"The Brief" - The ALA Blog

  • January 28, 2019 4:46 PM | Anonymous member (Administrator)

    By: Carson R. Griffis
           Hinshaw & Culbertson LLP

    Most Illinois appellate practitioners know that, under Illinois Supreme Court Rule 302(a)(1), they can directly appeal a decision striking down a statute as unconstitutional to the Illinois Supreme Court. But what they may not realize is that such appeals are limited to appeals from "final judgments" finding laws unconstitutional. This is an important limit on the scope of Rule 302(a)(1). It was also the subject of the Illinois Supreme Court's recent decision in Gonzalez v. Union Health Service, Inc., 2018 IL 123025.

    In Gonzalez, the plaintiff filed a medical malpractice lawsuit against the defendant. The defendant moved to dismiss the lawsuit because it was immune from suit under the Voluntary Health Services Plans Act (215 ILCS 165/26). The trial court denied the defendant's motion to dismiss, finding that the 1988 amendments to the Voluntary Health Services Plans Act were unconstitutional special legislation. 

    The defendant directly appealed to the Illinois Supreme Court, citing Rule 302(a)(1) and the Court's supervisory authority as the bases of the Court's jurisdiction. The Court rejected the notion that Rule 302(a)(1) applied because a denial of a motion to dismiss is not a "final judgment." Rather, it is an interlocutory order. The Court noted that it had only entertained Rule 302(a)(1) appeals from interlocutory orders in two limited circumstances: 1) when the interlocutory order was otherwise appealable (e.g., an order granting or denying a request for an injunction); or 2) the order granted summary judgment in a declaratory judgment action challenging the validity of the statute. Because neither of those circumstances existed, Rule 302(a)(1) did not apply.

    But the Court didn't stop there. Citing its broad supervisory authority, the Court elected to review the circuit court's order anyway. The Court found that the trial court erred in denying the motion to dismiss because, even if the 1988 amendments were unconstitutional, the prior version of the law would remain in effect. And the defendant still enjoyed immunity under the old version of the law, meaning that the constitutionality of the 1988 amendments was irrelevant from the start. Thus, the Court vacated the trial court's order striking down the amendments and remanded for further proceedings.

    Gonzalez is important for two reasons. First, it clarifies that Rule 302(a)(1) usually applies to final judgments and lays out the two narrow exceptions to that general rule. Second, it demonstrates that Rule 302(a)(1) isn't the only way to seek immediate appellate review of an interlocutory order finding a statute unconstitutional. Practitioners may be able to ask the Illinois Supreme Court to invoke its supervisory authority through a motion for a supervisory order. Or they might seek review in the Illinois Appellate Court via a motion for a certified question under Rule 308. While Gonzalez may have limited Rule 302(a)(1), it didn't close the doors of the reviewing courts when important constitutional questions are at issue. 

  • January 25, 2019 7:58 AM | Anonymous member (Administrator)

    On March 1, 2019, the U.S. District Court for the Northern District of Illinois will celebrate its 200th anniversary at the Harold Washington Library Center. The event will commemorate the Court's bicentennial anniversary with a series of special events, beginning with the 200th Anniversary Celebration honoring the Court's impact on the community and the nation.

    Emmy Award and Edward R. Murrow Award-winning Chicago journalist Phil Rogers, who has covered the Court for decades, will offer remarks. The celebration will also include the release of an inspirational documentary film highlighting the places, cases, and people that have shaped the Court and the community.

    U.S. Senator Dick Durbin will receive special recognition and attend if his schedule permits.

    Where: Harold Washington Library Center, 400 South State Street, Chicago, Illinois 60605 

    When: Friday, March 1, 2019, 3 p.m.

    Ticket information will be forthcoming from the Northern District of Illinois Court Historical Association.

  • January 22, 2019 9:23 AM | Anonymous member (Administrator)

    On Friday, January 25, 2019, from 12:00 p.m. to 1:30 p.m., the Chicago Chapter of the Federal Bar Association will host a fascinating discussion by award-winning author and First District Appellate Court Justice David Ellis on the use of storytelling by lawyers to persuade an audience. A prolific author, Justice Ellis has published 14 novels, including several with acclaimed fiction writer James Patterson. Through his fiction writing, distinguished service on the bench, and his time as a practicing lawyer, Justice Ellis has a tremendous breadth of experience to share on writing, effective storytelling, and the art of persuasion. 

