“Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.”

The commissioner argued that the tort suit against Grant Thornton could be “timely adjudicated” in an Illinois state court and met section 1334(c)(2)’s other requirements for federal abstention.

The federal judge in New York disagreed and awarded summary judgment to Grant Thornton on Illinois tort law grounds. (The substantive basis for that ruling is beyond the scope of this contribution to The Brief, but it is discussed in my law partner John J. Barber’s excellent Law & Accounting column in the August 6th edition of the Chicago Daily Law Bulletin.) On appeal, the U.S. Court of Appeals for the Second Circuit held that the federal district court in the Southern District of New York should have abstained pursuant to 28 U.S.C. § 1334(c)(2), remanded the case, and directed that the case be transferred to the U.S. District Court for the Northern District of Illinois so that it “can be remanded to Illinois state court.”

Once the case returned to the U.S. District Court for the Northern District of Illinois, however, it took another detour. Despite the Second Circuit’s holding that the tort claims should be decided by an Illinois state court pursuant to section 1334(c)(2), the federal judge in the Northern District of Illinois to whom the case was transferred decided not to remand the case to the Circuit Court of Cook County. “These cases have remained unresolved for nearly ten years, and it is unlikely that a remand back to state court will result in more timely dispositions of the cases,” the Illinois federal district court judge reasoned. Finding that the earlier award of summary judgment to Grant Thornton “should be respected” under the law of the case doctrine, the federal district court judge in Illinois awarded summary judgment to Grant Thornton.

On appeal from that ruling, the Seventh Circuit noted that 28 U.S.C. § 1334(d) expressly provides that “any decision to abstain . . . is not reviewable by appeal or otherwise by the court of appeals . . . or by the Supreme Court of the United States.” Writing for the Seventh Circuit panel, Judge Posner explained: “The statute doesn’t say in so many words that an order to abstain is not reviewable by another district court, but the idea that a district judge has appellate authority denied to the U.S. Supreme Court can’t be taken seriously.” For good measure, Judge Posner added that “[f]ederal district judges have appellate authority over decisions by magistrate judges, bankruptcy judges, and certain administrative law judges (administrative law judges in social security disability cases, for example), but not over decisions by other district judges, let alone by courts of appeals.”

Moreover, Judge Posner explained, “[n]othing has happened since the Second Circuit’s decision to justify a district court’s reopening and reversing it.” Grant Thornton argued that a recent Seventh Circuit case changed the legal landscape as to its entitlement to summary judgment on the merits, but Judge Posner rejected that argument, since that recent Seventh Circuit case had been brought to the Second Circuit’s attention in a petition for rehearing, which the Second Circuit had denied. That recent Seventh Circuit decision also, in Judge Posner’s estimation, was “not a novel decision.”

Thus, the Seventh Circuit reversed the district court’s “unauthorized . . . exercise of de facto appellate authority” and ordered it to remand the case to the Circuit Court of Cook County. Had the district court done so immediately upon receiving the case from the Second Circuit, Judge Posner noted, “the litigation might well be at an end rather than on the brim of restarting.” And so the Parmalat saga continues!

Recommended Citation: John M. Fitzgerald, Parmalat Capital Finance Ltd. v. Grant Thornton Int’l: Legendarily Complex Litigation Nears Its Conclusion, The Brief, (September 11, 2014), http://applawyers-thebrief.blogspot.com/2014/09/parmalat-capital-finance-ltd-v-grant.html.

Justice Lavin Praises Jackie Robinson West Little League Champs

Thu, 04 Sep 2014 20:42:00 GMT

In a recent New York Times article, First District Appellate Court Justice Terrence J. Lavin praised the Jackie Robinson West Little League team on their inspiration to the community. To read the article, click here.

Seventh Circuit Discusses When Party May Bring Interlocutory Appeal From Order Denying a Petition to Order Arbitration to Proceed

Fri, 29 Aug 2014 21:04:00 GMT

In Central States, Southeast and Southwest Areas Pension Fund v. US Foods, Inc., No. 13-1566 (7th Cir. July 30, 2014), the United States Court of Appeals for the Seventh Circuit held that it lacked jurisdiction over an interlocutory appeal seeking an order that would direct certain action by an arbitrator in a pending arbitration under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA). The case involved arbitration resulting from an employer withdrawing from a multiemployer pension fund under the MPPAA and the Seventh Circuit’s holding provides helpful insight regarding when a party may bring an interlocutory appeal under the Federal Arbitration Act (FAA) from an order denying a petition to order arbitration to proceed.

The Central States Pension Fund (Fund) assessed liability against US Foods in 2008 and 2009 because US Foods withdrew in part from an underfunded multiemployer pension plan. Pursuant to the MPPAA, US Foods could request arbitration within a certain time period, “though unlike normal arbitration[,] it is neither contractual nor consensual.” US Foods made that request within the statutory limit for the 2009 assessment, but did not make a timely request for arbitration with respect to the 2008 assessment. Meanwhile, the Fund sued US Foods to collect the 2008 assessment. US Foods requested that the district court order the arbitrator in the pending arbitration regarding the 2009 assessment to consider the amount owed for 2008 as well, but the district court refused.

US Foods filed an interlocutory appeal, invoking section 16(a)(1)(b) of the FAA, which authorizes an interlocutory appeal from an order “denying a petition under section 4 of this title to order arbitration to proceed.” The Seventh Circuit dismissed the appeal for lack of jurisdiction. In doing so, the reviewing court first explained that section 16(a)(1)(b) of the FAA pertains only to petitions under section 4 of the FAA. Section 4 of the FAA, in turn, authorizes an aggrieved party to petition a district court for an order “directing that . . . arbitration proceed in the manner provided for” in a written agreement for arbitration. US Foods and the Fund, however, had no agreement. Although the reviewing court suggested that perhaps arbitration proceedings under the MPPAA should be treated the same as arbitrations pursuant to a contract, it noted that no court of appeals had addressed that issue or otherwise decided whether the FAA authorizes an interlocutory appeal in a proceeding under the MPPAA. Therefore, the Seventh Circuit refused to do so as well.

Nonetheless, the Seventh Circuit concluded that, regardless whether the FAA authorizes an interlocutory appeal in a proceeding under the MPPAA, jurisdiction in this case would still be lacking. The reviewing court noted that US Foods, in effect, wanted the 2008 assessment “added to the agenda of the arbitrator who is already serving” in the arbitration regarding the 2009 assessment. That was not a request for an order directing arbitration within the meaning of section 4 of the FAA. Nor is a court’s order refusing to interfere with the conduct of an arbitration an order denying a petition to order arbitration to proceed, for purposes of section 16(a)(1)(b). Citing Blue Cross Blue Shield of Massachusetts, Inc. v. BCS Insurance Co., 671 F.3d 635 (7th Cir. 2011), the reviewing court noted that “a party’s request to tell an arbitrator how to act in a pending proceeding is not a request to compel arbitration, no matter what caption the litigant puts on its motion.” The reviewing court further emphasized that “judges must not intervene in pending arbitration to direct arbitrators to resolve an issue one way rather than another. . . . Review comes at the beginning or the end, but not in the middle. Until the arbitration was over, the matter was “in the hands of arbitrator.” (quoting Blue Cross Blue Shield, 671 F.3d at 638).

Recommended Citation: Myriam Z. Kasper, Seventh Circuit Discusses When Party May Bring Interlocutory Appeal From Order Denying a Petition to Order Arbitration to Proceed, The Brief, (August 29, 2014), http://applawyers-thebrief.blogspot.com/2014/08/seventh-circuit-discusses-when-party.html.

Second District Appellate Court Tackles Jurisdiction and Standing Questions

Thu, 21 Aug 2014 17:44:00 GMT

Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, involved a challenge to a request for discovery under Illinois Supreme Court Rule 224 (eff. May 30, 2008), which provides a mechanism to identify potential defendants before suit is filed. Here, the plaintiff sought an order directing Comcast Cable Communications, LLC (Comcast) to provide the identity and last known address of the defendant, subscriber Doe, a/k/a “Fuboy,” because the plaintiff wished to pursue a defamation claim against him for statements he anonymously posted about plaintiff on an internet message board.

In his defamation suit, the plaintiff named the defendant as “Subscriber Doe, a.k.a. Fuboy, whose legal name is unknown,” and that same day issued a subpoena to Comcast requesting Fuboy’s legal identity. Comcast notified Fuboy, and Fuboy hired an attorney who sought to quash the subpoena. At a hearing five months later, and with both Fuboy’s and plaintiff’s attorneys present, the trial court directed the parties that the subpoena and motion to quash would be better addressed within the Rule 224 context, finding Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, instructive. According to the Hadley court, Stone sets forth the standards for the application of Rule 224 to a defamation case and the plaintiff’s pleading obligations before an individual’s identity is revealed pre-suit. The trial court gave the plaintiff leave to file an amended complaint and a Rule 224 petition. Complying with the trial court’s instructions, the plaintiff filed an amended two-count complaint. Count I was the defamation claim against Fuboy, pleaded in accordance with Stone’s requirements, and Count II was the Rule 224 request seeking Fuboy’s legal identity and naming Comcast as the respondent.

Based, in part, on an evaluation of the sufficiency of the defamation count (Count I) under Stone, the trial court granted the Rule 224 request (Count II) and directed Comcast to release Fuboy’s identity and address. Fuboy then filed a motion to reconsider, which had been brought, in part, “to solidify the basis for [appeal].” After a discussion regarding the immediate appealability of standard Rule 224 orders and the impact of the still-pending defamation claim, the trial court stated that it believed the proper vehicle for appeal was Illinois Supreme Court Rule 303 (eff. June 4, 2008). However, “to ease the parties’ concerns,” the trial court stated that it would enter a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) as an alternative jurisdictional basis for appeal.

Fuboy appealed the trial court’s order requiring Comcast to provide the information, and at the outset the plaintiff claimed that Fuboy lacked standing to challenge the Rule 224 petition because the subpoena was issued to Comcast. The reviewing court disagreed with the plaintiff’s argument, citing Stone’s holding that a Rule 224 petitioner seeking to discover an individual’s identity before suit has the burden to provide allegations in the proposed defamation case sufficient to overcome a section 2-615 motion to dismiss. Because this standard was created to protect the rights of an unidentified defendant, the reviewing court reasoned, the defendant here had an interest in the proceedings even though he was not required to participate, and therefore, had standing to challenge the Rule 224 request.

After addressing the merits of the defamation claim, the court in Hadley delved into a discussion regarding the interplay between the trial court’s disposition of the plaintiff’s Rule 224 request and appellate jurisdiction under Rules 301 and 304(a). Addressing the dissent’s position that the appellate court lacked jurisdiction to consider the trial court’s order directing Comcast to provide Fuboy’s identity because it was a “nonfinal discovery order,” the reviewing court initially discussed Rule 224 and its counterpart, section 2-402 of the Code of Civil Procedure (735 ILCS 5/2-402 (West 2012)), known as the “respondents in discovery” statute. Section 2-402 could not have been applicable in this case, the majority determined, because that section was “meant to discover the identity of defendants other than the defendant named in the underlying complaint,” and is used after at least one defendant has been named in an existing complaint and the plaintiff seeks the identities of other defendants. Rule 224, by contrast, is the mechanism for discovering the identity of the same initial defendant, as the plaintiff sought to do here with the pseudonym of Fuboy. Thus, the majority determined, the trial court entered a Rule 224 order, not a section 2-402 order. Interestingly, the dissent later disclaimed any notion that it believed that the trial court’s order was a section 2-402 order, stating: “The majority suggests that I must believe that section 402 is the procedural posture under which the trial court entered its order. *** Such is not the case. It is clear to me that the trial court was simply looking for a jurisdictional hook for defendant to have an immediate appeal.”

The majority noted that Rule 224 orders “have been appealed as final judgments (presumably under Rule 301).” Indeed, as the court in Hadley pointed out, Rule 224 itself states that petitions brought under that rule are “independent [a]ctions.” The “irregularities” presented by the plaintiff’s Rule 224 request in this case, however, made a Rule 304(a) finding necessary because the request was (1) not filed prior to the plaintiff’s suit, and (2) filed as part of a two-count complaint, rather than an independent action, based on specific directives from the trial court following the plaintiff’s issuance of a subpoena to Comcast, “thus removing Rule 301 as a means by which to establish” appellate jurisdiction. The reviewing court noted that, “[a]lthough Rule 224 likely envisioned a one-count action,” the plaintiff’s Rule 224 request was part of a two-count complaint and presented what the court referred to as a “conundrum” when the Rule 224 was entered with the defamation count still pending. Therefore, “although a Rule 224 order is ordinarily a final and appealable order under Rule 301,” a Rule 304(a) finding was necessary in view of the remaining pending claim. Because the trial court had entered a Rule 304(a) finding, the reviewing court determined that appellate jurisdiction existed.

Apparently responding to the dissent’s position that Rule 304(a) jurisdiction did not exist in this case because there was just reason to delay enforcement or appeal (i.e., to avoid piecemeal appeals, prolonged litigation, and expense), the majority - in a footnote - gave a nod to its recent holding in AT&T v. Lyons & Pinner Electric Co., 2014 IL App (2d) 130577. In that case, the Appellate Court found that a Rule 304(a) finding had been improvidently entered where the trial court failed to consider the “Geier factors” (Geier v. Hamer Enterprises, 226 Ill. App. 3d 372 (1992)). However, the majority summarily distinguished AT&T on the grounds that the Hadley trial court’s apparent motivation to “get the case before the appellate court” was based on mootness considerations, which was one of the Geier factors. Specifically, when the trial court stated: “[t]here must be some avenue by which the defendant can seek relief without disclosure from a higher court than this one,” it had considered that the loss of anonymity could not be undone, and thus, that the issue would become moot if the case proceeded against a named defendant.

Recommended Citation: Katherine A. Grosh, Second District Appellate Court Tackles Jurisdiction and Standing Questions, The Brief, (August 21, 2014), http://applawyers-thebrief.blogspot.com/2014/08/second-district-appellate-court-tackles.html.

Seventh Circuit: No Appellate Jurisdiction to Consider Nonfinal Orders Within a District Court's Order to Remand to State Court

Thu, 14 Aug 2014 21:01:00 GMT

Orders remanding a case to state court based on a lack of subject-matter jurisdiction are generally "not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d). An exception exists, though, when the order contains a separate, appealable ruling that happens to be within the same document as the remand order. Unfortunately for the defendant railroad company in Lindner v. Union Pacific Railroad Co., No. 13-1422 (7th Cir. Aug. 11, 2014), the remand order contained no such separate or appealable ruling to save appellate jurisdiction.

In Lindner, a Union Pacific train derailed while on an overpass near Glenview, Illinois, which caused the bridge to collapse. At that time, Illinois residents Burton and Zorine Lindner happened to be driving under the bridge and suffered fatal injuries as a result of the bridge collapse. The Lindners' son filed a wrongful-death action in state court alleging negligence on the part of Union Pacific, a Delaware corporation with its principal place of business in Nebraska.

Union Pacific removed the case to federal court based on diversity jurisdiction, and the case proceeded with discovery. Thereafter Lindner sought leave to amend his complaint to add negligence claims against two Union Pacific workers, who were both Illinois residents, and asked the district court to remand the case back to state court. The district court granted leave to amend, and because the amendment destroyed diversity, the court remanded to case to state court.

Union Pacific appealed, and the United States Court of Appeals for the Seventh Circuit dismissed for lack of jurisdiction. Union Pacific recognized that § 1447(d) prevented the Seventh Circuit from reviewing the remand portion, but it argued instead that the court should review only the contemporaneous decision to allow Lindner to amend the complaint and to join the two Illinois defendants.

The Seventh Circuit rejected Union Pacific's argument because there was no appealable order separate from the order to remand. The Seventh Circuit explained that its jurisdiction extended to "final orders" (28 U.S.C. § 1291), and because an order allowing a plaintiff to amend a complaint does not terminate the dispute or even grant or deny relief on a claim, it is not a final order subject to review. The Seventh Circuit also determined that the district court's decision was not a "collateral order," that is, a nonfinal order that would be effectively unreviewable if it could not be appealed immediately. The Seventh Circuit also rejected Union Pacific's alternative request for a writ of mandamus compelling the district court to deny Lindner's motion to amend the complaint. With no final order to review and no mandamus relief necessary or appropriate, the Seventh Circuit dismissed the appeal.

Recommended Citation: Stacey Mandell, Seventh Circuit: No Appellate Jurisdiction to Consider Nonfinal Orders Within a District Court's Order to Remand to State Court (August 14, 2014), http://applawyers-thebrief.blogspot.com/2014/08/seventh-circuit-no-appellate.html.

Appellate Court Reiterates That Order Staying Trial Court Proceedings is Injunctive and Appealable Pursuant to Rule 307

Sat, 02 Aug 2014 23:24:00 GMT

In Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, the Illinois Appellate Court, First District, reiterated that Supreme Court Rule 307(a)(1) confers jurisdiction on a reviewing court over interlocutory orders that stay trial court proceedings.

In Cholipski, the plaintiffs, a husband and wife, filed a complaint against an engineering company, an electrical contractor, and others alleging that the husband suffered an injury while on a construction site that resulted from the defendants' negligence. More than three years after the plaintiffs brought suit, the defendants sought leave to bring a third-party complaint against the husband's pain management physician. The defendants sought contribution, alleging that the doctor mistreated the husband, which caused him to become permanently disabled.

The trial court initially denied the defendants' request for leave, and the defendants moved to reconsider. While that motion was pending, the trial court set a trial date on the underlying negligence action. Thereafter, the trial court granted the defendants' motion to reconsider and permitted them to file a third-party contribution complaint. However, the trial court granted the plaintiffs' request for severance and a separate trial, and stayed the defendants' contribution complaint until resolution of the plaintiffs' negligence action. The defendants appealed the portion of the trial court's order staying their contribution complaint, and the reviewing court issued an order staying the plaintiffs' negligence trial.

Before addressing the merits, the reviewing court initially rejected the plaintiffs' jurisdictional challenge to the defendants' interlocutory appeal. The court began its analysis by noting that Rule 307(a) provides:

"An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." Ill. S. Ct. R. 307(a)(1) (eff. Feb. 26, 2010).

The reviewing court opined that, while Rule 307(a) does not specifically use the word "stay," the supreme court has held that the rule provides jurisdiction for appellate courts to review stays of arbitration and administrative orders. Relying on such precedent, "the appellate court has repeatedly held that Rule 307 permits the interlocutory appeal of a stay of court proceedings" because a stay is injunctive in nature, and therefore, fits squarely within Rule 307(a).

After concluding that Rule 307(a) conferred jurisdiction, the reviewing court held that the trial court did not abuse its discretion when it stayed the defendants' contribution complaint. The court also vacated its prior order staying the plaintiffs' negligence trial.

Recommended Citation: Charlie Ingrassia, Appellate Court Reiterates That Order Staying Trial Court Proceedings is Injunctive and Appealable Pursuant to Rule 307, (August 2, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/08/appellate-court-reiterates-that-order.html.

Judge Posner: In Criminal Appeal, Filing Motion to Dismiss Before Full Briefing "Discouraged"

Sun, 27 Jul 2014 03:19:00 GMT

In U.S. v. Manning, 14-1479 (7th Cir. June 9, 2014), the United States Court of Appeals for the Seventh Circuit addressed the government's motion to dismiss an appeal due to an appeal-waiver provision contained in a criminal defendant's plea agreement. The government filed its motion before the parties filed their merits briefs. Judge Richard A. Posner, sitting as the motions judge, declined to address the government's motion. Instead, he ordered the merits panel to consider the government's motion, and in doing so, opined that "[t]he government’s filing of a separate motion, in advance of full briefing, to dismiss a criminal appeal as frivolous should be, though not forbidden, discouraged."

In declining to rule on the motion, Judge Posner noted that Federal Rule of Appellate Procedure 27 authorizes the government to file a motion to dismiss a criminal appeal in advance of full briefing, "which makes perfectly good sense" when the basis of a motion is lack of jurisdiction. However, an appeal waiver does not necessarily deprive a reviewing court of jurisdiction because the defendant may be able to put forth a non-frivolous argument, such as the waiver not applying to a specific issue or that the defendant did not enter into the plea agreement knowingly and intelligently, among other reasons.

Judge Posner remarked that "the only benefit that I can imagine" to filing a motion to dismiss on grounds of appeal waiver was to accelerate the evaluation of the merits of the appeal. However, an appellant's counsel on appeal - who often times did not serve as trial counsel - is likely to seek and obtain an extension to respond to the government's motion. In such situations, a motion to dismiss before filing the merits briefs is unlikely to accelerate disposition of the appeal.

In closing, Judge Posner noted that the defendant's counsel suggested a "sensible compromise," i.e., that the government file a notice of intent to enforce an appeal waiver. This would give appellate counsel an early warning that the government seeks to enforce the waiver and "will have the same accelerating effect as a motion to dismiss, while requiring less work for both sides and preserving the briefing schedule."

