By Don Sampen
Clausen Miller, P.C.

The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.

As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.

Analysis

Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

The four requirements for the writ, according to Garman, are that (a) that the action to be prohibited be of a judicial or quasi-judicial nature; (b) the writ be directed against a tribunal of inferior jurisdiction; (c) the action being prohibited be outside the tribunal's jurisdiction, or if within its jurisdiction, beyond its legitimate authority; and (d) no other adequate remedy be available to the petitioner.

Garman focused just on the fourth requirement, concerning the available of an alternative remedy. She noted Edwards’ argument that the circuit court had already ruled that it had jurisdiction and, over his objection proceeded to trial. 

Edwards claimed that he now could be sentenced to jail and that, based on his conviction, the Department of Natural Resources had already initiated proceedings against his license. He thus contended that he would be subject to irremediable harm if he were required to press his claim through the normal appellate process.

Garman observed, however, that Edwards' time to appeal had not expired, that the normal appellate process was fully available to him, and that original actions of prohibition could not be used to circumvent the normal appellate process. Rather, the remedy was available only in rare instances where none of the ordinary remedies were available or adequate.

As for Edwards' complaints that his timber buyer's license could be adversely affected and his livelihood harmed, Garman found that he was essentially complaining of collateral consequences that may occur pending appeal, and that such consequences can attend any normal appellate process. 

The trial court, in any event, had not ordered that his license be revoked, he offered only a vague portrayal of the situation surrounding his timber buyer's license, and he provided no documentation of the license revocation proceedings. Under these circumstances, Garman said that Edwards had not demonstrated irremediable harm.

In sum, the Court found that Edwards had failed to demonstrate the requirement that an appeal of his conviction did not provide him an adequate alternative remedy. Hence, the Court denied issuance of the writ.

Justice Thomas L. Kilbride dissented. He argued that Edwards had been convicted of a regulatory offense that does not exist and that he had not even violated the regulation relied on by the state. Kilbride therefore argued that the Court should exercise its supervisory authority to direct the circuit court to vacate Edwards' convictions.

Key Point:

A petitioner seeking issuance of a writ of prohibition must meet all four traditional requirements for issuance of the writ, including the requirement that no other adequate remedy is available to the petitioner. Pursuing an appeal in the underlying litigation normally will constitute an adequate alternative remedy.

The Illinois Supreme Court's May Term begins on Monday, May 13th. The Term will include oral argument in 4 criminal cases and 3 civil cases on May 14th and 15th. Below is a listing of the cases that will be heard:

Tuesday, May 14, 2019: People v. John Michael Custer, No. 123339
                                            People v. Ralph Eubanks, No. 123525
                                            People v. Stevie Smith, Nos. 123901 & 123902 (cons.)
                                            People v. Bethany Austin, No. 123910

Wednesday, May 15, 2019: Carmichael v. Union Pacific Railroad Co., No. 123853
                                                 Jones v. Pneumo Abex LLC, No. 123895, 124002 (cons.)
                                                 Accettura v. Vacationland, Inc., No. 124285

Below are summaries of one of the criminal cases and 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.


People v. Ralph Eubanks, No. 123525

Defendant was convicted of aggravated DUI, first degree (knowing) murder, and Class 1 felony failure to report the accident because he was the driver during a hit-and-run collision that killed one pedestrian and seriously injured a second. Related to the first issue, police officers asked defendant to submit to chemical testing of his blood and urine under section 11-501.2(c)(2) of the Vehicle Code (directing officers to pursue such chemical testing of DUI suspects given collisions resulting in death or injury; drivers refusing to submit to testing have their licenses summarily suspended as a result). The First District, in a 2-1 decision on all three issues discussed, held that section 11-501.2(c)(2) is facially unconstitutional because it permits testing in violation of the Fourth Amendment under Missouri v. McNeely, 569 U.S. 141, 147-49 (2013), which held that warrantless blood testing is reasonable only given the driver's consent or case-specific exigent circumstances (not just the natural dissipation of blood-alcohol levels present in every case). Related to the second issue, defendant, given his charge of first degree knowing murder, requested a jury instruction on the lesser-included offense of reckless homicide, but the trial court refused. Knowing murder occurs when the defendant knew that his acts created a "strong probability" of death or great bodily harm, while reckless homicide occurs when he knew that his acts were only "likely" to cause, i.e., created a "substantial risk" of, such harm. The majority reversed, holding that the trial court erred in finding no evidence of recklessness to justify the reckless homicide instruction. Related to the third issue, defendant challenged the sufficiency of the evidence for his Class 1 felony failure-to-report conviction regarding one element: the failure to report within 30 minutes of the collision. The majority reduced defendant's conviction to the Class 4 felony form of the offense in light of the fact that defendant was arrested within the reporting period because the State cannot demonstrate that a defendant failed to report within 30 minutes given that any evidence of a defendant's post-arrest silence is inadmissible.

