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. 

By E. King Poor

Partner, Quarles & Brady LLP

Going back to the early 1970s, federal courts have disagreed on a basic question of appellate procedure: If a case has been consolidated with others, does it remain independent when it comes to filing an appeal? The Supreme Court finally settled that question in Hall v. Hall, 2018 WL 1472897 (March 27, 2018) and did so with a unanimous and unequivocal “yes,” holding that a judgment in a consolidated case may be appealed immediately.

Important practical considerations flows from the Hall decision—namely, parties in consolidated cases cannot wait to appeal. The appeals clock begins when judgment is entered for any consolidated case, and not when all the consolidated cases have been finally decided.

Third Circuit Dismisses Appeal from a Consolidated Case

The Hall case arose from a family dispute over real estate in the U.S. Virgin Islands. A mother had a falling out with her lawyer son over property that he managed and she then transferred her property to a trust. The trust later sued her son and his law firm for mismanagement. After the mother died, her daughter became the successor trustee and continued the suit against her brother.  The brother then sued his sister individually and the individual and trust cases were eventually consolidated.

A single jury heard both cases. It rendered a verdict in favor of the brother in his individual case and against the sister in her trust case. But the verdict for the individual case was set aside for a new trial, while final judgment was entered against the sister in the trust case.

The sister appealed the judgment against her. The Third Circuit dismissed the appeal for lack of jurisdiction reasoning that because the two cases had been consolidated “for all purposes,” the sister could not appeal when the individual case was still pending.

Looking Back Over 200 Years, the Supreme Court Reverses

The Supreme Court reversed.  Writing for a unanimous Court, Chief Justice Roberts pointed out that if there had been no consolidation, there would be no question about the sister’s right to appeal. But in light of the consolidation, the Court turned first to the language of Fed. R. Civ. P. 42(a) which permits trial courts to take the following steps for actions involving common questions of law or fact (1) join them for hearing or trial, (2) “consolidate” them, or (3) issue any order to avoid “unnecessary cost or delay.”

The Court found that the word “consolidate” as used in Rule 42(a) was ambiguous. On the one hand, it noted that the term might mean “complete merger,” but on the other hand, it might mean simply a “joining together” without a case losing its “independent character.”  Because the term “consolidate” did not have a plain meaning, the Court looked to the “legal lineage” of the term going back to the first federal consolidation statute in 1813.

Unlike other Supreme Court decisions that hinge on the text of a statute or rule alone, the Hall decision turned on history. In particular, the Court examined its own decisions, those of other federal courts, and leading treatises in the 125 years after the original 1813 statute and determined that there was a widely-shared consensus that consolidation meant only a joining together— with constituent cases remaining independent for appeal.

The linkage to that history continued. In 1938, when the current Rule 42(a) was adopted, it was expressly based on the 1813 statute. Because of that, the Court reasoned, unless the drafters of the rule indicated an intent to give it a new meaning, the historical meaning governed. The Court rejected the idea that the drafters would “take a term that had meant, for more than a century, that separate actions do not merge into one, and silently and abruptly reimagine the same term to mean that they do.”

Beyond its specific holding, Hall offers another lesson: history matters. To settle a decades-old division of authority in 2018, the Court looked to an 1813 statute and the legal authority that followed in its wake. That history, the Court concluded, resolved any ambiguity and therefore it held that consolidated cases retain their independent character for appeals.

Practice Pointer - In Consolidated Cases, Don’t Wait to Appeal

Before Hall, parties in some circuits may have considered waiting until all consolidated cases had been decided before appealing. No longer. With Hall, each consolidated case will have its own appeal clock once judgment is entered. And that’s the only clock that counts to preserve the right to appeal. In consolidated cases, when it comes to appeals, there’s no more waiting.

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.