The ALA is excited to announce a new pro bono opportunity for appellate lawyers that is launching this fall: Illinois Free Legal Answers for Civil Appeals. This American Bar Association project is sponsored by the Administrative Office of the Illinois Courts, the Illinois Supreme Court Commission on Access to Justice, and the Public Interest Law Initiative (PILI). It operates as a virtual legal advice clinic for civil legal issues where low-income Illinoisans can submit a question about their civil appeal. It is a limited scope opportunity, and volunteer attorneys who provide brief advice and counsel through the website will be covered by professional liability insurance maintained by the ABA. Volunteer lawyers log on to the site at their convenience and answer questions waiting in the queue.

The program is currently seeking volunteers who have experience in appellate practice. You can visit https://www.pili.org/appellate for more information and to sign up for updates.

In Davis v. Village of Maywood, 2020 IL App (1st) 191011, the First District of the Illinois Appellate Court held that a party demonstrated good cause to justify a late filing based on his attorney's "minor, understandable" e-filing error. 

Plaintiff's counsel attempted to e-file a complaint on the morning of the day the statute of limitations was set to expire.  When submitting the complaint, he entered his Cook County Attorney Code in the "Lead Attorney" field but did not reenter it in the field labeled "Case Cross Reference Number."  Four days later, the circuit court clerk reviewed the submission and rejected it because counsel did not reenter his Cook County Attorney Code.  Counsel resubmitted the same complaint with the Code later that day, and it was accepted.  The circuit court later dismissed the complaint as untimely.

The First District reversed, holding that plaintiff established good cause for the late filing under Illinois Supreme Court Rule 9(d)(2), which states that a party may "seek appropriate relief from the court, upon good cause shown" if an e-filed document "is rejected by the clerk and is therefore untimely."  The court emphasized that the complaint itself was substantively correct, that the e-filing submission contained all of the other necessary information, and that it was "neither . . . obvious nor intuitive" that counsel should have reentered his Attorney Code in the "Case Cross Reference Number" field.  The court also noted that the e-filing platform and Cook County circuit court clerk subsequently warned users about this very problem, showing that the field's label was unclear.  Because the name of that field was "confusing at best and misleading at worst," it contributed to counsel's error and constituted good cause. 

The First District's opinion may be found here.

In February, the Illinois Supreme Court created the Volunteer Pro Bono Criminal Appeals Program to assist the Office of the State Appellate Defender with a backlog of appeals that has accumulated over many years due to underfunding. This is an important initiative for the Court, and furthers the Court’s commitment to improving access to justice.

The Program provides a unique opportunity for appellate lawyers to get involved in pro bono service. There are a number of ways to participate:

1.  Volunteer to handle a direct criminal appeal. The Illinois Supreme Court recently issued amended eligibility criteria for serving as a volunteer pro bono attorney. Appointed attorneys must only have participated in two prior appeals, or have served in various government agencies or judicial clerkships. Oral argument will be strongly considered in these appeals.

2. Supervise an attorney who does not meet the eligibility criteria. Newly licensed attorneys and friends and colleagues who do not otherwise meet the eligibility criteria may handle these appeals under the supervision of a qualified appointed attorney. This is an excellent opportunity to help others get appellate experience.

3. Mentor a law student looking for legal experience. Law students may not be of record to handle these appeals. However, a qualified appointed attorney may informally mentor a law student by having them work on limited aspects of the appeal (e.g., conducting research, assisting in writing the appellant’s brief, etc.), while the attorney makes all appearances before the court. If you are interested in mentorship, please contact Gretchen Sperry at gsperry@hinshawlaw.com.

OSAD is also offering a free, CLE-eligible online training program to assist pro bono attorneys with substantive and procedural criminal law and to offer guidance on issue spotting. OSAD is also making some of their internal training materials available for review. Registration closes July 2nd. Please contact Laura Weiler at laura.weiler@osad.state.il.us for more information.

The Illinois Supreme Court has long been a supporter of the ALA, and this is our opportunity as ALA members and supporters to give back. Please consider applying for this program.

