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.

A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.
 

In that case, the defendant appealed his conviction stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st) 163018, ¶ 1. Three police officers spotted Burnett in a van with no front license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett remove an “L” shaped object from his waistband and place it in the back of the van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett was arrested. Id. He did not have a FOID card or a concealed carry license. Id. ¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.

On appeal, Burnett argued that he was deprived of his constitutional right to effective assistance of counsel because his attorney should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession of a gun is no longer sufficient to establish probable cause to justify an arrest. Id. The First District acknowledged that the Illinois Supreme Court had determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional because it categorically criminalized the possession of a weapon outside the home. Id. ¶ 10.

There was a problem, though: the record did not “contain sufficient information about the circumstances of defendant’s arrest from which we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The Court noted that because the case just went to trial, the State had no reason to factually demonstrate probable cause in the first place. Id. It specified that due to the insufficiency of the record about the arrest, “we have no way of knowing what the officers’ probable cause determination was based upon[.]” Id. ¶ 12.

The Court forcefully rejected the defendant’s argument that holes in the record should go in his favor. It recognized that the defendant “attempts to spin the lack of testimony about probable cause into a conclusion that there was no probable cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because the defendant was “drawing an affirmative conclusion from a negative premise. The lack of evidence currently in the record concerning probable cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a probable cause determination.” Id. (emphasis in original).

The Court concluded that it “would be imprudent for us to reach the question about the existence probable cause at this stage in the case because there is too much potential information to which we are not privy and because the issue was not visited by the circuit court.” Id. ¶ 16. “Because the record is insufficient, we must affirm.” Id.

This case should serve as an important reminder to jealously guard the state of the trial court record for a potential appeal.

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

The Illinois Supreme Court Rules Committee adopted the Appellate Lawyers Association's proposed amendment to Illinois Supreme Court Rule 274 today. The amendment clarifies that a postjudgment motion is not due until the judgment order is both final and appealable.

Rule 274 previously stated, in relevant part, "A party may make only one postjudgment motion directed at a judgment order that is otherwise final."

The ALA proposed the following amendment to clarify exactly when a postjudgment motion must be filed: "A party may make only one postjudgment motion directed at a judgment order that is otherwise final and appealable. The motion must be filed either within 30 days of that judgment order or within the time allowed by any extensions."

The amendment was submitted to the Rules Committee as Proposal 17-05. After consideration, the Rules Committee adopted the proposed amendment. The new amendment takes effect on July 1, 2019.

The Appellate Lawyers Association and the Sangamon County Bar Association are co-sponsoring a Roundtable Luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. This event provides a unique opportunity to interact with the Justices and gain insight into the perspective of the other side of the bench.


Date: Wednesday, April 10, 2019

Time: Check-in for the luncheon will begin at 11:45 a.m. and lunch will be served promptly at 12:00 p.m.

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

Location: Sangamo Club, 227 E. Adams Street, Springfield, Illinois

Cost: $25 for ALA or SCBA members; $40 for nonmembers. Lunch is included.

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


Information on how to register may be found after the jump.

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


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.

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The recent passing of our dear friend and colleague, Charlie Ingrassia, has been well documented in The Brief. As former editor and co-chair, “Charlie made The Brief a go-to resource for everyone who wants to learn more about recent developments in the appellate world.” John M. Fitzgerald, A Gentleman and a Scholar: Charlie Ingrassia (1979-2019), Feb. 18, 2019. Outside of his many contributions to the Appellate Lawyers Association, Charlie is also remembered as a “gifted writer and excellent strategist.” Austin Bartlett, Remembering Charlie Ingrassia, Feb. 18, 2019. It is fitting, then, that Charlie’s keen eye for jurisdictional issues would win the day in his final case. Our sincere thanks to Lawrence S. Gosewisch, a partner at Charlie’s law firm, for sharing his memories of Charlie’s prevailing argument in Elite Storage Sols., LLC v. Ratajczak, 2019 IL App (1st) 172346-U.

