By E. King Poor (Partner, left), William A. Walden and Matthew A. Sloan (Associates), Quarles & Brady LLP

Joining state law claims in a federal suit is common. But until the Supreme Court decided Artis v. District of Columbia, 2018 WL 491524 (Jan. 22, 2018), this question remained unsettled: How much time does a plaintiff have to refile state law claims if all the federal claims are dismissed? In Artis, the Court provided a simple answer: a state statute of limitations is suspended while the federal case is pending and a plaintiff has the time remaining on that statute, plus 30 days, to refile.

Yet simple answers are not always the product of simple decisions. Here, in answering this narrow question of civil procedure, the Supreme Court split five-to-four. Justice Ginsberg authored a majority opinion relying on the textualism championed by the late Justice Scalia. Yet Justice Gorsuch’s dissent harkened back to the common law of the 1600s and argued that the majority’s position was not only contrary to the principles of federalism, but unconstitutional.

“Tolling” Means What the Text Says

Employment cases, like many federal suits, often join state law claims under a federal court’s “supplemental jurisdiction.” The Artis case followed that pattern. After being terminated from her job with the District of Columbia, the plaintiff brought suit in federal court and joined D.C. law claims in her suit. Later, the court dismissed the federal claims without deciding those brought under D.C. law.

Section 1367(d) of the Judicial Code (28 U.S. C. § 1367(d)) governs how much time a plaintiff has to refile in state court, after any federal claims are dismissed. It states that the time to refile in state court is “tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

In Artis, when the case was filed, almost two years remained on D.C.’s three-year statute of limitations, but by the time that the case was dismissed, the entire three-year period had elapsed. The plaintiff then filed suit in a D.C. court 59 days after the dismissal. That court dismissed the new case as untimely. It concluded that § 1367(d) did not suspend the running of the statute, and therefore, filing 29 days after the 30-day grace period was too late. The D.C. Court of Appeals affirmed following a ruling by the California Supreme Court, which in turn, conflicted with decisions from other state supreme courts.

The Supreme Court took the case to resolve this division of authority. Writing for the majority, Justice Ginsburg recognized that the case turned on the statute’s use of the word “tolled.” The Court noted that while “toll” may have other meanings (something that bells do or that drivers pay on a highway), in the context of statutes of limitations, it meant to suspend, or as the Court put it, “stop the clock.” To reach this conclusion, the Court focused on the text of the statute and stated that not only did the dictionary treat “toll” as suspending or stopped, the Court’s own decisions have consistently treated the word the same way. It also pointed out that adding a brief “grace period” such as 30 days, is “not unusual in stop-the-clock statutes.”

Finally, the Court was unpersuaded by the dissent’s argument that a stop-the-clock interpretation of “tolling” violated the Necessary and Proper Clause of the United States Constitution as a federal intrusion on state control of statutes of limitations. In rejecting this argument, the Court relied on its earlier precedent that § 1367(d) was necessary to the “administration of justice in federal court,” because it keeps plaintiffs from having to file in both federal and state courts for an action arising from the same event. The Court explained that whether Congress chose to use a stop-the-clock approach or a 30-day grace period was a matter within its discretion that did not implicate the Constitution.

Dissent: Stop-the-Clock Contrary to Common Law, Federalism and the Constitution

Justice Gorsuch argued in his dissent that, “It may be only a small statute that we are interpreting, but the result that the Court reaches today represents no small intrusion on traditional state functions and no small departure from our foundational principles of federalism.” In particular, he maintained that § 1367(d) grew out of a “rich common law and statutory tradition” that would have interpreted the word “tolling” to mean only a grace period, not a suspension of the statute. Relying on case law from as far back as the early 1600s, he stated that the common law provided only for enough time to “journey” to a new court after another case was dismissed.

The dissent also contended the majority’s stop-the-clock interpretation violated the Necessary and Proper Clause. Claiming that this interpretation unnecessarily intrudes on the ability of states to regulate their own statutes of limitation, the dissent concluded that “The Court today clears away a fence that once marked a basic boundary between federal and state power.”

Practice Pointers

Despite the varying arguments in Artis, the basic rule to emerge from the case is still straightforward: State claims may be refiled within the time remaining on a statute of limitations when the case was filed, plus 30 days. That may be a short period if the case was filed near the end of the statute. Or it may be lengthy, if the case was filed when months or even years remained before the statute expired.

As a result, defendants in particular should be mindful of the need to preserve all evidence and maintain litigation holds even after all the federal claims have been dismissed, when any state claims are still undecided. Any evidence preservation should remain in place until there is confirmation that the remaining periods for any state statute of the limitations, plus 30 days, have expired.

The Illinois Appellate Court, First District, recently amended Local Rule 39.

Effective March 1, 2018, in addition to the requirement of electronically filed briefs, which will be considered the official original filed with the court, the First District will require six duplicate paper copies of briefs and any appendices to be filed with the court’s electronic file stamp within five days of the documents' e-filing acceptance date.

To see these local rules, please click here. 

To see these local rules, please click here. 

By Josh Wolff

Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

The Illinois Appellate Court, Second District, recently amended Local Rule 101. Now, the Second District requires five hard copies of briefs be filed with the Clerk of the Court within five days of the briefs’ e-filing acceptance date.

Rule 101(c) now reads:

“Where a party files a brief electronically, the electronically filed brief shall be considered the official original. The party shall provide the Clerk’s Office with five duplicate paper copies, which shall be received in the Clerk’s Office within five days of the electronic notification generated upon acceptance of the electronically filed brief. Each paper copy shall be a printed version of the electronically filed brief, bearing the Clerk’s electronic file stamp, and shall be printed one-sided and securely bound on the left side in a manner that does not obstruct the text. The paper copies shall comply with all applicable Supreme Court Rules, including the color-cover requirement in Supreme Court Rule 341. A party shall not provide paper copies of any other materials filed electronically.”