Earlier today, Seth Horvath, co-chair of the ALA's Rules Committee, addressed three proposals to amend the Illinois Supreme Court rules at a public hearing of the Illinois Supreme Court's Rules Committee held via Zoom.  Video of Mr. Horvath's comments can be seen here, starting around the 1:36:00 mark.

The ALA supported in part and opposed in part Proposal No. 19-05, which would make amendments to Illinois Supreme Court Rules 306, 315, 316, 318, 341, and 368.  The ALA also opposed Proposal No. 19-14, which would amend Rule 303(a)(2).  The specific reasons for the ALA's position on these proposals were outlined in a letter it submitted to the Illinois Supreme Court's Rules Committee on June 10, 2020, which can be found here.

Finally, the ALA expressed its opinion on Proposal No. 19-11, regarding an amendment to Illinois Supreme Court Rule 23, by reiterating its position that parties should be able to cite unpublished orders under that rule as persuasive authority, but not as binding precedent.

By:  Brad Jarka

In November 2018, we hosted our annual moot court competition and students gathered to argue whether Title VII’s prohibition on employment discrimination “because of . . . sex,” included protections for employees suffering an adverse employment action for their sexual orientation or gender identity. Six months later, and again just days ago, the United States Supreme Court took the case from moot to momentous.

The Court granted certiorari and consolidated three cases: Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC. On June 15 this year the Court ruled, six to three, that Title VII protects LGBTQ folks from workplace discrimination based on their sexual orientation or gender identity.

If you served as a judge or brief grader for our 2018 competition, you will find the discussion in all three opinions—the majority and each of two dissents—familiar. The case centers on complicated issues of statutory construction, causation, original public meaning, and hotly contested public policy. Our student competitors nonetheless anticipated and presented every argument the parties and the Court addressed. 

To the students and ALA members considering participation in our competition this year, as the 2018 problem shows, what is moot today may matter tomorrow. We hone our skills as appellate advocates to protect the rights and interests of real clients at the highest levels of our court system. We hope you will join us again this November!

By:  Dodie O'Keefe

In Lewis v. Lead Industrial Ass'n, 2020 IL 124107, the Illinois Supreme Court found the plaintiffs did not suffer any economic loss to sustain their tort claim where the only costs they sought to recover had been paid in full by Medicaid.

Nearly two decades ago, the plaintiffs, a class of parents, filed a civil conspiracy claim against four companies that had previously manufactured lead paint (the defendants), to recover the economic costs of lead toxicity blood screenings underwent by their children as required by the Lead Poisoning Prevention Act (Act) (410 ILCS 45/1 et seq. (West 2000)). Lewis, 2020 IL 124107, ¶ 3.

The circuit court subsequently found that the plaintiffs, two of whom were Medicaid recipients, had suffered no economic injury to sustain their claims where the screening costs had been fully covered by Medicaid and where there was no other evidence of expenses incurred by the plaintiffs for the screenings. Id. ¶¶ 7-8. In reaching its conclusion, the circuit court rejected the plaintiffs’ arguments that they were nevertheless entitled to recover those costs because the State could seek reimbursement for any recovery they received, and furthermore, whether Medicaid had paid those costs had no bearing on their right to recovery under the collateral source rule. Id. Because the plaintiffs had neither suffered from economic loss or physical injury, the circuit court entered summary judgment in the defendants’ favor. Id.

On appeal, the appellate court reversed that judgment, finding the plaintiffs had alleged a valid claim for economic injury because they had incurred an obligation for the screening costs under the Rights of Married Person Act (Family Expense Act) (750 ILCS 65/15 (West 2000)), which codifies parental liability for the expenses of their minor children. See Lewis, 2018 IL App (1st) 172894, ¶¶ 10, 15. The appellate court also found that the collateral source rule precluded the diminution of the plaintiffs’ recoverable damages by the benefits received from Medicaid. Id. ¶¶ 12-13. The supreme court disagreed.

