"The Brief" - The ALA Blog

  • June 05, 2018 3:52 PM | Anonymous member (Administrator)
    Former ALA President and Illinois Solicitor General Michael Scodro, now a partner at Mayer Brown, as well as current ALA member and former Illinois Solicitor General Carolyn Shapiro, now an associate professor of law at Chicago-Kent College of Law, appeared on Chicago Tonight recently to discuss the "Most Controversial Cases" of the current term of the United States Supreme Court.


    The discussion included the recent decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the Colorado Civil Rights Commission’s actions of assessing a cake shop owner’s reasons for refusing to create a cake for a same-sex couple’s wedding celebration violated the free exercise clause, and Collins v. Virginia, which held that the Fourth Amendment’s automobile exception does not allow the warrantless entry of a home or its curtilage in order to search a vehicle therein. Additionally, the panel discussed other pending cases such as Janus v. AFSCME, involving union fair-share dues, and Gill v. Whitford, involving Wisconsin’s redistricting plan, as well as the Court’s denial of a petition for certiorari in Planned Parenthood of Arkansas v. Jegley, a case involving a challenge to an Arkansas law regulating medication abortions.




    If the embedded video does not work, you may watch here.


    Other panelists included Andy DeVooght, a partner at the firm Loeb and Loeb, and Daniel Hemel, assistant professor at the University of Chicago law school.


  • May 25, 2018 10:42 AM | Anonymous member (Administrator)

    By Margaret A. Manetti,

    Codilis & Associates, P.C.

    The Appellate Lawyers Association hosted the judges, administrators, and mediators of the United States Court of Appeals for the Seventh Circuit at its annual roundtable discussion and luncheon at the Union League Club of Chicago on May 15, 2018.


    The Court’s newest members, Judge Michael Brennan, Judge Michael Scudder, and Judge Amy St. Eve, joined the luncheon. Following tableside discussions with 11 judges from the Court, Deputy Clerk Chris Conway addressed new court rules concerning access to the record and a new timing and lighting system to be used during oral arguments. Next, a panel featuring Judge Michael Kanne, Judge Diane Sykes, and Judge Amy Barrett spoke about appellate practice, with ALA President Evan Siegel moderating the discussion.

    The panel of judges described their individual methods on preparing for oral argument and the involvement of their law clerks. Judge Sykes described how she chaired a committee that led the Court to introduce a new policy allowing oral arguments to be video-recorded at the request of counsel or the public. And Judge Kanne, who has served on the Court for 31 years, noted that one of the most important issues facing the Court and appellate community is protecting pro se litigants’ rights and obtaining counsel to represent them.


    The ALA congratulates Judge Brennan, Judge Scudder, and Judge St. Eve and expresses its appreciation to the entire Court and staff for their participation in the luncheon.


  • May 18, 2018 2:29 PM | Anonymous member (Administrator)

    The Chicago Transit Authority is seeking an attorney to work in the areas of compliance, policy and appeals. The ideal candidate will have at least seven years of legal experience, with at least three of those years related to appellate, policy, or compliance work. The attorney will handle the CTA’s appellate cases in both state and federal courts, from briefing the case to arguing it. In addition to the appellate work, the attorney will draft internal regulatory materials and provide legal advice regarding compliance issues.


    More information about the position and how to apply can be found here.


  • May 18, 2018 11:36 AM | Anonymous member (Administrator)

    On May 17, 2018, Justice Charles Freeman announced his retirement from the bench after a long and illustrious career in both public and private service. Justice Freeman was the first African-American to serve on the Illinois Supreme Court and retires after serving nearly 28 years as a justice of the Illinois Supreme Court.


    Justice Freeman graduated from John Marshall Law School in 1962 after obtaining his Bachelor of Arts from Virginia Union University eight years earlier. He worked in private practice and public service prior to becoming a judge. In 1976, he was elected to the circuit court of Cook County. Ten years later, Justice Freeman was elected to the Illinois Appellate Court and, in 1990, he was elected to the Illinois Supreme Court where he has served ever since. Justice Freeman's retirement will be effective June 14.


    The ALA congratulates Justice Freeman on a historic career.


    With Justice Freeman’s retirement, the Illinois Supreme Court appointed Justice P. Scott Neville, Jr. to fill Justice Freeman’s seat, effective June 15 until December 7, 2020. Justice Neville has served as a justice of the Illinois Appellate Court since 2004 following four years as a judge in the circuit court of Cook County.


