By Katherine A. Grosh

Levin Ginsburg

In Board of Managers of Northbrook Country Condo. Ass'nv. Spiezer, the Board of the Northbrook Country Condominium Association filed a forcible entry and detainer action against June Spiezer, as trustee of the June Spiezer Revocable Trust, seeking possession and common expenses owed on her condominium unit. 2018 IL App (1st) 170868, ¶¶ 1, 6. After the trial court entered a default judgment and order of possession in the Board’s favor, her son, Joseph Spiezer, successfully moved to vacate the default judgment and order of possession. Id. at ¶ 6.  Joseph then moved to quash service, which the trial court denied, finding that Joseph submitted to the court’s jurisdiction by filing the motion to vacate. Id. at ¶¶ 1, 6. After Joseph, as trustee of the June Spiezer Trust, quitclaimed the condominium unit to himself, the trial court entered another order of possession in favor of the Board, which Joseph timely appealed. Id. ¶¶ 2, 7. That appeal was later dismissed for want of prosecution. Id., citing Board of Managers of Northbrook Country Condominium Ass'n v. Spiezer, No. 1–13–0573 (Aug. 28, 2013) (unpublished summary order under Illinois Supreme Court Rule 23(c)).

Nearly three years later, Joseph filed a section 2-1401 petition to vacate the second order of possession on the grounds that the order was void because his mother was deceased when the complaint was filed, and her beneficiaries were not named as parties to the suit. Id. ¶ 8. After voluntarily withdrawing the section 2–1401 petition, Joseph filed a “motion to intervene” in the forcible entry and detainer case, effectively re-arguing his section 2-1401 petition and asserting that he should be allowed to intervene to present a motion for an accounting and obtain judgment in his favor for rental income the Board received on the property after entry of the order of possession. Id. Following several agreed continuances and a substitution of attorneys for Joseph, Joseph filed another motion seeking an accounting and asking the trial court to vacate the judgment for possession. Id. at ¶ 9. The trial court dismissed Joseph's motions for lack of jurisdiction. Id.

Joseph appealed from the order dismissing his motions and from the order denying his motion to reconsider, arguing: (i) the trial court had jurisdiction to rule on his motions, and (ii) the order of possession was void and the complaint should be dismissed. Id. at ¶¶ 3, 9.

The Appellate Court found that neither Supreme Court Rule 303 nor the doctrine of revestment conferred jurisdiction over Joseph’s appeal. Id. at ¶ 11. “Having let his appeal on these issues lapse,” the Appellate Court stated, “Joseph cannot exhume his case by motion, and we must dismiss.” Id. at ¶ 3.  The Court reasoned:

"Joseph argues that the trial court had jurisdiction to address the merits of his motion to vacate the January 16, 2013, order of possession because 'a void order may be attacked at any time or in any court, either directly or collaterally.' Joseph asserts the order of possession was void because the Board failed to properly serve the trust, trustees, or beneficiaries. But in 2012, the trial court denied Joseph's motion to quash service, finding that he submitted to the court's jurisdiction by filing the motion to vacate its first order of possession. The trial court entered a second order of possession, and Joseph timely appealed. This court then dismissed the appeal for want of prosecution. Spiezer, No. 1–13–0573." Id. at ¶ 13.

Notwithstanding Joseph’s timely appeal from the order of possession, the Appellate Court characterized Joseph’s attempt to file motions to vacate three years later as “an end-run around his long abandoned appeal.” Id. at ¶ 14. Citing case law holding that where an appeal is dismissed, a party may not file a section 2-1401 petition in the trial court to circumvent the requirements of Rule 303, the Appellate Court found that Joseph’s motion to vacate the order of possession filed in the trial court “does not create a right to appeal under Rule 303 nor … provide us with any other rule that permits him to relitigate issues already decided in 2013 and already timely appealed, albeit dismissed for want of prosecution.” Id.

The Appellate Court’s analysis concluded with a brief review of the revestment doctrine, which applies only in certain “limited circumstances” not applicable here, i.e., where both parties “(1) actively participate in the proceedings, (2) fail to object to the untimeliness of the late filing, and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.” Id. at ¶ 15, citing People v. Bailey, 2014 IL 115459, ¶ 25.

As an aside to the jurisdiction issues, the Appellate Court pointed out that Joseph's attorney’s brief “disparage[d] opposing counsel and ma[de] a number of statements that call into question the trial and appellate court's integrity.” 2018 IL App (1st) 170868, at ¶ 4. Specifically, throughout his opening and reply briefs, Joseph’s attorney called her opposing counsel’s arguments “incoherent,” “bizarre,” “nauseating,” “nonsensical,” and a “word salad.” The Appellate Court stated: “His remarks serve no purpose other than to demean or insult the other side. We expect all attorneys to behave with respect and civility in their written as well as oral interactions with opposing counsel and with the court.” Id. at ¶ 18. Because of the “acerbity of his statements,” including what the Appellate Court deemed “poisonous darts [aimed] at this court,” which went so far as to accuse the courts of ignorance and corruption, and his past behavior before the appellate court, Joseph was ordered to show cause why Rule 375 sanctions should not be imposed for his statements which “flout the norms of proper discourse before the appellate court.” Id. at ¶¶ 19-22.

