"The Brief" - The ALA Blog

  • April 10, 2020 8:32 AM | Louis Manetti (Administrator)

    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.”

  • April 07, 2020 7:31 AM | Carson Griffis (Administrator)

      By:  Kimberly Glasford

    In Crim v. Dietrich, 2020 IL 124318, the Illinois Supreme Court held that when the trial court enters a partial directed verdict, a litigant must file a post-trial motion to preserve any challenge to the jury’s subsequent verdict on a remaining claim. Equally interesting, however, are the justices’ varying applications of Illinois Supreme Court Rule 308 (eff. July 1, 2017), and different interpretations of an appellate court mandate.

    The Crims filed a medical malpractice action against Gina Dietrich, D.O., alleging that she failed to obtain informed consent for a natural birth and was negligent during delivery. At trial, the court granted Dietrich’s motion for a partial directed verdict as to the informed consent claim. The jury then found in her favor on the remaining negligent delivery claim but the Crims did not file a post-trial motion challenging that finding.

    On appeal in Crim I, the appellate court found the directed verdict was improper, reversed the judgment and remanded for a new trial. According to the mandate, the appellate court held that “the order on appeal from the circuit court be REVERSED and the cause be remanded . . . for such other proceedings as required by order of this court.”  On remand, the parties disputed whether retrial was limited to the informed consent claim or whether the Crims could present evidence regarding the negligent delivery claim.

    According to Dietrich, retrial was limited to the informed consent claim because the Crims did not file a post-trial motion attacking the jury’s verdict on the negligent delivery claim and the reviewing court did not address it. The Crims argued, however, that the mandate in Crim I was general, requiring a new trial on all issues.

    The trial court sided with the Crims but certified, pursuant to Rule 308, the question of “[w]hether the ruling of the appellate court, [in Crim I], reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The appellate court found in Crim II that the new trial should encompass all claims. The supreme court disagreed.

    The majority opinion, authored by Justice Karmeier and joined by Justices Garman, Theis and Neville, noted that “[a] certified question under Rule 308 permits the discretionary appeal of an otherwise unappealable interlocutory order of the circuit court where the court ‘finds that the order involves a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Crim, 2020 IL 124318, ¶ 19 (quoting Ill. S. Ct. R. 308(a) (July 1, 2017)). The majority found that the certified question met that standard because it involved a pure question of law and did not invite an advisory opinion. Additionally, answering the question would materially advance the termination of the litigation.

    The majority acknowledged it would be improper for a certified question to seek a new interpretation of Crim I. Indeed, a certified question could not revest the appellate court with jurisdiction to revisit a previously decided case. The certified question at issue, however, did not reflect an improper purpose. Instead, it merely asked whether Crim I required an entirely new trial, which “is no different than a certified question involving statutory construction.” Crim, 2020 IL 124318, ¶ 21. In support, the majority cited a case involving the impact of a United States Supreme Court decision on an Illinois case, rather than the impact of an Illinois decision on the same Illinois case. Id. (citing Hampton v. Metropolitan Water Reclamation District of Greater Chicago, 2016 IL 119861, ¶ 6). 

    As to the merits, the majority concluded that the Crim I mandate did not require a new trial on all claims because the Crims failed to file a post-trial motion under 735 ILCS 5/2-1202. Furthermore, the “mandate could not remand the matter for a new trial on an issue never raised and not considered.” Crim, 2020 IL 124318, ¶ 40.  Finally, the majority recognized that “[w]hen a court of review does not determine the merits of a case but merely reverses and remands without specific directions, the judgment of the court below is entirely abrogated and the cause stands as if no trial had occurred.” (Internal quotation marks omitted.) Id. ¶ 40 (quoting People ex rel. Borelli v. Sain, 16 Ill. 2d 321, 326 (1959)). But it concluded that the appellate court ruled on the merits by finding that the trial court improperly entered a directed verdict, notwithstanding that the appellate court had not made a determination as to liability.

