Justice Robert L. Carter of the Illinois Appellate Court, Third Judicial District, was selected to join the Illinois Supreme Court on December 8, 2020.  Justice Carter will fill the vacancy of Justice Thomas L. Kilbride.

Justice Carter, a native of Ottawa, Illinois, has been a judge since 1979.  He was elected Circuit Judge in 1988 and became Chief Judge in 1993.  He has served on the Third District Appellate Court since 2006.

In December 2002, Justice Carter was elected Chair of the Conference of Chief Judges and re-elected in 2003 and 2005.  He completed a one-week course in mediation at the National Judicial College in Reno, Nevada, in the summer of 2001.  Since 1980, Justice Carter has been a lecturer at judicial education programs on topics such as jury trials, evidence, contempt, and domestic relations.

Before serving on the bench, Justice Carter served in the United States Army in Vietnam between 1969 and 1970 and was awarded the Army Commendation Medal.  He worked as a law clerk to Justice Howard C. Ryan of the Illinois Supreme Court from 1974 to 1975 and engaged in private practice from 1975 to 1979.  He holds A.B. and J.D. degrees from the University of Illinois at Champaign-Urbana, and a Master of Arts in Administration from Sangamon State University. 

Justice Carter's appointment will terminate December 5, 2022.

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

The Illinois Supreme Court recently shed light on the circumstances in which an employer can be sued in a particular venue based on the work performed by employees from their homes. This decision is timely given the increasingly virtual business environment that has evolved in response to COVID-19. 

The plaintiff in Tabirta v. Cummings was injured in an auto accident in Ohio. He filed suit in Cook County against the other driver and the other driver’s employer, neither of whom were residents of Cook County. However, the other driver’s employer was a food-product manufacturing company who delivered products to grocery stores in the collar counties and had hired an account representative, Bolton, who resided in Cook County. The plaintiff argued that venue was proper under the Illinois venue statute because Bolton’s home office constituted an “other office” of the company. Alternatively, the plaintiff argued that Bolton’s work from his home meant the company was “doing business” in Cook County. See 735 ILCS 5/2-102.

The Court acknowledged that Bolton’s home office was an “office” in the plain, ordinary sense of the word, but held it was not an “other office” for purposes of the venue statute. The evidence showed that Bolton spent about 20 hours per week working from home, during which he communicated with customers by phone and email. Although Bolton acted as the “point person” for the grocery stores in the collar counties, he did not sell any products and there was no evidence that the company hired him because he lived in Cook County—he was hired based on his extensive experience in the food industry, and his employment would not have been affected if he moved to a different county. Further, the company did not pay any of the expenses associated with Bolton’s residence and did not hold out to its customers that the residence was a company office.

As to whether the company was “doing business” in Cook County under the venue statute, the Court noted that this requirement could only be satisfied if the company was conducting “usual and customary business” from within Bolton’s residence. However, the company had no other offices or facilities in Cook County, nor did it design, manufacture, advertise, finance, or sell products from within Cook County. Although 0.19% of the company’s total sales were to customers in Cook County, this minuscule volume was insufficient to constitute “doing business” under the venue statute. Thus, the Court held that Bolton’s work from his Cook County residence was “merely incidental” to the company’s usual and customary business of food product manufacturing.

In a special concurrence, Justice Kilbride emphasized that whether a home office qualifies as an “other office” under the venue statute turns on the specific facts adduced in each case, and there is no one-size-fits-all solution. Justice Kilbride’s cautionary concurrence should resonate with employers and employees alike. Regardless of what the future holds for post-COVID working conditions, it seems certain that a large percentage of business will continue to be conducted from home offices. Your vacation home in Galena may be lovely this time of year—but think about whether you would want your company to be sued there before you pack up your work and head west for the holidays.

By:  Kimberly Glasford

Last week, in Goral v. Dart, 2020 IL 125085, the Illinois Supreme Court held that employees of the Sheriff of Cook County were not required to exhaust administrative remedies before challenging the statutory authority of the Cook County Sheriff’s Merit Board (Merit Board) to preside over pending disciplinary charges. The supreme court also determined that if the Merit Board lacked statutory authority, the de facto officer doctrine would not salvage the administrative proceeding.

