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. 

President Joe Biden has nominated Candace Jackson-Akiwumi to the current vacancy on the U.S. Court of Appeals for the Seventh Circuit.  Jackson-Akiwumi is currently a partner in the Washington, D.C., office of Zuckerman Spaeder LLP, where she focuses her practice on complex civil litigation, white collar criminal defense, and investigations.

Jackson-Akiwumi received her bachelor's degree from Princeton University and her J.D. from Yale Law School.  After graduating, she served as a law clerk to the Hon. Roger Gregory of the U.S. Court of Appeals for the Fourth Circuit and the Hon. David Coar of the U.S. District Court for the Northern District of Illinois.  She then entered private practice for three years, and later served as a staff attorney with the Federal Defender Program, Inc., in Chicago for 10 years.  She also served as an Adjunct Professor at Northwestern Pritzker School of Law.

If confirmed, Jackson-Akiwumi would be the second judge of color to serve on the Seventh Circuit after Judge Ann Claire Williams, who retired in 2018. 

The Appellate Lawyers Association congratulates Candace Jackson-Akiwumi on her nomination to the Seventh Circuit.

By:  Carson Griffis*

One of the key questions in perfecting an appeal is determining when final judgment is entered.  In most circumstances, it’s clear.  But in some cases, a judge’s oral pronouncement can it more difficult to determine if a final judgment has been entered.

Rocha v. FedEx Corp., 2020 IL App (1st) 190041, illustrates such a situation.  In Rocha, the circuit court made an oral pronouncement that it was granting the defendant’s motion for summary judgment as to some of the counts of the plaintiff’s complaint, but also said that it planned to reduce that ruling to writing.  The remaining counts later went to trial, where the defendant prevailed.  The circuit court entered a judgment on the jury’s verdict, but still did not put its summary judgment ruling in writing.  More than 30 days later, the plaintiffs moved to vacate the judgment entered on the jury verdict and requested an extension of time to file a post-trial motion. The defendant then requested that the circuit court enter an order nunc pro tunc to reflect the oral summary judgment ruling and decline to exercise jurisdiction over the plaintiffs’ post-trial motion because more than 30 days had passed since judgment had been entered.  The circuit court entered the order granting summary judgment nunc pro tunc, stating that its oral pronouncement was clear and plaintiffs should have taken its oral pronouncement as the entry of summary judgment at the time it was made.  Thus, the circuit court denied the plaintiffs’ motion to vacate and extend the time to file a post-trial motion. Plaintiffs then filed a notice of appeal.

The defendant argued that the appellate court lacked jurisdiction because a final judgment disposing of all of the plaintiff’s claims had been entered when the court entered judgment on the jury’s verdict.  Accordingly, the defendant argued, the plaintiff’s failed to file a timely post-trial motion that would have extended the time to file their notice of appeal, thus rendering their notice of appeal untimely.  The plaintiffs, citing Illinois Supreme Court Rule 272, argued that the circuit court’s oral pronouncement regarding the defendant’s motion for summary judgment did not constitute a final disposition of those counts of its complaint.  Rather, final judgment had not been entered until the circuit court entered its written order granting the defendant summary judgment.

The appellate court agreed with the plaintiffs because, while it was clear that the circuit court was going to grant the motion for summary judgment when it made its oral pronouncement, it was unclear that it intended to enter final judgment at that time.  Because the circuit court stated that it planned to later reduce its ruling to writing, it had suggested that final judgment would not be entered until it issued a written order.  And although the circuit court later entered its written order nunc pro tunc to the date of its oral pronouncement, the appellate court held that an order cannot relate back in time if doing so would render a notice of appeal untimely.  Thus, the appellate court concluded that it had jurisdiction over the plaintiffs’ appeal.

For practitioners, Rocha highlights the importance of seeking clarity in any oral pronouncements and, when appropriate, requesting that any oral pronouncements be reduced to writing as soon as possible.

*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

In Shamrock Chicago Corp. v. Wroblewski, 2019 IL App (1st) 182354, the First District of the Illinois Appellate Court tackled two issues that commonly cause confusion in Rule 304(b)(5) interlocutory appeals from contempt findings: what is the scope of the appellate court’s review, and what is the applicable standard of review?

The contempt finding in Shamrock Chicago arose from a discovery dispute: a defendant (Skyline) refused to turn over certain documents and information despite being ordered to do so, the plaintiff (Shamrock) filed a motion for a rule to show cause, and the circuit court held Skyline in civil contempt and imposed a monetary fine for its failure to comply with the discovery order.

Scope of Review: Predictably, the plaintiff-appellee (Shamrock) wanted to restrict the scope of the appellate court’s review as much as possible.  “Shamrock argues that we cannot review the underlying discovery order, partly because the order holding Skyline in contempt constitutes the only order subject to review.”  Id., ¶ 17. Skyline, meanwhile, attempted to use its Rule 304(b)(5) interlocutory appeal to challenge a TRO that was related to the discovery order.  Id.