    Chief Justice Burke specially concurred, finding that a new trial on all claims was not necessary because the opening brief in Crim I expressly abandoned the Crims’ objection to the jury’s verdict. Additionally, the appellate court did not review the jury’s verdict.

    Chief Justice Burke recognized that, “[i]f a judgment in an ordinary suit at law in which the parties are entitled to a jury trial is reversed for errors intervening prior to the entry of the judgment and the cause is remanded generally, the parties are entitled to a trial de novo.” (Internal quotation marks omitted.) Id. ¶ 53 (quoting Roggenbuck v. Breuhaus, 330 Ill. 294, 300 (1928)). But she disagreed that the erroneous partial directed verdict in Crim I constituted an error “prior to the entry of judgment” within the meaning of that rule because “a directed verdict is itself a judgment.” Crim, 2020 IL 124318, ¶ 55 (Burke, C.J., specially concurring). When “Crim I stated that it was reversing the ‘judgment’ of the trial court, it was necessarily referring to the directed verdict since the only matter the appellate court addressed was the informed consent claim.” Id. ¶ 56.

    Justice Kilbride dissented, stating that the certified question did not satisfy Rule 308 because it was case-specific. Crim, 2020 IL 124318, ¶ 67 (Kilbride J., dissenting). Additionally, Justice Kilbride believed that the parties asked the certified question to clarify what the mandate in Crim I meant, which the majority acknowledged would be improper. Specifically, the Crims’ attorney stated on remand, “I think that there’s going to need to be a 308 appeal, an interlocutory appeal so that the Appellate Court can tell us what it wanted when it issued its order.” Furthermore, there was no substantial ground for disagreement: “no court has ever addressed what the mandate in Crim I means, nor will any court ever address that question again.” Id. ¶ 76.

    Justice Kilbride also disagreed that construing a mandate was akin to statutory construction, noting that while statutes have general applicability, mandates by nature are case-specific. He added that by finding that Crim I could not have required a new trial on all claims due to the Crims’ failure to file a section 2-1202 motion, the majority confused a party’s forfeiture with the appellate court’s power to grant relief.

    The supreme court’s decision indicates that in interpreting a mandate, the court will adopt a reading that renders the mandate legally correct. The decision also suggests that justices will differ as to whether a procedural issue presents a purely legal issue. With that in mind, litigants should ensure that mandates and certified questions are crystal clear while the court has jurisdiction to clarify any ambiguity.

  • April 01, 2020 8:00 AM | Carson Griffis (Administrator)

    In response to the COVID-19 public health emergency, the Seventh Circuit has suspended the requirement that parties provide paper copies of electronically filed briefs, appendices, and petitions for rehearing under Federal Rule of Appellate Procedure 30(a)(3) and Circuit Rules 31(b) and 40(b).  The suspension does not apply to cases currently scheduled for oral argument, and the court may direct parties to provide paper copies in certain cases.  Parties still must serve paper copies on pro se litigants.

    The suspension is in effect until further order of the court.  The Seventh Circuit's order is available here.

  • March 24, 2020 5:58 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court has issued two orders extending various deadlines in cases before it and the Illinois Appellate Court.

    These extended deadlines will remain in effect until further order by the Illinois Supreme Court.  Both orders, and all other court updates regarding COVID-19, may be found here.

    Illinois Appellate Court

    The deadline for filing any notice of appeal from a circuit court judgment due on or after March 24, 2020, is extended from 30 to 60 days. 

    The deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

    The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

    Illinois Supreme Court

    The deadline for filing a petition for leave to appeal from an appellate court judgment, denial of a petition for rehearing, entry of judgment on rehearing, issuance of an opinion after granting a motion to publish, or order denying a motion to publish due on or after March 24, 2020, is extended from 35 to 70 days.

    The appellate court is directed to hold its mandates for 70 days from the date of its judgment, including judgments entered 35 days before March 24, 2020.