“Charlie Ingrassia worked with me at Adler Murphy & McQuillen, LLP and he and Tim Parilla handled the Elite Storage case. We successfully moved to dismiss the case against our client and Charlie and Tim handled the appeal. Charlie’s years clerking for Justice Hutchinson in the Second District Appellate Court served him well and he always looked first at jurisdictional issues. When Charlie suggested we pursue a dismissal of the appeal on jurisdictional grounds, I was at first skeptical but as usual, I deferred to my appellate specialist. Charlie pursued the argument and the appeal was dismissed. This was a particularly rewarding result for Charlie, who was battling Stage IV cancer during the entire appellate process and during most of the trial court proceedings as well. The decision came down on February 15, 2019, the same day Charlie was scheduled for yet another surgery. We immediately emailed the decision to Charlie, who acknowledged the result, gave the credit to Tim, and said he was being rolled into surgery and would study the opinion later. Charlie passed away on February 17, 2019 without ever leaving the hospital. He loved being a lawyer and he was a great one. I am so glad Charlie knew that he prevailed for our client. It was very important to him. We miss him every day.”

Lawrence S. Gosewisch, Adler Murphy & McQuillen, LLP.

On the merits, Elite Storage involved the denial of an insurance claim due to an alleged lapse in coverage. The plaintiff entered into a contract with Precision Builders & Contractors, LLC (Precision), to provide equipment and services for a project in Elgin. As part of the contract, Precision agreed to procure an insurance policy naming the plaintiff as an additional insured. Precision procured the policy through Maciel Ratajczak and Mr. Insurance Agency (the Ratajczak defendants). The plaintiff was later named as a defendant in a separate lawsuit relating to an injury on the work site. After learning that its claim for insurance coverage was denied based on the alleged lapse in coverage, the plaintiff filed a complaint against Precision and the Ratajczak defendants for negligence and breach of contract.

Charlie’s law firm represented the Ratajczak defendants, who moved to dismiss the plaintiff’s second amended complaint. Notably, Precision did not join the motion. On July 12, 2017, the trial court entered an order dismissing the second amended complaint “in its entirety and with prejudice.” There was no mention, however, of the order being final and appealable under Illinois Supreme Court Rule 304(a). On August 14, 2017, the plaintiff and the Ratajczak defendants filed a “joint and routine motion for entry of a final judgment.” The parties noted that the order of dismissal did not address Precision’s status as a named defendant. They requested the entry of an agreed order clarifying that the order of dismissal was a “final and appealable final judgment.” The agreed order was entered on August 22, 2017. On September 21, 2017, the plaintiff filed a notice of appeal from the order of dismissal.

In the appellate court, the Ratajczak defendants argued that the order of dismissal, dated July 12, 2017, was the final order in the case, thus triggering the 30-day period in which the plaintiff was required to file either its postjudgment motion or its notice of appeal. The Ratajczak defendants argued that, because the plaintiff failed to take either action within 30 days, the appeal should be dismissed for a lack of jurisdiction.

The appellate court agreed with the Ratajczak defendants for three reasons. First, although the order of dismissal did not address Precision’s status as a named defendant, there was no need for a Rule 304(a) finding. Ordinarily, when multiple defendants are named in an action, an order dismissing one of the defendants cannot be appealed absent an express finding under Rule 304(a) that there is no just reason to delay the appeal. However, before the plaintiff filed its second amended complaint, it brought a separate action against Precision seeking relief for the same issues. As a result, the second amended complaint made no claims and sought no relief of any kind against Precision. Because the Ratajczak defendants were the only parties against whom any relief was being sought, the trial court resolved the entire matter on the merits when it granted their motion to dismiss. Moreover, by dismissing the second amended complaint “with prejudice,” the trial court indicated that the plaintiff would not be allowed to amend its complaint to bring any future claims against any of the named defendants. Therefore, the order of dismissal was a final and appealable order.