Recommended Citation: Charlie Ingrassia, Judge Posner: In Criminal Appeal, Filing Motion to Dismiss Before Full Briefing "Discouraged", (July 26, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/07/judge-posner-in-criminal-appeal-filing.html.

Appellate Court Cautions That Parties Cannot Supplement Record on Appeal by Attaching Documents to Briefs or Including Them in Appendix

Sat, 19 Jul 2014 21:23:00 GMT

Scepurek v. Board of Trustees of the Northbrook Firefighters' Pension Fund, 2014 IL App (1st) 131066, involved a judicial review of a pension fund's finding that a firefighter was not entitled to a duty disability pension. While the substantive aspect of the case focused on the Administrative Review Law (735 ILCS 5/3-101 (West 2008)), the Illinois Appellate Court, First District, began its opinion by providing a helpful reminder that parties cannot supplement the record on appeal by attaching documents to a brief or including them in an appendix.

In Scepurek, the pension board, on April 10, 2012, denied the firefighter's request for a duty disability pension. Thereafter, the firefighter sought judicial review of that administrative finding. On March 8, 2013, the trial court affirmed the pension board's finding, with the written order providing that the trial court affirmed "for the reasons stated on the record."

On appeal, the firefighter did not include a transcript or a summary of the trial court's stated reasons as part of the appellate record. The pension board attached a copy of the trial court's remarks as an appendix to its response brief. However, the reviewing court cautioned that parties cannot supplement the record in such a manner and noted that neither party followed court rules.

Nonetheless, the reviewing court cited Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006), which allows parties to "supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court." The court concluded that, although the firefighter had already filed his opening brief when the pension board attached the transcript of the March 8, 2013 hearing to its responsive brief's appendix, the firefighter did not suffer unfair prejudice because he was represented at the hearing. Thus, the reviewing court amended the record on appeal pursuant to Rule 329 to include that transcript.

Recommended Citation: Charlie Ingrassia, Appellate Court Cautions That Parties Cannot Supplement Record on Appeal by Attaching Documents to Briefs or Including Them in Appendix, (July 19, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/07/appellate-court-cautions-that-parties.html.

Illinois Appellate Court Clarifies Jurisdiction Over Prior Interlocutory Orders in 304(a) Appeals

Sun, 13 Jul 2014 15:19:00 GMT

In JPMorgan Chase Bank, N.A. v. East-West Logistics, L.C.C., 2014 IL App (1st) 121111, the Illinois Appellate Court, First District, confronted the question of whether a party appealing a summary judgment order pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), could also, in that same appeal, challenge prior interlocutory orders even though claims against other parties remained pending. The appellate court concluded that the interlocutory orders were appealable with the Rule 304(a) finding so long as each interlocutory order was a procedural step in the progression leading to the summary judgment order.

The case stemmed from an unpaid loan that two companies and their owner had guaranteed. The lender, Chase, sued all three, later substituting the owner’s estate, who died during the litigation. In multiple interlocutory orders, the trial court struck the estate’s affirmative defenses, dismissed the estate’s counterclaims, and ordered it to pay discovery costs to Chase.

Ultimately, the court granted summary judgment in favor of Chase and against the estate on the one count pending against it. Two other counts remained against other defendants, but the summary judgment order included a finding under Illinois Supreme Court Rule 304(a). A few months later, Chase voluntarily dismissed the remaining counts against the other parties with prejudice, and the trial court entered a final order stating that all pending claims between all parties had been resolved.

The estate timely filed a notice of appeal following the entry of the summary judgment order containing the Rule 304(a) finding, and in that appeal, appealed all the preceding interlocutory orders. It did not, however, file a second or amended notice of appeal upon the entry of the final judgment. As a result, Chase argued that the reviewing court only had jurisdiction over the summary judgment order, which contained a Rule 304(a) finding, and not the prior interlocutory orders, which could be appealed only after the trial court entered a final judgment.

In addressing the jurisdictional challenge, the reviewing court noted that Chase did not dispute that the summary judgment order with a Rule 304(a) finding was a final order as to the estate, and further, only claims against other defendants had remained. For that reason, the court concluded that it had jurisdiction over the interlocutory orders relating to the estate. East-West Logistics, 2014 IL App (1st) 121111, ¶¶ 25-26 (citing Valdovinos v. Luna-Manalac Medical Center, Ltd., 307 Ill. App. 3d 528, 538 (1999) (noting that an appeal from a final judgment draws into issue all prior interlocutory orders which constituted a procedural step in the progression leading to the entry of the final judgment from which an appeal has been taken). Further, citing Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App.3d 912, 920 (2000), the court held that the orders dismissing the estate’s affirmative defenses and counterclaims, as well as the judgment order awarding discovery costs against the estate, were steps in the progression to the trial court granting summary judgment. Therefore, the reviewing court had jurisdiction to review not only the summary judgment order, but the prior orders as well.

Recommended Citation: Charles E. Harper, Illinois Appellate Court Clarifies Jurisdiction Over Prior Interlocutory Orders in 304(a) Appeals, The Brief, (July 13, 2014), http://applawyers-thebrief.blogspot.com/2014/07/illinois-appellate-court-clarifies.html.

Is a Declaratory Judgment Order Immediately Appealable Without a Rule 304(a) Finding?

Mon, 07 Jul 2014 18:48:00 GMT

In In re Marriage of Heinrich, 2014 IL App (2d) 121333, the Illinois Appellate Court, Second District, held that a ruling on a declaratory judgment motion within a marriage dissolution proceeding was not appealable until a subsequent ruling on a motion to reconsider, brought 17 months later, that contained a specific finding pursuant to Supreme Court Rule 304(a) (eff. Feb. 26, 2010). The court’s opinion, with one justice dissenting, represents an apparent split among the First and Second Appellate Districts as to whether a trial court’s declaratory judgment order entered pursuant to section 2-701(a) of the Code of Civil Procedure (735 ILCS 5/2-701(a) (West 2010)) is immediately appealable without a Rule 304(a) finding.

In Heinrich, the parties were married on May 26, 2001. The day prior to their marriage, they signed a premarital agreement. On April 28, 2010, the wife-petitioner filed a petition to dissolve the parties’ marriage.

On March 3, 2011, the husband-respondent moved for a declaratory judgment pursuant to section 2-701(a) of the Code, seeking a general termination of the parties’ rights under the premarital agreement, arguing an actual controversy as to the agreement’s validity and enforceability. Petitioner requested a finding that the premarital agreement was valid and enforceable. On April 8, 2011, the court reviewed the agreement and found it valid and enforceable. Between May 2011 to October 2012, various further proceedings took place in the dissolution proceeding not relevant to the appeal.

However, on October 1, 2012, respondent filed a motion asking the trial court to reconsider its April 8, 2011, declaratory order finding that the premarital agreement was valid and enforceable. In response, petitioner filed in the trial court an emergency motion for an immediate hearing on respondent’s motion to reconsider and for a Rule 304(a) finding. The trial court first found the petitioner’s motion not an emergency. Noting that respondent’s motion to reconsider “was untimely and that it presented ‘nothing new,’ ” the court denied respondent’s motion to reconsider. The court found that, pursuant to Rule 304(a), there was no just reason to delay enforcement or appeal or both of its order of April 8, 2011, declaratory order.

On appeal, the majority held that the April 8, 2011 declaratory order was final, but not appealable, on the date it was entered because the dissolution matter had continued. Therefore, the order did not become final and appealable until the trial court made its Rule 304(a) finding over 17 months later. The dissent considered a declaratory judgment entered pursuant to section 2-701(a) to be final under Supreme Court Rule 303 and, when part of a larger lawsuit, that determination should be treated as immediately appealable pursuant to Rule 304(b).

The majority cited In re Marriage of Best, 228 Ill.2d 107 (2008) (Best I). In Best I, the husband petitioned for dissolution of the parties’ marriage and, later, moved for declaratory judgment, seeking a ruling concerning the validity and construction of their premarital agreement. According to the majority in Heinrich, the Supreme Court in Best I held that, even though a final dissolution order had not been entered, a reviewing court could review the trial court’s rulings if the requirements of the declaratory judgment statute were met. But the majority then noted from Best I that, as “critical to this appeal, the Supreme Court further declared that the ruling was appealable under Rule 304(a).” Thus according to the majority, in Best I the “parties’ two requests for relief (declaratory and non- declaratory) had different statutory bases and were ‘not so closely related that they must be deemed part of a single claim for relief.’ ”

Relying on Best I, the majority held that jurisdiction was conferred pursuant to Rule 304(a), where a judgment in the case involving multiple parties or multiple claims disposes of at least one, but not all, of such parties or claims. Here, the trial court’s declaratory judgment, which addressed claims relating to the premarital agreement, was final on April 8, 2011. However, the majority opined, the trial court’s April 8, 2011, order only became appealable on October 31, 2012, by virtue of the court’s express Rule 304(a) finding. The majority further stated: "[a]lthough the Rule 304(a) finding here was not made until over 17 months later (in an order also denying respondent’s motion to reconsider), that delay is of no import because a Rule 304(a) finding may be made at any time.”

As the majority further explained:

“[T]he fact that respondent filed his motion to reconsider over 17 months after the declaratory judgment does not alter our conclusion. The declaratory judgment was final, but not appealable, on the date it was entered – April 8, 2011. [Citation omitted.] The order did not become appealable until the court made its Rule 304(a) finding. [Best I, 228 Ill.2d at 113.] The fact that respondent filed a motion to reconsider in the interim, which prompted petitioner’s request for Rule 304(a) language, does not alter this conclusion. The 30-day period for filing a notice of appeal was triggered by the issuance of the trial court’s Rule 304(a) language, not by any earlier filings. To hold otherwise, as the dissent suggests, would have the effect of swallowing Rule 304(a) and ignoring Best I”.

The majority also distinguished Pritza v. Village of Lansing, 405 Ill.App.3d 634 (2010), a case the dissent relied upon, as not involving a marriage dissolution action, and as not addressing Best I. In Pritza, the First District held that finality attached to a declaratory judgment on the date of its entry even without a Rule 304(a) finding, and that a trial court’s declaratory judgment order “ ‘fixed absolutely the rights of plaintiff and defendants on plaintiff’s claim for declaratory judgment for uninsured motorist’s coverage.’ ” As a result, the court in Pritza held that a party was required to appeal from a trial court’s declaratory order within 30 days of the orders entry even if that order did not contain a Rule 304(a) finding. The majority in Heinrich reiterated that, in a dissolution context, a declaratory judgment order is final when entered; but while finality may attach to a declaratory judgment order on the date it is entered, that order is not appealable in a dissolution context absent Rule 304(a) language where, as here, the declaratory judgment did not dispose of the entire action because the dissolution claim remained pending.

The dissent countered that the majority’s holding “promotes uncertainty over certainty,” as the parties will “now be able to revisit a declaratory judgment 17 months, or 17 years, after that order was entered.” The dissent looked to section 2-701(a) of the Code, which allows a court in cases of actual controversy to “make binding to declarations of rights, having the force of final judgments *** .” The dissent emphasized that the declaratory judgment procedure was designed to settle and fix litigants’ rights before there has been an irrevocable change in their respective positions, and to “afford security and relief against uncertainty so as to avoid potential litigation.”

Here, the dissent asserted, the respondent’s motion to reconsider “asked the trial court to bring the parties back 17 months to step one and place them in the exact same position that they were in when respondent filed his motion for declaratory judgment in March 2011.” Instead of a declaratory judgment being final, therefore, the parties “were once again uncertain as to their respective rights and obligations under the premarital agreement.”

The dissent distinguished Best I because that holding “did not speak to whether a party could request adding Rule 304(a) language to a declaratory judgment order 17 months after the trial court entered that order.” Therefore, the dissent could not read Best I “as broadly as the majority,” and did not believe that case to be controlling under the specific circumstances of the instant matter."

Rather, the dissent deemed the rationale and holding in Pritza more analogous to the instant matter. Recognizing that Pritza involved a declaratory judgment with respect to uninsured motorist’s coverage, as opposed to the instant matter involving a declaratory judgment in a dissolution proceeding, the dissent nevertheless deemed the holding in Pritza that a declaratory order is immediately appealable absent a Rule 304(a) finding “sound with respect to the finality of a declaratory judgment order.”

Appellate practitioners should take note of the split between Heinrich and Pritza as to whether a declaratory order entered pursuant to section 2-701(a) of the Code is immediately appealable without a Rule 304(a) finding. Until this conflict is settled, the prudent course would be to request a Rule 304(a) finding on the date the trial court issues a declaratory judgment order.

Recommended Citation: Robert G. Black, Is a Declaratory Judgment Order Immediately Appealable Without a Rule 304(a) Finding?, The Brief, (July 7, 2014), http://applawyers-thebrief.blogspot.com/2014/07/is-declaratory-judgment-order.html.

ALA Hosts Third District Luncheon at Starved Rock

Tue, 01 Jul 2014 13:35:00 GMT

On June 19, 2014, the Association hosted a luncheon honoring the Justices of the Illinois Appellate Court, Third District. The luncheon was held at the scenic Starved Rock State Park in Ottawa.

Newly installed ALA President Steve Pflaum welcomed the attendees and introduced Presiding Justice Tom M. Lytton, who presented the other five justices in attendance. Justice Lytton also introduced the Third District's new Clerk, Barbara Trumbo.

Following the introductory remarks, a roundtable luncheon was held. A trademark feature of such luncheons, the justices sat at different tables with attendees, allowing appellate practitioners to gain insight and perspective from the bench in an up-close and collegial environment. The attendees were encouraged to question the justices regarding their opinions and practices with written briefs, tips for oral arguments, and use of clerks and other court personnel.

The ALA thanks the Justices of the Illinois Appellate Court, Third District, for an enjoyable and informative luncheon.

Recommended Citation: Natalie Thompson, ALA Hosts Third District Luncheon at Starved Rock, The Brief, (July 1, 2014), http://applawyers-thebrief.blogspot.com/2014/07/ala-hosts-third-district-luncheon-at.html.

Seventh Circuit Proposes Circuit Rule Changes

Thu, 26 Jun 2014 18:06:00 GMT

The United States Court of Appeals for the Seventh Circuit recently issued a "Notice of Proposed Circuit Rule Changes And Opportunity for Comment." If adopted, the proposed changes will affect a number of circuit rules, including rules governing the notice of appeal and docketing statement (Rule 3); the record on appeal (Rule 11); the disclosure statement (Rule 26.1); briefs (Rule 28); and oral arguments (Rule 34).

The Advisory Committee is soliciting written comments regarding the proposed rule changes, which must be sent to the Committee by August 1, 2014.

Recommended Citation: Charlie Ingrassia, Seventh Circuit Proposes Circuit Rule Changes, The Brief, (June 26, 2014), http://applawyers-thebrief.blogspot.com/2014/06/seventh-circuit-proposes-circuit-rule.html.

Pursuant to Rule 369(b), Express Remand Not Necessary When Reviewing Court Affirms in Part

Wed, 25 Jun 2014 16:33:00 GMT

Interpreting Illinois Supreme Court Rule 369(b) (eff. July 1, 1982), the Illinois Appellate Court, First District, ruled that, post appeal, a trial court has jurisdiction over a case where the trial court’s ruling is affirmed in part, even if the reviewing court did not remand the case. The holding clarifies that an express remand is not necessary to revest jurisdiction in the trial court when a reviewing court affirms, even in part.

In POM 1250 N. Milwaukee, LLC, v. F.C.S.C., Inc., 2014 IL App (1st) 132098, the plaintiff POM appealed an attorney fees award, in which the trial court ordered it to pay the defendant FCSC more than $54,000 in attorney fees. FCSC cross-appealed, claiming that the trial court had erred in denying its request for sanctions pursuant to Rule 137 (eff. Feb. 1, 1994). During the pendency of that appeal, POM did not seek a stay of enforcement. While the appeal was pending, POM obeyed a turnover order that FCSC obtained during enforcement proceedings before the trial court and paid FCSC in excess of $50,000. The reviewing court reversed FCSC's fee award and affirmed the trial court's decision not to impose Rule 137 sanctions. The reviewing court’s order did not include a remand.

Thereafter, POM returned to the trial court, which, upon POM’s request, ordered FCSC to return the money POM had paid pursuant to the prior turnover order. FCSC refused, arguing that the trial court did not have jurisdiction to order it to return the money because the reviewing court did not expressly remand the case, which was necessary to revest jurisdiction in the trial court. FCSC appealed after the trial court denied its motion to reconsider.

FCSC lost the second appeal based upon the appellate court's review of Rule 369(b) and relevant case law. Rule 369(b) provides: "When the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the [trial] court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken."

The appellate court held that, when it affirms all or part of a trial court's judgment, the reviewing court need not expressly order a remand for the trial court to take action. Rule 369(b) allows the trial court to enforce the judgment and conduct other proceedings as if no appeal had been taken. As the court in POM explained, "[b]y affirming in part, the [reviewing] court necessarily revested the trial court with jurisdiction over the case and permitted the court to conduct 'other proceedings,' namely POM's post[-]appeal motion for a reverse turnover order." Thus, in an odd procedural twist, it was FCSC's decision to cross-appeal the trial court's decision not to impose Rule 137 sanctions, which the appellate court affirmed after reversing the trial court's fee award, that revested jurisdiction in the trial court without an express remand.

The appellate court rejected FCSC’s other argument, that the doctrine of res judicata barred the trial court from challenging the turnover order, which POM did not appeal. The court in POM reasoned that the parties were involved in the same proceeding after the first appeal, so, in the absence of a subsequent proceeding, res judicata did not apply.

Recommended Citation: Karen Kies DeGrand, Pursuant to Rule 369(b), Express Remand Not Necessary When Reviewing Court Affirms in Part,The Brief, (June 25, 2014), http://applawyers-thebrief.blogspot.com/2014/06/pursuant-to-rule-369b-express-remand.html

Steven Pflaum Installed as Association's 47th President

Thu, 19 Jun 2014 09:39:17 GMT

On June 13, 2014, the Association gathered at the Union League Club in Chicago for the Installation luncheon of Steven F. Pflaum as the Association's 47th President. Attendees included ALA members as well as judges from the United States Court of Appeals for the Seventh Circuit, the Illinois Supreme Court, the Illinois Appellate Court, and the Circuit Court of Cook County. Also in attendance were a number of special guests, including President Pflaum's wife and children and attorneys from Pflaum's law firm, Neil, Gerber & Eisenberg LLP.

Outgoing president Brad Elward began the festivities by providing welcoming remarks and recounting a successful bar year, which included holding events within every appellate district. Pursuant to its bylaws, the Association also elected a new slate of Officers and Directors. The newly elected Officers are Michael Scodro of Jenner & Block LLP as Vice President; JoAnne Driscoll of Forde Law Offices LLP as Secretary; and Evan Siegel of the Illinois Attorney General's Office as Treasurer. Newly elected Directors, who will serve a two-year term, are E. King Poor of Quarles & Brady LLP; John Fitzgerald of Tabet DiVito & Rothstein LLC; Natalie Thompson of Heyl, Royster, Voelker & Allen, P.C.; and Matthew Elster of Beermann Pritikin Mirabelli Swerdlove LLP.

Thereafter, Elward introduced Justice Michael B. Hyman of the Illinois Appellate Court, First District, to administer the oath of office. Justice Hyman began his remarks by thanking Elward and the Association for promoting education and professionalism within the legal profession.

ustice Hyman then, as he phrased it, began his "roast" of incoming President Pflaum by quipping that Pflaum shares many of the same physical characteristics as Hollywood actor Nicolas Cage. Drawing a large laugh from the audience, Justice Hyman remarked that the similarities did not end with appearance. For example, Pflaum is a member of the California bar, while Cage frequents many bars in California. Turning to a more serious note, Justice Hyman recounted Pflaum's many achievements within the legal profession and commented that Pflaum is a "meticulous and forthright" attorney who has a reputation for handling high-stake and complex matters.

After taking the oath of office, President Pflaum performed his first official act by thanking Elward, the judges in attendance, and his family. Pflaum shared his vision for the Association. Noting that the ALA is the "hardest working Association in show business," Pflaum stated that the Association will be "Rock Steady," in reference to a famous Aretha Franklin song. That is, the Association will remain steady by continuing to present luncheons, brown bag luncheons, and advanced appellate advocacy seminars throughout the state, but will also "shake things up" by implementing new initiatives started by his predecessors.

Pflaum discussed the Association's effort to expand its social media presence by transitioning The Brief publication into a publicly available blog. The Association also created a members-only LinkedIn page, which provides members a forum to discuss issues related to appellate advocacy, and plans to revamp its website. In addition, the Association plans to celebrate the Illinois Supreme Court sitting in Chicago this upcoming October. Pflaum noted that the celebration dinner will provide yet another opportunity to facilitate communication between the bench and bar - a core Association principle - and that the legal profession depends upon judges and attorneys working together.

The ALA thanks Past President Elward and the outgoing Directors for a successful and enjoyable bar year, and congratulates the new Officers and Directors.

Recommended Citation: Charlie Ingrassia, Steven Pflaum Installed as Association's 47th President, The Brief, (June 19, 2014), http://applawyers-thebrief.blogspot.com/2014/06/steven-pflaum-installed-as-associations.html.