In a Supplemental Opinion issued in the wake of the show cause order, the Appellate Court noted that Joseph’s lawyer failed to respond. Finding that he waived his right to respond, the Court sanctioned him by requiring him to (i) pay a fine to the Clerk of the First Appellate District and (ii) attend a minimum of six hours of civility and professionalism courses, and repeating the words of U.S. Supreme Court Chief Justice Warren Burger, stated: “[L]awyers who know how to think but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.” 2018 IL App (1st) 170868, at ¶¶ 26-27, citing Warren E. Burger, The Necessity For Civility, 52 F.R.D. 211, 215 (1971). The Appellate Court continued: “We are not dealing with a self-represented litigant here, but a licensed and experienced attorney who should know what constitutes the limits of proper argument. The statements addressed in the show cause order are not argument, but accusations and wild and unsubstantiated accusations at that. To let them pass without admonishment would be perceived as condoning [those] accusations, and serve to undermine the judiciary's legitimacy, authority, and persuasiveness in the minds of the public and his client” 2018 IL App (1st) 170868, at ¶ 26. The Court ordered that the clerk send a copy of the opinion to the Attorney Registration and Disciplinary Commission. Id. at ¶ 28.

On May 25, 2018, the Illinois Supreme Court amended Civil Appeals Rules 341 and 352.

Rule 341 – Points not argued are forfeited, not waived.

Rule 341 was changed slightly http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/341_052518.pdf

In subsection (h)(7), the rule previously provided that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waivedand shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

The amended subsection (h)(7) now provides that:

“Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

This change reflects the appropriate usage of the terms “waiver” and “forfeiture.” Waiver is the intentional relinquishment of a known right, i.e., an intentional act, whereas forfeiture is the failure to make a timely assertion of a right. Gallagher v. Lenart, 226 Ill. 2d 208, 229 (2007). Litigants who fail to appreciate the distinction between the two concepts in their briefs risk criticism. See, e.g., Mich. Wacker Assocs., LLC, v. Casdan, Inc., 2018 IL App (1st) 171222, ¶ 30 n.3 (noting that, when both parties on appeal raised numerous instances of waiver, that “[t]he parties have failed to differentiate between the concepts of waiver and forfeiture.”).

Rule 352 – The Court must now specify why oral argument is not necessary, and oral argument is required if one justice on the panel requests it.

Rule 352 was also changed, but substantially http://illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/352_052518.pdf

In subsection (a), the rule previously provided that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power should be exercised sparingly.”

The amended subsection (a) now provides that:

“After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case. Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it.”

This change appears to reflect a desire by the Illinois Supreme Court to have the Illinois Appellate Courts hold more arguments. Instead of a generic oral argument waiver order, the amendment seems to require a more specific oral argument waiver order detailing why argument won’t be held in a certain case. Additionally, the rule now makes it clear that oral argument must occur in a case if one justice requests it regardless of whether he or she is the authoring justice. 

Former ALA President and Illinois Solicitor General Michael Scodro, now a partner at Mayer Brown, as well as current ALA member and former Illinois Solicitor General Carolyn Shapiro, now an associate professor of law at Chicago-Kent College of Law, appeared on Chicago Tonight recently to discuss the "Most Controversial Cases" of the current term of the United States Supreme Court.

The discussion included the recent decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the Colorado Civil Rights Commission’s actions of assessing a cake shop owner’s reasons for refusing to create a cake for a same-sex couple’s wedding celebration violated the free exercise clause, and Collins v. Virginia, which held that the Fourth Amendment’s automobile exception does not allow the warrantless entry of a home or its curtilage in order to search a vehicle therein. Additionally, the panel discussed other pending cases such as Janus v. AFSCME, involving union fair-share dues, and Gill v. Whitford, involving Wisconsin’s redistricting plan, as well as the Court’s denial of a petition for certiorari in Planned Parenthood of Arkansas v. Jegley, a case involving a challenge to an Arkansas law regulating medication abortions.

If the embedded video does not work, you may watch here.

Other panelists included Andy DeVooght, a partner at the firm Loeb and Loeb, and Daniel Hemel, assistant professor at the University of Chicago law school.

By Margaret A. Manetti,

Codilis & Associates, P.C.