    Unless the Illinois Supreme Court previously granted a motion for an extension that was marked "final," the deadline to file appellant and appellee briefs due on or after March 24, 2020, is extended by 35 days, for a total of 70 days.

    The deadline to file a petition for rehearing due on or after March 24, 2020, is extended by 21 days, for a total of 42 days.

    The relaxed requirement that parties provide paper copies of e-filed documents within 14 rather than 5 days is extended to documents e-filed through April 7, 2020.

  • March 19, 2020 8:19 AM | Carson Griffis (Administrator)

    By:  John M. Fitzgerald

    In less than two years, Justice P. Scott Neville, Jr., has already left his mark on the Illinois Supreme Court.  In the opinions he has authored since joining the Illinois Supreme Court in June 2018 — his opinions while serving on the Illinois Appellate Court, First Judicial District, may be the subject of another article — he has consistently demonstrated a passion for protecting the constitutional rights of criminal defendants.  A few significant examples are highlighted below.

    In People v. Buffer, 2019 IL 122327, Justice Neville authored an opinion for the Court which held that a 50-year murder sentence imposed on a then-16 year-old defendant was a de facto life sentence in violation of the Eighth Amendment.

    Writing for a divided court in People v. Murray, 2019 IL 123289, Justice Neville reversed the defendant’s conviction for unlawful possession of a firearm by a street gang member, finding that there was insufficient evidence that the Latin Kings were a street gang for purposes of the Illinois Streetgang Terrorism Omnibus Prevention Act.  Justice Neville’s opinion in Murray is notable for its discussion of the standards for the admissibility of expert opinion testimony in a criminal trial.  Justice Neville found that, while the state’s gang expert generally discussed the State’s gang database, the expert failed to establish a sufficient connection between the database and his conclusion that the Latin Kings were a street gang.

    In a partial dissent in People v. Clark, 2018 IL 122495, Justice Neville disagreed with the Court majority’s holding that the Public Defender Records Automation Fund fee was a fee instead of a fine.  His partial dissent stands out for his invocation of the rule of lenity, which generally holds that an ambiguous statute should be construed in favor of a criminal defendant.

    In a dissenting opinion in People v. Kimble, 2019 IL 122830, Justice Neville disagreed with the Court majority’s holding that a defendant’s right to a fair trial was not violated by the trial judge’s ex parte comment to deadlocked jurors.  He believed that double jeopardy barred the defendant’s re-prosecution.

    Finally, his special concurrence in In re N.G., 2018 IL 121939, should be studied by any law student who intends to pursue a career in the criminal justice system.  In that case, a father’s parental rights were terminated due to his conviction for violating a statute that had, in another case, been held facially unconstitutional.  Although the statute had been held unconstitutional in another case, the father never obtained a court order in his criminal case vacating his conviction.  The issue in N.G. was whether the father’s parental rights could be terminated on the basis of a conviction that, while based on an unconstitutional statute, had not been vacated.  The majority held that the father was not required to first obtain an order in the criminal case vacating his conviction; because his conviction was void, it could not be used as a basis to terminate his parental rights.  Justice Neville authored a special concurrence in which he argued that everyone, particularly prosecutors, have a responsibility to correct illegal convictions.  Here is the key language:

    • “But it is manifestly unfair to hold defendants exclusively responsible for vacating a void conviction. This approach places an onerous burden on lay defendants who are the least equipped to undertake that burden because they lack legal skills and do not know how to navigate the legal system. The dissent's approach would allow a void conviction to remain on the record of this defendant and all other similarly situated defendants. That result cannot be tolerated in a well-ordered system of justice. . . . In my view, the burden of correcting an illegal conviction must be borne by all of the participants in the criminal justice system."
    • "I reject the notion that the burden of correcting a void conviction falls exclusively on the defendant. Rather, the State should be required to undertake that responsibility. Where a court—at any level—has notice that a defendant's conviction is void, that court has an independent obligation to vacate and expunge the void conviction. In addition, the state's attorney in each county should commence proceedings to vacate and expunge all void convictions that were predicated on a statute that has been declared to be facially unconstitutional. In my view, the aforementioned remedies can be used by criminal justice participants to return illegally convicted defendants to their preconviction status."
    • “I also encourage the state's attorney in each county to commence proceedings to vacate and expunge any illegal convictions based on a facially unconstitutional statute. Finally, I note that the expungement of void convictions from the criminal record is necessary for all defendants who have been wrongfully convicted to receive complete justice."
    These are stirring words.  They remind all of us to do our part to fight injustice wherever we find it.
  • March 18, 2020 10:38 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court and Illinois Appellate Courts remain open but have modified some procedures in light of the difficulties created by COVID-19. 

    The Illinois Supreme Court has allowed parties to submit paper copies of briefs and other documents in 14 days, rather than five days, through March 31, 2020.

    The First District of the Appellate Court has stated that it will allow a 30-day extension for any appellant or appellee briefs due on or before April 17, 2020, in all civil cases and criminal cases where the defendant is represented by private counsel or is self-represented. The First District also waived its requirement that parties provide six paper copies of filed briefs through April 17, 2020.

    The Second District has allowed parties 14 days, rather than five days, to submit paper copies of briefs filed through March 31, 2020.

    The Fourth District has temporarily postponed oral arguments. 

    The Fifth District also modified its March oral argument calendar and has suspended its requirement that parties submit paper copies of briefs until further order of the court.

    The Illinois Supreme Court and other Illinois courts will continue to post announcements on the Illinois courts' website, which may be found here.

  • March 16, 2020 4:52 PM | Carson Griffis (Administrator)

    Given the growing concerns around COVID-19 and in consideration of the health and safety of our members and guests, the Appellate Lawyers Association has decided to postpone the following events:

    1) The First District Roundtable Luncheon scheduled for Tuesday, March 24

    2) The Second District Roundtable Luncheon scheduled for Tuesday, April 7

    3) The Advanced Appellate Practice Seminar scheduled for Thursday, April 9

    Full refunds will be issued for those who already registered.  We intend to reschedule these events for another date and will share event details in the future.

  • March 16, 2020 8:34 AM | Carson Griffis (Administrator)

    Chief Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit announced that Christopher G. Conway has been selected to serve as Clerk of Court.  Mr. Conway will fill the vacancy created by the retirement of Gino J. Agnello.

    Christopher Conway joined the Clerk’s Office in 1991.  Throughout his 29 years in the Clerk's Office, he has served in its Case Processing Department, managed its Pro Se Department, managed the combined Court Services and Pro Se Departments, and performed crossover work as the Court’s Internal Control Evaluation Officer in the Financial Department.  Most recently, he served as the Court’s Attorney Advisor/Court Services Manager.  

    Christopher Conway earned his bachelor’s degree from Lewis University cum laude and his law degree from DePaul University College of Law.

  • March 05, 2020 7:06 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court’s  March Term begins Monday, March 9, 2020.  Oral arguments are scheduled for March 10, 11, 17 and 18, 2020. A total of 11 cases will be heard – 6 criminal and 5 civil. The following criminal cases are scheduled for argument this Term:

    March 10, 2020

    People v. Rickey Robinson, No.  123849 

    People v. William Coty, No. 123872

    People v. Miguel DeLeon, No. 124744

    People v. Patrick Legoo, No. 124965

    March 11, 2020

    People v. Donnell Green, No. 125005

    People v. Rasheed Casler, No. 125117

    Below is a summary for one of these cases, People v. Donnell Green. 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. Donnell Green, No. 125005

    This case presents the issue of whether trial counsel’s prior representation of the intended victim of a crime -- as opposed to the actual victim of the charged crime -- constitutes a per se conflict of interest. 