Thomas Dart, the Sheriff of Cook County, filed disciplinary charges against several employees. While those administrative proceedings were pending before the Merit Board, the employees filed an action in the circuit court, seeking a declaration that the Merit Board’s composition did not comply with the Counties Code (55 ILCS 5/3-7011 (West 2012)). The plaintiffs argued that this negated the board’s authority to act.

The circuit court dismissed the action based on the plaintiffs’ failure to exhaust their administrative remedies, but the appellate court found the authority exception to that requirement applied. The appellate court also found that the de facto officer doctrine would not validate the Merit Board’s actions. The supreme court granted the plaintiffs leave to appeal.

On appeal, the supreme court recited the well-settled principle that a party may not seek judicial review of an unfavorable administrative decision unless he has exhausted all administrative remedies. This requirement furthers efficiency by giving agencies the opportunity to correct their own mistakes and defers to agencies’ factfinding and expertise. That said, an exception exists where a party challenges an agency’s “jurisdiction” as being not authorized by statute, a matter that involves neither factual issues nor agency experience.

The supreme court found that the plaintiffs’ challenge to the Merit Board’s composition, filed before any substantive action was taken by the board, fell within the authority exception.

In reaching this decision, the supreme court rejected the defendants’ assertion that the authority exception is limited to situations where an agency promulgates a rule outside the scope of the subject matter assigned by statute. Additionally, the legislature did not vest the Merit Board with the authority to make decisions regarding its own composition and such decisions did not fall within the board’s expertise. The supreme court also rejected the defendants’ assertion that the court’s ruling would expose the circuit court to a wave of interlocutory challenges, noting that lawyers are prohibited from filing frivolous lawsuits.

While defendants raised concerns about piecemeal litigation, the court found that “the height of inefficiency and waste is to allow the proceedings to continue before an administrative tribunal that is being challenged as illegally comprised,” which could lead to a void administrative decision. Goral, 2020 IL 125085, ¶ 63.

The supreme court also rejected the defendants’ assertion that the de facto officer doctrine saved the administrative proceedings and required dismissal of the circuit court action.

Under that doctrine, acts performed by a person acting under the color of official title are valid even though the legality of that person’s appointment is later discovered to be deficient. Such acts are valid to the extent that the public or interested third parties are concerned. The doctrine protects the public by preventing repetitious suits challenging actions by officials with questionable claims to office. Yet, the doctrine, a defense against collateral proceedings, does not preclude a timely challenge to an agency’s authority. “Thus, our precedent embraces the notion that, before being subjected to an administrative proceeding, a party should have some avenue to timely question and verify that the agency has authority to act.” Id. ¶ 73.

The supreme court found that the de facto officer doctrine did not apply because the plaintiffs challenged the Merit Board’s authority before the board had acted on the disciplinary charges.

The supreme court also disagreed with the notion that the plaintiffs were required to challenge the Merit Board’s authority via a quo warranto action, which is a proceeding to oust  an illegally appointed officer from office. The plaintiffs could not file a quo warranto action unless the State’s Attorney were to refuse to file the action and the circuit court granted the plaintiffs leave to do so. Consequently, a quo warranto action was not the most effective means of challenging the Merit Board’s authority.

Justice Michael J. Burke, joined by Justices Garman and Theis, dissented.  According to the dissent, the majority had misunderstood the historical context of the de facto officer doctrine and the authority exception to the requirement that parties exhaust administrative remedies did not apply. 

The Goral decision rewards prompt attacks on an administrative agency’s authority. Whether this results in an uptick in administrative litigants rushing to the circuit court remains to be seen.

By:  Linda Sackey

In Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644, 2020 WL 5867923 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers), Circuit Judge Michael Y. Scudder wrote a short and informative opinion on a topic that is of great interest to many appellate practitioners: how to write an amicus brief that assists the court in evaluating a case.