Illinois Appellate Court: DWP Order Not Appealable Until Period for Refiling Expires

Sun, 15 Jun 2014 03:10:00 GMT

In Federal National Mortgage Association v. Tomei, 2014 IL App (2d) 130652, the Illinois Appellate Court, Second District, held that it lacked jurisdiction to review a trial court's order vacating a dismissal for want of prosecution (DWP). Federal National filed a mortgage foreclosure action against Tomei. Following Federal National's failure to appear for a status hearing, the trial court dismissed the case for want of prosecution. Thereafter, Federal National filed a motion to vacate the DWP pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)), citing a "docketing error" for its failure to appear. The trial court granted the motion and reinstated the case.

Tomei appealed under Illinois Supreme Court Rule 304(b)(3) (eff. Feb, 26, 2010), arguing that Federal National should not have been relieved of the consequences of its own negligence under the standards of section 2-1401. Federal National argued that the appellate court lacked jurisdiction because, in substance, its motion was brought pursuant to section 2-1301(e) of the Code (735 ILCS 5/2-1301(e) (West 2012)).

Section 2-1301(e) gives the court discretion to set aside any default before a final order is entered, including a DWP order. Importantly, the court noted that section 13-217 of the Code (735 ILCS 5/13-217 (West 1994)) generally affords a plaintiff one year to refile an action after a DWP order. Therefore, a DWP order is interlocutory for the year after the trial court enters that order and becomes final only when the refiling period under section 13-217 expires.

Conversely, a section 2-1401 petition allows the trial court to vacate a final judgment more than 30 days after its entry, provided that the movant demonstrates due diligence. Pursuant to Rule 304(b)(3), an order granting or denying relief under section 2-1401 is immediately appealable.

The appellate court agreed with Federal National. It held that, based on the character of Federal National's pleading (as opposed to the label), the trial court should have converted its section 2-1401 motion to a section 2-1301(e) petition, which was the proper vehicle to set aside a DWP order. Therefore, the "[trial court's] grant of the motion produced an interlocutory order, not a final one" and "an appeal was improper." As a result, the appellate court dismissed for lack of jurisdiction.

Recommended Citation: Gretchen Harris Sperry, Illinois Appellate Court: DWP Order Not Appealable Until Period for Refiling Expires, The Brief, (June 14, 2014), http://applawyers-thebrief.blogspot.com/2014/06/illinois-appellate-court-dwp-order-not.html.

SCOTUS: Order Denying Summary Judgment is Immediately Appealable as of Right Where Motion is Based on Qualified Immunity Claim

Tue, 10 Jun 2014 21:05:00 GMT

In Plumhoff v. Rickard, No. 12-1117 (U.S. May 27, 2014), the United States Supreme Court applied 28 U.S.C. § 1291 and the collateral order doctrine to allow an interlocutory appeal, as of right, of an order denying summary judgment, where the summary judgment motion was based on the defendants’ claim of qualified immunity. Justice Samuel A. Alito wrote the Court’s opinion joined in by six justices, and joined in part by two additional justices.

The case arose from a police officer’s stop of a vehicle driven by Donald Rickard for a traffic violation. Rather than comply with the officer’s request to see his driver’s license, Rickard sped away, resulting in a high-speed chase involving several officers. When stopped again and nearly cornered by the officers, Rickard tried to flee again, at which time the officers fired a total of 15 shots. Rickard’s car crashed into a building and both Rickard and his passenger were killed from a combination of gunshot wounds and crash injuries. Plumhoff, No. 12-1117, slip op. at 3.

Rickard’s daughter brought a civil rights action against the police officers and city officials in Memphis, where the incident occurred. She alleged the use of excessive force and violation of the Fourth and Fourteenth Amendments. The officers moved for summary judgment based on qualified immunity, which motion was denied. The officers appealed, and the Sixth Circuit affirmed. The Supreme Court then granted certiorari. Id. at 4.-5

Immunity Ruling as Collateral Order

Justice Alito’s opinion first addressed the Court’s jurisdiction. He noted that denials of motions for summary judgment were not generally considered final orders under § 1291, and therefore, were not immediately appealable. An exception exists, however, where the motion is based on a claim of qualified immunity. Importantly, Alito explained that qualified immunity is immunity from suit and not a mere defense to liability. Id. at 5.

As such, said Alito, pretrial orders denying qualified immunity generally fell within the collateral order doctrine. They did so because the immunity issue is separate from the merits of the action. The issue also could not be effectively reviewed on appeal from a final judgment, because by that time the immunity from standing trial would have been irretrievably lost. Id.

Fact v. Legal Determinations

Alito distinguished the instant case from Johnson v. Jones, 515 U.S. 304 (1995), relied on by the respondent, Rickard’s daughter. In that case, defendant police officers moved for summary judgment claiming that they were not present at the time of an alleged beating of the plaintiff. The district court denied the motion and the officers appealed, claiming that the district court had not correctly analyzed the evidence. Id. at 307-08.

The Johnson Court held that the denial order was not immediately appealable because it merely decided a question of evidence sufficiency, i.e., which facts the defendants may or may not have been able to prove at trial. The Court further observed that such a question is closely related to other determinations that a trial court may be required to make at later stages of the case, and was within the realm of the trial court’s fact-finding expertise. Id. at 313-16.

By contrast, Alito noted that the officers in this case did not claim that they were not responsible for the shooting. Rather, they took the position that their conduct did not violate the Fourth Amendment and, in any event, did not violate clearly established law. Alito found that these issues were legal in nature and the core responsibility of appellate courts. He therefore found that the Sixth Circuit properly exercised jurisdiction. Plumhoff, No. 12-1117, slip op. at 6-7.

Merits of Controversy

On the merits, Alito went on to find that, in light of the danger a high-speed car chase presents to innocent bystanders, the officers did not violate the Fourth Amendment by shooting at Rickard to prevent him from resuming the chase. Id. at 9. Nor did the officers violate the Fourth Amendment by firing 15 shots even in the presence of Rickard’s passenger. Id. at 11. As to the passenger, Alito further commented that Fourth Amendment rights are personal, and the passenger’s presence could not enhance Rickard’s rights. Id. at 11-12.

Finally, in the alternative, Alito found that even if the officers had violated the Fourth Amendment, the violation was not so “clearly established” at the time the incident as to destroy the officers’ right to qualified immunity. Id. at 12-14.

The Supreme Court therefore reversed the decision of the Sixth Circuit.

Recommended Citation: Don R. Sampen, SCOTUS: Order Denying Summary Judgment is Immediately Appealable as of Right Where Motion is Based on Qualified Immunity Claim, The Brief, (June 10, 2014), http://applawyers-thebrief.blogspot.com/2014/06/scotus-order-denying-summary-judgment.html.

Seventh Circuit: Be Concise and Embrace Tough Questions

Wed, 04 Jun 2014 16:47:00 GMT

On May 28, 2014, the Association gathered at the Union League Club in Chicago for its annual roundtable luncheon honoring the Judges of the United States Court of Appeals for the Seventh Circuit. ALA Secretary Mike Scodro welcomed Association members and guests, who included many judges of the Seventh Circuit along with judges from the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Cook County Circuit Court.

Also in attendance was Hon. James Allsop, the Chief Justice of the Federal Court of Australia. After being introduced by Chief Judge Diane Wood, Chief Justice Allsop provided an insightful overview of the Federal Court of Australia. The Chief Justice noted that the court was established in 1976; it is a national court with no districts or circuits; and appeals from its decisions go directly to the High Court of Australia, the highest court in the Australian judicial system.

Following lunch, during which members of the Seventh Circuit sat at individual tables alongside ALA members, Chief Judge Wood, Judge John Daniel Tinder, and Judge David Hamilton participated in a panel discussion moderated by Scodro. The panel provided helpful tips with respect to both brief writing and presenting oral argument. Regarding briefs, Chief Judge Wood noted the "virtues of being concise and focused" and emphasized that doing so was "immensely helpful" to the court. Judge Hamilton appreciated briefs that were organized in a simple, two-part, structure: (1) why your side is right; followed by (2) why the other side is wrong.

With respect to oral argument, the panel encouraged the audience to "embrace the tough questions." Chief Judge Wood noted that a well-prepared attorney will thoroughly know the facts and law underlying the case, with Judge Tinder reminding the audience that appellate court judges were "generalists." The panel also provided a helpful reminder that interrupting the judges presiding over oral argument "is a foolish way to win a case."

The ALA thanks the Judges of the Seventh Circuit for another enjoyable and informative roundtable luncheon.

Recommended Citation: Charlie Ingrassia, Seventh Circuit: Be Concise and Embrace Tough Questions, The Brief, (June 4, 2014), http://applawyers-thebrief.blogspot.com/2014/06/seventh-circuit-be-concise-and-embrace.html.

Supreme Court Amends Rule 306: Appellate Court May Vacate or Modify Stay

Sun, 01 Jun 2014 03:29:00 GMT

On May 29, 2014, the Illinois Supreme Court amended Rule 306, which governs interlocutory appeals by permission. The amendment added language to subsection (c)(5), which provides that if a petition for an interlocutory appeal is granted, the proceedings at the trial court are stayed. The amended subsection (c)(5) provides that the Appellate Court, or a judge on that court, "may vacate or modify the stay."

The committee comments note that, "in exceptional circumstances or by agreement of the parties," it may be appropriate for certain aspects of the case to continue at the trial court, "such as discovery, for example." However, the continuation may not interfere with appellate review or otherwise offend "notions of substantial justice," and the trial court is not permitted to enter an order that interferes with appellate review. The amendment becomes effective on July 1, 2014.

Will parties be more inclined to seek a permissive interlocutory appeal knowing that certain aspects of the case may proceed at the trial court while the interlocutory appeal (if granted) remains pending?

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rule 306: Appellate Court May Vacate or Modify Stay, The Brief, (May 31, 2014), http://applawyers-thebrief.blogspot.com/2014/05/supreme-court-amends-rule-306-appellate.html.

Scope of Appellate Jurisdiction Narrowed by Untimely Rule 59(e) Motion

Thu, 29 May 2014 15:52:00 GMT

The recent opinion by the United States Court of Appeals for the Seventh Circuit in Banks v. Chicago Board of Education, 2014 US App. LEXIS 7740 (7th Cir., Apr. 24, 2014), serves as a firm reminder that the 28-day time period to file a Rule 59(e) motion is strict and unforgiving.

Banks sued her former employer and supervisor alleging racial discrimination and retaliation in violation of Title 7 of the Civil Rights Act of 1964, as well as related violations of federal and state law. The district Court granted summary judgment in favor of all of the defendants on all claims. Banks then filed a motion to “alter entry of summary judgment” under Rule 59(e). However, Banks filed her motion on the 29th day following the grant of summary judgment. The district court considered the motion on the merits and denied it six days later. Banks filed her notice of appeal within 30 days of the denial of her Rule 59(e) motion.

The Seventh Circuit questioned the scope of its jurisdiction on appeal. The court requested that Banks file an additional brief addressing jurisdiction, but was ultimately not persuaded. The reviewing court concluded that, because the motion to “alter entry of summary judgment” was filed one day late, it did not toll the time to appeal from the summary judgment order. The motion instead would be treated as a Rule 60(b) motion. Appellate review was therefore limited to the denial of relief under Rule 60(b), and Banks forfeited direct review of the order granting summary judgment.

The Seventh Circuit began its Rule 60(b) analysis by noting that relief under that rule is limited, lest it be used to circumvent the time limit set out in Rule 4. A party is entitled to relief under Rule 60(b) when the party raises an issue that could not have been raised under direct appeal. The reviewing court found that the district court did not abuse its discretion in denying Banks’ motion under the Rule 60(b) standard because the only arguments she raised on appeal were ones that could have been raised in the direct appeal, which she forfeited.

The reviewing court also declined to find that Banks’ motion raised “exceptional circumstances” within the catchall provision provided in Rule 60(b)(6). The court noted that this provision had a narrow application designed to avoid Rule 60(b) being used as a substitute for direct appeal.

Finally, the reviewing court found that it made no difference for purposes of appellate jurisdiction that the district court considered the untimely motion on the merits. The district court’s denial of an untimely motion could not vest the Seventh Circuit with jurisdiction over the propriety of the summary judgment ruling.

Recommended Citation: Rosa M. Tumialán, Scope of Appellate Jurisdiction Narrowed by Untimely Rule 59(e) Motion, The Brief, (May 29, 2014), http://applawyers-thebrief.blogspot.com/2014/05/scope-of-appellate-jurisdiction.html.

ALA Hosts Appellate Practice Seminar in Bloomington

Mon, 26 May 2014 02:44:00 GMT

On May 20, 2014, the Association co-hosted an appellate practice seminar with the McLean County Bar Association in Bloomington. The MCBA President, Rusty DePew, welcomed the attendees and introduced the speakers, Brad Elward, ALA President and partner at Heyl, Royster, Voelker & Allen; and Michael Scodro, ALA Secretary, partner at Jenner & Block, and former Illinois Solicitor General.

Brad Elward discussed interlocutory appeals, providing the particularities of Illinois Supreme Court Rules 304, 306, 307, and 308 while also providing practical advice. Michael Scodro provided insight on appeals to the Illinois Supreme Court, focusing on the requirements and real-world application of Rule 315.

The ALA thanks the MCBA for co-hosting the event.

Association Hosts Annual Roundtable Luncheon Honoring the Justices of the Illinois Appellate Court, Fifth District

Mon, 19 May 2014 19:51:00 GMT

On May 9, 2014, the Association gathered in downstate Mt. Vernon for its annual roundtable luncheon honoring the Justices of the Fifth District Appellate Court. This year's luncheon honored retiring Appellate Court Justice James Wexstten, who had served on the bench - as both a trial court judge and appellate court justice - for more than 25 years.

Special guests, as well as Association members and nonmembers, turned out in force to honor the retiring justice, as more than 95 lawyers and judges attended. Among those paying tribute were Justice Bruce D. Stewart of the Illinois Appellate Court, Fifth District, and retired Circuit Court Judge Thomas H. Sutton of the Second Judicial Circuit. Justice Stewart, who attended law school, practiced law, and served on the appellate court with Justice Wexstten, gave a glowing recap of their long personal and professional relationship. Judge Sutton, who served as circuit judge with Justice Wexstten for many years, brought laughter and tears with their fond memories.

The ALA thanks the Justices of the Illinois Appellate Court, Fifth District, for another enjoyable and informative roundtable luncheon.

No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final Judgment

Fri, 16 May 2014 20:39:00 GMT

For decades, defendants in civil actions faced a dilemma if they wished to appear in a case for the first time after judgment to contest the court’s prior personal jurisdiction over them--for want of proper service of process on them--to seek to vacate the judgment, to submit to the jurisdiction of the court, and to defend on the merits. The dilemma was that such an appearance and submission of the defendant to the jurisdiction of the court could "serve to validate retroactively a judgment [that was] void when entered." J.C. Penney Co., Inc. v. West, 114 Ill. App. 3d 644, 646 (1983) (finding against retroactivity but recognizing the existence of conflicting decisions). The alternative was to first seek to vacate the judgment only, and not to immediately submit to the jurisdiction of the court, and not seek to immediately defend on the merits.

This dilemma was made acute by the reality that seeking only to vacate the judgment for improper service was unattractive for practical reasons: the court is more likely to vacate the prior judgment if the defendant submits to its jurisdiction. Seeking to vacate the judgment for improper service, without also submitting to the court's jurisdiction, might seem overly technical to the court, reducing the likelihood of success of a request only to vacate the judgment.

In BAC Home Loans Services, LP v. Mitchell , 2014 IL 116311, our supreme court has eliminated that persistent dilemma. BAC involved a mortgage foreclosure. The return of the summons indicated service on the defendant, Kim E. Mitchell, resulting from substitute service on Michelle Foreman by leaving the summons with Foreman at Mitchell’s residence. Mitchell did not respond to the summons within 30 days, and in 2010 BAC obtained a judgment of foreclosure and sale from the court based on the substitute service. Also in 2010, a judicial sale occurred pursuant to the judgment of foreclosure and sale. The court confirmed the sale in 2011. In a mortgage foreclosure action, an order confirming the sale is the final judgment of the court.

Within 30 days after the trial court entered the final order confirming the sale, Mitchell filed an appearance and a motion to vacate the order confirming the sale. The motion was withdrawn and refiled as a motion to quash, and a petition for relief from, the order confirming the sale. BAC responded to the motion as re-filed, alleging that substitute service on Foreman at the residence was proper and that Foreman was Mitchell’s daughter. Mitchell replied, under oath, that she had no daughters, only a son, and did not know anyone named Michelle Foreman. Mitchell’s motion was denied, and the appellate court affirmed, holding that Mitchell’s actions in the trial court "worked prospectively and retroactively" to validate the orders of the court entered before Mitchell first appeared and moved to vacate the order confirming the sale.

The supreme court reversed, holding that Mitchell’s actions did not retroactively validate the orders entered prior to Mitchell’s appearance, overruling the decisions from the appellate court permitting retroactive validation of orders entered without personal jurisdiction. In doing so, the court reaffirmed "the longstanding rule that 'a party who submits to the court’s jurisdiction does so only prospectively and the appearance does not retroactively validate orders entered prior to that date.' " BAC Home Loans Services, 2014 IL 116311, ¶ 43 (quoting In re Marriage of Verduna, 126 Ill. 2d 542, 547 (1989)). As a result, the supreme court held that Mitchell had submitted to the trial court's jurisdiction and waived any objection to personal jurisdiction, prospectively only. The court vacated as void all orders entered before Mitchell submitted to the court's jurisdiction and remanded for further proceedings, where Mitchell will have the opportunity to defend the merits of the lawsuit.

Recommended Citation: Lawrence A. Stein, No Risk of Retroactively Validating Prior Void Orders When Submitting to the Jurisdiction of the Court After Final Judgment, The Brief, (May 16, 2014), http://applawyers-thebrief.blogspot.com/2014/05/no-risk-of-retroactively-validating.html.

Seventh Circuit Updates Practitioner's Handbook

Tue, 13 May 2014 21:15:00 GMT

The United States Court of Appeals for the Seventh Circuit has published an updated edition of its Practitioner's Handbook for Appeals. The May 2014 edition can be found here.

Association to Install Steven F. Pflaum as Next President

Fri, 09 May 2014 16:50:00 GMT

On Friday, June 13, 2014, the ALA will gather at the Union League Club in Chicago for the Installation Luncheon of Steven F. Pflaum as the Association's Forty-Seventh President. Justice Michael B. Hyman of the Illinois Appellate Court, First District, will administer the oath of office.

The Association’s Nominating Committee will also present the following slate of Officers and Directors for election at the meeting:

Officers (2014-2015)
Vice-President: Michael A. Scodro
Secretary: Joanne R. Driscoll
Treasurer: Evan Siegel

Directors (2014-2016)
Director (1st Dist.): Matthew D. Elster
Director (1st Dist.): John M. Fitzgerald
Director (3rd Dist.): Natalie D. Thompson
Director (1st Dist.): E. King Poor

Click here for information on how to register for the event.

Watch ALA Secretary Mike Scodro on "Chicago Tonight" Discussing Recent United States Supreme Court Opinion

Thu, 08 May 2014 14:48:00 GMT

ALA Secretary and former Illinois Solicitor General Mike Scodro recently appeared in a panel discussion on "Chicago Tonight" to discuss the United States Supreme Court's recent opinion in Town of Greece v. Galloway (slip opinion). Video of the discussion can be found here.

U.S. Supreme Court Sets Deferential Standard of Review for Attorney Fee Awards in Patent Cases

Wed, 07 May 2014 17:10:00 GMT

How does one decide whether a case is “exceptional”? More to the point, should a reviewing court defer to a trial court’s determination that a particular case was “exceptional”? Those questions lie at the heart of the U.S. Supreme Court’s recent unanimous opinion in Highmark Inc. v. Allcare Health Management System, Inc., 572 U.S. ___ (April 29, 2014) (slip opinion). Recognizing that a trial court may be in a superior position to determine whether the facts and circumstances of a particular case merit its designation as “exceptional” – and thus justify an award of attorney fees pursuant to section 285 of the Patent Act – the Court concluded that such decisions should be reviewed under an abuse-of-discretion standard. In reaching its determination, the Court provided a helpful overview of the varying standards of review before federal courts of review.

Two companies, Highmark and Allcare, were embroiled in patent litigation. Highmark won summary judgment, and its victory was affirmed on appeal. Highmark then moved for its attorney fees in the district court under section 285 of the Patent Act, which authorizes fee awards to prevailing parties in “exceptional cases.” See 35 U.S.C. §285. The district court awarded fees to Highmark. The Federal Circuit then affirmed the district court’s fee award in part and reversed it in part. The Federal Circuit derived the applicable legal standard from Brooks Furniture Mfg., Inc. v. Dutailier Int’l., Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005), which held that a case is “exceptional” for purposes of section 285 if: (i) a party has engaged in “material inappropriate conduct,” or (ii) the case was “brought in subjective bad faith” and also was “objectively baseless.” In Highmark, the Federal Circuit applied a de novo standard of review to the district court’s determination that the case was “objectively baseless.”