In its opinion, the supreme court held that the plaintiffs suffered no economic injury because they did not incur an obligation for the screening costs under the Family Expense Act since they were never indebted to the medical providers who conducted the screenings. Lewis, 2020 IL 124107, ¶¶ 37-38. The court also rejected plaintiffs’ argument that an obligation was created based on the State’s right of recoupment under section 11-22 of the Illinois Public Aid Code (305 ILCS 5/11-22 (West 2018)) for any recovery they received, noting that right may only be exercised against a judgment against the wrongdoer and not to seek repayment from the recipients. Id. ¶¶ 40-41. Last, the court held that because the plaintiffs in this case did not suffer an economic injury, the collateral source rule, which “prescribes the methodology of awarding damages,” was inapplicable. Id. ¶¶ 49, 52.

In sum, the supreme court reemphasized that essential to every cause of action is some injury or harm to a legal right suffered by the plaintiffs. Id. ¶ 29.

The Illinois Supreme Court's May Term begins Monday, May 11, 2020.  For the first time, the Court will be conducting remote oral arguments using Zoom videoconferencing.  Oral arguments are scheduled for May 12, 13, and 14, 2020.  A total of 10 cases will be heard -- 6 criminal and 4 civil.  The following civil cases are scheduled for argument this Term:

 May 13, 2020

People ex rel. Dep't of Human Rights v. Oakridge Nursing & Rehab. Center, No. 124753

May 14, 2020

Sharpe v. Westmoreland, No. 124863

Goral v. Dart, No. 125085

United States v. Gilspie, No. 125483

Below is a summary for one of those cases, Sharpe v. Westmoreland.  Summaries for these cases 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. 

Sharpe v. Westmoreland, No. 124863

This case concerns two questions certified by the circuit court under Supreme Court Rule 308: (1) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request visitation with his or her deceased partner’s child as a step-parent under 750 ILCS 5/602.9(a)(3) (the Illinois Marriage and Dissolution of Marriage Act (“Marriage Act”)); and (2) whether a party to a civil union as defined by 750 ILCS 75/10 has standing to request parental responsibilities of his or her deceased partner’s child as a step-parent under 750 ILCS 5/601.2(b)(4).

The marriage of Crystal Westmoreland and Matt Sharpe was dissolved in January, 2013. As part of the dissolution, they agreed to a joint parenting agreement with respect to their child, A.S., who was then seven years old. While the parties shared equal parenting time, A.S.’s legal residence was with Sharpe. In November, 2013, Sharpe entered into a civil union with Kris Fulkerson. A.S. continued to reside with Sharpe and Fulkerson and her three children. Sharpe died on January 2, 2017. After his death, Westmoreland began to deny Fulkerson visitation with A.S., even though A.S. expressed a desire to live with Fulkerson and her children. Fulkerson then filed a petition seeking visitation rights and an allocation of parental responsibilities with respect to A.S.

The circuit court granted Fulkerson’s petition for leave to intervene, determining that she had standing as a step-parent under the Marriage Act to seek visitation with and parental responsibilities of her deceased partner’s child, A.S. Westmoreland argued that Fulkerson did not have standing because she is not a step-parent of A.S., given that she was never legally married to A.S.’s father as required by the definition of step-parent under sections 600(l) and 602.9(a)(3) of the Marriage Act (750 ILCS 5/600(l), 602.9(a)(3)).  The circuit court certified the above two questions under Rule 308 and the appellate court granted the petition for leave to appeal.

The appellate court explained the purposes behind the Marriage Act and Civil Union Act, explaining that while the Civil Union Act provides persons entering into civil unions with the same obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to those persons entering into marriages, the equation of partners’ rights and obligations in relation to each other does not necessarily equate civil union partners to married spouses in relation to children. The Marriage Act specifically addresses the allocation of parental responsibilities, including establishing visitation with a minor child by a nonparent. A step-parent under the Marriage Act is defined as someone who is or was married to the parent, immediately prior to his or her death. 750 ILCS 5/600(l), 602.9(a)(3). The court explained that neither of these sections mentions or includes partners to a civil union and held that the omission of any reference to partners joined by civil unions in the definition of step-parents reflects a legislative intent not to include civil union partners in the category of nonparents who have standing to seek visitation. The court then held that step-parentage requires a legal marriage as opposed to a civil union.  The appellate court answered both certified questions for interlocutory appeal in the negative, reversed the circuit court’s ruling and remanded for further proceedings. 

