By Joanne R. Driscoll 

Forde Law Offices LLP

While the advent of electronic filing has extended the time deadline within which jurisdictional filings can be made – from the end of business until 11:59 p.m. – counsel’s failure to allow enough time for uploading the filing before midnight can result in disastrous consequences.

In Peraino v. County of Winnebago, 2018 IL App (2d) 170368, decided on March 30, 2018, the Illinois Appellate Court, Second District, dismissed an appeal for lack of jurisdiction because a post-trial motion to reconsider the granting of a summary judgment motion was stamp-filed 12:03 a.m. on January 4, 2017. The motion for reconsideration was due on January 3, 2017.

On January 5, 2017, the plaintiff moved in the circuit court for leave to file his motion to reconsider nun pro tunc to January 3, 2017, contending that the I2File website would not upload his post-trial motion at 11:58 p.m. on January 3, 2017. The circuit court denied the motion, citing to local rule 22.01(N) (17th Judicial Cir. Ct. R. 22.01(N) (July 25, 2016)) and to provisions in the Illinois Supreme Court’s Illinois Electronic Filing User Manual (Ill. S. Ct., M.R. 18367 (eff. Feb. 3, 2014)) directed at technical failures experienced during electronic filing. The circuit court found neither rule applied because there were no technical defects in the software or electronic filing system, only user problems. The plaintiff appealed.

The appellate court dismissed the appeal, sua sponte, for lack of jurisdiction because the plaintiff’s failure to file a timely post-trial motion meant that his notice of appeal was due within 30 days of the summary judgment order (January 3, 2017), and the plaintiff did not move the appellate court for leave to file a late notice of appeal under Illinois Supreme Court Rule 303(d) (eff. Jan. 1, 2015). The appellate court also vacated the circuit court’s order, holding that the circuit court lost jurisdiction to consider the plaintiff’s request to backdate his motion to reconsider. Although not pivotal to its decision, the appellate court agreed that “technical failures” referenced in electronic filing rules pertain to the malfunction of the court’s hardware, software or telecommunications facility; it does not include the failure of the user’s equipment.

All may not be lost to the plaintiff, however, as the appellate court suggested one alternative still available – to request supervisory or other relief from the Illinois Supreme Court.

After a successful event in May 2017, the Illinois Supreme Court Commission on Professionalism is again hosting “The Future Is Now” Conference. On May 2, the Commission will host the conference focusing on innovations and practices impacting the delivery of legal services and the legal profession as a whole.

The conference will have ten speakers with each addressing different issues impacting the profession, including the practicality of artificial intelligence, legal technology like algorithms and data analytics, best practices for retaining diverse talent, equal justice as a bipartisan issue, criminal justice reform, and the entrepreneurial spirit. Illinois Supreme Court Chief Justice Lloyd Karmeier will deliver opening remarks about the importance of innovation and the need for lawyers to address new ways to better serve clients.

The conference will be held at Venue SIX10 (610 S. Michigan Avenue in Chicago), beginning at 10 a.m. and ending at 4:45 p.m. The complete conference schedule is posted on the event website.

The registration fee is $75 and will cover the cost of lunch, refreshments and a reception following the formal program. Registration is currently open; however, seating is limited. To register, please click here.

The conference will be approved for 5.0 hours of professional responsibility CLE credit in Illinois, including 0.5 hours of diversity CLE credit. To receive credit, attendees must complete conference feedback forms, which will be sent to participants via email along with their certificates of attendance after the event.

For additional questions and concerns, please email Lindsay Shaw (lindsay.shaw@2civility.org) or call her at (312) 363-6210.

The South Asian Bar Association of Chicago will host its inaugural Judicial Reception on April 5 from 5:00 p.m. to 8:30 p.m. at the Kimpton Hotel Allegro (171 W. Randolph St. in Chicago). As part of the program, SABA will present an award to Hon. James Flannery, Presiding Judge of the Law Division, as well as honoring the South Asian judges in Cook County and the surrounding counties.

SABA was founded to advance the development and growth of a diverse group of legal professionals and foster a culture of service within the South Asian legal community and beyond. Since its inception, SABA has made significant strides to further these goals, including the formation and operation of one of the largest pro bono legal aid clinics in Chicago, located at the Indo-American Center.

In recent years, SABA has expanded its mentoring program to include approved CLE-Mentorship in Illinois. In addition, through volunteer programs and donations, SABA actively supports domestic violence shelters, organizations dedicated to developing leadership excellence in youth, and many other charitable organizations whose causes align with our mission. These efforts have allowed our member community to grow to over 600 legal professionals.

