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.

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.

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).

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.

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.

*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.

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

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, 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.

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. 

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.