The Appellate Lawyers Association hosted the judges, administrators, and mediators of the United States Court of Appeals for the Seventh Circuit at its annual roundtable discussion and luncheon at the Union League Club of Chicago on May 15, 2018.

The Court’s newest members, Judge Michael Brennan, Judge Michael Scudder, and Judge Amy St. Eve, joined the luncheon. Following tableside discussions with 11 judges from the Court, Deputy Clerk Chris Conway addressed new court rules concerning access to the record and a new timing and lighting system to be used during oral arguments. Next, a panel featuring Judge Michael Kanne, Judge Diane Sykes, and Judge Amy Barrett spoke about appellate practice, with ALA President Evan Siegel moderating the discussion.

The panel of judges described their individual methods on preparing for oral argument and the involvement of their law clerks. Judge Sykes described how she chaired a committee that led the Court to introduce a new policy allowing oral arguments to be video-recorded at the request of counsel or the public. And Judge Kanne, who has served on the Court for 31 years, noted that one of the most important issues facing the Court and appellate community is protecting pro se litigants’ rights and obtaining counsel to represent them.

The ALA congratulates Judge Brennan, Judge Scudder, and Judge St. Eve and expresses its appreciation to the entire Court and staff for their participation in the luncheon.

The Chicago Transit Authority is seeking an attorney to work in the areas of compliance, policy and appeals. The ideal candidate will have at least seven years of legal experience, with at least three of those years related to appellate, policy, or compliance work. The attorney will handle the CTA’s appellate cases in both state and federal courts, from briefing the case to arguing it. In addition to the appellate work, the attorney will draft internal regulatory materials and provide legal advice regarding compliance issues.

More information about the position and how to apply can be found here.

On May 17, 2018, Justice Charles Freeman announced his retirement from the bench after a long and illustrious career in both public and private service. Justice Freeman was the first African-American to serve on the Illinois Supreme Court and retires after serving nearly 28 years as a justice of the Illinois Supreme Court.

Justice Freeman graduated from John Marshall Law School in 1962 after obtaining his Bachelor of Arts from Virginia Union University eight years earlier. He worked in private practice and public service prior to becoming a judge. In 1976, he was elected to the circuit court of Cook County. Ten years later, Justice Freeman was elected to the Illinois Appellate Court and, in 1990, he was elected to the Illinois Supreme Court where he has served ever since. Justice Freeman's retirement will be effective June 14.

The ALA congratulates Justice Freeman on a historic career.

With Justice Freeman’s retirement, the Illinois Supreme Court appointed Justice P. Scott Neville, Jr. to fill Justice Freeman’s seat, effective June 15 until December 7, 2020. Justice Neville has served as a justice of the Illinois Appellate Court since 2004 following four years as a judge in the circuit court of Cook County.

With Justice Neville being appointed to the Illinois Supreme Court, Judge Carl Anthony Walker of the circuit court of Cook County has been assigned to the First District Appellate Court until further order of the Illinois Supreme Court.

The ALA congratulates Justice Neville and Judge Walker.

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018.  A total of 15 cases will be heard – 10 criminal and 5 civil.  The following 5 civil cases are scheduled for argument this term:

Oswald v. Beard, No. 122203: May 22

People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc., No. 122487: May 22

American Family Mutual Insurance Co. v. Krop, No. 122556: May 22

Cassidy v. China Vitamins, LLC, No. 122873: May 23

Ameren Transmission Co. v. Hutchings, No. 122973 (cons.): May 23

Below is a summary for one of the civil cases, People ex rel. Schad, Diamond & Shedden v. My Pillow, Inc.  Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

FALSE CLAIMS ACT – ATTORNEY FEES

No. 122487

People ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc.

The issue in this appeal is whether a relator bringing a qui tam action is entitled to attorney fees under the Illinois False Claims Act (“the Act”) when relator is itself a law firm.

The relator brought a qui tam action under the Act alleging that the defendant failed to collect certain taxes as required by State law. The trial court found that the defendant violated the Act and awarded the relator damages and attorney fees, even though the relator, which is a law firm, represented itself in the suit.

The First District Appellate Court affirmed the trial court’s finding of liability under the Act, but reversed the attorney fee award. The appellate court relied on Hamer v. Lentz, 132 Ill. 2d (1989), holding that an attorney bringing a pro se action under the Illinois Freedom of Information Act could not recover attorney fees, in concluding that the relator was not entitled to attorney fees. The appellate court noted that the Act’s purpose in providing attorney fees for a successful relator was to remove the hurdle of significant legal fees in order to expose fraud and waste. However, the appellate court found, that purpose was not furthered by awarding a law firm relator its own fees since it does not have to pay its own fees. The appellate court also emphasized that allowing law firm relators to collect attorney fees could encourage abusive fee generation and unnecessary litigation.