Both parties were wrong.  First, Shamrock was wrong to suggest that the discovery order underlying the contempt finding was beyond review.  “The law is well settled that when a contempt order based on a discovery violation is appealed, the underlying discovery order is also subject to review.”  Id., ¶ 18.  Skyline was held in contempt for violating the discovery order, so the appellate court’s review encompassed both the contempt finding and the underlying discovery order.  Id.  Meanwhile, Skyline was wrong to use its Rule 304(b)(5) appeal from a contempt order (which was based on an underlying discovery order) as a vehicle for challenging a TRO.  “Rule 304(b)(5) provides limited jurisdiction that, as we said, involves just the contempt order and the underlying order on which it is based.”  Id., ¶ 19.

Finally, Shamrock attempted to block review of the underlying discovery order by saying that it was something other than a discovery order.  Because the circuit court had appointed a CPA to monitor Skyline’s compliance, Shamrock argued that the underlying order was not a discovery order at all, but one appointing a receiver.  The circuit court and the parties had referred to the CPA as a “receiver,” but this was a misnomer  “Receivers have functions based on the relevant statutory schemes allowing for their appointment, but, generally, a receiver takes possession of and holds disputed assets pending resolution of the parties’ claims.”  Id., ¶ 22.  In this case, the court-appointed CPA took possession of no assets; his role was to analyze documents and to supervise Skyline’s compliance — “a role commonly referred to by judges in Illinois as ‘facilitator in discovery.’”  Id., ¶ 23.  Thus, the underlying order was, in fact, a discovery order and fell within the scope of the appellate court’s review.

Standard of Review: The parties next disputed the applicable standard of review.  “We do not fault the parties for relying on disparate standards of review,” the appellate court explained, since “both parties cite cases that apply their proposed standard.”  Id., ¶28.  And, indeed, one case suggested an abuse of discretion standard while another suggested a manifest weight of the evidence standard.  As the Illinois Supreme Court held in In re Marriage of Logston, 203 Ill. 2d 266, 286-87 (1984), however, this apparent split in authority is not really a split at all:  both standards apply.

Logston “makes explicit a system of double deference to the trial court in contempt proceedings,” the appellate court explained.  Id., ¶ 29.  “If the trial court’s factual findings are in dispute, we review the record and only reverse those findings that are against the manifest weight of the evidence.  If the trial court’s factual findings are not in dispute or if those findings are consistent with the manifest weight of the evidence, we review the contempt order for an abuse of discretion, considering the relevant facts.”  Id.  This “two-step” is “consistent with the role typical to each standard of review,” since the abuse of discretion standard “provides deference to the trial court’s ultimate conclusions,” while the manifest weight of the evidence standard “provides deference to the trial court’s fact-finding . . . .” Id., ¶ 30.  “So, where the factual findings are correct or if we determine they are not against the manifest weight of the evidence, we determine whether it was reasonable for the trial court to reach its ultimate ruling based on its factual findings.”  Id.  Since no one disputed any factual findings by the circuit court, “we need not review the factual findings, but decide whether the trial court’s contempt order constitutes an abuse of discretion.”  Id., ¶ 31.  Because the circuit court did not abuse its discretion, the underlying discovery order was affirmed.  Id., ¶ 47.

In times of crisis, the Illinois Bar Foundation's Warren Lupel Lawyers Care Fund provides economic aid to lawyers and/or their families to help ensure their needs for adequate housing, medical care, and other essentials are met. While funding is not intended to be long-term or a recipient’s primary form of support, monthly Lawyers Care payments fund necessities like physical therapy, treatment and counseling services, prescription medications, medical bills, rent and utilities, and more during trying times. Throughout the years, this resource has become a vital lifeline for many attorneys in need.

The program is open for all attorneys admitted to practice law by the ARDC with a primary practice in Illinois. All applicant information is kept 100% confidential. For more information, visit the Fund's website.

By:  Richard C. Harris, Adler Murphy & McQuillen LLP

In Munoz v. Bulley & Andrews, LLC, 2021 IL App (1st) 200254, the Illinois Appellate Court, First District, recently answered the question of whether a party is entitled to immunity under the exclusive remedy provision of the Workers’ Compensation Act based solely on its preexisting contractual obligation to cover benefits and insurance premiums. The First District  answered this question in the affirmative, even though the contractually obligated party was not the injured worker’s direct employer.

Bulley LLC executed an agreement to be the construction manager for a project at a building in Chicago. The agreement required the LLC to purchase and maintain workers’ compensation insurance for the employees of its subcontractors. The LLC procured a policy and named Bully Concrete, among others, as additional insureds. Thereafter, the LLC hired Bully Concrete to perform work for the project. Although Bulley Concrete was a wholly owned subsidiary of the LLC, the companies were distinct and separate. They performed different specialties, had their own presidents, and employed different people.