The Supreme Court disagreed. The Court noted that, in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. ___ (April 29, 2014), it rejected the Brooks Furniture test “as unduly rigid and inconsistent with the text of §285.” In place of the Brooks Furniture test, the Court in Octane Fitness held that whether a case is “exceptional” depends upon the totality of the circumstances and the district court’s discretion.

Consistent with its contemporaneous holding in Octane Fitness, the Court in Highmark held that such decisions should be “reviewed on appeal for abuse of discretion.” Quoting a case that interpreted a similar statutory fee-shift provision, the Court noted that the district court “ ‘is better positioned’ to decide whether a case is exceptional, because it lives with the case over a prolonged period of time” (internal citation omitted). The issue of whether a case is “exceptional” is “not susceptible to ‘useful generalization’ of the sort that de novo review provides, and ‘likely to profit from the experience that an abuse-of-discretion rule will permit to develop’ ” (citation omitted).

In a footnote, the Court added an important qualifier: “The abuse-of-discretion standard does not preclude an appellate court’s correction of a district court’s legal or factual error.” The Court also noted that, while “questions of law may in some cases be relevant to the §285 inquiry, that inquiry generally is, at heart, ‘rooted in factual determinations’ ” (citation omitted). Accordingly, the abuse-of-discretion standard was appropriate and governed all components of the inquiry.

Recommended Citation: John M. Fitzgerald and Katherine M. O’Brien, U.S. Supreme Court Sets Deferential Standard of Review for Attorney Fee Awards in Patent Cases, The Brief, (May 7, 2014), http://applawyers-thebrief.blogspot.com/2014/05/us-supreme-court-sets-deferential.html.

Mere Inclusion of Rule 304(a) Language Does Not Necessarily Confer Jurisdiction in the Appellate Court

Tue, 29 Apr 2014 20:19:00 GMT

In AT&T v. Lyons & Pinner Electric Company, Inc., 2014 IL App (2d) 130577, the Illinois Appellate Court, Second District, tackled a question rarely analyzed by an appellate court: in a case involving a concededly final order that disposed of fewer than all claims, whether the trial court abused its discretion in entering a Rule 304(a) finding without determining that there existed “no just reason for delay of the appeal.” As every appellate practitioner is aware, Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) provides that, if multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more, but fewer than all, of the claims if the trial court makes an explicit written finding that no just reason exists for delaying either enforcement or appeal. However, appellate practitioners are equally aware that “Rule 304(a) does not allow for a trial court to confer appellate jurisdiction merely by using the Rule 304(a) language that ‘there is no just reason for delaying enforcement or appeal.’ ” AT&T, 2014 IL App (2d) 130577, ¶ 19 (quoting In re Estate of Stark, 374 Ill. App. 3d 516, 522 (2007)).

A trial court’s decision to grant Rule 304(a) relief is reviewed under an abuse-of-discretion standard. AT&T, 2014 IL App (2d) 130577, ¶ 24 (citing Lozman v. Putnam, 328 Ill. App. 3d 761, 771 (2002)). In AT&T, the reviewing court found that the trial court abused its discretion when it found the dismissal of the defendant/third-party plaintiff Lyons and Pinner Electric Company's (Lyons) contribution claim both final and appealable under Rule 304(a). AT&T’s original claim against Lyons alleged that Lyons was negligent in performing its excavation work when they struck and damaged underground telephone utility facilities owned and operated by AT&T. Lyons filed a two-count third-party complaint against USIC Locating Services, Inc. (USIC), which AT&T had hired to locate and mark the underground facilities before Lyons’s excavation work began. Essentially, Lyons alleged that USIC was negligent in performing its locating services for AT&T, which proximately caused AT&T’s damages. Count I of the third-party complaint against USIC was for contribution for the damages claimed by AT&T, and Count II sought damages for Lyons’s own losses resulting from USIC’s negligence, including for downtime.

The trial court granted USIC’s section 2-615 motion to dismiss Count I of the third-party complaint (contribution) with prejudice, but not Count II (negligence). The trial court entered a Rule 304(a) finding over the objection of Lyons. In urging the court to make the Rule 304(a) finding, USIC argued in its motion that the contribution claim and the negligence claim were separate bases for recovery that would turn on different evidence. In response, Lyons argued that a Rule 304(a) finding was inappropriate under the factors set forth in Geier v. Hamer Enterprises, Inc., 226 Ill. App. 3d 372 (1992).

In Geier, the Illinois Appellate Court, First District, held that in determining whether any just reason for delaying an appeal existed, a court must consider the following factors: “ (1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the [trial] court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made [appealable]; [and] (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.” Id. at 383. The Geier court noted the United States Supreme Court’s decisions, which emphasized a “pragmatic approach focusing on severability and efficient judicial administration”: “Where the dismissed claims ‘can be decided independently of each other,’ that is, they are not ‘so inherently inseparable from, or closely related to’ the remaining claims, then the trial court does not abuse its discretion in certifying that there exists no just reason for delay of the appeal.” Id. at 385 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)).

In reviewing Geier, the AT&T court also noted that, where significant factual overlap existed between the decided and the retained claims, an appeal must be deferred until the retained claims are resolved because that they were not separate claims. AT&T, 2014 IL App (2d) 130577, ¶ 23 (citing Lozman, 328 Ill. App. 3d at 771). Calling it a “darn close question,” the trial court in AT&T disagreed with Lyons, reasoning that the dismissal of Lyons’s contribution claim turned on “a purely legal question” involving the application of the Moorman doctrine.

On appeal, Lyons argued, in the alternative to various merits-based arguments, that the trial court abused its discretion in finding the dismissal of the contribution claim final and appealable under Rule 304(a). Declining to reach the merits of the appeal, the reviewing court dismissed the appeal for lack of jurisdiction on the grounds that the trial court entered the Rule 304(a) finding “without regard for whether there was any just reason for delay of the appeal” and solely to “advance the substantive issues” to the appellate court, thereby improperly circumventing the procedure for certifying questions for interlocutory appeal under Rule 308. Id. ¶ 16. The court initially outlined the two-part test used by courts in determining appellate jurisdiction under Rule 304(a) or its “substantially similar” federal counterpart, Rule 54(b): (1) whether the order is “final” and (2) whether there is any just reason for delaying the appeal. Id. ¶ 20 (citing Stark, 374 Ill. App. 3d at 522-23).

The parties did not dispute the finality of the trial court’s dismissal of the contribution claim with prejudice. AT&T, 2014 IL App (2d) 130577, ¶ 21. With regard to the second part of the two-part test, whether there was any just reason for delaying the appeal, the court in AT&T noted that there was no indication that the trial court considered the Geier factors (although it concededly need not expressly articulate its consideration of those factors), and that the trial court’s comments that the dismissal of Lyons’s contribution claim turned on “a purely legal question” indicated that it intended to invoke Rule 308, not 304(a). Id. at ¶¶ 25, 27-28. However, none of the procedures for certifying a question for appellate review under Rule 308 were followed.

A party seeking appellate review under Rule 308 must first file an application for leave to appeal within 14 days after the latter of (i) the entry of the order in the trial court, or (ii) the making of the prescribed statement by the trial court. That application must be accompanied by an original supporting record containing the order appealed from and other parts of the trial court record necessary for the determination of the application; and must also “contain a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court; a statement of the question itself; and a statement of the reasons why a substantial basis exists for a difference of opinion on the question and why an immediate appeal may materially advance the termination of the litigation.” Id. (citing Ill. S. Ct. R. 308(c)). The court in AT&T cautioned, however, that “Rule 308 is not intended to be a mechanism for expedited review of an order that merely applies the law to the facts of a particular case,” and does not permit an appellate court to review the propriety of the order entered by the trial court. AT&T, 2014 IL App (2d) 130577, ¶ 31. Rather, the appellate court is “limited to answering the specific question certified by the trial court.” Id. After reciting these and other requirements for a Rule 308 appeal, the court expressed no opinion as to whether a properly presented certified question under Rule 308 would be appropriate in that case.

In addition to being a good refresher on Rule 308, the AT&T opinion is instructive because it suggests that a trial court’s Rule 304(a) finding is itself appealable. Although the court in AT&T “express[ed] no opinion as to whether the Geier factors weigh in favor of an immediate appeal under Rule 304(a),” (id. ¶ 32) the case stands for the proposition that dismissal for lack of jurisdiction is appropriate where a Rule 304(a) finding was improperly entered.

Recommended Citation: Katherine A. Grosh, Mere Inclusion of Rule 304(a) Language Does Not Necessarily Confer Jurisdiction in the Appellate Court, The Brief, (April 29, 2014), http://applawyers-thebrief.blogspot.com/2014/04/mere-inclusion-of-rule-304a-language.html.

ALA Remembers Justice Patrick Quinn at Annual First District Roundtable Luncheon

Sat, 26 Apr 2014 16:51:00 GMT

On March 26, 2014, the Appellate Lawyers Association hosted a special roundtable luncheon honoring the late Justice Patrick J. Quinn, who passed away earlier this year. As in years past, the event was very well attended, with more than 75 ALA members and guests present. Seventeen appellate court justices attended, including Past ALA President and Illinois Supreme Court Justice Mary Jane Theis. During lunch, the justices shared their unique insight on current issues in appellate law and practice with the attendees.

After lunch, Justice Theis delivered heartfelt remarks in remembrance of Justice Quinn, who was a friend and supporter of the ALA. Justice Theis regarded Justice Quinn as a great legal thinker and scholar who was just coming into his own. He loved to think about important ideas and share those ideas with others through passionate—and often provocative—conversation, as well as through teaching. He was a devoted member of the judiciary whose time came too soon.

The ALA thanks all of the justices for attending this year's luncheon, and we are particularly grateful to Justice Theis for sharing her thoughts and memories of Justice Quinn.

Seventh Circuit: Fed. R. Civ. P. 6(d) Does Not Extend the Deadline for Filing Motions Under Fed. R. Civ. P. 59(e)

Sun, 20 Apr 2014 01:30:00 GMT

In Williams v. Illinois, 737 F.3d 473 (7th Cir. 2013), the United States Court of Appeals for the Seventh Circuit held that Fed. R. Civ. P. 6(d), which extends the time to act when that period runs from the date of service of a notice, does not extend the deadline for motions for reconsideration under Rule 59(e).

Williams filed suit under section 1983 (42 U.S.C. § 1983) and state law against more than a hundred defendants. After the case pended for sixteen months without service on any defendant, the district court dismissed the case for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).

Twenty-nine days later, Williams moved to reinstate the case, arguing that he had made diligent attempts to serve the defendants. Because the twenty-eight day deadline to move for reconsideration under Rule 59(e) had passed, the district court construed the motion under Fed. R. Civ. P. 60(b), and denied it because Williams had not demonstrated any of the specific grounds justifying relief under that Rule.

Williams appealed, arguing that the district court erroneously evaluated his motion for reconsideration under Rule 60(b). The Seventh Circuit first reiterated the “bright-line rule” that any motion for reconsideration filed after the twenty-eight day deadline must be construed as a motion to vacate under Rule 60(b). The Seventh Circuit then rejected Williams’ argument that under Rule 6(d) he had three extra days to seek reconsideration because he received the dismissal by mail. The court explained that Rule 6(d) “enlarges the filing time only when the period for acting runs from the service of a notice, not when the time begins after the entry of judgment,” as it does under Rule 59(e). Thus, the court held that “Rule 6(d) *** does not extend the deadline for Rule 59(e) motions.” With this holding, the Seventh Circuit “join[ed] every other circuit that has ruled on this precise issue.” The court therefore concluded that the district court had properly reviewed the motion for reconsideration under Rule 60(b), and then held the denial of that motion was not an abuse of discretion.

Recommended Citation: Myriam Z. Kasper, Seventh Circuit: Fed. R. Civ. P. 6(d) Does Not Extend the Deadline for Filing Motions Under Fed. R. Civ. P. 59(e), The Brief, (April 19, 2014), http://applawyers-thebrief.blogspot.com/2014/04/seventh-circuit-fed-r-civ-p-6d-does-not.html.

Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or Petition

Wed, 16 Apr 2014 18:11:00 GMT

Section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)) provides relief from final orders and judgments more than 30 days after the trial court enters such an order. In In re Commitment of DeSilvestro, 2013 IL App (3d) 120563, the Illinois Appellate Court clarified that section 2-1401 provides relief only from final judgments and orders, and the statutory provision could not be used to dismiss a complaint or petition.

In DeSilvestro, the respondent, in 2004, negotiated a guilty plea to four counts of aggravated criminal sexual assault in exchange for four concurrent sentences of seven years' imprisonment. In 2009, the respondent was released on mandatory supervised release (MSR). Later that year, the State obtained a warrant for the respondent's arrest after he allegedly violated terms of his MSR. In 2010, with the respondent back in custody, the State filed a petition to detain him pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West 2010)). Following a probable cause hearing, the trial court entered an order finding probable cause for the Department of Human Services to detain the respondent.

In 2011, nearly a year later, the respondent filed a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2010)), claiming that the State lacked personal jurisdiction over him as a result of having failed to properly serve him with process of the commitment proceedings. Four months later, and while his section 2-619 motion to dismiss was still pending, the respondent filed an additional motion to dismiss, claiming that the State lacked subject matter jurisdiction. In July 2011, the trial court denied both motions; and in December 2011, it denied the respondent's motion to reconsider.

In March 2012, the respondent filed a “motion to dismiss pursuant to section 2- 1401(f)” of the Code, which reiterated many of the allegations contained in his motion to dismiss for lack of subject matter jurisdiction. In June 2012, the trial court denied the respondent's 2-1401 motion. The respondent appealed, claiming that the trial court erred in denying that motion.

The Illinois Appellate Court, Third District, dismissed the respondent's appeal for lack of jurisdiction. The reviewing court quoted the statutory language provided in section 2-1401 and concluded that the provision provided relief from final judgments and orders. The court concluded, "[w]e can find no authority to support [the] respondent’s contention that section 2-1401 provides a procedural mechanism to dismiss a petition or a complaint."

The reviewing court, relying on People v. Vincent, 226 Ill. 2d 1, 7 (2007), further emphasized that a petition seeking relief under section 2-1401 must be filed in the same proceeding, even though the petition is not a continuation of the prior proceeding. In this case, the court emphasized, a final order had not been entered because a detention order was not a final order. Rather, the respondent's section 2-1401 motion attacked the sentencing order entered in his prior criminal case, which was a different proceeding. The court emphasized that "the [r]espondent cannot use a section 2-1401 petition filed in this case to seek relief from a final order in another case." Finally, the reviewing court noted that the denial of a motion to dismiss was not a final order, and labeling a motion to dismiss as a section 2-1401 motion "did not convert the motion to a section 2-1401 petition."

Justice Carter specially concurred, noting that this appeal should have been dismissed pursuant to Illinois Supreme Court Rule 304(b) (eff. Feb. 26, 2010) and EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 13, where the state's high court held that the denial of an improperly filed section 2-1401 petition was not appealable under Rule 304(b).

Recommended Citation: Charlie Ingrassia, Illinois Appellate Court: Section 2-1401 Cannot be Used to Dismiss a Complaint or Petition, The Brief, (April 16, 2014), http://applawyers-thebrief.blogspot.com/2014/04/illinois-appellate-court-section-2-1401.html.

Association Honors the Justices of the Illinois Appellate Court, Second District

Sat, 12 Apr 2014 19:08:00 GMT

On April 1, 2014, at The Centre in Elgin, the ALA hosted a roundtable luncheon honoring the justices of the Second District Appellate Court. ALA Past President Bob Black welcomed the guests and thanked the justices, who were all seated at separate tables to encourage interaction with the attorneys.

Following lunch, Stacey Mandell presented welcoming remarks. She took a moment to reflect on the passing of ALA member Greg Slovacek, remembering his involvement and his service to the ALA, including chairing the Third District Pro Bono Committee for several years. On a lighter note, she read a corny-but-heartfelt poem to Justice Hutchinson, who was celebrating her birthday. She then introduced Presiding Justice Michael J. Burke to begin the program.

Presiding Justice Burke introduced the justices, each of whom identified their law clerks in attendance. Justice Kathryn E. Zenoff introduced her law clerks, but also highlighted the retirement of Gail Moreland, a former law clerk, and invited everyone to the reception following the program.

Thereafter, Presiding Justice Burke moderated a panel discussion of the cases that had been reviewed and decided by the Illinois Supreme Court in the past year and which had originated in the Second District. The justices presented the facts, issues, and what the appellate court had held; if there was a dissenting or specially concurring opinion, then that particular justice would provide insight into why he or she had written separately.

Some of the cases discussed included Schultz v. Performance Lighting, Inc.; People v. Hommerson; American Access Casualty Co. v. Reyes; Wells Fargo Bank, N.A. v. McCluskey; People v. Bailey; In re Marriage of Earlywine; VC&M, Ltd. v. Andrews; People v. Cardona; People v. Kennebrew; Julie Q. v. Department of Family Services; Toftoy v. Rosenwinkel; EMC Mortgage Corp. v. Kemp; and People v. Martinez.

The justices also explained what the Illinois Supreme Court had decided and whether and how it differed from what the appellate panel had held. After a pause, the justices realized that their decisions were not always affirmed, which brought about a good laugh from everyone, as well as the justices pointing their fingers at each other. The justices also reflected on what they learned from the supreme court's review of the decision, as well as what the practitioners should take from the case. The justices presented a mix of civil cases and criminal cases, which engaged attorneys who practice primarily civil appeals and those who practice criminal appellate law. There were a few questions, and the justices took them on after each case discussion.

The ALA thanks the Justices of the Second District Appellate Court, who presented an excellent program, with a good mix of camaraderie, appellate practice, and legal education.

When the Failure to Appear at a Status Call Leads to a Stricken Motion in the Trial Court and Then a Lack of Jurisdiction in the Appellate Court

Mon, 07 Apr 2014 21:08:06 GMT

Won v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, illustrates that dire consequences may result from presuming that no order was entered at a clerk's status call. In Won, the Illinois Appellate Court, First District, dismissed an appeal for lack of jurisdiction. The defendant lost the right to challenge an order entering summary judgment against it when it failed to appear for a status call on the defendant's motion to reconsider the ruling and the court entered an order, drafted by the plaintiff's counsel but not served on the defendant's attorney, in which the court struck the motion to reconsider with prejudice.

     The case arose from a breach of a real estate sales contract for the purchase of a condominium. The plaintiff contended that she had exercised her contractual right to terminate the contract because the closing did not proceed by the deadline specified in the contract--a condition precedent. Based on that and other grounds that she contended gave her the right to terminate the deal, plaintiff sued for the return of her earnest money and upgrade fees she had paid for the newly constructed condominium. Discovery and motion practice ensued. Ultimately, the trial court granted plaintiff's motion for summary judgment and denied the defendant's cross motion.

     Seeking reversal of the ruling, the defendant timely filed a motion to reconsider. The trial court entered a briefing schedule on the motion in a written order requiring the defendant to provide copies of the motion, response, and reply at a scheduled clerk status hearing. The written order specified that neither the briefing schedule nor the status date could be altered without leave of court, and that failure to comply could result in an order striking the motion or ruling on it without hearing.

     On April 5, 2012, the date of the clerk status, defense counsel failed to appear. The trial court then entered an order striking the motion to reconsider, with prejudice. Unaware of the April 5 order, the defendant filed its reply brief on April 6, two days after the deadline specified in the briefing schedule. Defense counsel spoke with the judge's clerk, who did not mention the existence of the strike order; according to the defendant, the clerk advised defense counsel to file a motion to set a hearing on the motion to reconsider. Defendant filed such a motion on May 4, within 30 days of the strike order. Contending that the court by then had lost jurisdiction over the case, the plaintiff opposed the motion to set a hearing on the motion to reconsider. The trial court heard the motion to reconsider on the merits and denied it on July 26, 2012. Within 30 days, on August 24, the defendant filed a notice of appeal.

     In a decision authored by Justice Bertina E. Lampkin, the appellate court considered two key issues in concluding that the trial court lost jurisdiction over the case before it ruled on the motion to reconsider. First, it found that the April 5 strike order unambiguously disposed of the motion to reconsider with prejudice. The court rejected the defendant's argument that the order merely was a scheduling order and was not a final ruling on the merits.

     Second, the appellate court determined that the motion requesting a hearing date, which was filed within 30 days of the strike order, could not be considered a de facto request to vacate the strike order. The court observed that defense counsel did not know that the strike order existed when the motion to set the matter for hearing was filed. Thus, while agreeing that the title of the motion did not control characterization of it, the appellate court disagreed with the defendant's argument that limiting defendant to the relief requested in the motion elevated form over substance. The court reasoned that the motion for reconsideration could not be set for hearing when it was no longer pending. The motion had been stricken with prejudice; it had not just been taken off the trial court's call.