Judge Scudder observed that many amicus briefs do nothing more than rehash arguments that the parties have made. He notes that “[n]obody benefits from a copycat amicus brief,” and the court’s practice is to reject such briefs. Rather, Judge Scudder emphasized that an amicus brief should add something new, different, and important to the court’s consideration of the issues.

Among Judge Scudder’s suggestions for helpful avenues to pursue in an amicus brief are:

• Offering a different analytical approach to the legal issues before the court;

• Highlighting factual, historical, or legal nuance glossed over by the parties;

• Explaining the broader regulatory or commercial context in which a question comes to the court;

• Providing practical perspectives on the consequences of potential outcomes;

• Relaying views on legal questions by employing the tools of social science;

• Supplying empirical data informing one or another question implicated by an appeal;

• Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;

• Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.

The Chicago 7 Trial was one of the most famous trials ever to take place in a Chicago courtroom, and is the subject of a new Netflix film.  On Tuesday, October 20, 2020, from 3 to 4:30 p.m., the United States District Court for the Northern District of Illinois, along with the Federal Bar Association and Seventh Circuit Bar Association, is hosting a conversation with former Assistant United States Attorney Dick Schultz, the last living member of the Chicago 7 trial team.  U.S. District Judge Thomas Durkin and U.S. Magistrate Judge Jeffrey Cole will interview Mr. Schultz as he discusses one of the most notable trials in American history.

This is a free virtual seminar offering 1.5 credit hours of Illinois CLE (pending approval).  Registration is required, and those interested may register here.

The ALA congratulates Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit on her nomination for Associate Justice of the United States Supreme Court.

The Honorable Amy Coney Barrett was confirmed as a judge of the U.S. Court of Appeals for the Seventh Circuit in October 2017.

Judge Barrett earned her B.A. in English literature, magna cum laude, from Rhodes College. She earned her J.D., summa cum laude, from the University of Notre Dame, where she served as executive editor of the Notre Dame Law Review. 

Before joining the faculty of the University of Notre Dame Law School, where she was selected as "Distinguished Professor of the Year" by three of the Law School's graduating classes, Judge Barrett clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit and for Associate Justice Antonin Scalia of the U.S. Supreme Court.

Judge Barrett has been a friend and supporter of the ALA, and if confirmed by the Senate, she would be the first U.S. Supreme Court justice since John Paul Stevens to have previously served as a judge of the U.S. Court of Appeals for the Seventh Circuit.

(Biographical information courtesy of the University of Notre Dame.)

By:  John M. Fitzgerald

Much-deserved tributes continue to pour in for the late Justice Ruth Bader Ginsburg.  It is quickly becoming a cliché to call her an icon, a pioneer in the struggle for equal rights, and one of the most influential judges in recent American history.  Even those who vehemently disagreed with her in life now hail her, rightfully, as an American hero.

On Friday night, shortly after learning of her death, I struggled to explain to my 12-year-old daughter exactly why Justice Ginsburg mattered so much.  My daughter, like others in her age group, was vaguely aware that Justice Ginsburg was a great judge who fought for the rights of women.  But that general notion does not do justice to her full legacy.  Those “Notorious RBG” t-shirts were delightful but not very informative.

The most enduring legacy of any judge can be found in the bound volumes of reported decisions (or, in 2020, their digital equivalent).  And no single decision speaks more to Justice Ginsburg’s philosophy and legacy than United States v. Virginia, 518 U.S. 515 (1996).

That case can be distilled to its first three sentences, authored by Justice Ginsburg for the majority less than three years after her confirmation to the Supreme Court: “Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.”  Id. at 519.*

Perhaps sensing that she faced a historic moment, Justice Ginsburg took the opportunity to explain how the nation’s history led to a dispute over whether the equal protection clause prevented the Commonwealth of Virginia from barring female applicants from VMI.  After noting the modern legal standard — namely, that parties “who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action” (id. at 531) — Justice Ginsburg explained:

“Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history.  . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.  . . .

In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws.  Reed v. Reed, 404 U.S. 71, 73, 92 S.Ct. 251, 252-253, 30 L.Ed.2d 225 . . . . Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature – equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”

Id. at 531-32.  Justice Ginsburg had, of course, written the successful appellant’s brief in the Reed case.