    Illinois law recognizes two types of conflicts of interest: per se and actual.  A per se conflict is one in which facts about counsel's status, in and of themselves, create a disabling conflict resulting in automatic reversal even absent a showing that the conflict influenced counsel's representation.  Currently, one way in which a per se conflict of interest is recognized is when counsel has a prior association with "the victim." 

    Defendant was found guilty of first degree murder after the prosecution argued for the application of two doctrines: transferred intent and accountability.   Under Illinois's murder statute, the requisite mens rea may be directed towards either the decedent or another person, a codification of the doctrine of transferred intent.  And a person is legally accountable for another person's when, before or during the offense's commission, and with the intent to facilitate its commission, a person aids the other in the planning or commission of the offense.  The prosecution is not required to include in the charging instrument its intent to rely on either doctrine, so long as the theories are supported by trial evidence.

    Here, defendant was a passenger in a car who said "I'll do it" but then handed the gun to another passenger who shot at the car of a rival gang, killing the passenger, Jimmy Lewis.  The prosecution theorized that the group targeted the driver, Danny "Keeko" Williams, or perhaps the actual victim Lewis or the rival gang more generally.

    Defendant filed a postconviction petition, alleging a per se conflict of interest because his defense counsel previously represented Keeko, the intended victim of the shooting.  The lower courts denied relief, concluding that an intended victim does not fall within the per se categories, and only the Supreme Court should expand the existing categories.

    In its briefing before the Illinois Supreme Court, defendant asserts that the intended victim in a transferred-intent situation should be included within the existing per se conflict category for prior representation of "the victim."  Alternatively, defendant argues that the Court should expand the per se conflict categories to include such a situation.  The rationale behind the per se conflict rule is that (1) when counsel has a professional association with a person or entity that might benefit from an unfavorable verdict against the defendant, it might subliminally affect counsel's performance in ways that are difficult to detect and demonstrate, and (2) the rule avoids an appearance of impropriety.  Defendant asserts that those considerations are also present in his intended victim situation.

    The State responds by noting that no (precedential) case has found that the established per se conflict category encompasses this intended victim situation and has instead been limited to actual victims of charged crimes.  And the State suggests that the Court should not expand the per se conflict rule in this manner.  For one thing, transferred intent need not be alleged in the charging instrument, and ultimately the identity of the intended victim need not ever be definitively resolved.  The present case is just such a case in that some evidence indicated that Keeko was the target while other evidence indicated that the group was targeting the rival gang more generally.  Finally, if an intended victim could be a group rather than a single individual besides the actual victim, the per se conflict category would have the potential of disqualifying a prohibitive number of defense attorneys, particularly in smaller counties.

  • March 02, 2020 7:08 PM | Carson Griffis (Administrator)

     Justice Charles E. Freeman,  who served on the Illinois  Supreme Court from 1990 to 2018, passed away March 2,  2020.  He was 86 years old.

     Justice Freeman was born in Richmond, Virginia, in  December 1933.  He earned his bachelor's degree from  Virginia Union University in 1954 and his Juris Doctor  from The John Marshall Law School in 1962.

    Along with pursuing private practice, Justice Freeman had a long career in public service.  He served as an assistant attorney general, Cook County assistant state's attorney, assistant attorney for the County Board of Election Commissioners, arbitrator for the Illinois Industrial Commission, and member of the Illinois Commerce Commission.

    Justice Freeman was elected to the Cook County Circuit Court in 1976 and served until 1986, when he was elected to the First District of the Appellate Court.  In 1990, Justice Freeman was elected to the Illinois Supreme Court. Justice Freeman was chosen as Chief Justice in 1997, becoming the first African American to lead a branch of government in Illinois.  Over the years, he authored many opinions having a profound impact on the development of Illinois law.

    The Appellate Lawyers Association expresses profound condolences to Justice Freeman's friends and family.  The Illinois Supreme Court's press release on Justice Freeman's passing may be found here

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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