    With Justice Neville being appointed to the Illinois Supreme Court, Judge Carl Anthony Walker of the circuit court of Cook County has been assigned to the First District Appellate Court until further order of the Illinois Supreme Court.


    The ALA congratulates Justice Neville and Judge Walker.


  • May 04, 2018 2:07 PM | Anonymous member (Administrator)

    Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018.  A total of 15 cases will be heard – 10 criminal and 5 civil.  The following 5 civil cases are scheduled for argument this term:


    Oswald v. Beard, No. 122203: May 22


    People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc., No. 122487: May 22


    American Family Mutual Insurance Co. v. Krop, No. 122556: May 22


    Cassidy v. China Vitamins, LLC, No. 122873: May 23


    Ameren Transmission Co. v. Hutchings, No. 122973 (cons.): May 23


    Below is a summary for one of the civil cases, People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc.  Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.


    FALSE CLAIMS ACT – ATTORNEY FEES

    No. 122487

    People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.


    The issue in this appeal is whether a relator bringing a qui tam action is entitled to attorney fees under the Illinois False Claims Act (“the Act”) when relator is itself a law firm.


    The relator brought a qui tam action under the Act alleging that the defendant failed to collect certain taxes as required by State law. The trial court found that the defendant violated the Act and awarded the relator damages and attorney fees, even though the relator, which is a law firm, represented itself in the suit.


    The First District Appellate Court affirmed the trial court’s finding of liability under the Act, but reversed the attorney fee award. The appellate court relied on Hamer v. Lentz, 132 Ill. 2d (1989), holding that an attorney bringing a pro se action under the Illinois Freedom of Information Act could not recover attorney fees, in concluding that the relator was not entitled to attorney fees. The appellate court noted that the Act’s purpose in providing attorney fees for a successful relator was to remove the hurdle of significant legal fees in order to expose fraud and waste. However, the appellate court found, that purpose was not furthered by awarding a law firm relator its own fees since it does not have to pay its own fees. The appellate court also emphasized that allowing law firm relators to collect attorney fees could encourage abusive fee generation and unnecessary litigation.


    In its petition for leave to appeal, the relator argues that the appellate court’s decision undermines the Act’s purpose of using private relators to pursue fraud claims because it provides a disincentive for law firms to file qui tam actions. The relator also argues that the potential for abusive fee generation is diminished by the fact that the Illinois Attorney General retains complete control over qui tam actions filed under the Act.


    Finally, the relator argued that under the federal False Claims Act, law firm relators are permitted to collect attorney fees.


    Appellate Court Decision: 2017 IL App (1st) 152668. Ellis, J., with McBride and Burke, JJ., concurring.

    PLA Allowed: 09/27/17


  • May 03, 2018 2:25 PM | Anonymous member (Administrator)

    Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018.  A total of 15 cases will be heard – 10 criminal and 5 civil.  The following 11 criminal cases are scheduled for argument this term:


    People v. Darien Harris, No. 121932: May 15


    People v. Jerome Bingham, No. 122008: May 15


    People v. Kirk Zimmerman (The Pantagraph, WGLT FM, and the IL Press Assoc., Intervenors), No. 122261: May 15


    People v. Torrence Dupree, No. 122307: May 16


    People v. Shane Harvey, No. 122325: May 16


    People v. Ahmet Gocmen, No. 122388: May 16


    People v. Derrick Bonilla, No. 122484: May 16


    People v. Jennifer Nere, No. 122566: May 17


    People v. Nelson Young, No. 122598: May 17


    People v. Jafaria Deforrest Newton, No. 122958: May 17


    Below is a summary for one of the criminal cases, People v. Ahmet Gocmen.  Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.


    People v. Ahmet Gocmen


    Defendant, Ahmet Gocmen, was arrested and charged with driving under the influence of drugs or combination of drugs (DUI drugs) under 625 ILCS 5/11-501(a)(4) (2015), and his driver's license was summarily suspended.  Defendant filed a petition to rescind the suspension, alleging that the officer did not have probable cause for the arrest.  The circuit court granted the petition, and the appellate court affirmed in a published split decision.