In the wake of Reed, Justice Ginsburg explained, the Supreme Court “has carefully inspected official action that closes a door or denies opportunity to women (or to men).”  Id. at 532.  Such action requires an “exceedingly persuasive” justification, and that justification “must be genuine, not hypothesized or invented post hoc in response to litigation.  And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Id. at 533.

The Commonwealth of Virginia failed to meet that standard.  While Virginia claimed that it was important to offer its citizens the option of single-sex higher education, it offered no single-sex higher education opportunities to women.  “Virginia describes the current absence of public single-sex higher education for women as ‘an historical anomaly,’” Justice Ginsburg observed, “But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation.” Id. at 538. While Virginia claimed (with no apparent sense of irony) that VMI’s exclusion of women served the goal of “diversity” by offering Virginia residents single-sex higher educational opportunities, Justice Ginsburg could not “extract from that effort any Commonwealth policy evenhandedly to advance diverse educational options.” Id. (emphasis added).  The goal of diversity was not served by excluding women from VMI.  “However ‘liberally’ this plan serves the Commonwealth’s sons,” Justice Ginsburg concluded, “it makes no provision whatever for her daughters.  That is not equal protection.” Id. at 540 (emphasis in original).

To Justice Ginsburg, the case boiled down to this simple truth: “Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women.”  Id. at 520.  Even assuming that “most women would not choose VMI’s adversative method” of education, the question was simply “whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” Id. at 542. Generalizations about the preferences and capabilities of most women were insufficient.  After all, “Virginia never asserted that VMI’s method of education suits most men.” Id. at 550. (emphasis in original).

And the “notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other ‘self-fulfilling prophec[ies]’ once routinely used to deny rights or opportunities.”  Id. at 543.  After all, similar self-fulfilling prophecies had been used in early stages of the country’s history to exclude women from the bar and from attending medical schools. Moreover, women’s “successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded.”  Id. at 544-545. (That was quite an understatement, as subsequent experience has shown.)

Finally, Virginia did not cure the equal protection violation by creating a “parallel program” exclusively for women.  Even aside from the fact that the “parallel program” was significantly different in curriculum and educational methods from the experience offered to VMI cadets, VMI’s prestige was simply “unequaled.”  Id. at 556.

Justice Ginsburg concluded: “A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignores or excluded. VMI’s story continued as our comprehension of ‘We the People’ expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’” Id. at 557-58.

Justice Scalia’s dissent has not aged well.  Justice Scalia lamented the Court majority’s “destruction” of VMI.  Id. at 603.  His prediction was wrong.  As Justice Ginsburg understood, the inclusion of women would not ‘destroy’ VMI.  It strengthened VMI, which continues to thrive twenty-four years later.

In a heartening postscript, Justice Ginsburg visited VMI in 2017.  Shortly after her passing, VMI released the following statement: “During her 2017 visit to VMI, Justice Ruth Bader Ginsburg said she knew that her landmark decision to allow women among the ranks of the Corps of Cadets would make VMI a better school. Nearly 25 years later, VMI’s female alumni are among our nation’s leaders in corporate boardrooms, within our military, and within our communities.  VMI is saddened to hear of the passing of Justice Ginsburg. She was a courageous legal scholar whose impact on our Institute and our nation is an inspiration for all.”

How true.

*Quotations in this article omit internal citations and footnotes.

From September 21 to October 23, 2020, the Office of the State Appellate Defender is presenting a free, five-week online training course for attorneys who want to participate in the Illinois Supreme Court's pro bono criminal appeals program.  The course will walk participants through a criminal trial in Illinois to assist them in spotting issues to raise on appeal, familiarize participants with relevant Supreme and Appellate Court rules, advise them about client relations, and more.  Completing the course will qualify you to participate in the pro bono program.

The course schedule is flexible.  OSAD will release videos and supplemental materials once a week for five weeks.  Participants can review the weekly materials at their own convenience, and OSAD will hold "office hours" (via phone, email or Zoom) twice a week for participants to raise questions.  A detailed curriculum may be found here.