    The event will take place at The Chicago Bar Association, 321 South Plymouth Court, Corboy Hall, Chicago, Illinois 60604. One hour of CLE will be provided to participants, and lunch is included in the fee. There is a reduced rate for young lawyers (anyone under 40 with less than 10 years of practice experience). Those interested can register here.

  • January 17, 2019 8:25 AM | Anonymous member (Administrator)

    By Louis J. Manetti, Jr.

    Hinshaw & Culbertson, LLP

    Judge Easterbrook recently issued a chambers opinion that reminds appellate litigants that not all software functions are equally useful for determining the word count for an appellate brief. In Vermillion v. Corizon Health, Inc., Judge Easterbrook was alerted to the case when the appellees moved for permission to file a brief in excess of the 14,000 word limit. 906 F.3d 696, 696 (7th Cir. 2018). The appellees explained that although the appellant had certified that his brief contained less than 14,000 words, it actually contained 16,850 words. Id. The appellees asked for leave to file a brief containing 408 words on top of that already-excessive sum. Id.

    The Court confirmed that the appellant’s brief was, in fact, over the allowed word limit, struck the brief, and ordered the appellant to show cause why he shouldn’t be penalized for falsely certifying the word count. Id. In response, the appellant asked the Court to reinstate his brief because there were 15,315 words reported in the “Properties” tab of Microsoft Word. Id. He claimed that if the words expressed in Federal Rule of Appellate Procedure 32(f) were subtracted, and that, by his understanding, words in the brief citing “the record and appendix” were also excluded under the rule, he was under the word cap. Id. at 696-97.

    Judge Easterbrook pointed out two problems with this claim. First, the “Properties” tab in the Word software does not give an accurate representation of the word count as the Seventh Circuit defines it. Id. at 697. That specific tab omits footnotes from the word count, and under Court rules footnotes count towards the total amount. Id. This alone amounted to over 1,000 words in the appellant’s brief. Id.

    Second, Judge Easterbrook held that the appellant was misreading what kinds of words were excluded by Rule 32(f). The appellant argued that citations to the record and the appendix must not be included in the word count because they are not mentioned in Rule 32(f). Id. But Rule 32(f) is a list of exclusions: “Only those matters that are mentioned in Rule 32(f)’s list are excluded. Everything else counts.” Id. (emphasis in original).

    In the end, Judge Easterbrook ordered the appellant to file a conforming brief, and noted that each party would be subject to the 14,000 word limit. Id. The case serves as a useful reminder that appellate litigants should take care to comply with the word limits imposed by the Federal Rules of Appellate Procedure.

  • January 10, 2019 1:42 PM | Anonymous member (Administrator)

    The Illinois Supreme Court's January Term will begin on Monday, January 14, 2019. The term will include oral argument in 7 civil cases and 6 criminal cases between January 15 and January 24. Below is a listing of the 7 civil cases that will be heard:

    Wednesday, January 16, 2018:

    Fillmore v. Taylor, No. 122626

    Wednesday January 23, 2019:

    Van Dyke v. White, No. 121452

    People of the State of Illinois (County of Cook) v. Illinois Pollution Control Board, Nos. 122798, 122813 (cons.)

    LMP Services v. City of Chicago, No. 123123

    Doe v. Coe, No. 123521

    Thursday January 24, 2019:

    Roberts v. Board of Trustees of Community College District No. 508, No. 123594

    McCarthy v. Abraham Lincoln Reynolds Living Trust, No. 123622

    Below is a summary of one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

    LMP Services v. City of Chicago

    In 2012, the City of Chicago passed an ordinance governing the operations of food truck vendors in the city limits. Among other things, the ordinance contained two provisions at issue on appeal. First, it provided that food truck vendors could not operate within 200 feet of a restaurant entrance. Second, it provided that food trucks must install a GPS device for purposes of locating a food truck in the event of a food borne illness outbreak or similar public health event.

    LMP Services, a food truck vendor doing business as Cupcakes for Courage, challenged the ordinance as violating her substantive due process rights under the Illinois Constitution because it was an economic protectionist provision intended to benefit owners of brick-and-mortar restaurants at the expense of food truck vendors, and prevented her from pursuing her livelihood. She further challenged the GPS device requirement as an illegal search. The circuit court held that 200-foot rule was an appropriate exercise of the City’s police power and balanced the interests of restaurants and food truck vendors. It further held that the GPS requirement was not a search, but was an appropriate condition of licensure.

