The Illinois Supreme Court's September Term begins Tuesday, September 15, 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 civil cases are scheduled for argument this Term:

September 16, 2020

People ex rel. Lisa Madigan v. Stateline Recycling, LLC, No. 124417 

People ex rel. David P. Leibowitz v. Family Vision Care, LLC, No. 124754

Tzakis v. Berger Excavating Contractors, Inc., No. 125017

Steed v. Rezin Orthopedics and Sports Medicine, S.C., No. 125150

September 17, 2020

Dameron v. Mercy Hospital and Medical Center, No. 125219

Gillespie v. East Manufacturing Corp., No. 125262

State Farm Mutual Automobile Insurance Co. v. Elmore, No. 125441

September 22, 2020

Tirio v. Dalto, No. 125442

Barrall v. The Board of Trustees of John A. Logan Community College, No. 125535

Rehfield v. Diocese of Joliet, No. 125656

Zander v. Carlson, No. 125691

September 23, 2020

Policemen’s Benevolent Labor Committee v. The City of Sparta, No. 125508

Below is a summary for one of those cases, Dameron v. Mercy Hospital and Medical Center.  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. 

Dameron v. Mercy Hospital and Medical Center, No. 125219

The issue in this case is whether a party who has disclosed a witness as a testifying expert may thereafter redesignate that witness as a nontestifying consultant whose opinions and work product are privileged and protected from discovery unless there is a showing of exceptional circumstances by the opposing party.

Plaintiff Alexis Dameron filed a medical malpractice action against the defendants, Mercy Hospital and Medical Center, Cordia Clark-White, M.D., Alfreda Hampton, M.D., Natasha Harvey, M.D. and Patricia Courtney (collectively, “Defendants”).  On May 30, 2017, in her answers to written discovery, Plaintiff disclosed Dr. David Preston as an expert witness. She also disclosed that Dr. Preston would testify as to the results of an EMG test he would perform on Plaintiff on June 1, 2017. On that date, Dr. Preston examined Plaintiff and conducted the test.  He also prepared a report in which he discussed his findings and opinions. Two months later, Plaintiff filed a motion to designate Dr. Preston as a nontestifying expert consultant pursuant to Supreme Court Rule 201(b)(3), claiming that the disclosure of Dr. Preston as a testifying expert witness was “inadvertent.” The trial court denied Plaintiff’s motion and ordered Plaintiff to produce Dr. Preston’s records and report regarding the EMG test. Plaintiff refused and the court found her in contempt and imposed a $100 fine, which was later reduced to $1.  Plaintiff appealed the interlocutory friendly contempt order pursuant to Supreme Court Rule 304(b)(5). 

The appellate court reversed, explaining that, under Illinois law, a party may withdraw an expert witness as long as the opposing party is given clear and sufficient notice allowing it to take the necessary action in light of the abandonment of the witness. However, in this case, the court noted, Plaintiff did not merely seek to withdraw Dr. Preston as a testifying expert witness, but sought to redesignate him as a nontestifying consultant whose reports and opinions are protected from discovery pursuant to the privilege set forth in Rule 201(b)(3).  The court noted that this was an issue of first impression in Illinois and looked to federal cases for guidance.  Following Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 2159476 (S.D. Ind. May 17, 2013), the appellate court held that “where a previously disclosed testifying expert witness has been timely withdrawn prior to disclosing his or her report in discovery, the expert may be redesignated a Rule 201(b)(3) consultant and entitled to the consultant’s privilege against disclosure, absent exceptional circumstances.” Because Plaintiff had not disclosed Dr. Preston’s report to Defendants prior to her motion to redesignate him as a consultant, the appellate court held that the trial court erred in denying Plaintiff’s motion.  Accordingly, the appellate court reversed the trial court’s order, vacated the contempt finding and remanded the case for further proceedings.

Appellate Court Decision:  2019 IL App (1st) 172338.  Hall, J., with Rochford, J., and Hoffman, J., concurring

Chief Justice Anne M. Burke of the Illinois Supreme Court has invited the ALA's members to attend a memorial service in honor of the late Justice Charles E. Freeman at 2 p.m. on Wednesday, September 16, 2020. 

In light of COVID-19, guests will not gather in the Supreme Court Building, but the service will be streamed at:  https://livestream.com/blueroomstream/events/9226889.  A video recording of the service will be available on the Court's website for those who cannot watch live, and a program for the service may be downloaded from the Court's website (http://www.illinoiscourts.gov/Media/Video/Events/default.asp) a few days prior to the service.

Justice Freeman was elected as the first African-American member of the Illinois Supreme Court in 1990, and also served on the Illinois Appellate Court from 1986 to 1990 and the Cook County Circuit Court from 1976 to 1986.  Before serving on the bench, Justice Freeman worked in private practice and various public service roles, including as an Assistant Attorney General, Cook County Assistant State's Attorney, Assistant Attorney for the Cook County Board of Election Commissioners, and arbitrator with the Illinois Industrial Commission.  During his 28 years as a justice of the Illinois Supreme Court, he was praised for drafting opinions upholding criminal defendants' rights, improving efficiency in the Family Violence Prevention program, and improving the Court's operations, including establishing its web page.  Justice Freeman received numerous awards throughout his distinguished career, including the Freedom Award from The John Marshall Law School, the Seymour Simon Justice Award from the Jewish Judges Association, the Earl Burrus Dickerson Award from the Chicago Bar Association, and the Ira B. Platt Award and Presidential Award from the Cook County Bar Association.

The ALA is hosting a CLE Lecture featuring Professor Marcia Chatelain. Professor Chatelain, Provost’s Distinguished Associate Professor of history and African American Studies at Georgetown University, is a frequent public speaker, media commentator, and consultant to educational institutions, delivering lectures and workshops on inclusive teaching, social movements, and food justice. Her lecture will explore a variety of cases in U.S. Supreme Court Justice Thurgood Marshall’s career leading up to the landmark decision in Brown v. Board of Education of Topeka, Kansas.

Date:  Thursday, August 20, 2020

Time:  12:00 to 1:00 p.m.

Location:  Online.  Attendees will receive a Zoom link after registering for the event.  (NOTE:  Only speakers will be visible, so participants need not dress formally.)

Cost:  Free for ALA members; $25 for non-members

CLE Credit:  1.0 hour, Diversity & Inclusion Credit

Questions?  Call (630) 416-1166, ext. 303

Register:  Use our online registration system here, or visit www.applawyers.org.  Please note that you will receive a Zoom link in your confirmation e-mail.

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.