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.

By:  John M. Fitzgerald

Words, like people, are known by the company they keep. This principle has been recognized in legal decisions for a very long time. This principle can help to unravel even the most perplexing ambiguities that appear on the face of statutes, regulations, contracts, wills, trusts, insurance policies, and even constitutional provisions. It is a principle with which more lawyers should be familiar.

In its most narrow manifestation, the “doctrine of ejusdem generis provides that when a statutory clause specifically describes several classes of persons or things and then includes ‘other persons or things,’ the word ‘other’ is interpreted as meaning ‘other such like.’”  People v. Davis, 199 Ill. 2d 130, 138 (2002) (citation omitted). More broadly, “where general words follow particular and specific words in a statute, the general words must be construed to include only things of the same kind as those indicated by the particular and specific words, and this rule is enforced in the construction of a statute, unless there is something in the statute or its context which shows that the doctrine of ejusdem generis should not be applied.” Bullman v. City of Chi., 367 Ill. 217, 226 (1937) (internal citations omitted).

“The reason for the rule is that if the legislature had intended that the general words apply without restriction, it would have used only ‘one compendious word.’” Brink's, Inc. v. Ill. Commerce Comm'n, 108 Ill. App. 3d 186, 190 (1982) (citation).  And the rule is versatile: “The application of the rule is not limited to statutes but extends to wills and other instruments.”  Id.

By way of illustration, the Illinois Supreme Court was once tasked with deciding whether a BB gun constituted a category I weapon for purposes of the Criminal Code. The Code defined a category I weapon to include “a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24–1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like nature.”  People v. Davis, 199 Ill. 2d 130, 133 (2002) (quoting the Code; emphasis added).  A BB gun did not meet the statutory definition of a firearm, and applying the ejusdem generis doctrine and the rule of the last antecedent, the Supreme Court held that “any other deadly or dangerous weapon or instrument of like nature” referred “only to weapons or instruments ‘such like’ the class of blade-type weapons which immediately preceded the clause in the provision, i.e., weapons or instruments that are sharp and have the ability to cut or stab.”  Id. at 139.  Because a BB gun was not like any of those blade-type weapons, it did not fall within the statutory definition’s catch-all clause for “any other deadly or dangerous weapon or instrument of like nature” and did not qualify as a category I weapon.  Id.

Similarly, when the Human Rights Act prohibited discrimination in a “public place of accommodation,” and that term was statutorily defined to include a long list of examples (such as “restaurants,” “hotels” and “public swimming pools”) as well as “other places of public accommodation and amusement,” that residual clause was held not to include an educational program at a university.  Bd. of Trs. of S. Ill. Univ. v. Dep't of Human Rights, 159 Ill. 2d 206, 211 (1994). The “examples listed in the Act are fundamentally different from institutions of higher education, which administer educational programs. The cited list of establishments are examples of facilities for overnight accommodations, entertainment, recreation or transportation. . . . Thus, what was anticipated by the General Assembly is a restaurant, or a pub, or a bookstore. What was not anticipated is an academic program of a higher education institution.”  Id. at 211–12. (The Human Rights Act was subsequently amended to expressly include undergraduate and postgraduate schools.)

The doctrine accommodates a “common drafting technique designed to save the legislature from spelling out in advance every contingency in which the statute could apply.” Pooh-Bah Enters., Inc. v. Cnty. of Cook, 232 Ill. 2d 463, 492 (2009) (citing 2A N. Singer & J. Singer, Sutherland on Statutory Construction § 47:17, at 370–73 (7th ed. 2007)). It is particularly appropriate because a drafter may not be able to spell out “every contingency” in advance, either because some contingencies are unforeseen, or because spelling out each contingency would have negative consequences.  For example, if the legislature is prohibiting something, spelling out each contingency might create “easy ways around the definition” and thereby provide a roadmap for evasion. Id. Citing the Singer treatise, the Supreme Court explained that the ejusdem generis doctrine “is justified on the ground that, if the general words were given their full and ordinary meaning, the specific words would be superfluous as encompassed by the general terms,” but if “the legislature had meant the general words to have their unrestricted sense, it would not have used the specific words.” Id.

In short, the doctrine – like most canons of construction – reflects a judicial effort to recognize the limitations of language and the challenges inherent in drafting.

Today at 12 p.m. CST, the Northwestern University Pritzker School of Law ACS Student Chapter and the ACS Chicago, DC, Madison, Michigan, Milwaukee, New Orleans, Northeast Ohio, Orange County, Philadelphia, Sacramento, San Diego, Tampa, and Virginia Lawyer Chapters, the Asian American Bar Association of Chicago, and the Women's Bar Association of Illinois are hosting a panel of appellate advocates, as they make the case for diversifying the appellate bar and discuss the critical importance of underrepresented law students and lawyers considering careers in appellate law.

Featuring:

Hon. Ann Claire Williams (Ret.), Of Counsel, Jones Day and former Circuit Judge, U.S. Court of Appeals for the Seventh Circuit

Brad Garcia, Partner, O'Melveny & Myers LLP

Juvaria Khan, Executive Director, The Appellate Project

Beverly Marie Jones, Assistant Appellate Defender, Office of the State Appellate Defender

Sopen Shah, Associate, Perkins Coie LLP; Member, ACS Madison Lawyer Chapter Board of Directors

Moderated by:

Shannon P. Bartlett, Associate Dean of Inclusion and Engagement and Instructor, Northwestern University Pritzker School of Law

Those interested in attending the Zoom webinar may register for free here.

The Institute for Well-Being in Law is presenting Well-Being Week in Law from May 3 through 7, 2021.  The event involves daily activities designed to raise awareness about mental health in the legal profession and encourage action across the profession to improve well-being.  The Institute encourages individuals, law firms, corporate legal departments, government entities, bar associations, and other entities in the profession to participate.

Guides for daily activities and other information may be found at the Institute's website.