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.

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.

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.

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.

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.

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.

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,  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. 

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.

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.

*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.