     The appellate panel concluded by observing that the defendant essentially sought to refile a stricken postjudgment motion more than 30 days after disposition. Citing the rule against successive postjudgment motions and the need for finality in the judicial system, the court concluded that its dismissal of the appeal served the efficient administration of justice.

     Justice Mary K. Rochford specially concurred. Disagreeing with the characterization of the April 5 order as "unambiguous," Justice Rochford queried whether the applicable rules of construction of the order should lead to a different result. In her view, the record suggested that the trial court did not undertake the important step of considering a postjudgment motion on the merits. Justice Rochford also questioned whether the circumstances indicated that, as the defendant had argued, the April 5 order truly was administrative. She also compared the order to a sanction, which should be accompanied by specific findings. Ultimately, however, Justice Rochford concurred in the majority's conclusion based on the "with prejudice" language of the April 5 order.

Recommended Citation: Karen Kies DeGrand, When the Failure to Appear at a Status Call Leads to a Stricken Motion in the Trial Court and Then a Lack of Jurisdiction in the Appellate Court, The Brief, (April 7, 2014), http://applawyers-thebrief.blogspot.com/2014/04/when-failure-to-appear-at-status-call.html.

Don't Judge a Motion by Its Title: Mislabeled Postjudgment Motion Not Untimely

Mon, 31 Mar 2014 12:45:19 GMT

In Garrido v. Arena, 2013 IL App (1st) 120466, the Illinois Appellate Court held that a mislabeled postjudgment motion was not untimely. The court emphasized that, because pleadings should be characterized by their contents, not title, a mislabeled postjudgment motion is a “procedural irregularity” that will not necessarily deprive a reviewing court of jurisdiction.
In Garrido, the reviewing court noted that, before reaching the merits of the case--which involved a defamation action by John Garrido against several defendants based on ads against his candidacy for alderman--the reviewing court first had to address jurisdiction. Id. ¶ 11. The trial court had entered judgment in defendants’ favor on September 16, 2011. Id. Thereafter, Garrido filed a motion pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401) (West 2010)) on October 7, 2011, which was less than 30 days after the trial court’s judgment, asking the court to vacate the judgment. Garrido, 2013 IL App (1st) 120466, ¶ 11. Section 2-1401 allows a party to request relief from final orders and judgments after 30 days from the entry of the order or judgment. Garrido, 2013 IL App (1st) 120466, ¶ 1. Realizing his mistake, Garrido sought leave to amend his motion to reflect the correct statute, section 2-1203 of the Code (735 ILCS 5/2-1203 (West 2010)). The trial court granted Garrido’s motion and he filed the amended motion on October 31, 2011. The trial court ultimately denied Garrido’s postjudgment motion. Garrido, 2013 IL App (1st) 120466, ¶ 11.

On appeal, defendants contended that Garrido’s notice of appeal was untimely because he did not file a proper postjudgment motion. Id. ¶ 12. Specifically, defendants contended that Garrido’s original section 2-1401 motion was untimely because it was not filed more than 30 days after the trial court entered the judgment, and that his section 2-1203 motion was untimely because it was not filed within 30 days of the judgment. Id.

The reviewing court disagreed. The court noted that Garrido’s amended section 2-1203 motion merely corrected the relevant statutory citations in his first, and timely, postjudgment motion. Id. ¶ 13. Significantly, the court found that, even if Garrido had not amended the motion to cite the correct statutory provision, the circuit court would nevertheless have been required to evaluate Garrido’s motion because the character of the pleading should be determined from its content, not label. Id. (citing In re Hayley D., 2011 IL 110886, ¶ 67). Accordingly, the Appellate Court found that, although Garrido’s original motion was mislabeled as a section 2-1401 motion, it was substantively a section 2-1203 motion, which was timely filed within 30 days of judgment.

While parties should pay close attention to properly labeling motions, an inadvertently mislabeled postjudgment motion is not automatically fatal to bringing an appeal.

Recommended Citation: April Connley, Don't Judge a Motion by Its Title: Mislabeled Postjudgment Motion Not Untimely, The Brief, (March 31, 2014), http://applawyers-thebrief.blogspot.com/2014/03/dont-judge-motion-by-its-title.html.

Supreme Court Rules Governing Filing Motions in Supreme Court, and While Court is not in Session, Amended

Sun, 23 Mar 2014 12:13:34 GMT

The Illinois Supreme Court recently amended Rules 361, 381, and 383. The amendments became effective March 14, 2014.

Rule 361(c) governs motions filed in the Supreme Court while the court is not in session. Subsection (c)(1) provides that, if a motion is brought pursuant to a rule specifying that relief may be provided "by the court or a justice thereof," the motion shall be directed to the justice of the judicial district involved, or in the first district, to the justice designated to hear motions. Pursuant to the amendment, when a motion is filed in the second, third, fourth, or fifth judicial district, a party no longer needs to serve a copy of the motion to the justice's district chambers. Instead, a party must file the original motion, one copy, and importantly, a proposed order in compliance with Rule 361(b)(3) with the clerk in Springfield. A response to the motion shall be directed to the justice, with the original response and one copy being filed with the clerk in Springfield.

Subsection (c)(2) of Rule 361 governs motions that require action by the full court. If the case arises from the second, third, fourth, or fifth judicial district, the party shall file (and no longer mail) the original motion and eight copies with the clerk in Springfield. The Rule no longer requires parties to mail a copy of the motion to the justices of the court at their district chambers. Responses to the motion shall also be filed with the clerk in Springfield, and include the original and eight copies. A copy of the response no longer needs to be sent to each justice of the court at the justice's district chambers. For cases arising in the first district, parties shall file motions and responses thereto with the clerk's satellite office in Chicago. Parties shall file the original and eight copies of the motion or response, but no longer need to send a copy to the justices from the second, third, fourth, and fifth judicial districts at their respective district chambers.

Rule 381 governs original actions in the Supreme Court pursuant to article VI, section 4(a) of the Illinois constitution, and subsection (a) governs motions for leave to file such actions. Pursuant to amended subsection (a), if the motion is filed while the court is not in session, the moving party shall file the original motion and eight copies with the clerk in Springfield if the case arises from the second, third, fourth, or fifth judicial district; and if the case arises in the first district, the movant shall file the original and eight copies with the clerk's satellite office in Chicago. In either situation, per the amendment, a copy of the motion no longer needs to be sent to each justice of the court at the justice's district chambers.

Rule 383 governs motions for supervisory orders. If a motion for a supervisory order is filed while the court is not in session, the moving party shall file the original motion and eight copies with the clerk in Springfield if the case arises from the second, third, fourth, or fifth judicial district; and file the original and eight copies with the clerk's satellite office in Chicago if the case arises from the first district. A copy of the motion no longer needs to be sent to each justice of the court at the justice's district chambers.

Recommended Citation: Charlie Ingrassia, Supreme Court Rules Governing Filing Motions in Supreme Court, and While Court is not in Session, Amended, The Brief, (March 23, 2014), http://applawyers-thebrief.blogspot.com/2014/03/supreme-court-rules-governing-filing.html.

Illinois High Court Affirms Validity of Revestment Doctrine and Clarifies Its Parameters

Thu, 20 Mar 2014 12:12:46 GMT

The Illinois Supreme Court reaffirmed the revestment doctrine in People v. Bailey, 2014 IL 115459. By doing so, the state’s high court clarified the doctrine's scope regarding untimely postjudgment filings. The Court held that, for the revestment doctrine to apply, both parties must (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of the judgment. Bailey, 2014 IL 115459, ¶ 25.

The revestment doctrine is an exception to the rule that a trial court loses jurisdiction 31 days following a final judgment. In People v. Kaeding, 98 Ill. 2d 237 (1983), the Court held that, for the doctrine to apply, “the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.’ ” Id. at 240.

In Bailey, a minor defendant pleaded guilty to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days in the county jail, with credit for time served. Id. ¶ 3. At sentencing, the trial court indicated that there was no requirement regarding sex offender registration. Id. More than three years later, the defendant moved to vacate his plea and sentence, arguing the trial court was required to order him to register. Id. The State filed a written response, arguing only that the trial court’s actions did not render the plea and sentence void. Id. The trial court denied the defendant’s motion. Id. Thereafter, the defendant appealed to the Illinois Appellate Court, which dismissed his appeal for lack of jurisdiction. Id. ¶ 4.

On appeal, the Illinois Supreme Court affirmed the continued validity of the revestment doctrine and rejected the State’s suggestion to abolish it, explaining, “[w]hile the application of the doctrine is undoubtedly in conflict with our otherwise strict jurisdictional standards, an exception is, by its very nature, always in conflict with the underlying rule.” Id. ¶ 10. The Court acknowledged that, although the doctrine had “sometimes been dormant" in its decisional law, it had never expressly rejected it. Id. ¶ 12.

The State also argued that the Court’s holding in People v. Flowers, 208 Ill. 2d 291 (2003), supported abrogating the revestment doctrine, arguing that the Flowers court noted that “[t]he jurisdiction of trial courts to reconsider and modify their judgments is not indefinite” (id. at 303) and recognized that “[l]ack of subject matter jurisdiction is not subject to waiver and cannot be cured through consent of the parties.” Id. (internal citations omitted). But the Bailey court held the revestment doctrine was not at issue or mentioned in Flowersand, further, that the warnings contained in Flowersregarding general jurisdictional matters were consistent with a narrow application of the revestment doctrine. Bailey, 2014 IL 115459, ¶ 16.

Turning to the doctrine’s application in this case, only the third requirement--whether the proceedings were “inconsistent with the merits of the prior judgment”--was at issue. Id. ¶ 17. Importantly, the supreme court held that the State had not acted inconsistently with the merits of the prior judgment by asking that the judgment be upheld. Id. ¶¶ 18-19. The Court held that the revestment doctrine only applied when both parties have sought to modify or overturn the prior judgment (Kaeding, 98 Ill. 2d 237; People v. Bannister, 236 Ill. 2d 1, 11 (2009)), but rejected the doctrine’s application if one party opposed setting aside the prior judgment (Sears v. Sears, 85 Ill. 2d 253, 260 (1981); Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536 (1984)). Bailey, 2014 IL 115459, ¶ 25.

The holding in Bailey reinforces the intentionally narrow application of the revestment doctrine and prevents defendants from utilizing the doctrine simply because a prosecutor failed to object based on the finality of the prior judgment or the timeliness of the new proceeding. Id. ¶ 25. Defending the merits of the prior judgment is not inconsistent with that judgment. Id. ¶ 26. The revestment doctrine only applies when both parties are interested in setting aside at least part of the prior judgment and both actively take positions inconsistent with that prior judgment.

Recommended Citation: Charles E. Harper & Christopher J. Zdarsky, Illinois High Court Clarifies Revestment Doctrine and Clarifies Its Parameters, The Brief, (March 20, 2014), http://applawyers-thebrief.blogspot.com/2014/03/ilinois-high-court-affirms-validity-of.html.

Pitfalls in Preservation: Is "Raising Concern" Over an Improper Jury Instruction, Without a Formal Objection, Enough to Preserve Appellate Review?

Sun, 16 Mar 2014 12:12:05 GMT

Failing to properly preserve an issue before the trial court can result in that issue being waived or forfeited on appeal. With respect to preserving a challenge to a jury instruction, the Illinois Supreme Court has held that a party must make a contemporaneous objection and tender an alternative remedial instruction or the challenge will be forfeited. Mikolajcyzk v. Ford Motor Co., 231 Ill. 2d 516, 557 (2008). However, in an instructive opinion for both appellate and trial practitioners, the Illinois Appellate Court recently held that a party had properly preserved a challenge to a trial court's sua sponte comment during jury instructions when the party "expressed concern" despite not making a formal objection or tendering a remedial instruction.

In Pister v. Matrix Service Industrial Contractors, Inc., 2013 IL App (4th) 120781, plaintiff, a widow, filed a lawsuit on behalf of her deceased husband's estate against defendant, Matrix Service Industrial Contractors, Inc., pursuant to the doctrine of respondeat superior. Id. ¶ 1. Plaintiff's husband had been killed in an auto accident by an employee for defendant who was driving to work. Id. Plaintiff claimed two theories of liability - that defendant's employee was a "traveling employee" and that the employee was on a "special errand" for defendant when the accident occurred. Id. The trial court granted summary judgment in defendant's favor on plaintiff's "traveling employee" theory of liability but denied defendant's motion for summary judgment regarding plaintiff's "special errand" theory of liability. Id. ¶¶ 9, 12.

The matter proceeded to a jury trial. Following the close of evidence, the parties tendered their recommended jury instructions. Id. ¶ 31. While reading the jury instructions to the jury, the trial court, sua sponte, commented on the relationship between the special interrogatory and general verdict instructions. Id. ¶ 32. As the jury retired, plaintiff brought the statement to the trial court's attention. However, plaintiff requested that no remedial instruction be given out of concern that doing so would draw too much attention to the error; nonetheless, the trial court tendered the remedial instruction. Id. The jury returned a verdict in defendant's favor. Id. ¶ 34. Following a hearing on plaintiff's posttrial motion, the trial court determined that it erred in making its sua sponte statement and by refusing a proposed jury instruction from plaintiff regarding agency law. Id. However, the trial court concluded that a new trial was not necessary because the evidence overwhelmingly favored defendant and plaintiff was, therefore, not prejudiced. Id.

Plaintiff appealed and the reviewing court initially rejected plaintiff's first two contentions on appeal - that the trial court committed reversible error by partially granting defendant's summary judgment motion, and by admitting and excluding certain evidence.

The reviewing court then turned to the erroneous jury instructions. Defendant argued that plaintiff had forfeited its contention regarding the trial court's sua sponte statement because plaintiff "expressed concern" as opposed to objecting and plaintiff failed to tender a remedial instruction. Id. ¶¶ 78-79. The reviewing court rejected defendant's forfeiture argument. In doing so, the court opined that "the purpose of an objection is not only to preserve an issue for appeal, but to bring the potential error to the trial court's attention so that it may be contemporaneously addressed." Id. ¶ 78. By expressing "concern" over the potential error, the court noted, plaintiff brought the issue to the court's attention. Id. Therefore, the court concluded that plaintiff's " 'raising concern' adequately brought the issue to the court's attention and preserved the issue for appeal, even without using some form of the word 'objection.' " Id.

The reviewing court further held that plaintiff was not required to tender a remedial instruction. The reviewing court concluded that, because plaintiff argued that the trial court should not have issued a remedial instruction to avoid bringing undue attention to the error, "it would have been illogical for [plaintiff] to have tendered a remedial instruction." Id. ¶ 78. Therefore, failing to tender the remedial instruction was "not fatal." Id.

Thereafter, the reviewing court concluded that the trial court's sua sponte comment constituted error, as the trial court had conceded. Id. ¶ 83. However, reciting the well-known maxim that not all error constitutes reversible error, the reviewing court held that, because the evidence "so overwhelmingly favored [defendant,]" plaintiff was not prejudiced by the trial court's error. Id. ¶¶ 84-85. Further, the record was devoid of any indication that the trial court's error misled the jury. Id. ¶ 85. The reviewing court also rejected plaintiff's other arguments regarding the jury instructions.

Recommended Citation: Charlie Ingrassia, Pitfalls in Preservation: Is "Raising Concern" Over an Improper Jury Instruction, Without a Formal Objection, Enough to Preserve Appellate Review?, The Brief, (March 16, 2014), http://applawyers-thebrief.blogspot.com/2014/03/pitfalls-in-preservation-is-raising.html.

ALA Hosts Supreme Court Year in Review

Tue, 11 Mar 2014 12:10:46 GMT

Due to its growing popularity, and combined with the ALA's commitment to providing legal educational programs throughout the state, the Association once again presented its annual Supreme Court Civil Litigation Year in Review in multiple locations. The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District; past ALA president and current Chicago Bar Association president J. Timothy Eaton of Taft, Stettinius & Hollister LLP; and past ALA president Michael Reagan of the Law Offices of Michael T. Reagan.

The panel offered their perspectives and keen insights on rule changes and significant decisions rendered by the Illinois Supreme Court during the 2013 term. Justice Jorgensen began the program by discussing new and amended Supreme Court Rules, including Rule 315 (eff. July 1, 2013), which governs petitions for leave to appeal to the Supreme Court and Rule 138 (eff. Jan. 1, 2014), which governs personal identity that may not be filed in court documents. Thereafter, the panel discussed noteworthy decisions covering a broad range of substantive areas. Topics included personal jurisdiction under a stream of commerce theory (Russell v. SNFA, 2013 IL 113090); disgorgement of attorney fees in a marriage dissolution proceeding and the policy of "leveling the playing field" (In re Marriage of Earlywine, 2013 IL 114779); and how the supreme court would weigh federal authority when reviewing an issue that involved a federal statute (State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL 113836).

The ALA presented the program on February 20, 2014, in Wheaton and on February 27, 2014, in Chicago. The Supreme Court Civil Litigation Year in Review will also be presented on March 13, 2014, in Decatur as part of the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. The ALA thanks the panel for an informative program, the DuPage County Bar Association for co-sponsoring the Wheaton program, and Neal Gerber & Eisenberg for generously hosting the Chicago program.

The ALA also presented the Supreme Court Year in Review in Decatur during the Association's annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. The roundtable luncheon was held on March 13, 2014, at the Decatur Club. In addition to the Supreme Court Year in Review program, the luncheon also featured Carla Bender, Clerk of the Court, who provided valuable updates on the court's e-filing initiatives.

A Clerk’s Docket Entry in Federal Court Does Not Ordinarily Satisfy the “Separate Document” Requirement for Final Judgment, Necessary to Commence Time for Appeal

Sat, 08 Mar 2014 13:17:21 GMT

In Brown v. Fifth Third Bank, 730 F.3d 698 (7th Cir. 2013), Judge Richard Posner, as motions judge, in an opinion not binding on the panel hearing the merits of the case, denied a motion by the defendant, Fifth Third Bank, to dismiss the appeal as untimely. The judge denied the motion even though the appellant filed her notice of appeal 113 days after a clerk’s docket entry reciting the district court’s dismissal of her complaint.

The docket entry in question was captioned “Notification of Docket Entry” and referred to the court’s separate “Memorandum Opinion and Order” dismissing the complaint with prejudice. Id. at 700. The motion to dismiss the appeal turned on whether the clerk’s docket entry satisfied the requirement under Fed. R. Civ. P. 58 that a district court's judgment be set forth in a separate document. Judge Posner observed that, if it did not, then judgment would be deemed to be entered 150 days after the court’s final decision, pursuant to Fed. R. Civ. P. 58(c)(2)(B). Brown, 730 F.3d at 699.

Judge Posner further noted that the Administrative Office of the United States Courts had drafted a form, called AO 450, which constitutes the preferred vehicle for complying with the “separate document” requirement of Rule 58. The appendix to the civil rules contains two other forms, Forms 70 and 71, that are similar to and even simpler than AO 450, and would also suffice. Id.

The judge described, however, the “inexplicable failure” by the clerk’s office in the Northern District of Illinois to use these forms. Id. at 699. That failure has been “richly productive of uncertainty,” notwithstanding that the whole purpose of Rule 58 is to produce clarity. Id. at 699-700. The judge cited to several Seventh Circuit cases, moreover, finding that docket entries similar to the one here satisfied the requirement of a separate document. Id. Other federal courts have not endorsed this view, although Judge Posner said the Third Circuit came close on one occasion. Id. at 700-01.

In Judge Posner’s opinion, the purpose of the docket entry here was to comply with the requirement under Fed. R. Civ. P. 77(d) to provide notice of the entry of an order or judgment. He opined that that notification should not “do service for a Rule 58 judgment” and that cases so allowing “should be overruled.” Brown, 730 F.3d at 701. As partial justification, he noted that, at least when the judgment denies all relief, as in this case, the separate document must be signed by the court clerk, and the entry here was not signed. Id.

Because the docket entry violated Rule 58, Judge Posner found that the judgment date was 150 days after the district court’s decision, and the notice of appeal therefore was timely and should proceed to briefing on the merits. Id. He further observed, however, that the merits panel was authorized to revisit the issue and, “if it wants” reject his conclusion that the appeal is within the court’s jurisdiction. Id.

Recommended Citation: Don R. Sampen, A Clerk’s Docket Entry in Federal Court Does Not Ordinarily Satisfy the “Separate Document” Requirement for Final Judgment, Necessary to Commence Time for Appealhe Lack of a Written Order Does Not Affect Finality, The Brief, (March 8, 2014), http://applawyers-thebrief.blogspot.com/2014/03/a-clerks-docket-entry-in-federal-court.html.

Association Hosts Chicago Seminar and Luncheon on Administrative Decisions and Workers Compensation Arbitrations

Wed, 05 Mar 2014 14:59:25 GMT

On February 19, 2014, at the Union League Club in Chicago, ALA President Brad Elward presided over a seminar and luncheon on two appellate specialty topics: judicial review of administrative decisions and worker compensation arbitrations.