Fulkerson seeks relief in the Illinois Supreme Court, arguing in part that the appellate court’s opinion conflicts with the Religious Freedom Protection and Civil Union Act, 750 ILCS 75/1, et seq., deprives parties to civil unions of the rights the General Assembly promised them, and stigmatizes their relationship as second-class by denying them legal protections accorded to married couples.

The Illinois Supreme Court's May Term begins Monday, May 11, 2020.  For the first time, the Court will be conducting remote oral arguments using Zoom videoconferencing.  Oral arguments are scheduled for May 12, 13, and 14, 2020.  A total of 10 cases, 6 criminal and 4 civil, will be heard. 

The following criminal cases are scheduled for argument this Term:

May 12, 2020

People v. Ashanti Lusby, No. 124046

People v. Miguel DeLeon, No. 124744

People v. Ronald Lee Stoecker, No. 124807

People v. Kevin Jackson, No. 124818

May 13, 2020

People v. Joseph Hollahan, No. 125091

People v. Keith Gaines, No. 125165

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

People v. Ashanti Lusby, No. 124046

In People v. Bailey, 2017 IL 121450, the Court held that the circuit court must not seek or be influenced by State input when evaluating whether a defendant should be given leave to file a successive postconviction petition.  The first issue presented by this case is whether the appellate court can assess cause and prejudice (to decide whether leave to file should have been granted) following a Bailey error, or whether the appellate court must remand the matter back to the circuit court for consideration without the State's input.  In the analogous context of improper State influence during summary first-stage review of an initial postconviction petition, the Court has required remand.  Nonetheless, since Bailey, an appellate split has developed regarding whether the appellate court can reach the merits of the leave-to-file issue or must remand.  While defendant's brief remains largely silent on this issue, the State's brief acknowledges that the Court, under its broad supervisory authority, can reach the merits of the leave-to-file issue (as it did in Bailey).  But the State urges the Court to address the scope of the appellate court's authority to resolve the appellate court split.

The merits of the petition concern the constitutionality of defendant's sentence.  Following Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and People v. Holman, 2017 IL 120655, this case presents the question of whether a de facto natural life sentence (an aggregate 130-year sentence served eligible to be served at 50%) for an offender who committed crimes at age 16 violated the Eighth Amendment.  The State's position on the question first acknowledges that there is a procedural and a substantive component to the Eighth Amendment analysis.  The sentencer must consider youth and its attendant characteristics (the procedural component), before deciding on a proportionate sentence, in that the sentencer must determine whether the crimes reflected transient immaturity, so that a life sentence is unavailable, or reflect permanent incorrigibility, so that a life sentence is available (the substantive component).  Here, the State argues that the appellate majority erred in determining that the sentencer failed to honor this procedural component as reflected in its emphasis on the sentencer's failure to explicitly state that it considered the presentence investigation report that contained evidence relevant to youth and attendant characteristics.  The State further asserts that the appellate majority should have held that, under Holman's analytical framework, the sentence passes constitutional muster.  Defendant, in contrast, emphasizes the factual differences between this case and Holman in agreeing with the appellate majority's conclusion that the sentence violates the Eighth Amendment.

Finally, the State challenges the remedy that the appellate majority provided upon finding an Eighth Amendment violation.  Because the appellate court was reviewing the circuit court's order denying defendant leave to file his successive postconviction petition, the State insists that the majority erred in ordering a new sentencing hearing.  The State suggests that the majority instead should have remanded the matter to the circuit court for the petition to be filed and for second-stage postconviction proceedings to occur.  Defendant finds no fault in the majority's remedy, noting other Eighth Amendment precedent that provides new sentencing hearings even for cases in similar procedural posture.