    The First District Appellate Court affirmed, specifically holding that the government is entitled to consider the relative amount of property taxes paid by each economic group when drafting legislation. It further held that requiring the installation of a GPS device was not a search because the government did not surreptitiously install the device, but rather, it required the food truck owners to install the device. 

    In its petition for leave to appeal, LMP Services argued that the appellate court relied on inapposite case law in reaching its holding. LMP Services also argued that the appellate court erred in holding that the GPS device was not a search.

  • January 09, 2019 10:32 AM | Anonymous member (Administrator)

    The Illinois Supreme Court's January Term begins on Monday, January 14th. The Term will include oral argument in 6 criminal cases and 7 civil cases between January 15th and January 24th. Below is a listing of the 6 criminal cases that will be heard:

    Tuesday, January 15, 2019: 

    People v. Dimitri Buffer, No. 122327

    People v. David Kimble, No. 122830

    People v. Ronald Greco, Nos. 122951 & 122952, cons.

    People v. Aaron Rios-Salazar, No. 123052

    Wednesday, January 16, 2019: 

    People v. Deontae Murray, No. 123289

    People v. Gerald Drake, No. 123734

    Below is a summary of one of the criminal cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

    People v. Dimitri Buffer, No. 122327

    17-year old Dimitri Buffer was sentenced to a 50-year sentence, for which he will be released at age 66, for first degree murder (while discharging a firearm). After briefing on his direct appeal was complete, the U.S. Supreme Court held in Miller v. Alabama, 567 U.S. 460, 479 (2012), that the Eighth Amendment bars mandatory life-without-parole sentences for juvenile homicide offenders (i.e., under age 18). Buffer filed a postconviction petition alleging that his 50-year sentence violated the Eighth Amendment. The trial court dismissed the petition at the first stage, and the appellate court reversed, vacated the sentence, and remanded for resentencing. The appellate court (1) held that defendant's 50-year sentence was a de facto life sentence; and (2) remanded for resentencing because remanding for second-stage postconviction proceedings would be inefficient.

    Before the Illinois Supreme Court, the State asserts that the appellate court erred in relying on life expectancy tables to support its finding that a 50-year sentence is de facto natural life and that the consensus in the Illinois Appellate Court is that some point between 54 and 59 years becomes functionally equivalent to life without parole. Common sense and experience comport with the conclusion that a 50-year sentence should not be considered a de facto life sentence. The State asked the Court to provide important guidance to Illinois courts by defining precisely what term-of-years sentence constitutes a de facto life sentence for Eighth Amendment purposes. If the Court holds that 50 years does qualify as de facto life, the State requests that the matter be remanded for second-stage postconviction proceedings (rather than resentencing) to allow the State to file responsive pleadings and assert possible procedural defenses.

    Defendant responds by arguing that 50 years should qualify as a de facto life sentence because it does not afford juveniles a meaningful opportunity to reintegrate into society and become productive citizens. Defendant also criticizes the sentence given that juvenile brains will finish developing decades before such long sentences conclude (when their behavior will likely be reformed) and that legitimate penological goals differ for juveniles. Defendant cites holdings from other jurisdictions on the question. Finally on this topic, defendant faults the State for evaluating only whether the sentence was "survivable." Defendant disagrees with the State's request that the Court define generally what term-of-years sentence constitutes de facto life for juvenile defendants and defends the appellate court's decision that it could order resentencing in the case's procedural posture. And if the sentence is deemed constitutional, defendant requests remand to the appellate court to consider whether the sentence comported with the Illinois Constitution, an issue the appellate court declined to address given its Eighth Amendment holding.

  • January 08, 2019 8:31 AM | Anonymous member (Administrator)

    UPDATE: Due to the extreme weather forecast for January 31, this event will be rescheduled. A new date will be forthcoming soon. 

    On Thursday, January 31, 2019, the Appellate Lawyers Association will host a reception honoring the Justices of the Illinois Appellate Court, First District. This year's special honorees are retired Illinois Supreme Court Justice Charles E. Freeman and Illinois Supreme Court Justice P. Scott Neville, Jr. 