    Officer Beaty responded to a scene at 11:10 a.m. regarding an unconscious driver; paramedics were already present.  Beaty observed that defendant was in and out of consciousness, struggled to respond to verbal commands, and was confused about his location.  Paramedics told Beaty that he had a high heart rate, pinpoint pupils, and a "fresh track mark" on his arm.  In the vehicle, Beaty found a baggie containing an unidentified brown, granular substance, a used syringe, and a partial metal beverage can with burn marks on its interior and a tannish residue on its exterior that field-tested positive for an illicit drug.  Defendant told Beaty and paramedics that he was a diabetic, and Beaty testified to no training or experience in identifying drug use.


    The lower courts concluded that Beaty lacked probable cause to arrest defendant for DUI drugs given that the syringe and track mark could be explained by defendant's diabetes and that Beaty was not an expert in recognizing drug intoxication.


    Before the Illinois Supreme Court, the State argues for reversal on any of three bases, including that the appellate majority erred because: (1) interpreting the circumstances presented did not involve applying expertise in recognizing drug intoxication; (2) the low probable cause standard applied; and (3) laypersons as well as experts should be allowed to opine on whether a person observed is under the influence of drugs.  Defendant agrees with the majority that a non-expert should never be found competent to believe that a person is under the influence of drugs, whether at a probable cause stage or when testifying at trial.


  • April 18, 2018 8:18 AM | Anonymous member (Administrator)

    On April 17, 2018, the Illinois Supreme Court entered an order appointing the Honorable John C. Griffin to the Illinois Appellate Court, First District, effective May 2, 2018. Justice Griffin will be replacing Justice Simon, who has served on the court since 2012.


    The order can be found here.


  • April 06, 2018 1:01 PM | Anonymous member (Administrator)

    On Friday, April 27, the ALA will host its Signature Luncheon, featuring Dahlia Lithwick of Slate, who will discuss the current term of the United States Supreme Court, the current dynamics of the Court, as well as other matters of interest.


    Ms. Lithwick is one of the most recognized and respected voices in national legal journalism. A senior editor at Slate and contributing editor at Newsweek, she graduated from Yale University and Stanford Law School. She clerked for Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit and practiced law in Nevada before joining Slate, where she writes the “Supreme Court Dispatches” and “Jurisprudence” columns and hosts the popular “Amicus” podcast. Her work has appeared in The New York Times, Harper’s, The New Yorker, and The Washington Post. In addition, she has appeared on CNN and ABC and is a regular guest of “The Rachel Maddow Show.” In 2013, she won the National Magazine Award for her reporting on the Affordable Care Act, and she has twice been awarded an Online Journalism Award for her legal commentary.


    The event is sponsored by Baker McKenzie, Forde Law Offices LLP, Tabet DiVito & Rothstein LLC, and Winston & Strawn LLP. It will begin at noon and run until 1:30 p.m. at the Union League Club in Chicago (dress code must be followed). Attendees will earn one hour of MCLE credit.


    To register, please click here


  • April 05, 2018 8:10 AM | Anonymous member (Administrator)

    By E. King Poor

    Partner, Quarles & Brady LLP

    Going back to the early 1970s, federal courts have disagreed on a basic question of appellate procedure: If a case has been consolidated with others, does it remain independent when it comes to filing an appeal? The Supreme Court finally settled that question in Hall v. Hall, 2018 WL 1472897 (March 27, 2018) and did so with a unanimous and unequivocal “yes,” holding that a judgment in a consolidated case may be appealed immediately.


    Important practical considerations flows from the Hall decision—namely, parties in consolidated cases cannot wait to appeal. The appeals clock begins when judgment is entered for any consolidated case, and not when all the consolidated cases have been finally decided.

    Third Circuit Dismisses Appeal from a Consolidated Case


    The Hall case arose from a family dispute over real estate in the U.S. Virgin Islands. A mother had a falling out with her lawyer son over property that he managed and she then transferred her property to a trust. The trust later sued her son and his law firm for mismanagement. After the mother died, her daughter became the successor trustee and continued the suit against her brother.  The brother then sued his sister individually and the individual and trust cases were eventually consolidated.


    A single jury heard both cases. It rendered a verdict in favor of the brother in his individual case and against the sister in her trust case. But the verdict for the individual case was set aside for a new trial, while final judgment was entered against the sister in the trust case.


    The sister appealed the judgment against her. The Third Circuit dismissed the appeal for lack of jurisdiction reasoning that because the two cases had been consolidated “for all purposes,” the sister could not appeal when the individual case was still pending.

