By:  John M. Fitzgerald

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Click here to view the new First District Local Rules.

By:  Kimberly Glasford

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 13, 2021

Haage v. Zavala, No. 125918

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

May 18, 2021

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

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

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

May 19, 2021

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

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

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

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

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

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

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

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

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

By:  Linda Sackey

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

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

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

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

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

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

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