Before the Illinois Supreme Court, the State challenges the majority's three holdings. First, the facial invalidation of section 11-501.2(c)(2) should be reversed because such holding was unnecessary: the State acknowledged that the police violated defendant's Fourth Amendment rights in gathering the samples and that his aggravated DUI conviction should be reversed so that it was unnecessary to consider the facial validity of the statute. In addition, the provision was facially constitutional because it could sometimes operate constitutionally: when police obtain a warrant, when the suspect consents to testing, and when police document case-specific exigent circumstances. Second, the trial court did not abuse its discretion in refusing the reckless homicide jury instruction because defendant's driving was so dangerous under the circumstances that it was not unreasonable to conclude that he could not have had only the lesser (reckless) understanding of the riskiness posed by his driving. Third, the majority erred in reducing the failure-to-report conviction on unbriefed self-incrimination grounds, and sufficient evidence supported the Class 1 conviction: it was reasonable to infer defendant failed to report within 30 minutes from his later denials that he was in the car at the time of the collision.

Defendant defends the three holdings. First, defendant argues that the constitutionality of the statute must be addressed because there are no nonconstitutional grounds to resolve his challenge to the chemical testing. In addition, he asserts that because section 11-501.2(c)(2) does not direct officers to seek a warrant, denies drivers the ability to revoke their implied consent, and implicitly codifies a per se exigent circumstance of the type rejected in McNeely, it is facially unconstitutional. Second, defendant claims that the trial court improperly considered some evidence not relevant to recklessness and erroneously ignored other evidence of recklessness, reflecting an abuse of discretion in rejecting the reckless homicide jury instruction. Third, his failure-to-report was correctly reduced to a Class 4 felony because inferring his failure to report from his later denials of involvement infringed on his right against self-incrimination.

Jones v. Pneumo Abex, No. 123985, 124002 (cons.)

The issue in this case is whether the clear and convincing evidence standard for proving civil conspiracy at trial also applies when the court is evaluating a motion for summary judgment.

The plaintiff sued the defendants, Pneumo Abex and Owens-Illinois, for his injuries related to lung cancer, which he claims was caused by asbestos exposure. His theory was that these defendants, who were not the plaintiff’s employers, entered into a civil conspiracy with other manufacturers of asbestos-containing products to conceal information from the public that showed the harmful effects of asbestos. The plaintiff’s case is one of many filed against these defendants and others across the state on this theory.

The defendants moved for summary judgment on the ground that the plaintiff did not present clear and convincing evidence that they engaged in this civil conspiracy. They relied on two decisions issued by the Fourth District Appellate Court—Rodarmel v. Pneumo Abex, 2011 IL App (4th) 100463 and Gillenwater v. Honeywell International, 2013 IL App (4th) 120929—which held that under nearly identical circumstances, under a clear and convincing evidence standard, there was insufficient evidence to establish that the defendants engaged in a conspiracy to conceal the challenged information from the public. The circuit court agreed with defendants and granted summary judgment, noting that the case was “indistinguishable” from the Fourth District cases “on the material issues.”

The Fifth District Appellate Court reversed. It did not disagree with the conclusions reached in the cited cases. Rather, it distinguished them on their procedural posture—those cases were decided on motions for judgment notwithstanding the verdict after all trial evidence was presented. It found that on a motion for summary judgment, there was sufficient evidence presented to allow a fact finder to conclude that the defendants engaged in a civil conspiracy.

In their petitions for leave to appeal, the defendants argue that the appellate court failed to apply the clear and convincing standard when evaluating the evidence on summary judgment and erred in finding that issues of fact existed. They argued that the evidence presented was the same as that presented in Rodarmel and Gillenwater, in which the Fourth District held that the so-called parallel conduct was insufficient by itself to establish a civil conspiracy as a matter of law.

On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.  

A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.


In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.


The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.


Date: Monday, May 13, 2019


Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)


MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.


Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.


Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.


PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


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


Register:


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, Illinois 60563

n honor of Law Day, the Appellate Lawyers Association is reposting Chief Justice Karmeier's article, "Free Speech, Free Press, Free Society". The link to the article is below:

http://www.illinoiscourts.gov/Media/PressRel/2019/042619.pdf

By Nate Nieman


The defendant in Garza entered into two plea agreements in which he agreed to waive his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019). Garza was then sent to prison. Id. Garza repeatedly told his attorney that he wished to appeal after he was sentenced, but Garza’s attorney did not file a notice of appeal because Garza had waived his right to appeal through the plea agreements. Id. at 743.