Tickets are $80 for SABA members and $100 for non-members. To purchase tickets, please visit: https://www.eventbrite.com/e/south-asian-bar-association-of-chicagos-judicial-reception-tickets-44045874396

The Appellate Lawyers Association is pleased to announce its co-sponsorship with the Cook County Bar Association for the "Judicial Reception." The event will be held on Tuesday, April 3, 2018, from 5:00 p.m. to 7:30 p.m. at the Fremont Chicago (15 West Illinois Street). This reception is an excellent social networking opportunity, aimed at exposing members of the public—including attorneys, politicians, academics, students, and others—to the Illinois judiciary in an informal setting. Last year, over 250 people were in attendance, including over 100 Illinois judges and justices.

Tickets are $65 for CCBA members and $100 for non-member guests, with opportunities for sponsorships at higher levels. Open bar and complimentary hors d’oeuvres are also included.

To purchase tickets and sponsorships, or to find out more information about the event, please visit:https://cookcountybar.org/events/judicialreception.

By Stephen Soltanzadeh
Associate, Ancel Glink

The Illinois Appellate Court, Second District, recently held in Hartney v. Bevis, 2018 IL App (2d) 170165, that an involuntary dismissal of a prior appeal for failure to file a brief had a preclusive effect on a subsequent appeal that involved the same issue raised in the dismissed appeal.

In Hartney, plaintiff obtained a monetary judgment against defendant, and defendant appealed in an appeal docketed as No. 2-15-0005. In a separate action, plaintiff sought enforcement, including an order requiring the sale of stock owned by defendant, with the proceeds to go toward satisfying the judgment. Defendant argued that the stock was exempt under 735 ILCS 5/12-1001(b), but the circuit court held that the stock was to be sold, with the exemption applying to any proceeds from the sale, not the stock itself. Defendant appealed that order as well, and that appeal was docketed as No. 2-15-0929. Hartney, 2018 IL App (2d) 170165, ¶¶ 1-5.

In December 2015, with appeal No. 2-15-0929 pending, the appellate court affirmed the underlying judgment in appeal No. 2-15-0005. In January 2016, the circuit court stayed the sale of stock. It later lifted that stay in August 2016, and the stock was sold to plaintiff at auction in October 2016 for $1.00. Meanwhile, in July 2016, the appellate court dismissed appeal No. 2-15-0929 for defendant’s failure to file a brief. Id. ¶ 6.

In November 2016, defendant moved the circuit court for an order applying defendant’s statutory exemption to the stock, not to the proceeds from its court-ordered sale. The circuit court ultimately denied the motion in January 2017 and held that the exemption applied to the proceeds from the sale, but not the stock, and declined to void the sale of stock. Defendant appealed. Id. ¶¶ 7-8.

The appellate court held that its prior dismissal of appeal No. 2-15-0929 on the ground that defendant failed to file a brief precluded defendant from appealing the circuit court’s January 2017 order. The court explained that whereas, generally, a voluntary dismissal will not have preclusive effect on a subsequent appeal, an involuntary dismissal will have preclusive effect so long as the dismissal is based on “a defect in the appeal proceedings . . . attributable to appellant,” (id. ¶¶ 12-13 (quoting 50 C.J.S. Judgments, § 984 (2015))), meaning “where the appellant fails to properly conduct the appeal of an otherwise appealable order.” Id. ¶ 13. The court concluded that the involuntary dismissal based on defendant’s failure to file a brief qualified as a dismissal based on a defect attributable to defendant and, therefore, had preclusive effect. Id. ¶ 16. It further determined that defendant was raising the same substantive issue in the appeal before the court as he had raised in appeal No. 2-15-0929, and, therefore, held that the appeal was barred by that prior appeal’s dismissal.

By Kimberly Glasford

Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

In Jaworski v. Master Hand Contractors, Inc., No. 16-3601 (7th Cir. Feb. 15, 2018), several plaintiffs filed an action against several defendant contractors for unpaid services. The district court found the defendants failed to pay their workers and the United States Court of Appeals for the Seventh Circuit found the defendants failed to fulfill their obligations to the court.

The district court in Jaworski entered a partial summary judgment, finding the defendants violated the Employee Classification Act (the ECA) (820 ILCS 185/1 et seq.) by misclassifying the plaintiffs as independent contractors. The court also found that damages under the ECA included the compensation guaranteed by the Illinois Minimum Wage Law (820 ILCS 105/1 et seq.) and the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq.), notwithstanding that the burdens of proof under those laws differed.

Following a bench trial, the court also found the defendants violated the two Illinois wage statutes as well as the Fair Labor Standards Act (29 USC § 201 et seq.). The defendants appealed.

