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.

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.

Stacey Mandell

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.

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.

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.

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.

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.

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.”

*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.

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.

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.