The plaintiff sued the LLC and alleged he was injured on the worksite during the course of his employment for Bulley Concrete. The LLC moved to dismiss the claim on grounds that it was legally obligated to pay the plaintiff’s workers’ compensation benefits and had, in fact, paid more than $76,000 in medical bills. In response, the plaintiff argued that his workers’ compensation claim was made only against Bulley Concrete. Moreover, the plaintiff argued, a parent company is not shielded under the Act from a lawsuit by an injured employee of its subsidiary.

In affirming the circuit court’s dismissal, the appellate court noted that the Act’s exclusive remedy provision is part of the quid pro quo which balances the sacrifices and gains of employees and employers. In past cases, the Illinois Supreme Court held that allowing a party who paid nothing toward workers’ compensation benefits to escape tort liability under the Act’s exclusive remedy provision would be tantamount to allowing the party to “have its cake and eat it too.” Other cases held that a general contractor did not become an injured worker’s employer under the Act merely because it paid the benefits, reasoning that the aforementioned quid pro quo cannot be maintained if a party is permitted to selectively decide whether it will cover the benefits after an employee is injured.

However, when a general contractor assumes a pre-existing contractual obligation to pay the premiums for every worker on the jobsite, and, in fact, pays the benefits for an injured employee, the general contractor may avail itself of the Act’s exclusive remedy provision. To hold otherwise would equate to “declaring that a party who has paid for the cake may neither keep it nor eat it.”

The Chicago Bar Association In-Court Attorney Program is seeking qualified attorneys to be appointed to represent clients on appeal in Juvenile Child Protection cases.  Interested attorneys should complete an application that will be reviewed by The Chicago Bar Association In Court Committee.   Applicants will generally be required to have 5 years of legal practice experience with some experience in Juvenile Child Protection cases and some appellate experience.  This program offers an opportunity to get additional appellate experience, receive some monetary compensation, and help both parents and juveniles exercise their rights.

Attorneys will represent both parents and minors in juvenile court appeals where the Public Defender’s office, which generally represents parents, or the Office of the Public Guardian, which generally represents minors, has a conflict. Most of the cases arise from Circuit Court orders terminating parental rights, but some arise from other orders, such as findings that minors should be made wards of the court or closing cases to guardianship. Appointed attorneys will be compensated in accordance with Illinois Supreme Court Rule 299. The costs of the appeal in these cases are waived, and transcripts and records are provided without charge.

APPLICATION PREREQUISITES

1. Member in good standing of the Illinois Bar.
2. Completion of an accurate application for admission to the program.
3. Acceptance by the Screening Panel.
4. Agreement in writing to comply with the Regulations and Rules of the Program, the Code of Professional Conduct of the Illinois Supreme Court, and the Rules of the Circuit Court.
5. Malpractice insurance (a copy of the Declarations Page must be attached to the application).
6. Completion of right to privacy waiver.
7. Acceptance by the Screening Panel of the application is subject to the approval of the Presiding Judge of the Child Protection Division of the Circuit Court of Cook County.
8. If approved, attorneys will be required to complete a three-hour program entitled, "Effective Appellate Advocacy in Termination of Parental Rights Cases," which will be made available to them.
9. There is no charge for application or admission to the referral program nor is there a requirement that applicants be a member of any bar association.

To receive an application, or for additional information, please contact:

By:  Kimberly Glasford

Recently, in People v. Kadow, 2021 IL App (4th) 190103, the Illinois Appellate Court, Fourth District, considered a plain error argument raised by the defendant for the first time in his reply brief. The court also advised the defendant that the better practice would have been to raise plain error in his opening brief. But perhaps that depends on one’s perspective.

In Kadow, the defendant raised a Miranda violation under the ineffective assistance of counsel umbrella in his opening brief, but apparently did not raise the Miranda violation in its own right. In his reply brief, he then added that the Miranda violation itself amounted to plain error.

The reviewing court stated:

 “We first note plain error was not argued in defendant’s opening brief and, as a result, the State has not had the opportunity to argue forfeiture. Although the better practice would have been to raise the plain error arguments in his opening brief, our supreme court has told us we may still conduct a plain error analysis even if it was raised for the first time in an appellant’s reply brief.” Id. ¶ 16.

First, it bears mentioning that the plain error doctrine provides an exception to forfeiture, not the other way around. See People v. Caffey, 205 Ill. 2d 52, 103 (2001). While the court did not explain why the defendant’s omission of “plain error” arguments from his opening brief denied the State the opportunity to argue forfeiture, the State would likely have known to raise forfeiture had the defendant raised the Miranda violation in its own right in his opening brief, even without characterizing it as plain error.  More importantly, perhaps, it is well settled that the State may forfeit forfeiture. People v. Williams, 193 Ill. 2d 306, 347 (2000).

Raising plain error in the opening brief may be better from the perspective of the State and the reviewing court, but a defendant may prefer to give the State the chance to forfeit any forfeiture. That said, as a practical matter, raising an error under the umbrella of ineffective assistance of counsel will likely alert the State that forfeiture has indeed occurred. And in that context, perhaps including a plain error argument in the opening brief is the better practice from any perspective.