To register, email probono@osad.state.il.us.  Registration closes tomorrow, September 18.

By:  Carson Griffis*

In Heartland Bank & Trust v. Katz, 2020 IL App (1st) 182259, the Illinois Appellate Court reminded litigants that an order disposing of a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure, 735 ILCS 5/2-1401, must be appealed within 30 days.  In that case, the plaintiffs obtained a default judgment, and the defendants later filed section 2-1401 petitions to vacate that judgment.  The circuit court granted the petitions and the case proceeded to final judgment, after which the plaintiff attempted to appeal the grant of the section 2-1401 petitions.

The appellate court held that it lacked jurisdiction to consider that appeal, however, because the plaintiff did not file a timely notice of appeal.  The court noted that, under Illinois Supreme Court Rule 304(b)(3), a judgment or order granting or denying a section 2-1401 petition may be immediately appealed by filing a notice of appeal within 30 days, and the failure to do so deprives the appellate court of jurisdiction over such an order.  The appellate court emphasized that this conclusion was consistent with the nature of a section 2-1401 petition, which initiates new and separate proceedings attacking a final judgment rather continuing the same case.  Because an order disposing of such a petition ends those new proceedings entirely, it follows that such an order is final and appealable.

*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.

The Illinois Supreme Court's September Term begins Monday, September 14, 2020.  Oral arguments are scheduled for September 15, 16, 17, 22 and 23, 2020.  A total of 17 cases will be heard -- 12 civil and 5 criminal.  The following criminal cases are scheduled for argument this Term:

September 25, 2020

People v. Alejandro Reveles-Cordova, No. 124797 

People v. Demario Reed, No. 124940

People v. Justin Knapp, No. 124922

People v. Shawn Marlon Brown, No. 125203

September 23, 2020

In re J.M.A., No. 125680

Below is a summary for one of those cases, People v. Alejandro Reveles-Cordova.  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. Alejandro Reveles-Cordova, No. 124797

The one-act, one-crime rule provides that a defendant cannot have multiple convictions stemming from a single act and that a defendant cannot be convicted of a greater offense and a lesser-included offense when there are multiple acts.  The abstract elements test is used to determine whether a charged offense is a lesser-included offense of another charged offense.  Here, the Court is asked to determine how the abstract elements test should apply: should the Court analyze only the elements of the offense for which the defendant is charged and convicted, or should the court analyze all ways in which the offense can possibly be committed to determine if it is theoretically possible to commit the second offense without committing the first.  Here, defendant was convicted of criminal sexual assault and home invasion predicated on criminal sexual assault.  The Court must decide whether, under the facts here, the criminal sexual assault is a lesser included offense of the home invasion.

According to defendant, a split in appellate court authority has developed, reflecting the two approaches to applying the abstract elements test described above.  Defendant asserts that the Court should endorse comparison of the offenses only as charged.  Defendant claims this interpretation is more in line with how the Court has "historically" applied the abstract elements test and the one-act, one-crime rule, with apparent legislative acquiescence to case law holding that there can be no conviction for a greater offense and its predicate without expressed intent to do so, and with the goal underlying he one-act, one-crime rule: to prohibit multiple punishments for a single act.

The State argues in support of the other interpretation, that the abstract elements test should examine all ways that an offense can be committed to determine whether it is theoretically possible to commit the second offense without committing the first.  The State disputes defendant's characterization of the Court's relevant precedent, noting that a 2010 case, Miller, adopted use of the abstract elements approach for determining lesser-included offenses so that older precedent is less helpful.  The State emphasized that here there are indisputably multiple acts involved because home invasion involves (1) entering the victim's home, and (2) committing criminal sexual assault therein.  And when the one-act, one-crime doctrine applies, to multiple act cases, there can be multiple convictions, even given interrelated acts, so long as one offense is not a lesser-included offense.

Appellate Court Decision:  2019 IL App (3d) 160418.  Schmidt, P.J., with Carter, J., and O'Brien, J., concurring