First, the Seventh Circuit found that the defendants failed to comply with Circuit Rule 30 (Cir. R. 30), which requires that an appellant append to its opening brief the judgment under review, the pertinent factual findings, the relevant legal conclusions, and any other opinions or orders involved in the issues raised on appeal. Rule 30 also requires an appellant to certify that it has complied with the rule’s requirements. Cir. R. 30(d). The Seventh Circuit further observed that the failure to meticulously comply with this unambiguous rule might result in sanctions.

The Seventh Circuit observed that the defendants challenged the district court’s posttrial judgment but did not provide that court’s factual findings and legal conclusions. The defendants also failed to provide orders being challenged on appeal.

Moreover, the defendants falsely certified that they had appended all of the district court rulings necessary to decide the appeal. The Seventh Circuit noted that the defendants had not explained why they tendered a false certification. The court also recognized, however, that the clerk’s office would not accept a brief that lacked a Rule 30 certification. Consequently, the reviewing court summarily affirmed the district court’s judgment.

The Seventh Circuit also granted the plaintiffs’ motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure (Fed. R. App. P. 38), agreeing that the defendants’ appeal was frivolous.

That rule states: “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Id. The defendants in Jaworski never responded to the sanctions motion.

The Seventh Circuit found that, while the defendants argued the record contained several examples of activities showing the plaintiffs were not employees, the defendants did not actually identify any examples. The defendants also failed to address two of the ECA’s three requirements for an employer to show a claimant is not an employee.

The defendants similarly failed to support their conclusion that the district court erred by finding that ECA claimants did not have the burden of proving their status as employees to be compensated under the Illinois wage acts. Nor did the defendants address the district court’s reasons for finding otherwise. In any event, that court had also found the claimants demonstrated independent violations of the Illinois wage acts. Finally, the Seventh Circuit found it was frivolous to assert that the defendants’ insolvency discharged their obligations to the plaintiffs under the ECA.

In light of the foregoing, the Seventh Circuit ordered the defendants to pay the plaintiffs’ costs and attorney fees in pursuing the appeal.

Several tips can be found in Jaworski. Don’t certify compliance with Rule 30 just to get past the clerk’s office. If the appellee moves for Rule 38 sanctions, respond. Last but not least, it’s better to forgo an appeal than risk sanctions for filing a frivolous one.

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's March Term, which begins Monday, March 12, 2018, with oral arguments scheduled for March 13, 2018 (in Springfield) and March 15, 2018 (in Urbana at the University of Illinois). A total of 4 cases will be heard – 1 criminal and 3 civil. The following criminal case is scheduled for argument this Term:

People v. John Plank, No. 122202: March 15

Below is a summary for the criminal case, People v. John Plank. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website. 

Defendant John Plank was charged with driving a motor vehicle while his license was revoked, in violation of 625 ILCS 5/6-303(a). The motor vehicle in question was a bicycle powered by a gasoline motor. Under the Vehicle Code, a "low-speed gas bicycle" is not a "motor vehicle." 625 ILCS 5/1-146. Defendant moved to dismiss the charge against him, arguing that the Code's definition of "low-speed gas bicycle," 625 ILCS 5/1-140.15, is unconstitutionally vague. The circuit court granted the motion, declaring section 1-140.15 unconstitutionally vague on its face in violation of the Due Process Clauses of the U.S. and Illinois Constitutions.

Section 1-140.15 defines a "low-speed gas bicycle" as "[a] 2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour."

Before the Illinois Supreme Court, the State argues for reversal on two bases. First, the statutory definition satisfies due process because it gives a person of ordinary intelligence – even if he does not weigh 170 pounds – a reasonable opportunity to determine whether a motorized bicycle is a "low-speed gas bicycle" and provides a clear and objective standard for enforcing the law. Second, the statutory definition is facially constitutional – even if the maximum-speed component is vague as applied to persons who do not weigh 170 pounds – because any such vagueness does not extend to all of the definition's applications.

In response, Plank asserts that the statutory definition is vague because it (1) deprives citizens of fair notice of what is prohibited, noting that around forty other states have definitions not dependent on the weight of the rider, and (2) encourages arbitrary enforcement given the many determinations involved (the horsepower of the motor, its maximum speed on a level paved surface, whether pedals are operable, whether speed was increased by human pedaling). Plank also argues that a statutory definition need not be vague in all of its applications to be unconstitutionally vague.

By Richard Harris

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

With its tongue in its cheek, the Seventh Circuit Court of Appeals recently found a case so wanting of jurisdiction that it expressed a desire to make both sides pay a penalty into the “law clerks’ holiday-party fund.”