In its petition for leave to appeal, the relator argues that the appellate court’s decision undermines the Act’s purpose of using private relators to pursue fraud claims because it provides a disincentive for law firms to file qui tam actions. The relator also argues that the potential for abusive fee generation is diminished by the fact that the Illinois Attorney General retains complete control over qui tam actions filed under the Act.

Finally, the relator argued that under the federal False Claims Act, law firm relators are permitted to collect attorney fees.

Appellate Court Decision: 2017 IL App (1st) 152668. Ellis, J., with McBride and Burke, JJ., concurring.

PLA Allowed: 09/27/17

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's May Term, which begins Monday, May 14, 2018, with oral arguments scheduled for May 15-17, 2018 and May 22-23, 2018.  A total of 15 cases will be heard – 10 criminal and 5 civil.  The following 11 criminal cases are scheduled for argument this term:

People v. Darien Harris, No. 121932: May 15

People v. Jerome Bingham, No. 122008: May 15

People v. Kirk Zimmerman (The Pantagraph, WGLT FM, and the IL Press Assoc., Intervenors), No. 122261: May 15

People v. Torrence Dupree, No. 122307: May 16

People v. Shane Harvey, No. 122325: May 16

People v. Ahmet Gocmen, No. 122388: May 16

People v. Derrick Bonilla, No. 122484: May 16

People v. Jennifer Nere, No. 122566: May 17

People v. Nelson Young, No. 122598: May 17

People v. Jafaria Deforrest Newton, No. 122958: May 17

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

People v. Ahmet Gocmen

Defendant, Ahmet Gocmen, was arrested and charged with driving under the influence of drugs or combination of drugs (DUI drugs) under 625 ILCS 5/11-501(a)(4) (2015), and his driver's license was summarily suspended.  Defendant filed a petition to rescind the suspension, alleging that the officer did not have probable cause for the arrest.  The circuit court granted the petition, and the appellate court affirmed in a published split decision.

Officer Beaty responded to a scene at 11:10 a.m. regarding an unconscious driver; paramedics were already present.  Beaty observed that defendant was in and out of consciousness, struggled to respond to verbal commands, and was confused about his location.  Paramedics told Beaty that he had a high heart rate, pinpoint pupils, and a "fresh track mark" on his arm.  In the vehicle, Beaty found a baggie containing an unidentified brown, granular substance, a used syringe, and a partial metal beverage can with burn marks on its interior and a tannish residue on its exterior that field-tested positive for an illicit drug.  Defendant told Beaty and paramedics that he was a diabetic, and Beaty testified to no training or experience in identifying drug use.

The lower courts concluded that Beaty lacked probable cause to arrest defendant for DUI drugs given that the syringe and track mark could be explained by defendant's diabetes and that Beaty was not an expert in recognizing drug intoxication.

Before the Illinois Supreme Court, the State argues for reversal on any of three bases, including that the appellate majority erred because: (1) interpreting the circumstances presented did not involve applying expertise in recognizing drug intoxication; (2) the low probable cause standard applied; and (3) laypersons as well as experts should be allowed to opine on whether a person observed is under the influence of drugs.  Defendant agrees with the majority that a non-expert should never be found competent to believe that a person is under the influence of drugs, whether at a probable cause stage or when testifying at trial.

On April 17, 2018, the Illinois Supreme Court entered an order appointing the Honorable John C. Griffin to the Illinois Appellate Court, First District, effective May 2, 2018. Justice Griffin will be replacing Justice Simon, who has served on the court since 2012.

The order can be found here.

On Friday, April 27, the ALA will host its Signature Luncheon, featuring Dahlia Lithwick of Slate, who will discuss the current term of the United States Supreme Court, the current dynamics of the Court, as well as other matters of interest.

Ms. Lithwick is one of the most recognized and respected voices in national legal journalism. A senior editor at Slate and contributing editor at Newsweek, she graduated from Yale University and Stanford Law School. She clerked for Judge Procter Hug, Jr., of the United States Court of Appeals for the Ninth Circuit and practiced law in Nevada before joining Slate, where she writes the “Supreme Court Dispatches” and “Jurisprudence” columns and hosts the popular “Amicus” podcast. Her work has appeared in The New York Times, Harper’s, The New Yorker, and The Washington Post. In addition, she has appeared on CNN and ABC and is a regular guest of “The Rachel Maddow Show.” In 2013, she won the National Magazine Award for her reporting on the Affordable Care Act, and she has twice been awarded an Online Journalism Award for her legal commentary.

The event is sponsored by Baker McKenzie, Forde Law Offices LLP, Tabet DiVito & Rothstein LLC, and Winston & Strawn LLP. It will begin at noon and run until 1:30 p.m. at the Union League Club in Chicago (dress code must be followed). Attendees will earn one hour of MCLE credit.

To register, please click here.