    The reception is located at Hotel Allegro, 171 West Randolph Street, Chicago, Illinois., from 5 p.m. to 7 p.m. Hors d'oeuvres will be served. Additional details and registration information may be found after the jump. 

    Cost: $50 for public-sector ALA members; $55 for private-sector ALA members; $60 for public-sector nonmembers; and $65 for private-sector nonmembers.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5.00 administrative fee.Questions? Call (630) 416-1166, ext. 303


    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process. 

    2. Mail your completed registration form along with a check payable to ALA to:

    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, IL 60563

    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 416-9798. Additionally, payment is expected from no-shows.

  • January 07, 2019 2:14 PM | Anonymous member (Administrator)

    The advice is familiar. At continuing legal education seminars and in books and articles on legal writing, time and again, lawyers receive this admonition: Beware of lengthy quotations or string citations—they are not welcome by the reader, namely, the judge who will decide your case. The importance of heeding this caution was highlighted recently by the United States Court of Appeals for the Seventh Circuit in Chen v. Holder, __ F.3d __, 2013 WL 6482542 (7th Cir. Dec. 11, 2013).

    The Chen case involved a decision by the Board of Immigration Appeals denying asylum to a Chinese woman who claimed a serious risk of persecution if she were deported to China. In particular, the petitioner argued that, because she had given birth to two children while living in the United States—in violation of China's one-child policy—she faced a significant risk of forced sterilization if she returned to China. Id. at *1-2.

    But before addressing the merits of the appeal, the Seventh Circuit discussed the petitioner's brief. The court described the brief as consisting of "almost entirely of verbatim quotations" from either the administrative record or other Seventh Circuit decisions. Id. at *3. Even the summary of the argument section contained "entirely (not almost entirely)" extended quotations from Seventh Circuit opinions. In fact, in a brief of 49 pages, the court noted that there were "only five original sentences." A brief  "so composed is not helpful to either the reviewing court or to the client." Id.

    The court continued that, while often a weak brief signals a weak case, in this instance, the case was not "desperately weak." Id. Yet whatever the merits of the appeal, the court emphasized that "we cannot write a party's brief, pronounce ourselves convinced by it, and so rule in the party's favor. That's not how an adversarial system of adjudication works." Id. The court contrasted the inquisitorial systems of Continental Europe, Japan, and other parts of the world with our adversarial system, which relies more heavily on lawyers for evidence, research, and analysis. It pointed out that the dependence of American judges on lawyers to develop arguments is underscored by a judges-to-lawyers ratio in the United States, which is some six times greater than in Continental Europe. Id. at *3-4. The court summed up its view of the matter: "We're neither authorized nor equipped to write a lawyer's brief for him." Id. at *4.

    The court then turned to the merits and criticized the Board's and the immigration judge's analysis that downplayed the risk of forced sterilization that the petitioner might face if she returned to China. Id. at *4-6. But it finally concluded that the petitioner's failure to present evidence of her and her husband's financial resources to pay fines to avoid sterilization was a "fatal weakness" in her case and affirmed the Board's denial of asylum. Id. at 7.

    But back to the petitioner's brief. The Chen decision reinforces what is said at all those seminars, and in books and articles on legal writing: avoid an over-reliance on lengthy quotations. In the words of Justice Scalia and Bryan Garner, "[I]t will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your own words than in the stringing together of quotations from various cases." Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 128 (2008). To be sure, there is a time and place for well-chosen quotations in any brief, but the Chen case is a reminder that there can be too much of a good thing. Ultimately, the court wants to hear from the lawyer.

    Recommended Citation: E. King Poor, Cut-'n-Paste Briefs Don't Cut It: Chen v. Holder, The Brief , (January 7, 2014), http://applawyers-thebrief.blogspot.com/2014/01/cut-n-paste-briefs-dont-cut-it-chen-v.html

  • December 27, 2018 8:10 AM | Anonymous member (Administrator)

    By: John M. Fitzgerald

    The Illinois Supreme Court’s recent opinion in Carmichael v. Laborers’ & Retirement Board Employees’ Annuity & Benefit Fund of Chicago, 2018 IL 122793 (opinion filed Nov. 29, 2018) has already been the subject of considerable commentary. Commentators have tended to focus on Carmichael’s effect on the issue of pension reform. But another feature of Carmichael merits attention: namely, the Illinois Supreme Court’s increasing use of one particular canon of constitutional and statutory interpretation.