In Cooke v. Jackson Nat’l Life Ins. Co., No. 17-2080 (7th Cir. Feb. 9, 2018), the District Court ordered two kinds of relief. First, the defendant insurance company was ordered to pay the death benefit on the plaintiff’s husband’s policy. Second, the insurance company was ordered to pay the plaintiff’s legal expenses. The parties treated this order as the final judgment for purposes of appeal. However, the order made no mention of any specific relief—it simply stated that one motion was granted, another was denied, and an award was made. “We have held many times,” wrote Judge Frank Easterbrook, “that judgments must provide relief and must not stop with reciting that motions were granted or denied—indeed that it is inappropriate for a judgment to refer to motions at all.”

The Court of Appeals noted that there was another order entered by the District Court, not treated as a final judgment by the parties, which also purported to grant relief. This was a standard form order used for judgments. It stated that judgment was entered in favor of the plaintiff and against the insurance company, and that the plaintiff was awarded “reasonable attorney fees.” Unfortunately, the order was not signed by the district judge (see Fed. R. Civ. P. 58(b)(2)(B)), and it made no mention of exactly how much the insurance company was ordered to pay—whether for attorney fees or on the plaintiff’s husband’s policy. Recognizing these shortcomings, the plaintiff sought clarification by way of a motion to reconsider under Federal Rule of Civil Procedure 59(e). In turn, the District Court entered an order that directed the insurance company to pay a specific amount on the policy, but left open the amount of attorney fees. The plaintiff filed a petition asking for specification on the amount of attorney fees, but this was denied with leave to renew after resolution of the pending appeal from the first order.

The debacle continued when the insurance company filed a second notice of appeal, this time on the order containing the ruling on the plaintiff’s Rule 59 motion. The insurance company conceded the issue on the merits and paid the plaintiff on her husband’s policy, but argued that the plaintiff was not entitled to attorney fees. This prompted Judge Easterbrook to query, “Yet how can [the insurance company] appeal from an award of attorneys’ fees that has yet to be quantified? A declaration of liability lacking an amount due is not final and cannot be appealed.” The obvious problem was that this could lead to multiple appeals from a single award: one contesting the declaration of liability on the issue of attorney fees and another contesting the amount of attorney fees awarded. The insurance company cited Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), correctly observing that decisions on the merits and awards of attorney fees are separately appealable. But while Budinich would have applied to make the award on the plaintiff’s husband’s policy final and appealable, that case did not provide for an appeal from an unquantified award for legal expenses.

Throwing one final wrench into the proceedings, the plaintiff filed a motion under Federal Rule of Appellate Procedure 38, arguing that she was entitled to a separate award of attorney fees because she was forced to litigate the insurance company’s “frivolous” appeal from the order on her Rule 59 motion. The motion was denied, as the plaintiff was scolded for briefing the issue on the merits rather than filing a motion to dismiss the premature appeal. Judge Easterbrook concluded, “If it were permissible for a court to order both sides to pay a penalty—say, into the law clerks’ holiday-party fund—we would be inclined to do so. But there’s no such appellate power and no good reason for us to order [the insurance company] to pay something to [the plaintiff] as a result of a problem that both sides missed.”

Alas, we law clerks are left to finance our own holiday debauchery.

On March 7, 8 and 15, the ALA will host its annual Illinois Supreme Court Civil Cases Year in Review, featuring a panel discussion about the most significant civil cases decided by the Illinois Supreme Court in 2017.

There will be three events: one in Wheaton, co-sponsored by the DuPage County Bar Association (March 7); one in Chicago, co-sponsored by Hispanic Lawyers Association of Illinois (March 8); and one in Springfield, co-sponsored by the Sangamon County Bar Association (March 15). All three events will feature Illinois Appellate Court Justice Ann B. Jorgensen (Second District) and past ALA Presidents J. Timothy Eaton and Michael T. Reagan.

The Wheaton event will be held on Wednesday, March 7, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

The Chicago event will be held on Thursday, March 8, from noon to 1:45 p.m., at Mayer Brown LLP, Townhall Meeting Room, 32nd Floor, 71 South Wacker Drive.

The Springfield event will be held on Thursday, March 15, from noon to 2 p.m., at Maldaner’s, 222 South 6th Street.

Attendees should bring their own lunches except to the Springfield event where lunch will be provided. Attendees to each event will receive 1.5 hours of MCLE credit.

For more information about any of the events and to register, please click here.

Lastly, on Thursday, March 29, the ALA will host its Roundtable Luncheon Program Featuring the Justices of the Illinois Appellate Court, First District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, 65 West Jackson Boulevard, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit and must adhere to the Union League Club dress code.

On February 12, President Donald Trump nominated Amy St. Eve, U.S. District Judge for the Northern District of Illinois, and Michael Y. Scudder, Jr., Partner at Skadden, Arps, Slate, Meagher & Flom LLP, to the United States Court of Appeals for the Seventh Circuit.