Second, there was no revestment of jurisdiction on August 14, 2017, when the Ratajczak defendants joined the motion for entry of a final judgment. For the revestment doctrine to apply, the parties must: (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that are inconsistent with the merits of the prior judgment. Although the first two requirements were met, the third was not. The Ratajczak defendants did not assert a position that was inconsistent with the merits of the dismissal order. To the contrary, by seeking reaffirmation that the second amended complaint was dismissed in its entirety, the Ratajczak defendants merely asserted a position that was consistent with the dismissal order.

The third reason for the appellate court’s agreement with the Ratajczak defendants was the recognized principle that appellate jurisdiction cannot be conferred by laches, consent, waiver, or estoppel. Thus, by joining the motion for the entry of a final judgment, the Ratajczak defendants neither waived their jurisdictional argument nor were they equitably estopped from contesting appellate jurisdiction. For these reasons, the appellate court held that the agreed order on August 22, 2017, was entered more than 30 days after the final order, meaning that it was void and could not be appealed.

Although Elite Storage was filed as an unpublished order under Rule 23, its lessons should not be lost on appellate practitioners. The case teaches the importance of identifying the finality of an order that dismisses a complaint “in its entirety and with prejudice.” It also demonstrates a rare exception to the Rule 304(a) requirement in cases involving multiple defendants. It should come as no surprise to anyone who knew Charlie that he would recognize these nuances and persuade the appellate court that jurisdiction was lacking.

Well done, Charlie.

On April 18, 2019, the Appellate Lawyers Association's annual Advanced Appellate Practice Seminar will feature six presentations by judges and experienced appellate practitioners. The seminar is geared toward seasoned appellate practitioners but will be of great benefit to anyone looking to improve his or her appellate skills. Presentations include:

• Judicial Perspectives
• • Justices Nathaniel R. Howse, Jr., and Michael B. Hyman, Illinois Appellate Court, First District
  • Justice Mary K. O'Brien, Illinois Appellate Court, Third District
  • Justice Richard P. Goldenhersh (Ret.), Illinois Appellate Court, Fifth District
• Standards of Review
• • Hugh C. Griffin of Hall Prangel and Schoonveld LLC
• Appellate Ethics
• • Steven F. Pflaum of Neil, Gerber & Eisenberg LLP
• Memory Techniques for Appellate Presentations
• • Professor Patrick G. Gould of the Appalachian School of Law
• Amicus Filings
• • Michael A. Scodro of Mayer Brown LLP
• Electronic Filing Update
• • Tina M. Schillaci, Chief Deputy Clerk of the Illinois Appellate Court, First District

Moderated by ALA Vice-President Gretchen Harris Sperry, Hinshaw & Culbertson LLP. Additional details, including registration information, may be found after the jump.

Date: Thursday, April 18, 2019

Time: 1:00 p.m. to 5:00 p.m.

MCLE: Participants will earn 3.75 hours of MCLE credit, including 0.75 hours of professional responsibility credit. The ALA is an approved MCLE provider.

Location: Mayer Brown LLP, 71 South Wacker Drive, Chicago, Illinois

Cost: $35 for public-sector ALA members; $50 for private-sector ALA members; $50 for public-sector nonmembers; and $75 for private-sector nonmembers.

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 registration process.

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

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

Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois and the Northern District of Illinois Court Historical Association present, "Rivers of Commerce: The Illinois Federal Courts as Umpires of Antebellum Union," a talk by Professor Alison LaCroix about the role of the Illinois federal courts in the debates over the scope of federal power in the early nineteenth century.

When: Tuesday, April 9, 2019, 4 p.m. to 5 p.m.

Where: U.S. District Court Northern District of Illinois, Dirksen U.S. Courthouse, Court History Museum, 21st Floor, 219 South Dearborn Street, Chicago, Illinois.

RSVP: ilnd_rsvp@ilnd.uscourts.gov

More details and full flyer available at: https://www.ilnd.uscourts.gov/_assets/_news/LaCroix.pdf