    Looking Back Over 200 Years, the Supreme Court Reverses


    The Supreme Court reversed.  Writing for a unanimous Court, Chief Justice Roberts pointed out that if there had been no consolidation, there would be no question about the sister’s right to appeal. But in light of the consolidation, the Court turned first to the language of Fed. R. Civ. P. 42(a) which permits trial courts to take the following steps for actions involving common questions of law or fact (1) join them for hearing or trial, (2) “consolidate” them, or (3) issue any order to avoid “unnecessary cost or delay.”


    The Court found that the word “consolidate” as used in Rule 42(a) was ambiguous. On the one hand, it noted that the term might mean “complete merger,” but on the other hand, it might mean simply a “joining together” without a case losing its “independent character.”  Because the term “consolidate” did not have a plain meaning, the Court looked to the “legal lineage” of the term going back to the first federal consolidation statute in 1813.


    Unlike other Supreme Court decisions that hinge on the text of a statute or rule alone, the Hall decision turned on history. In particular, the Court examined its own decisions, those of other federal courts, and leading treatises in the 125 years after the original 1813 statute and determined that there was a widely-shared consensus that consolidation meant only a joining together— with constituent cases remaining independent for appeal.


    The linkage to that history continued. In 1938, when the current Rule 42(a) was adopted, it was expressly based on the 1813 statute. Because of that, the Court reasoned, unless the drafters of the rule indicated an intent to give it a new meaning, the historical meaning governed. The Court rejected the idea that the drafters would “take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do.”


    Beyond its specific holding, Hall offers another lesson: history matters. To settle a decades-old division of authority in 2018, the Court looked to an 1813 statute and the legal authority that followed in its wake. That history, the Court concluded, resolved any ambiguity and therefore it held that consolidated cases retain their independent character for appeals.

    Practice Pointer - In Consolidated Cases, Don’t Wait to Appeal


    Before Hall, parties in some circuits may have considered waiting until all consolidated cases had been decided before appealing. No longer. With Hall, each consolidated case will have its own appeal clock once judgment is entered. And that’s the only clock that counts to preserve the right to appeal. In consolidated cases, when it comes to appeals, there’s no more waiting.


  • April 03, 2018 12:22 PM | Anonymous member (Administrator)

    By Joanne R. Driscoll 

    Forde Law Offices LLP

    While the advent of electronic filing has extended the time deadline within which jurisdictional filings can be made – from the end of business until 11:59 p.m. – counsel’s failure to allow enough time for uploading the filing before midnight can result in disastrous consequences.


    In Peraino v. County of Winnebago, 2018 IL App (2d) 170368, decided on March 30, 2018, the Illinois Appellate Court, Second District, dismissed an appeal for lack of jurisdiction because a post-trial motion to reconsider the granting of a summary judgment motion was stamp-filed 12:03 a.m. on January 4, 2017. The motion for reconsideration was due on January 3, 2017.


    On January 5, 2017, the plaintiff moved in the circuit court for leave to file his motion to reconsider nun pro tunc to January 3, 2017, contending that the I2File website would not upload his post-trial motion at 11:58 p.m. on January 3, 2017. The circuit court denied the motion, citing to local rule 22.01(N) (17th Judicial Cir. Ct. R. 22.01(N) (July 25, 2016)) and to provisions in the Illinois Supreme Court’s Illinois Electronic Filing User Manual (Ill. S. Ct., M.R. 18367 (eff. Feb. 3, 2014)) directed at technical failures experienced during electronic filing. The circuit court found neither rule applied because there were no technical defects in the software or electronic filing system, only user problems. The plaintiff appealed.


    The appellate court dismissed the appeal, sua sponte, for lack of jurisdiction because the plaintiff’s failure to file a timely post-trial motion meant that his notice of appeal was due within 30 days of the summary judgment order (January 3, 2017), and the plaintiff did not move the appellate court for leave to file a late notice of appeal under Illinois Supreme Court Rule 303(d) (eff. Jan. 1, 2015). The appellate court also vacated the circuit court’s order, holding that the circuit court lost jurisdiction to consider the plaintiff’s request to backdate his motion to reconsider. Although not pivotal to its decision, the appellate court agreed that “technical failures” referenced in electronic filing rules pertain to the malfunction of the court’s hardware, software or telecommunications facility; it does not include the failure of the user’s equipment.


    All may not be lost to the plaintiff, however, as the appellate court suggested one alternative still available – to request supervisory or other relief from the Illinois Supreme Court.



DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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