Garza sought post-conviction relief after the time for filing a notice of appeal had run, claiming that trial counsel rendered ineffective assistance of counsel by failing to file a notice of appeal at Garza’s request. Id. The trial court denied the petition, and the Idaho Court of Appeals and Idaho Supreme Court affirmed that decision. Id. The Idaho Supreme Court held that “Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not.” Garza v. Idaho, 139 S. Ct. at 743. The Idaho Supreme Court joined a minority of courts in ruling that Garza needed to show prejudice. Id. Eight out of ten Federal Courts of Appeals have held a presumption of prejudice applies “even when a defendant has signed an appeal waiver.” Id. The Supreme Court granted certiorari to resolve the split of authority. Id.


The court began its analysis by invoking its decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that prejudice is presumed under the second prong of the Strickland ineffective assistance of counsel test “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Id. at 744. The question in this case was whetherFlores-Ortega applied when a defendant signed an appeal waiver. The Garza court held that it did. Id.


The court reasoned that “while signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain,” Garza v. Idaho, 139 S. Ct. at 745, such as the right to challenge whether the waiver itself was valid and enforceable. Id. The court also determined that “a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative,” id. at 746, not the attorney’s. The court concluded that “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Id.


The court found that Flores-Ortega resolved the “prejudice” issue in this case, reaffirming that “‘when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,’ with no need for a ‘further showing’ of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.” Id. at 747. 


The court rejected Idaho’s argument that Garza was not deprived of his right to appeal because he “never ‘had a right’” to do so. Id. at 748. The court responded that “Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants.”Id. Idaho’s argument was at odds with the rule already in place in most of the federal circuits that “When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal.” Garza, 139 S. Ct. at 749. Idaho could not persuade the Supreme Court to depart from the majority of jurisdictions that have adopted this rule.Id.


The Garza court therefore held that “the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed ‘with no further showing from the defendant of the merits of his underlying claims.’” Id. at 749-50 (citing Flores-Ortega, 528 U.S. at 484).

The Judges of the U.S. District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association are presenting their 20th Annual Awards for Excellence in Pro Bono and Public Interest Service. Maria Z. Vathis, the president of the Federal Bar Association, will act as Keynote Speaker.


The event will be held Wednesday, May 1, 2019, in the James Benton Parsons Memorial Courtroom, Everett McKinley Dirksen United States Courthouse, 25th floor, 219 S. Dearborn Street, Chicago, Illinois. The event will begin at 1 p.m. and be immediately followed by a reception in the Dirksen U.S. Courthouse Museum and History Center on the 21st Floor. 

The Appellate Lawyers Association (ALA), the Madison County Bar Association (MCBA), and the St. Clair County Bar Association (SCCBA) are co-hosting a roundtable luncheon featuring the Justices of the Illinois Appellate Court, Fifth District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench.


Shortly after the luncheon, the ALA, MCBA, and SCCBA will host an Appellate Practice Seminar. The seminar will begin with a judicial panel composed of Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court, Justice David K. Overstreet and Justice Judy Cates of the Illinois Appellate Court, Fifth District, as well as John J. Flood, Clerk of the Illinois Appellate Court, Fifth District. The judicial panel will be followed by a presentation on Appellate Brief Writing by ALA Past President Professor Edward J. Kionka. The seminar will conclude with presentations on Appellate Motion Practice by Retired Justice Richard P. Goldenhersh and Appellate Oral Argument by ALA Past President Brad Elward.


Roundtable Luncheon: Friday, May 17, 2019, 12 p.m. to 1:30 p.m. (check-in begins at 11:45 a.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois


Appellate Practice Seminar: Friday, May 17, 2019, 1:45 p.m. to 5 p.m. (check-in begins at 1:30 p.m.), Gateway Center, One Gateway Drive, Collinsville, Illinois


Additional details and registration information may be found after the jump.


Luncheon Only:
Cost: $35 for ALA, MCBA, or SCCBA members; $45 for public sector non-members; and $55 for private sector non-members.
MCLE: One (1) hour MCLE credit for luncheon only. The ALA is an approved MCLE provider.


Seminar Only:
Cost: $55 for ALA, MCBA, or SCCBA members; $70 for public sector non-members; and $85 for private sector non-members.
MCLE: Three (3) hours of MCLE credit for seminar only.


Luncheon & Seminar:
Cost: $90 for ALA, MCBA or SCCBA members; $115 for public sector non-members; and $140 for private sector non-members.
MCLE: Four (4) hours of MCLE credit for attending both the luncheon and the seminar.


PLEASE NOTE: On-site registrations will be charged an additional $5 administrative fee.


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


Register:


1.  Use our online registration system here to register for the event and pay with credit card. Or, if you prefer, you may 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 check payable to ALA to:


Chris Teed
Appellate Lawyers Association
1717 North Naper Boulevard, Suite 102
Naperville, Illinois 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) 596-1418. Additionally, payment is expected from no-shows.