The two-hour morning session was devoted to administrative appeals. Carl Draper of the Springfield law firm of Feldman, Wasser, Draper & Cox addressed the topic from the plaintiff's perspective. He supplemented the comprehensive written materials, which provide an excellent framework for understanding the administrative review process, with a "who, what, when, where" description of the issues that practitioners must consider in protecting the rights of those challenging administrative decisions in the circuit and appellate courts. Brett Legner, Civil Appeals Supervisor for the Appellate Division of the Illinois Attorney General's office, presented the defense perspective. Brett explained that, in seeking to uphold agency decisions, he hopes to defend the rulings without having to reach the merits, given the deferential standards of review that are applicable. Brett also addressed common law administrative review, which proceeds outside the Administrative Review Law, and the process for obtaining stays pending review. Justice Robert Gordon of the Illinois Appellate Court, First District, provided insights from the bench. He gave a candid assessment of the shortcomings on the part of attorneys that Justice Gordon has observed in his 18 years as a circuit judge or appellate justice. Justice Gordon also described the type of information that the court scours the record to find. For example, deference on credibility determinations may not be a foregone conclusion without some explanation by the decision maker below.

After the the morning session, attendees enjoyed a luncheon honoring the justices of the Illinois Appellate Court, Workers Compensation Division. Following lunch, President Elward moderated a panel featuring the appellate justices assigned to the Workers Compensation Division – Justice Thomas E. Hoffman (First District), Justice Donald C. Hudson (Second District), Justice William E. Holdridge (Third District), and Justice Thomas M. Harris (Fourth District). (Justice Bruce D. Steward of the Fifth District was unable to participate.) Providing sound advice that is applicable to any type of case, the panelists engaged in a lively discussion about presenting and defending workers compensation appeals. The justices commented on good brief writing and the art of responding to questions during oral argument.

The seminar concluded with President Elward speaking on judicial reviews from the Workers' Compensation Commission to the circuit court. Elward pointed out common pitfalls and offered practical advice on how to handle such cases on appeal.

The ALA thanks the Justices of the Illinois Appellate Court, Workers Compensation Division, and the other speakers for providing their unique insights during the informative seminar.

ALA and Chicago Bar Association Host Candidates’ Forum

Mon, 03 Mar 2014 12:56:30 GMT

On February 25, 2014, the Appellate Lawyers Association and the Chicago Bar Association co-sponsored a public forum featuring the candidates for the Illinois Appellate Court, First District. The program was moderated by ALA Past President, Tim Eaton, who currently serves as the President of the CBA. Each candidate presented his or her credentials to the audience, and then participated in a moderated question and answer session. Candidates answered questions on an array of topics, including judicial elections vs. merit selection, the use of Rule 23 orders as persuasive authority, and the justices who inspire each candidate’s judicial philosophy.

Three Appellate Court vacancies will appear on the ballot in the March 18, 2014, Primary Election.

Candidates to fill the vacancy of Hon. Joseph Gordon

Hon. Shelly A. Harris

Hon. Freddrenna M. Lyle

Hon. Susan Kennedy Sullivan

Candidates to fill the vacancy of Hon. Michael Murphy

Mr. David Ellis

Candidates to fill the vacancy of Hon. John O. Steele

Hon. Sharon Oden Johnson

Hon. John B. Simon

All of the candidates accepted our invitation to participate. However, Judge Freddrenna Lyle fell ill on the morning of the event and did not attend.

We are grateful to the CBA for hosting this program and recording the event for rebroadcast. You can view the recording here or link to it through our website. It will be available until the primary election.

This year’s Candidates’ Forum continues the ALA’s tradition of providing this public service to our membership and the public at large. We recognize that publicity regarding judicial elections often pales in comparison to that given contests for federal or statewide offices. However, our goal in sponsoring such programs is to help draw attention to judicial elections and thereby facilitate voters’ ability to make informed decisions regarding those elected to these important public offices. The CBA shares our commitment to this goal, and we look forward to continuing our partnership with the CBA.

The Lack of a Written Order does not Affect Finality

Tue, 25 Feb 2014 12:13:38 GMT

The plaintiff in Williams v. BNSF Ry. Co., 2013 IL App (1st) 121901, filed suit against BNSF under the Federal Employer’s Liability Act. Id. ¶ 1. BNSF in turn filed a third-party complaint for contribution and contractual indemnity. Id. The case proceeded to a jury trial, at the conclusion of which the jury awarded plaintiff damages in excess of $2.6 million. Id. The jury also returned a verdict in favor of the third-party defendant. Id. BNSF appealed, but the Illinois Appellate Court did not reach the merits. Instead, the reviewing court concluded that it lacked jurisdiction because BNSF failed to file its notice of appeal within 30 days of the oral ruling denying BNSF’s posttrial motions. As illustrated below, this case serves as an important reminder that, unless the trial court expressly requires a written order or a local circuit court rule requires a prevailing party to submit a draft order, the judgment is entered "at the time it is entered of record" (Id. ¶ 25), and the time period to file a notice of appeal will begin.

Before addressing the jurisdictional question, the reviewing court noted that another reviewing court panel denied an earlier motion to dismiss for lack of jurisdiction shortly after the appeal was filed. Id. ¶ 4. BNSF claimed that this ruling should prevent revisiting the jurisdictional issue. The court disagreed, stating that it has a continuing obligation to verify its jurisdiction. Id. ¶ 5. The court observed that the posttrial procedural history was complex and required a more in-depth consideration of the record than was feasible before the record on appeal was filed with the court. Id.

The reviewing court then turned to the jurisdictional question. BNSF filed a timely posttrial motion following the jury verdict. Id. ¶ 7. The motion raised 46 issues in total, 45 of which would have resulted in a new trial or modified judgment. Id. The last issue, however, dealt with a setoff which, if allowed, would have partially satisfied the judgment. Id. ¶ 8.

On April 18, 2012, after conducting a hearing, the trial court orally denied the posttrial motion as to all issues except the setoff claim, which it took under advisement. Id. ¶ 9. No written order reflecting denial of the posttrial motion was entered. Id. On May 31, 2012, more than 30 days later, BNSF filed a motion for leave to cite supplemental authority relative to one of the 45 issues that was rejected in the oral ruling issued on April 18, 2012. Id. ¶ 10. Counsel advised the trial court at the hearing on that motion that he wanted to submit the new authority before the trial court entered a final and appealable order. Id. ¶ 11. The trial court reminded BNSF counsel it denied the posttrial motion on April 18, 2012 and that the only remaining issue was the setoff question, which was still under advisement. Id. ¶ 11.

Thereafter, the trial court conducted a hearing on June 6, 2012, where it distinguished BNSF’s new authority, reiterated its denial of that motion, and denied BNSF’s request for a setoff. Id. ¶ 14. The parties could not agree on the language of the written order. Id. ¶¶ 16-17. BNSF wanted the order to state that it was final and appealable regarding the jury verdict. Id. ¶ 18. The trial court disagreed and it omitted any reference to the jury verdict. Id. BNSF filed its notice of appeal within 30 days of the entry of the June 6 order. Id. ¶ 19.

The reviewing court found that the notice of appeal was untimely because BNSF did not file that notice within 30 days of the trial court's April 18, 2012, denial of the posttrial motion, and the unresolved setoff question did not otherwise toll the time to appeal. Id. ¶ 20.

The reviewing court noted that, because a setoff only operates to satisfy a judgment, it does not qualify as a posttrial motion under section 2-1202 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1202 (West 2012)), which is limited to motions that will impact the judgment as opposed to satisfying it. Williams, 2013 IL App (1st) 121901, ¶¶ 21-22. The time to appeal therefore began to run on April 18, when the trial court orally denied the part of BNSF’s posttrial motion, which, if granted, would have resulted in a new trial or modified judgment. Id. ¶ 22. The court also rejected BNSF’s contention that, because the trial court considered the supplemental authority that related to one of the issues in the motion that was directed at the judgment at the June 6 hearing, its section 2-1202 motion was not fully resolved before entry of the written order. Id. ¶ 24. The court observed that BNSF’s motion to cite the supplemental authority was filed more than 30 days after denial of the posttrial motion, meaning that the trial court no longer had jurisdiction over the issues that were raised in that motion. Id. ¶ 24.

Finally, the reviewing court dispensed with the notion that the lack of a written order denying the posttrial motion on April 18 did not render that ruling any less final because Supreme Court Rule 272 (eff. Nov. 1, 1990) expressly provides that a judgment is final when a written order is entered only if the trial court expressly requires a written order. Williams, 2013 IL App (1st) 121901, ¶ 25. But if the trial court did not require a written order, the judgment is final when it is entered. Id.

The record established that the posttrial motion was denied on April 18, 2012, and that only the setoff question was taken under advisement. There was also no reference to a written order, and the trial court did not instruct the parties to prepare one. As such, the judgment became final on the date the posttrial motion was denied, and BNSF’s notice of appeal was due within 30 days of the April 18, 2012, ruling. Id. ¶¶ 26-28.

Recommended Citation: Rosa M. Tumialán, The Lack of a Written Order Does Not Affect Finality, The Brief, (February 25, 2014),http://applawyers-thebrief.blogspot.com/2014/02/the-lack-of-written-order-does-not.html.

ALA and Chicago Bar Association to Host Candidates' Forum

Sun, 23 Feb 2014 15:41:25 GMT

On February 25, 2014, the ALA and the Chicago Bar Association will host a forum featuring the candidates seeking election to the Illinois Appellate Court, First District, in the March 2014 Primary Election. Each candidate will be allotted time to discuss his or her qualifications and will participate in a moderated question and answer session. All candidates have been invited; acceptances pending.

The event will be held from 12 p.m. to 1:30 p.m., and is free and open to the public. Click here for more information and to RSVP.

Illinois Appellate Court: A New Exception to the Mailbox Rule

Wed, 19 Feb 2014 00:41:02 GMT

Over the past two decades, the “mailbox rule” has enjoyed expanded applicability and precedential support in Illinois courts, easing the burden on the bar, their staffs and vehicles, and the environment that sacrifices its trees so we can file papers. The mailbox rule stems from Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009), which permits the mailing of documents for filing in Illinois reviewing courts on the day they are due, instead of having to physically transport the documents to one of the six reviewing courts spread widely throughout the state, as long as the document is accompanied with the specified proof of mailing--proof that is not difficult to muster. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing” is short enough to quote in full:

"Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court."

Decisions of those very reviewing courts have expanded the scope of the rule to include many filings in the trial court, including notices of appeal and post-judgment motions. In this author's opinion, applying the mailbox rule to post-judgment motions required some loose interpretation of the rule, which expressly applies to papers filed in the reviewing courts and notices of appeal filed in the trial court, but does not refer to post-judgment motions.

Moreover, almost all papers filed in the trial and reviewing courts in Illinois can be mailed for filing on the date they are due; even if the paper is received and filed after the deadline, proper practice renders those papers timely on general principles not expressly tied to Rule 373. The only exceptions were documents initiating an action in the trial court, such as the original complaint, or a petition for relief from a judgment after the trial court lost jurisdiction of the matter, usually after 30 days.

Now, pursuant to Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230, there is another exception. This new exception limits the application of the mailbox rule to certain rare filings in the appellate court. Under Nizamuddin, papers filed in the appellate court in appeals from orders dealing with requests for temporary restraining orders must arrive at the appellate court on the date they are due, and cannot benefit from the mailbox rule, even though the text of Rule 373 would seem to expressly apply to those filings. The text of Rule 373 refers to filing "records, briefs or other papers required to be filed within a specified time." (Emphasis added.)

Unlike most civil actions, papers filed in the reviewing court in appeals related to requests for temporary restraining orders have their own special requirements in another Supreme Court Rule and cannot be served by mail, but rather must be served by personal delivery or facsimile transmission. Rule 307(d) (eff. Feb. 26, 2010), entitled "Appeals of Temporary Restraining Orders; Time; Memoranda" provides that these appeals shall be by petition filed in the "appellate court" within two days" of the order being appealed. Id. The Rule further provides:

"The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought." (Emphasis added.) Id.

The respondent has two days from the "filing of the petition" to file and serve (personally or by facsimile) its response. Replies are not allowed without court permission. There is to be no oral argument. Id. And the appellate court "shall consider and decide the petition within five days after the respondent's time to respond has expired." But the appellate court "may, if it deems it appropriate, order a different schedule," presumably including a different deadline for the respondent’s response or the court’s decision. Id.

Thus, the tension between Rules 307(d) and 373 was at issue in Nizamuddin. The trial court entered a temporary restraining order on a Friday. Nizamuddin, 2013 IL App (2d) 131230, ¶ 1. The petition required by rule 307(d) was mailed to the appellate court on the following Monday. The petition was served by mail on that Monday, too. The appellate court and the respondent received the petition on the next day, Tuesday. Id. ¶ 4.

The reviewing court noted that the petitioner violated Rule 307 in various ways, including serving the petition by mail, when personal service or facsimile transmission was required. Id. ¶ 13. While the Nizamuddin court dismissed the appeal because the petitioner filed its notice of appeal in the trial court rather than the appellate court (id. ¶ 5), the takeaway is the reviewng court’s refusal to apply the mailbox rule. The court conceded that rule 307(d) does not "point blank" specify that the notice of appeal must be filed in the appellate court as opposed to the trial court, relying on its own interpretations of Rule 307(d). Nizamuddin, 2013 IL App (2d) 131230, ¶ 6. Indeed, the reviewing court devoted the bulk of its discussion to the issue of the mailbox rule, three pages in the eight-page opinion, in a discussion that boiled down to common sense–appeals related to requests for temporary restraining orders are of a "highly expedited nature," given the two-day deadline and the requirement of personal or facsimile service. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7.

"Given the highly expedited nature" of appeals under Rule 307(d), "the 'mailbox rule' [in Rule] 373 does not apply," the reviewing court concluded. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7. The court reasoned that "applying the mailbox rule" to these appeals "would lead to the practical evisceration of" the applicable two-day deadlines, "an absurd result," according to the reviewing court. Id. ¶ 9. In declining to apply the mailbox rule, the reviewing court noted the "tight deadlines and extraordinary service requirements" in appeals under Rule 307(d) distinguish them from most other civil appeals. Nizamuddin, 2013 IL App (2d) 131230, ¶ 10. The court also wrote that applying the mailbox rule would improperly subject these appeals "to the vagaries of mail delivery." Id. ¶ 11.

Ultimately, the court "read the specialized filing deadlines of Rule 307(d) to control over the general mailbox rule of Rule 373." Nizamuddin, 2013 IL App (2d) 131230, ¶ 11. The court held that the more general provisions of Rule 373 must yield to the more specific rules in ruleR307(d). Id.

Common sense prevailed. The petitioner failed to serve its petition properly. But the text of Rule 373 seemed to permit the petitioner to mail its petition on the date it was due. The appellate court rarely dismisses an appeal for improper service. Thus, Nizamuddin is a remarkable case that could rouse the supreme court into action, either by granting leave to appeal or amending one or both of the applicable rules.

Recommended Citation: Lawrence A. Stein, Illinois Appellate Court: A New Exception to the Mailbox Rule, The Brief, (February 18, 2014), http://applawyers-thebrief.blogspot.com/2014/02/illinois-appellate-court-new-exception.html.

Upcoming Association Seminar and Luncheon on Judicial Review of Administrative Decisions and Workers Compensation Arbitrations

Fri, 14 Feb 2014 22:24:30 GMT

The Appellate Lawyers Association (ALA) is presenting a Seminar and Luncheon from 10:00 AM to 2:45 PM on February 19, 2014 at the Union League Club.

The morning session from 10:00 AM to 12:00 Noon will cover Judicial Review of Administrative Decisions from Plaintiff, Defense, and Judicial Perspectives. The Presenters will be Carl Draper, Vice-Chair, ISBA Administrative Law Section; Brett Legner, Appellate Division, Illinois Attorney General’s Office; and Justice Robert Gordon, First District Appellate Court.

The Luncheon from 12:00 Noon to 12:45 will honor the Appellate Justices present, including Justice Gordon and the five Justices assigned to review Workers Compensation Arbitrations: Justice Thomas E. Hoffman, First District; Justice Donald C. Hudson, Second District; Presiding Judge William E. Holdridge, Third District; Justice Thomas M. Harris, Fourth District; and Justice Bruce D. Stewart, Fifth District Appellate Court.

The afternoon session from 12:45 to 2:45 PM will cover Judicial Review of Workers Compensation Arbitrations. The Presenters will include a Panel of the Justices assigned to hear these appeals. ALA President Brad Elward will also present on Perfecting Judicial Reviews to the Circuit Court and Common Pitfalls.

4.00 hours of Continuing Legal Education (CLE) credit are available for the Seminar. The full agenda can be viewed at www.applawyers.org, where you can also register online. The cost is for Lunch and Full Day Seminar (4 MCLE Credit hours) is $90 for ALA Members, $110 for Non-Members, and $60 for Public Sector. The cost for Lunch and 1 Session of Seminar (2 MCLE Credit Hours) is $55 for ALA Public Sector Members, $75 for Non-Members, and $40 for Public Sector.

Personal Jurisdiction Exists When a Pleading is Filed Before Objecting to Jurisdiction, Even if That Pleading was Null

Sat, 08 Feb 2014 22:54:45 GMT

In Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, the Illinois Appellate Court held that a party waives any objection to personal jurisdiction if the party has filed a responsive pleading before filing a motion to quash service, even if that pleading had no legal effect because it was filed after the entry of a default judgment. The holding in Kmiecik is important for appellate practitioners because it demonstrates that even a null pleading can result in a party waiving an opportunity to challenge a court's personal jurisdiction, including on appeal.

Jozef Kmiecik was sued in a mortgage foreclosure action. After Kmiecik initially failed to respond to the complaint, Aurora filed a motion for default judgment. Id. ¶¶ 4-5. On the day the motion was to be heard, Kmiecik appeared before the court pro se and sought an extension of time to respond because he was trying to modify his loan. Id. ¶ 7. The court granted Kmiecik several extensions and ultimately gave Kmiecik a final deadline to respond, with the motion for default being set for a hearing one week after that deadline. Id. ¶ 8. Kmiecik did not appear for the hearing or file any response in advance of the hearing. As a result, the trial court entered a default judgment against him. Id. ¶ 9. Later that same day, Kmiecik filed an untimely general appearance and verified answer, admitting that he was the mortgagor. Id. Nothing further occurred until the property was sold and the trial court entered an order confirming the sale. Id. ¶ 10.

Nearly 30 days after the trial court entered the order approving the sale, Kmiecik, now represented by counsel, filed a motion to vacate the default judgment and quash service under section 2-1301 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1301 (West 2010)), arguing that service was improper and, therefore, the trial court did not have personal jurisdiction over him. Kmiecik, 2013 IL App (1st) 121700, ¶ 11. The appellate court held that under section 2-301(a-5) of the Code (735 ILCS 5/2-1301(a-5) (West 2010)), Kmiecik waived his objections when he filed his verified answer, even though the answer was untimely. Kmiecik, 2013 IL App (1st) 121700, ¶ 18. Importantly, the trial court specified that Kmiecik did not object to personal jurisdiction in his answer. Id.

Kmiecik argued that because the untimely answer was being used as a basis for establishing jurisdiction, it must also be grounds for vacating the default judgment. Id. ¶ 16. The appellate court disagreed, holding that the timeliness of his answer and the subsequent default had “no bearing” on whether he submitted to the court’s jurisdiction. Rather, he simply filed a responsive pleading before he filed a motion to quash service under section 2-1301(a), which results in waiver of any personal jurisdiction objections. Id. ¶ 24. Thus, even if Kmiecik had appeared at the hearing on the default and filed his answer at that time, avoiding the default judgment, he still would have submitted to the court’s jurisdiction because he filed a response before objecting to personal jurisdiction. Id.

Recommended Citation: Gretchen Harris Sperry, The Cart Before the Horse: Personal Jurisdiction Exists When a Pleading is Filed Before Objecting to Jurisdiction, Even if That Pleading was Null, The Brief (February 8, 2014), http://applawyers-thebrief.blogspot.com/2014/02/personal-jurisdiction-exists-when.html.

ALA Past President Mike Pollard: Appellate Practioners Should be an "Appellate Resource."

Tue, 04 Feb 2014 22:47:19 GMT

An important aspect of appellate advocacy is providing trial counsel with proactive advice. Doing so can make a litigation team more effective and, ultimately, more successful. On January 30, 2014, the Association sponsored a brown bag luncheon at Baker & McKenzie LLP in Chicago, which featured a distinguished panel of experienced appellate practitioners sharing their insights on how appellate lawyers can provide advice to trial attorneys.

Michael A. Pollard, past Association president and partner at Baker & McKenzie LLP, began the panel discussion by offering an oversight on how appellate practitioners can advise trial attorneys during the course of litigation. Pollard emphasized that appellate practitioners were in a unique position to offer "immediate proactive advice" and should strive to provide trial counsel with flexible options. Pollard encouraged appellate practitioners to think of themselves as an "appellate resource" that could be a valuable asset to a litigation team.