Several reviewing courts located in Illinois have begun to hold oral arguments remotely, either by telephone or by online chat services.

The U.S. Court of Appeals for the Seventh Circuit has ordered all oral arguments through the end of April to be conduct by telephone.  On the day of the argument, the court calls counsel on a teleconference line and mutes them until it is their turn to argue.  The Presiding Judge on the panel keeps track of time and reminds counsel of the time limits.  For people interested in "attending" an argument, the Seventh Circuit livestreams audio of its arguments on its YouTube channel.

The Illinois Supreme Court announced that it is holding its May arguments via the Zoom teleconferencing platform.  The court has stated that it will hold training sessions with counsel to inform them of procedures for argument.  Like the Seventh Circuit, the Illinois Supreme Court will livestream its arguments on its own YouTube channel.

The Second District of the Illinois Appellate Court has used the WebEx videoconferencing platform for its April oral arguments.  The arguments are audio-only, and counsel may argue through the microphone on their computer or call in via phone.  The other districts of the Appellate Court have not yet announced procedures for remote oral arguments.

By: Richard Harris

The Illinois Supreme Court recently resolved a disagreement in the appellate court as to whether the doctrine of primary jurisdiction authorizes a circuit court to stay the proceedings before an administrative agency. In Hastings Mutual Insurance Co. v. Ultimate Backyard, LLC, 2012 IL App (1st) 101751, the First District answered that question in the affirmative. In West Bend Mut. Ins. Co. v. TRRS Corp., 2019 IL App (2d) 180934, the Second District declined to follow Hastings Mutual and held that the doctrine can only be applied to stay judicial proceedings pending the resolution of a specialized controversy before an administrative agency. The Supreme Court sided with the Second District and overruled Hastings Mutual.

West Bend involved a coverage dispute on a workers’ compensation claim. The injured worker, Gary Bernardino, underwent surgery to repair his torn rotator cuff. When Bernardino later learned he needed a follow-up surgery, he filed an “application for adjustment of claim” in the Illinois Workers’ Compensation Commission (IWCC). West Bend denied its responsibility for coverage, claiming Bernardino’s employers chose to cover his lost wages and medical expenses relating to the first surgery without reporting the injury to West Bend.

West Bend filed a complaint for declaratory judgment in the circuit court of McHenry County, seeking a declaration that it had no duty to defend or indemnify Bernardino’s employers in connection with his IWCC claim. Shortly thereafter, the IWCC scheduled an expedited hearing on Bernardino’s claim, which prompted West Bend to file an emergency motion in the circuit court to stay the IWCC proceedings until the declaratory judgment action was resolved. The circuit court agreed with West Bend that under Hastings Mutual, the doctrine of primary jurisdiction required the entry of an order staying the IWCC proceedings until the coverage dispute was resolved in the circuit court.

However, the Supreme Court agreed with the Second District that Hastings Mutual was wrong to allow the inverse application of the primary jurisdiction doctrine, which may be invoked when two courts share concurrent jurisdiction over the subject matter of the dispute. The doctrine holds that in certain instances, a circuit court should stay its own judicial proceedings pending the referral of a specialized controversy to an administrative agency having expertise in the area. The Supreme Court noted that it had never applied the doctrine to stay an administrative proceeding. The Court held, “[t]he doctrine operates to facilitate, not delay or otherwise hinder, an administrative agency’s resolution of a technical or specialized issue that requires administrative knowledge or expertise.”

Left open was the question of whether a circuit court possesses the inherent equitable power to issue the stay of an administrative proceeding pending judicial review. The Supreme Court declined to consider West Bend’s alternative arguments and remanded the case to the circuit court. Quoting the Second District, the Supreme Court “[took] no position as to what procedures, if any, are available to West Bend if it seeks to renew its motion in the circuit court to stay the IWCC proceedings.”