The U.S. Supreme Court has adopted three amendments to its rules that will take effect on July 1, 2019.


The first limits parties' merits briefs to 13,000 words. The current rule permits merits briefs up to 15,000 words. In a summary explaining the rule change, the Court emphasized that, in its experience, parties could ably present their arguments in less than 15,000 words. 


The second rule change requires parties to file their reply briefs by 2 p.m., 10 days before oral argument. Previously, parties could submit their reply briefs a week before oral argument. The purpose of this change is to give the Court more time to review reply briefs before argument.


Finally, the Court will require parties filing certiorari petitions to identify any state or federal cases, in both trial and appellate courts, that are "directly related" to the case at issue. The Court explained that this rule will assist the justices in determining whether they need to recuse themselves from a case.

By Carson Griffis
Hinshaw & Culbertson LLP


The Illinois Supreme Court held yesterday that it is unconstitutional to sentence juveniles to prison for more than 40 years. The decision, People v. Buffer, 2019 IL 122327, was authored by Justice Neville and was joined by all members of the court except for Justice Burke, who wrote a special concurrence.


The court held that a sentence of more than 40 years in prison amounts to a de facto life sentence that violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Id. ¶ 41. Relying on a trio of U.S. Supreme Court decisions (Roper v. Simmons, 543 U.S. 551, 560 (2005); Graham v. Florida, 560 U.S. 459 (2010); and Miller v. Alabama, 567 U.S. 460 (2012)), the Court emphasized that juvenile sentences must take into account a minor’s capacity for rehabilitation and diminished culpability. Buffer, 2019 IL 122327, ¶ 17. An overly long sentence, although not strictly a life sentence, does not consider these factors or give juvenile offenders an opportunity to rehabilitate. Id. ¶ 26.


The Court also emphasized the need to draw a clear line for courts and parties to follow in future cases. Id. ¶ 29. The Court looked to sentencing statutes and noted that the legislature had prescribed a minimum sentence of 40 years for juveniles who had committed the same category of first-degree murder that would subject an adult offender to mandatory life imprisonment. Id. ¶¶ 37-39. Because this statute had been passed after Miller, the Court reasoned that the legislature must have viewed a 40-year sentence as compliant with Miller. Id. ¶ 39. Noting that the legislature is the body best suited to fashion criminal penalties, the Court "[e]xtrapolat[ed]" a line of 40 years from this statute. Id. ¶ 41. The Court also found that a 40-year sentence offered some opportunity for juvenile offenders to rehabilitate. Id. ¶ 40. Thus, any sentences of 40 years or less do not violate the Eighth Amendment. Id. ¶ 41.


In her special concurrence, Justice Burke agreed that some sentences may constitute de facto life sentences that violate the Eighth Amendment. Id. ¶ 55 (Burke, J., specially concurring). But she disagreed with the majority’s approach of looking to sentencing statutes because “[i]t is [the] court’s responsibility to decide whether the legislature’s sentencing scheme is constitutional, not the other way around.” Id. ¶ 63. Rather than looking to sentencing statutes, Justice Burke would determine whether a juvenile’s sentence is a de factolife sentence by asking whether the juvenile’s age at the earliest projected time of release exceeds an incarcerated minor’s average life expectancy. Id. ¶ 65. After reviewing statistics on life expectancy, and factoring in the diminished life expectancy of incarcerated individuals, Justice Burke would find that any sentence that would result in a minor being released from prison when he or she is 55 years old or older is a de facto life sentence. Id. ¶¶ 66-67.

The Illinois Supreme Court has assigned Judge Mark M. Boie, Resident Circuit Judge of Union County, to serve as an appellate court justice in the Fifth District Appellate Court. Effective May, 1, 2019, Judge Boie will fill the vacancy created by the election of Justice David K. Overstreet to the Fifth District Appellate Court. 


Judge Boie was elected to the Circuit Court in 2000 and was retained by voters in 2006, 2012, and 2018. Before serving on the bench, he practiced at the Law Offices of Wesley L. Boie and Mark M. Boie and served as a conflict public defender in Union, Johnson, and Pulaski counties. 


Judge Boie has been a member of the Special Supreme Court Advisory Committee for Justice and Mental Health Planning since 2010. Since 2015, he has served as co-chairperson of the Advisory Committee's subcommittee for compliance with the Mental Health and Development Disabilities Code. He is also a member of the Advisory Committee's subcommittee for education and participated in the drafting of a new Supreme Court rule on the use of restraints in involuntary commitment proceedings. 


Judge Boie earned his Bachelor of Arts degree from the University of Mississippi in 1989 and his Juris Doctor from The John Marshall Law School in 1996.