"The Brief" - The ALA Blog

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  • August 23, 2019 3:05 PM | Carson Griffis (Administrator)

    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. 


  • August 13, 2019 8:37 PM | Carson Griffis (Administrator)

    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.

  • August 08, 2019 8:59 AM | Carson Griffis (Administrator)

    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. 

  • August 02, 2019 8:58 AM | Louis Manetti (Administrator)

     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.

  • July 23, 2019 7:15 PM | Carson Griffis (Administrator)

    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.

  • July 18, 2019 8:57 AM | Louis Manetti (Administrator)

    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.

  • July 17, 2019 8:31 AM | Louis Manetti (Administrator)

    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.

  • July 03, 2019 9:17 AM | Louis Manetti (Administrator)

    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). 

  • July 02, 2019 8:46 AM | Louis Manetti (Administrator)

    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/

  • June 13, 2019 12:09 PM | Carson Griffis (Administrator)

    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

    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.

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