Thereafter, the panel covered a broad range of substantive topics about which trial attorneys were likely to seek counsel. ALA Treasurer Joanne R. Driscoll of Forde Law Offices LLP, discussed evidentiary issues. Driscoll emphasized that, when a party seeks to introduce evidence which the trial court excludes, the party must make an offer of proof to preserve that evidence. If, however, a party seeks to exclude testimonial evidence that is allowed, the party should object and move to strike that testimony as soon as possible. Driscoll further discussed Rule 304(a) (eff. Feb. 26, 2010). Driscoll noted that, in an action involving multiple parties or claims, a final judgment as to one party or claim is not immediately appealable absent a Rule 304(a) finding.

Association past president Karen Kies DeGrand of Donohue Brown Mathewson & Smyth LLC focused on jury instructions. DeGrand advised the audience to urge trial counsel to consider a client's big-picture interests when asking for a specific instruction, cautioning "be careful what you ask for." DeGrand emphasized the importance of reminding trial counsel to create a clear record during a jury instructions conference and to specifically refer to each instruction by name. DeGrand also discussed various issues related to post trial motions. Pollard addressed appeal bonds and stays, and discussed the significant distinctions between federal law and state law.

The ALA thanks Baker & McKenzie for its generous hospitality in hosting the brown bag luncheon and the panel members for their thoughtful comments.

Ray Haluch Gravel Co. Clarifies When Judgments Are Final

Fri, 31 Jan 2014 21:12:34 GMT

On January 15, 2014, in a unanimous opinion, the United States Supreme Court significantly clarified when a judgment is final for purposes of 28 U.S.C. §1291. InRay Haluch Gravel Co. v. Central Pension Fund of Int’l Union of Operating Engineers & Participating Employers, 571 U.S. ___, the Supreme Court opted for a bright-line rule that should provide clarity and predictability to appellate practitioners.

It is well established that a judgment can be “final” and appealable for purposes of 28 U.S.C. §1291 even if a claim for attorney's fees remains pending. The precise issue in Ray Haluch Gravel Co. was, in the words of Justice Kennedy, “whether a different result obtains if the unresolved claim for attorney’s fees is based on a contract rather than, or in addition to, a statute.” Ray Haluch Gravel Co., No.12-992, slip op. at 1. The answer was no. “Whether the claim for attorney’s fees is based on a statute, a contract, or both,” Justice Kennedy explained, “the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.” Id.

In the case sub judice, pension funds sued Ray Haluch Gravel Co., a landscape supply company, for failing to make required contributions to the funds. Among other relief, the Funds sought attorney’s fees, auditor’s fees, and costs under ERISA and a collective bargaining agreement (CBA). Id. at 2.

On June 17, 2011, the district court issued an order finding that the Funds “were entitled to certain unpaid contributions, though less than had been requested.” Id. at 3. On the same day, the district court awarded a total of $26,897.41 to the Funds. In a separate order issued approximately a month later, on July 25, 2011, the district court awarded the Funds a total of $34,688.15 in attorney’s fees and costs. Id. at 3-4. The Funds appealed from both orders on August 15, 2011.

Ray Haluch Gravel Co. argued in the appellate court that the Funds had failed to timely appeal from the district court’s order of June 17, and thus lost their opportunity to challenge the district court’s resolution of their substantive claims. Id. at 4. The United States Court of Appeals for the First Circuit disagreed on the basis that the Funds’ claim for attorney’s fees was based (at least in part) on the CBA. The First Circuit reasoned that the CBA required “the payment of attorneys’ fees as an element of damages in the event of a breach,” and therefore found that the June 17 order was not final. Id. The Supreme Court granted certiorari “to resolve a conflict in the Courts of Appeals over whether and when an unresolved issue of attorney’s fees based on a contract prevents a judgment on the merits from being final.” Id. at 4-5. The Supreme Court reversed the First Circuit and, incidentally, agreed with the Seventh Circuit’s approach to this issue. See Continental Bank, N.A. v. Everett, 964 F.2d 701, 702-03 (7th Cir. 1992) (“An open issue about legal fees, contractual or otherwise, does not affect our jurisdiction to resolve the appeal” on the underlying claims.).

As early as Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Supreme Court had decided that a judgment was “final” for purposes of 28 U.S.C. §1291 notwithstanding a pending claim for attorney’s fees pursuant to a statute. In Ray Haluch Gravel Co., the Funds argued that pending claims for attorney’s fees pursuant to a contract were different because contractual attorney’s fees provisions, unlike statutory attorney’s fees provisions, are “liquidated-damages provisions intended to remedy the injury giving rise to the action.” Ray Haluch Gravel Co., No.12-992, slip op. at 7. That argument failed. First, the Court noted that contractual attorney’s fees provisions often entitle prevailing defendants to fees. Second, the holding of Budinich did not recognize the distinction on which the Funds relied. Justice Kennedy went as far as to suggest that the Funds were attempting “to relitigate an issue already decided in Budinich.” Id. at 8.

The Court also noted that the rule suggested by the Funds posed at least two serious practical problems. First, “[o]perational consistency is not promoted by providing for different jurisdictional effect to district court decisions that leave unresolved otherwise identical fee claims based solely on whether the asserted right to fees is based on a contract or a statute.” Id. Second, and potentially more important, the Funds’ proposed rule “does not promote predictability,” because while “it may be clear whether and to what extent a fee claim is contractual rather than statutory in nature, that is not always so.” Id. Indeed, in the case at hand, the Funds’ request for fees was based on both ERISA and the CBA. Accordingly, while the Funds raised the specter of piecemeal litigation, that concern was “counterbalanced by the interest in determining with promptness and clarity whether the ruling on the merits will be appealed.” Id. at 9. Finally, the Court found it immaterial that the Funds’ request for fees included some fees that were incurred before the litigation began. Id. at 12.

Certainly with respect to the timing of filing a notice of appeal, predictability and certainty are worthy goals. On that measure, Ray Haluch Gravel Co. merits the appreciation of the appellate bar.

Recommended Citation: John M. Fitzgerald, Ray Haluch Gravel Co. Clarifies When Judgments Are Final, The Brief, (January 31, 2014), http://applawyers-thebrief.blogspot.com/2014/01/ray-haluch-gravel-co-clarifies-when.html.

Supreme Court Rule 313: Increased Filing Fees in the Reviewing Court

Wed, 29 Jan 2014 13:16:01 GMT

Illinois Supreme Court Rule 313 (eff. Feb. 1, 1994) governs the applicable filing fees in the reviewing court. On January 23, 2014, the Illinois Supreme Court amended the rule to increase the filing fee for appellants and petitioners from $25.00 to $50.00; and from $15.00 to $30.00 for all other parties who enter an appearance or file any paper. This increase will not become effective until January 1, 2015.

Recommended Citation: Charlie Ingrassia, Supreme Court Rule 313: Increased Filing Fees in the Reviewing Court, The Brief, (January 29, 2014), http://applawyers-thebrief.blogspot.com/2014/01/supreme-court-rule-313-increased-filing.html.

Order Denying Motion for Release and Satisfaction of Judgment in Wage Deduction Proceeding Not Final and Appealable

Mon, 27 Jan 2014 03:23:28 GMT

In A.J. Smith Federal Savings Bank v. Sabuco, 2013 IL App (3d) 120578, the Illinois Appellate Court held that a court order denying a debtor relief from a judgment underlying a wage deduction proceeding was merely interlocutory and not appealable. Id. ¶ 13. The holding in Sabuco serves as a helpful reminder that an order remains interlocutory unless it disposes of the parties’ rights in the entire controversy or a separate part thereof. Absent an applicable exception, interlocutory orders are not appealable.

In Sabuco, the plaintiff bank made a loan to the defendant, which was secured by a mortgage on a commercial office building. Id. ¶ 2. The defendant executed an assignment of rents from any lessee of the office building in favor of the plaintiff. Id. When the defendant failed to make payments on the mortgage loan, the plaintiff filed a complaint for mortgage foreclosure and a petition for possession of the property. Id. ¶ 3.

The trial court entered an order granting the plaintiff possession of the property and a judgment of foreclosure and a deficiency judgment against the defendant. Id. ¶ 6. The plaintiff then served an affidavit for a wage deduction order, a wage deduction notice, and a wage deduction summons in an attempt to satisfy the deficiency judgment. Id. Prior to the wage deduction hearing, the defendant filed a motion for entry of release and satisfaction of judgment, claiming that the rental payments the plaintiff received as a result of the assignment of rents could satisfy the deficiency judgment. Id. ¶ 7. The trial court denied the motion and scheduled a wage deduction hearing. Id. ¶ 8. The defendant appealed from the denial of his motion for release and satisfaction prior to the trial court conducting a wage deduction hearing. Id.

The reviewing court noted that it only had jurisdiction to review orders that were final and appealable, which were orders that terminated the litigation between the parties on the merits or disposed of the rights of the parties, either on the entire controversy or a separate part thereof. Id. ¶ 14. “When a debtor files a motion contesting the validity of the judgment underlying a wage deduction proceeding prior to a wage deduction hearing, a trial court’s denial of such a motion is not final and appealable because ‘the same attack could later be made at the wage reduction hearing.’ ” Id. ¶ 13 (quoting Felton v. Shead, 6 Ill. App. 3d 123, 126 (1972)). The order denying the debtor relief was merely interlocutory and not appealable because the issue of the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Sabuco, 2013 IL App (3d) 120578, ¶ 13. Thus, the trial court’s judgment would not be final and appealable until after the wage deduction hearing. Id.

The application of the above principles to the facts in Sabuco was simple and straightforward. The defendant filed a motion for release and satisfaction from the deficiency judgment, which the trial court denied. Id. ¶ 15. The defendant appealed the trial court’s order before the wage deduction hearing. Id. The defendant’s motion was an attack on the judgment underlying the wage deduction proceeding, which could have also been made at the wage deduction hearing. Id. Thus, the trial court’s order was merely interlocutory and not appealable because the validity of the underlying judgment would not be finally decided until the wage deduction hearing. Id. Accordingly, the reviewing court dismissed the appeal because it lacked jurisdiction to consider the trial court’s order denying the defendant’s motion for entry of release and satisfaction. Id. ¶ 16.

Recommended Citation: Shannon R. Burke, Order Denying Motion for Release and Satisfaction of Judgment in Wage Deduction Proceeding Not Final and Appealable, The Brief, (January 26, 2014), http://applawyers-thebrief.blogspot.com/2014/01/order-denying-motion-for-release-and.html.

Keeping the Window Open: Potential Intervenors and Preserving their Right of Appeal

Wed, 22 Jan 2014 06:13:56 GMT

In CE Design, Ltd. v. Cy’s Crab House North, Inc., 731 F.3d 725 (7th Cir. 2013), the United States Court of Appeals for the Seventh Circuit dismissed the appeal because, although the putative intervenor filed a timely notice of appeal from the trial court’s order denying its motion to intervene, then notice was untimely with respect to the final judgment. And because the judgment could no longer be challenged, the Seventh Circuit could not grant any meaningful relief to the putative intervenor even had it reversed the order denying intervention. In dismissing for lack of jurisdiction, the Seventh Circuit provided a useful overview of the options potential intervenors have to preserve the right of appeal, or as the reviewing court remarked, to “keep the window from closing.” Importantly, the Seventh Circuit emphasized that merely moving to intervene within the time to appeal a judgment is not sufficient.

CE Design, a frequent class-action plaintiff, sued the defendants Cy’s Crab House North and Cy’s Crabhouse and Seafood Grill, Inc. on behalf of a class of junk-fax recipients. CE Design, 731 F.3d at 726. Truck Insurance Exchange was the defendants’ liability insurance carrier, and it provided a defense under a reservation of rights. Id. During trial, and without consulting their insurer, the defendants settled the case with the class. Id. at 726-27. After state-court coverage litigation, the district court approved the settlement and entered final judgment on October 27, 2011. Id. at 727.

The Seventh Circuit subsequently issued an opinion in another case, which cast serious doubt on the conduct of class counsel. Id. On November 23, 2011, the day after that opinion was released, Truck Insurance Exchange moved to intervene in CE Design’s case to reopen the judgment, challenge the settlement, and decertify the class based on the misconduct of class counsel pursuant to that new decision. Id. The motion to intervene also sought a 14-day extension of time to file a notice of appeal. Id. The trial court heard the motion on November 28, 2011, the last day to appeal from the final judgment. Id. The court requested further briefing and rescheduled the hearing for December 1, 2011. Id. The trial court then discussed the time limit for filing an appeal from the final judgment, and noted that it could extend the time to do so on motion of a party within 30 days of the expiration of the time to appeal. Id. Truck Insurance Exchange’s counsel noted that Truck Insurance Exchange was not yet a party, and the trial court responded that if it granted the motion to intervene, “that relates back to the day that you filed the motion to intervene.” Id. With regard to the deadline for appealing the judgment, the trial court stated: “I will extend it. If I conclude that you’re entitled to intervene or entitled to an extension, you’re not going to have a problem here.” Id. On December 1, 2011, the trial court denied the motion to intervene, without mentioning any extension of the deadline to appeal. Id.

Truck Insurance Exchange filed a notice of appeal on December 2, 2011, stating that it was appealing from the December 1, 2011 order denying intervention as well as the October 27, 2011 final judgment. Id. CE Design filed a motion to dismiss the appeal for lack of jurisdiction, which the Seventh Circuit took with the case. Id.

The Seventh Circuit held that the notice of appeal was untimely with respect to the final judgment because it was filed 36 days after entry of that judgment and no extension had been granted. Id. The reviewing court rejected Truck Insurance Exchange’s argument that the trial court had orally extended the time to appeal, stating that the trial court had merely expressed a “willingness to grant a retroactive extension in the future.” Id. at 728. Moreover, the December 1, 2011 order did not mention extending the time for an appeal. Id. The reviewing court also rejected Truck Insurance Exchange’s argument that the appeal from the order denying intervention rendered timely the appeal from the final judgment, explaining that those were “distinct and separate appealable orders.” Id.

The Seventh Circuit further explained, addressing Truck Insurance Exchange’s reliance on Roe v. Town of Highland, 909 F.2d 1097 (7th Cir. 1990), that under Roe, a putative intervenor “must take some action” when the trial court has not ruled on the motion to intervene but the deadline to appeal the underlying judgment is “imminent,” to “keep the window from closing.” CE Design, 731 F.3d at 728-29. In particular, the putative intervenor must obtain a ruling on intervention, obtain an extension of time to file a notice of appeal, or file a “protective, ‘springing’ notice of appeal before the time expires.” Id. at 729. More succinctly, the reviewing court summarized Roe as making “clear” that “it is not enough to merely move to intervene within the time to appeal the judgment; something more is required.” Id. Truck Insurance Exchange did not do any of this before the appeal period expired. Id.

The Seventh Circuit next clarified its decision in In re Synthroid Marketing Litigation, 264 F.3d 712 (7th Cir. 2001), stating that it “require[d] some elaboration.” CE Design, 731 F.3d at 729. In Synthroid, the district court denied a motion to intervene, and the putative intervenor filed a notice of appeal from that order within the time to appeal from the final judgment, but did not appeal the final judgment until almost a year later. Id. The Synthroid court held – analogizing to Fed. R. App. P. 4(a)(2), under which a premature notice of appeal filed after the district court rules but before entry of judgment becomes effective upon entry of judgment – that its decision allowing intervention caused the late notice of appeal of the judgment to “spring into effect.” CE Design, 731 F.3d at 729 (citing Synthroid, 264 F.3d at 716). Although the reviewing court in CE Design questioned the continuing validity of Synthroid in light of subsequent United States Supreme Court authority, it explained that Synthroid could be read to stand for a sort of “relation-back rule,” that when a putative intervenor is granted the right to intervene on appeal, a “contingent appeal of the judgment” relates back to some previous date. CE Design, 731 F.3d at 729. But Truck Insurance Exchange could not benefit from any such relation-back rule. Id. Unlike the putative intervenor in Synthroid, Truck Insurance Exchange had not filed a notice of appeal from the denial of intervention before the time to file an appeal from the final judgment expired (id. at 729-30, 731), but had merely moved to intervene during that time. Because Truck Insurance Exchange did not timely appeal the final judgment, the Seventh Circuit lacked jurisdiction to review that judgment. Id. at 730.

Although the Seventh Circuit went on to hold that Truck Insurance Exchange had timely appealed the denial of intervention, it concluded that it nevertheless lacked jurisdiction over the appeal. Id. Noting that the United States Supreme Court had reemphasized that the time limit to appeal is jurisdictional, and because Truck Insurance Exchange had not timely appealed the final judgment, that judgment was “set in stone.” Id. Thus, even reversing the intervention order could not result in any meaningful relief for Truck Insurance Exchange. Id. For “completeness,” the reviewing court added that another recent decision foreclosed Truck Insurance Exchange’s argument on the merits of intervention, so appellate review of the denial of intervention would be “doubly pointless.” Id. at 731.

Recommended Citation: Myriam Z. Kasper, Keeping the Window Open: Potential Intervenors and Preserving their Right of Appeal, The Brief, (January 22, 2014), http://applawyers-thebrief.blogspot.com/2014/01/keeping-window-open-potential.html.

A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding

Fri, 17 Jan 2014 08:24:47 GMT

In Zamora v. Montiel, 2013 IL App (2d) 130579, the Illinois Appellate Court held that a notice of appeal must be filed within 30 days of the trial court’s resolution of a motion to reconsider, following a dismissal order with a finding pursuant to Illinois Supreme Court Rule 304(a), even though the trial court had already granted the defendants leave to file a third-party action. The reviewing court emphasized that the third-party claim, though allowed to be filed at the time of reconsideration, had not been filed until more than 30 days had passed after the trial court's denial of the motion to reconsider.

The case involved a complex procedural history. On August 31, 2009, the plaintiff filed a complaint sounding in negligence against certain defendants, including the “Payne defendants.” Id. ¶ 3. On March 24, 2010, the trial court dismissed the plaintiff’s complaint with respect to the Payne defendants, while including a finding of finality and appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Zamora, 2013 Il App (2d) 130579, ¶ 3. On April 23, 2010, the plaintiff filed a timely motion to reconsider the March 24, 2010, dismissal order. However, on June 29, 2010, and while the plaintiff's motion to reconsider was still pending, the trial court granted the defendants leave to file a third-party complaint for contribution. Id.

On July 7, 2010, the trial court denied the plaintiff’s motion to reconsider. Id. Although the trial court had granted the defendants leave, no third-party complaint had yet been filed. On August 25, 2010, more than 30 days since the trial court denied the plaintiff's motion to reconsider, the defendants filed their third-party claim. Id. On July 11, 2012, the trial court dismissed the third-party contribution claim. Also on that date, the plaintiff requested a “new” Rule 304(a) finding with respect to the trial court's earlier March 24, 2010, dismissal order. The trial court entered that finding. Id.

On July 24, 2012, the plaintiff filed a notice of appeal from the March 24, 2010, dismissal order and the subsequent denial of his motion to reconsider. However, on December 12, 2012, the Appellate Court dismissed the plaintiff’s initial appeal for lack of jurisdiction. Id.

On December 28, 2012, the plaintiff returned to the trial court and sought a “renewal” of the March 24, 2010, Rule 304(a) finding, but on March 20, 2013, the trial court denied that motion. Id. On May 14, 2013, the trial court dismissed all remaining causes of action directed against all defendants. On June 5, 2013, the plaintiff filed a notice of appeal seeking reversal of both the March 24, 2010, dismissal order, and the March 20, 2013, denial of his motion to renew the March 2010 Rule 304(a) finding. Id.

The defendants moved to dismiss the appeal. The defendants contended that, after the trial court entered its July 7, 2010, order denying the plaintiff's motion to reconsider, the plaintiff had 30 days to appeal from the trial court's March 24, 2010, dismissal order that contained a Rule 304(a) finding. Id. ¶ 5. The plaintiff countered that on June 29, 2010, when the trial court granted the defendants leave to file their third-party complaint, “the previous Rule 304(a) finding, which was made contemporaneously with the dismissal of the plaintiff’s claim against the defendants, was rendered ineffective.” Id.

The court in Zamora first undertook a discussion of appealability pursuant to Rule 304(a), concluding that, once a court has made a Rule 304(a) finding, it is unnecessary for the court to make another such finding when it denies a timely motion to reconsider. Id. ¶ 6 (citing McCorry v. Gooneratne, 332 Ill. App. 3d 935, 941 (2002)). This is because, the Zamora court noted, the denial of a motion to reconsider is not a judgment and is not appealable in itself. Zamora, 2013 IL App (2d) 130579, ¶ 6.

Citing Ganci v. Blauvelt, 294 Ill. App. 3d 508, 516 (1998), the Zamora court was “reluctant to attach jurisdictional significance to the fact the Payne defendants obtained leave to file their claim before the trial court resolved plaintiff’s motion to reconsider.” Zamora, 2013 IL App (2d) 130579, ¶12. Any other determination, the court reasoned, would result in a “cumbersome rule of procedure indeed,” and the reviewing court asked a series of hypothetical questions to highlight the ambiguity such a ruling could create. Id. ¶ 13.