    Nearly four and a half years before the Illinois Supreme Court issued its opinion in Carmichael, the Court faced a separate issue concerning the meaning and scope of the Pension Protection Clause of the Illinois Constitution (Ill. Const., Art. XIII, sec. 5.), which provides that membership “in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.” In that case, Kanerva v. Weems, 2014 IL 115811, the Court invoked what had theretofore been a principle of statutory interpretation – the rule that “to the extent there is any question as to legislative intent and the clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioner.” Id. ¶ 36 (quoting Prazen v. Shoop, 2013 IL 115035, ¶ 39). In Kanerva, the Court promoted this principle of statutory interpretation to the realm of constitutional law, reasoning that the “construction of constitutional provisions is governed by the same general principles that apply to statutes.” Id. ¶ 36. Accordingly, from Kanerva onward, any ambiguity about the meaning of the Pension Protection Clause or its application is resolved in favor of the pensioner. This canon of constitutional interpretation is a steep hill for any advocate of pension reform to climb.

    The Court invoked this canon repeatedly in Carmichael, where the parties did not dispute the meaning of the Pension Protection Clause but hotly disputed its application to certain amendments to the Pension Code. Those amendments had eliminated a right previously enjoyed by certain pension system members to claim union service credit while on leaves of absence from their public-sector jobs. The Court unanimously held that those amendments violated the Pension Protection Clause. The Court had been asked to decide whether, under the relevant provisions of the Pension Code, the plaintiffs actually had previously enjoyed the right to claim union service credit. Thus, to the extent that those statutory provisions were ambiguous, the canon came into play. Citing Kanerva, the Court reiterated that “whenever there is any question as to the legislative intent and clarity of the language of a pension statute, it must be liberally construed in favor of the rights of the pensioners.” Carmichael, 2018 IL 122793, ¶ 36. The Court then concluded that the Pension Code prior to the amendments was “ambiguous on the question of whether the union salary while on leave of absence could be used as a basis for calculating the pension.” Id. ¶ 42. The Court pointed out that if the General Assembly “had intended [in the Pension Code] to exclude the union salary from the calculation of the pension base but not for contribution purposes, it would have clearly stated so” at various times when the Code was amended. Id. ¶ 44. In other words, terms that limit the rights of pensioners must be clearly and unambiguously stated in the text of the Pension Code. They will not be inferred.

    In this context, the standard for finding ambiguity is not exceedingly high. Reaching the separate issue of whether the term “pension plan,” as used in the Pension Code, encompassed defined benefit plans, the Court “note[d] that the existence of alternate dictionary definitions of a word or phrase, each making some sense under the statute, leads to the conclusion that the term in question is ambiguous.” Id. ¶ 61. The parties had cited multiple dictionary definitions of “pension,” each of which had some plausibility, and each of which arguably pointed in different directions. Id. ¶ 59. Thus, there was ambiguity, and that ambiguity “must be liberally construed in favor of the rights of the pensioners so as to apply to a defined benefit plan only and not to defined contribution plans.” Id. ¶ 63.
    This canon of construction will likely play a more prominent role in the Court’s constitutional jurisprudence in the coming years, and there is no compelling reason to limit its application to pension cases. Whenever a constitutional provision is directed toward a certain end, it makes sense to resolve ambiguities in favor of that end. In Kanerva and Carmichael, that end was protecting the rights of public-sector pension system members. But if another constitutional provision has as clearly defined a purpose as does the Pension Protection Clause, why not apply a similar canon of construction to resolve ambiguities in favor of that purpose?

  • December 21, 2018 7:17 AM | Anonymous member (Administrator)

    The Legislative Ethics Commission appointed Justice Carol Pope to serve as the permanent Legislative Inspector General on Tuesday. Justice Pope served on the Illinois Appellate Court, Fourth District, from 2008 to 2017, when she retired from the bench. Before that, Justice Pope served on the Circuit Court of Menard County and as Menard County State's Attorney.
    Justice Pope will replace acting Inspector General Julie Porter, who was temporarily appointed to the post in 2017. According to the website of the Office of the Legislative Inspector General, the Inspector General receives and investigates complaints of violations of any law, rule, or regulation or abuse of authority or other forms of misconduct by members of the General Assembly and all state employees whose ultimate jurisdictional authority is a legislative leader, the Senate Operations Commission or the Joint Committee on Legislative Support Services.

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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