The court in Zamora thus decided to adhere to a simple rule: merely obtaining leave to file a claim did not trigger the need for a new Rule 304(a) finding. Id. Relying on the plain language of Rule 304(a) that " 'an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims,' " the court held the Rule contemplated additional claims must actually be pending at the time of the finding. (Emphasis in original.) Id. (quoting Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)).

In closing, the reviewing court recognized that, "on some rare occasions," allowing a party to proceed with an appeal after another party seeks leave to add a claim might itself result in a piecemeal appeal being taken. Zamora, 2013 IL App (2d) 130579, ¶15. Nonetheless, the court in Zamora noted, "it is equally undesirable to require a party to repeatedly return to the trial court to seek a new Rule 304(a) finding with every change in circumstances." Id.

Recommended Citation: Robert G. Black, A Simple Rule: Merely Obtaining Leave to File a Claim Does Not Trigger the Need For a New 304(a) Finding, The Brief, (January 17, 2014), http://applawyers-thebrief.blogspot.com/2014/01/a-simple-rule-merely-obtaining-leave-to.html.

Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled

Tue, 14 Jan 2014 12:22:23 GMT

In BankFinancial, FSB v. Tandon, 2013 IL App (1st) 113152, the Illinois Appellate Court, in reversing a summary judgment order in favor of the defendants, clarified the rule that a dismissal for want of prosecution does not constitute a final order or an adjudication on the merits because a plaintiff has the absolute right to refile the action against the same party and to reallege the same causes of action pursuant to section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 2008)). In Tandon, the plaintiff mortgagee’s successor by merger filed a five-count complaint against the defendants, the mortgagor and guarantor of a promissory note. Tandon, 2013 IL App (1st) 113152, ¶ 1. Plaintiff subsequently voluntarily dismissed count I (the mortgage foreclosure claim) without prejudice in 2006. Id. ¶ 5. Because the remainder of the case was essentially a breach of contract action, the case was transferred to the Law Division. Id. In February 2008, the trial court entered its fourth order dismissing the remaining counts for want of prosecution (the “DWP Order”). Id. ¶ 6. Unlike the previous orders, the fourth DWP order was never vacated. Id.

Within one year of the DWP Order, plaintiff filed a new action as permitted by section 13-217, which repeated two of the previously dismissed counts verbatim except for the interest amounts. Id. ¶ 7. Plaintiff did not refile the foreclosure claim (count I of the original action). Id. ¶ 7. Defendants moved for summary judgment on the grounds that res judicata barred the second lawsuit. Id. ¶ 8. The trial court granted the motion, holding as a matter of law that the order voluntarily dismissing count I without prejudice in the first action became final and appealable when the DWP order was not vacated within 30 days, even though plaintiff timely refiled the action under section 13-217. Id. ¶ 10. Therefore, the DWP order was a final judgment as to count I sufficient to bar the second action under res judicata and the rule against claim-splitting as articulated in the oft-cited Illinois Supreme Court decisions of Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), and Hudson v. City of Chicago, 228 Ill. 2d 462 (2008).

Reversing the trial court, the appellate court held that the 2006 order in which plaintiff nonsuited count I without prejudice “is not a final order because it does not terminate the litigation between the parties on the merits. Plaintiff voluntarily decided not to further pursue count I … after discovery revealed the cause of action to be ill-founded.” Tandon, 2013 IL App (1st) 113152, ¶3. The order was “not an involuntary dismissal based on an infirmity in plaintiff’s case, but a voluntary dismissal based on section 2-1009 of the Code” and “the intended voluntary act of plaintiff.” Id. ¶¶ 3, 27. Likewise, the DWP Order dismissing the remaining counts “was not a final order because it did not terminate the litigation between the parties on the merits.” Id. ¶¶ 3, 29. The appellate court went on to hold that plaintiff’s proper and timely statutory refiling of the second action under section 13-217 “did not alter the [2006] order’s interlocutory nature,” particularly when the refiled action did not contain the dismissed foreclosure count. Id. ¶¶ 3, 30. Citing to a handful of Supreme Court and appellate court decisions dating back to 1982, the appellate court reiterated the rule that an order dismissing a case for want of prosecution “only becomes a final order after the one-year right to refile expires.” Id. ¶ 30. Therefore, the reviewing court concluded that neither res judicata nor the rule against claim-splitting was implicated.

Recommended Citation: Katherine A. Grosh, Dismissal Order for Want of Prosecution Not Final When Action is Timely Refiled, The Brief, (January 14, 2014), http://applawyers-thebrief.blogspot.com/2014/01/dismissal-order-for-want-of-prosecution.html.

Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony

Sat, 11 Jan 2014 11:33:56 GMT

Failing to properly preserve an evidentiary objection before a lower court may result in that objection being waived on appeal. Thus, a thorough understanding of the waiver doctrine is essential for trial and appellate practitioners alike. In Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156, the Appellate Court provided a by-the-book application of the waiver doctrine in the context of preserving a challenge to the admissibility of expert testimony.

In Sheth, the reviewing court considered cross appeals brought by the parties to a legal slugfest over a variety of claims, including breach of contract and fraud, arising from the parties' dealings in used machinery. Id. ¶¶ 1-2. Following a trial in which a jury decided certain claims and the court ruled on others, the First District scrutinized the judgment entered on the jury's verdict and a number of the trial court's rulings, including the dismissal of certain counts on the pleadings. All withstood challenge, with the exception of the trial court's denial of the defendants' request for prejudgment interest; the plaintiff's liability for fraudulent misrepresentation entitled the defendants to an interest award. Id. ¶¶ 2-3.

With respect to waiver, the defendants did not succeed in persuading the appellate panel to consider whether the trial court had botched its rulings in admitting the testimony of an expert witness for the plaintiff as to subjects including foreign regulations and the existence of an oral agreement. The defendants contended that these issues were beyond the expertise of the witness and were not properly the subject of opinion testimony. Id. ¶ 109. Although the defense had presented and lost a motion in limine raising these issues, they failed to renew the objections when the expert witness testified. Id. ¶ 112. Instead, the defendants objected at trial only to the foundation of the expert's testimony. Therefore, the evidentiary challenges raised in the defendants' pretrial motion in limine were waived for appellate review. Id. In addition, the defendants' foundation objection raised during trial was also waived because the defendants failed to raise that objection in a posttrial motion. Id.

The analysis in Sheth is clear: a contemporaneous objection to the foundation of the expert witness's testimony did not preserve evidentiary objections to the testimony raised in a pretrial motion in limine. To preserve the objections, a party should raise the evidentiary objections again at trial and in a posttrial motion. Id. ¶¶ 111-12. Notably, the appellate court shut the door without an alternative analysis on the merits, which frequently follows a waiver ruling.

Recommended Citation: Karen Kies DeGrand, Pitfalls in Preservation: An Explanation of the Waiver Doctrine in the Context of Expert Testimony, The Brief, (January 11, 2014), http://applawyers-thebrief.blogspot.com/2014/01/pitfalls-in-preservation-explanation-of.html

Supreme Court Amends Rule 138

Sat, 11 Jan 2014 01:11:02 GMT

Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

Illinois Supreme Court Rule 138 governs personal identity information. On December 24, 2013, the state's high court amended the rule in various respects.

The amendment removed language from subsection (a)(2), which had provided that the rule would not apply to petitions filed pursuant to section 11a-8 of the Probate Act of 1975 (755 ILCS 5/11a-8 (West 2012)). The amendment added language to subsection (d). That subsection now provides that personal identity information properly filed under subsection (c) shall be available to government agencies, legal aid agencies, bar associations, and pro bono groups; and litigants may prepare documentation to financial institutions "and other entities or persons which require such documents." The amendment further added language to subsection (e) providing that, if a clerk becomes aware of noncompliance with the rule, he or she may bring it to the court's attention. However, a court shall not order a clerk to review documents or exhibits for compliance with the rule.

The bulk of the amendment affects subsection (c), which specifies what information can be included in a redacted filing. Effective January 1, 2014, such redacted information may include the year of an individual's birth date and a minor's initials.

Importantly, the procedure for filing redacted personal identity information, as originally provided in subsection (c), has been expanded. Where personal identity information is required, a litigant shall file the document in redacted form and separately file the personal identity information in a protected form. The committee comment for subsection (c) provides an appended form titled "Notice of Personal Indentity Information Within Court Filing." The committee comment clarifies that "[T]he filing of a separate document without redaction is not necessary or required because the personal identity information will be available to authorized persons by referring to the 'Notice of Personal Identity Information Within Court Filing' form."

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rule 138, The Brief, (January 10, 2014), http://applawyers-thebrief.blogspot.com/2014/01/supreme-court-amends-rule-138.html.

Bar Associations Honor New Chief Justice

Thu, 12 Dec 2013 13:21:20 GMT

The Association recently had the privilege of cosponsoring a luncheon honoring Chief Justice Rita B. Garman of the Illinois Supreme Court. The other hosts of the event were the Chicago Bar Association, the Illinois State Bar Association, and the Women's Bar Association of Illinois. Judges and attorneys alike came together to celebrate Garman's legendary career, which began as an assistant State's Attorney in a central Illinois county courthouse and culminated in her recent appointment as the state's most-senior jurist.

Chicago Bar Association president and past ALA president J. Timothy Eaton welcomed the guests, which included distinguished members from both the federal and state judiciary, and many of Chief Justice Garman's colleagues on the Illinois Supreme Court. Following lunch, Paula H. Holderman, president of the Illinois State Bar Association, Steven F. Pflaum, vice president of the ALA; Michelle M. Kohut, president of the Women's Bar Association of Illinois; and Eaton provided remarks. Vice President Pflaum discussed the unique role of the chief justice in the Illinois judiciary and remarked that, long after her tenure has ended, scholars will continue to study the initiatives put forth by the Garman court.

Thereafter, the Honorable Benjamin K. Miller, who served on the state's high court from 1984 to 2001, and as chief justice from 1991 to 1994, introduced Chief Justice Garman. Justice Miller discussed Garman's remarkable career, which included being the first women to serve as an assistant State's Attorney in Vermilion County; the first woman to serve as an associate and circuit court judge in the Fifth Judicial Circuit; the first woman to serve as a justice in the Fourth Appellate Court District; and the first woman to serve on the Illinois Supreme Court from downstate Illinois.

Chief Justice Garman opened her remarks by thanking the various bar associations and a number of guests in attendance, including her husband. The Chief Justice noted that, while she does not have a specific agenda, she has certain priorities that she will emphasize during her tenure. These priorities include promoting civility, ensuring that courts promptly resolve disputes, increasing legal education programs for practitioners and the public, incorporating new technology into the judicial process, and transparency. Chief Justice Garman noted that new technology - such as cameras in the courtroom - can help to increase transparency to the public, but that alone is not enough. Chief Justice Garman encouraged attorneys to be proactive in discussing the legal system within their communities by, for example, writing letters to the editor in local news publications.

The ALA congratulates Chief Justice Garman on her appointment and looks forward to helping to implement her vision for the Illinois courts.

Association Co-Hosts Seminar with Peoria County Bar Association

Mon, 09 Dec 2013 22:36:40 GMT

Consistent with the ALA's goal of promoting appellate seminars throughout the state, the Association recently co-hosted a seminar with the Peoria County Bar Association at the Spalding Pastoral Center in Peoria. Held on November 4, 2013, the event began with ALA President Brad Elward welcoming the attendees and introducing the speakers. The speakers included Justice William E. Holdridge of the Illinois Appellate Court, Third District, and Michael Scodro, Illinois Solicitor General and ALA Secretary.

Scodro, who recently argued before the United States Supreme Court, presented a discussion on preparing for oral argument. Scodro gave advice on various techniques, including analyzing case law, how to organize an argument, and the advantages of having a moot court. Thereafter, Justice Holdridge provided his insights on oral argument from the bench’s perspective. Justice Holdridge discussed the court's views on oral argument and went through a list of tips that ranged from when to arrive at the court and how to answer questions posed by the justices.

The seminar also featured a panel discussion consisting of Justice Holdridge, Scodro, and past ALA president Craig Unrath. Natalie Thompson, an ALA and PCBA member, moderated this discussion. The audience was given the opportunity to question the panel members on their views regarding oral argument practice.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

E-Business in the Illinois Courts

Mon, 09 Dec 2013 22:35:49 GMT

For almost two years now, the Illinois Supreme Court has been implementing its e-filing initiative. On October 21, 2013, the Association presented a luncheon program in Chicago that focused on updates to the e-filing system. The program featured Illinois Appellate Court Justice Ann B. Jorgensen (Second District); Clerk of the Illinois Supreme Court Carolyn Taft Grosboll; and Chief Deputy Clerk Melissa Roth.

Justice Jorgensen updated the members and guests with the e-filing program in the counties. Deputy Clerk Roth also provided a live e-filing demonstration. Clerk Grosboll addressed the Association by discussing a brief history on the position of the Illinois Supreme Court Clerk and the operations of the Supreme Court Clerk’s office. Grosboll noted that her father was the last elected Clerk of the Supreme Court and served from 1968 to 1975. Clell Woods was the first appointed Clerk, and Juleann Hornyak served the office for more than 28 years before her retirement. Grosboll has been the Clerk since January 2011.

In addition to tracking the Court’s case filings, Grosboll’s office maintains the master roll of attorneys, processes the licensing of all attorneys in Illinois, and oversees the registration of the law firms doing business in Illinois.

With respect to the e-business initiative in the courts, Grosboll explained that the Supreme Court began the e-filing pilot project in January 2012. After the pilot program was successful, the Court expanded e-filing of all cases on the Court’s general and MR dockets. Grosboll noted that, since the Clerk’s office began the program, it has successfully e-filed approximately 1,200 documents. The Clerk’s office is also in the process of creating a new case management system for all of the Illinois courts of review. Grosboll anticipated that the new system will go live in March 2015 in the Supreme Court, and the entire process will be completed in 2016.

Association Co-Hosts Appellate Practice Seminar at the SIU School of Law

Mon, 09 Dec 2013 22:35:10 GMT

For the second consecutive year, the Association co-sponsored an appellate practice seminar with Southern Illinois University School of Law. Held on October 23, 2013, the afternoon seminar followed a morning session of oral argument of the Illinois Appellate Court of Illinois, Fifth District, at the law school in Carbondale.

The seminar focused on "Professionalism and Appellate Practice." SIU School of Law Dean Cynthia Fountaine began the seminar with comments on the challenges faced by the profession. A panel discussion on ethics immediately followed. Past ALA president Bill Hardy, of Hinshaw & Culbertson, L.L.P., moderated a panel that gave perspectives from the appellate court, the circuit court, and the Attorney Registration and Disciplinary Commission. Justice Richard P. Goldenhersh of the Illinois Appellate Court, Fifth District; Judge Christy W. Solverson of the First Judicial Circuit Court; and Peter Rotskoff, Chief of Litigation & Professional Education for the ARDC, participated in the panel discussion.

Thereafter, past ALA President J. Timothy Eaton, who currently serves as president of the Chicago Bar Association, lectured on "Tips on Appellate Practice: From the Notice of Appeal to Petition for Rehearing." The seminar concluded with a judicial panel discussion on appellate practice. ALA President Brad Elward, of Heyl, Royster, Voelker & Allen, P.C., moderated the panel. Justices Judy Cates, Melissa A. Chapman, and Bruce D. Stewart of the Illinois Appellate Court of Illinois, Fifth District, served on the panel along with the Clerk of the Court John J. Flood.

Justices Quinn and Schmidt Highlight Illinois Supreme Court Criminal Law Update

Mon, 09 Dec 2013 10:37:42 GMT

On December 2, 2013, the Association sponsored the "Illinois Supreme Court Criminal Law Update" brown bag luncheon. The event offered guests an opportunity to gain insight and hear colorful commentary on recent developments in criminal law from justices on the Illinois Appellate Court and experienced appellate practitioners.

Justice Daniel L. Schmidt answers a question during the Illinois Supreme Court Criminal Law Update brown bag luncheon held in Chicago.

ALA President Brad Elward welcomed guests and thanked Jenner & Block for hosting the event. President Elward then turned to ALA Secretary and Illinois Solicitor General Michael Scodro, who moderated the panel. Scodro introduced the distinguished panel, which included Justice Patrick J. Quinn of the Illinois Appellate Court, First District; Justice Daniel L. Schmidt of the Illinois Appellate Court, Third District, and Patricia Unsinn, Deputy Illinois Appellate Defender.

The panel discussed a range of issues related to criminal law, including the second amendment, double jeopardy, mandatory life sentences for juveniles, searches and seizures under the fourth amendment, direct criminal contempt, and corpus delecti. The panel discussed developments related to double jeopardy in light of the United States Supreme Court's holding in Evans v. Michigan, 133 S. Ct. 1069 (2013), that a midtrial acquittal resulting from a trial court erroneously adding an additional statutory element resulted in jeopardy attaching. The panel also discussed People v. Martinez, 2013 IL 113475, where the court held that jeopardy did not attach when charges against the defendant were dismissed after a directed verdict finding where the State presented no evidence against the defendant to support a conviction. With respect to direct criminal contempt, Justice Quinn discussed People v. Geiger, 2012 IL 11318, where the Illinois Supreme Court reversed the appellate court's determination to uphold the imposition of a 20-year sentence on a defendant who refused to testify as a State's witness during a murder trial. Justice Schmidt, who was on the appellate court panel, graciously shared his thoughts while offering witty commentary resulting from his years serving as a police officer in Peoria.

The ALA thanks the panel members for an insightful and detailed discussion.

Florida Coastal School of Law Wins Moot Court Competition

Mon, 09 Dec 2013 10:36:59 GMT

Each year, the Association gathers during the first weekend in November to host its annual moot court competition. The competition furthers the ALA's tradition of fostering and encouraging the highest professional and ethical standards in appellate advocacy by providing law students an opportunity to write an appellate brief and to present oral arguments before distinguished reviewing court jurists and appellate practitioners.

A participant addresses the bench during the Association's annual moot court competition.

This year's competition kicked off on Friday, November 1st at the Dirksen federal building in Chicago. As in the past, the competition drew teams from Texas to New York, as well as from many local schools. During the preliminary rounds, participants presented oral arguments before ALA members, who served as judges. After the preliminary rounds, Sidley Austin LLP generously hosted a reception. Association President Brad Elward provided welcoming remarks while ALA members and participants mingled over cocktails and hor d'oeuvres. Thereafter, the moot court committee announced the teams advancing to the semi final round.

The competition continued the next day, in which Florida Coastal School of Law bested Benjamin N. Cardozo in the final round. Justice William E. Holdridge of the Illinois Appellate Court, Third District, presided over the final bench. Justice Donald Hudson of the Illinois Appellate Court, Second District, and Illinois Solicitor General and ALA Secretary Michael Scodro joined Justice Holdridge.

Justice William E. Holdridge presiding over the final argument.

The problem asked the participants to argue, from both the appellant's and appellee's perspective, a complex problem involving the federal Computer Fraud and Abuse Act. Specifically, the issue involved whether an employee acted “without authorization” when he accessed confidential and proprietary business information from his employer’s computer that he had permission to access, but then used that information in a manner inconsistent with the employer’s interests, and where the employee intended to use the information in that manner at the time of access. Participants also argued whether the electronic discovery costs were recoverable by the prevailing party under Rule 54(d)(1) of the Federal Rules of Civil Procedure, when those costs included electronic data storage, extracting metadata, hard-drive imaging, file conversion, and other e-discovery.

The ALA congratulates all students who participated in the program; and thanks the Appellate Court justices and ALA members who served as judges, the competition's sponsors, and the moot court committee for another successful competition.

Appellate Court Justices Present Tips and Practice Program

Mon, 09 Dec 2013 10:36:11 GMT

At his installation last June, ALA President Brad Elward outlined his vision of increasing the number of Association events held outside of Chicago so appellate practitioners downstate would have more opportunities to attend our programs. Toward that end, on November 13, 2013, the Association teamed with the Winnebago County Bar Association for a luncheon at the Forest Hills Country Club in Rockford.

ALA President Brad Elward welcomed Presiding Justice Michael J. Burke, Justices Kathryn E. Zenoff, and Joseph E. Birkett of the Illinois Appellate Court, Second District, and thanked the WCBA for its efforts in organizing the event. Presiding Justice Burke brought the audience up to date on the state of e-filing in the appellate court. Justice Zenoff, whose chambers are in Rockford, recognized many practitioners in attendance. She discussed and explained the Illinois Supreme Court Rules regarding briefs and oral arguments. Keeping with the cordial atmosphere of the luncheon, Justice Birkett joked that, to attorneys who do not practice appellate law, the rules and sections of the Code of Civil Procedure - “Rule 303, 308, 341, section 2-619, hike” - were similar to football plays that made no sense. Justice Birkett went on to explain the rules regarding interlocutory appeals.

The Association thanks Holly Nash and the Winnebago County Bar Association for its assistance in organizing the luncheon.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Welcome to the ALA's blog

Wed, 20 Feb 2013 21:02:33 GMT

This blog will be a place where members can post their comments and ask questions of colleagues. Please keep the tone of this blog professional.