The Second District also amended Rule 103 regarding motions for extensions of time, specifically adding subsection (a)(4) concerning information that must be provided in cases that might become moot pending the appeal. Now, the party requesting an extension must include “[i]n a criminal case, the status of the defendant’s sentence (where applicable), or, in any case that would become moot due to the passage of time on appeal, the date on which the appeal would become moot.”

To see these local rules, please click here. 

On February 9, the ALA along with the Lesbian and Gay Bar Association of Chicago will host “Neutral Umpires and Honest Black Robes: What Is, and Is Not, Said at Supreme Court Confirmation Hearings,” featuring Professor Carolyn Shapiro, the former Illinois Solicitor General.

Professor Shapiro teaches at Chicago-Kent College of Law, where she founded and acts as co-director of its Institute on the Supreme Court of the United States. At the event, Professor Shapiro will discuss how senators and nominees to the Supreme Court have described the role of the Court and its justices during confirmation hearings.

The event will begin at noon and run until 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard. The Union League Club enforces a dress code, which can be found here.

Attendees will receive one hour of MCLE credit.

For more information about the event and to register, please click here. 

The ALA regrets to inform you that former Appellate Court Justice William Cousins passed away on Saturday, January 20, 2018, at the age of 90.

Justice Cousins had an illustrious career, which included graduating from Harvard Law School, serving in combat in the Korean War, and working as a prosecutor and in private practice. Later in his career, he was elected as a Chicago alderman and a judge in the circuit court of Cook County, and eventually became a justice of the Illinois Appellate Court.

For more about Justice Cousins’ life, please click here.

By Kevin R. Malloy
Partner, Forde Law Offices LLP

In Vines v. Village of Flossmoor, 2017 IL App (1st) 163339, the First District reconsidered its granting of a Rule 303(d) motion for leave to amend a notice of appeal, and dismissed an appeal as untimely. In the case, a fourteen year old boy was injured when a metal grate outside the Flossmoor Library gave way, and his parents sued the Village of Flossmoor and the Flossmoor Library. The trial court granted summary judgment to the Village and the Library. The notice of appeal was due December 14, 2016, but the plaintiffs did not file until December 21.

Under Illinois Supreme Court Rule 303(d), the plaintiffs then had within 30 days after the time for expiration of the time to file the notice of appeal, or until January 13, 2017, to file a motion for leave to appeal. No Rule 303(d) motion was filed by that date. After the 30 days expired, the Library moved to dismiss the appeal for lack of jurisdiction, and the plaintiffs then filed a “Motion to Amend” the December 21, 2016 notice of appeal. A panel of the First District (other than the panel that issued the opinion) denied the Library’s motion to dismiss and granted the plaintiffs’ motion to amend the late-filed notice of appeal.

In its opinion, the appellate court reversed its grant of the motion to amend. In doing so, the court first noted its independent duty to review its jurisdiction and that the filing of a timely notice of appeal is both mandatory and jurisdictional. In reversing its prior decision to grant the Rule 303(d) motion, the appellate court noted that, under the plain language of the rule, the requested amendment fell outside the 30-day grace period for civil appeals. The court remarked that “[i]f litigation is to have some finality, acts must be accomplished within the time prescribed by law.” Vines, 2017 IL App (1st) 163339, ¶ 11 (quoting Gaynor v. Walsh, 219 Ill. App. 3d 996, 1004 (2d Dist. 1991)).

The court noted a split of authority as to whether a Rule 303(d) motion must be filed simultaneously with the notice of appeal to confer jurisdiction. The Vines court agreed with LaGrange Memorial Hospital v. St. Paul Ins. Co., 317 Ill. App. 3d 863, 865 (1st Dist. 2000), that the filing of the motion and the notice of appeal separately was not fatal, noting that the authority granted under the rule should be liberally exercised as long as the Rule 303(d) motion is filed within the additional 30 days. In Vines, however, the Rule 303(d) motion was not timely filed.

The plaintiffs urged the court at oral argument to extend the holding of People v. Brown, 54 Ill. 2d 25 (1973), to avoid unduly emphasizing “formality” over “substance.” The appellate court rejected the plaintiffs’ argument. In Brown, the supreme court reversed the appellate court’s dismissal of an appeal where the defendant filed a pro se notice of appeal seven weeks after pleading guilty and being sentenced, but where the trial court did not advise him about the time requirements for a notice of appeal. Brown was inapposite, according to the appellate court, as there is no corresponding obligation on the part of a trial court in a civil suit to admonish parties as to the time limits of the notice of appeal.

While the appellate court noted it was sensitive to the injuries suffered by the boy, the plaintiffs missed the deadline for filing a Rule 303(d) motion, and thus did not meet the mandatory requirement for appellate jurisdiction. Given that “[f]airness, efficiency, and predictability require that there be strict deadlines for our jurisdiction in civil cases,” the court dismissed the appeal. Vines, 2017 IL App (1st) 163339, ¶ 18.

On January 18 and 25, the ALA will host its annual Illinois Supreme Court Criminal Cases Year in Review, featuring a panel discussion about the most significant criminal cases decided by the Illinois Supreme Court in 2017.

There will be two events, one in Chicago, co-sponsored by the Asian American Bar Association (January 18) and one in Wheaton, co-sponsored by the DuPage County Bar Association (January 25). Both events will feature retired Illinois Appellate Court Justice James Epstein and current Illinois Appellate Court Justice Joseph Birkett, as well as Leah Bendik, Illinois Assistant Attorney General, Criminal Appeals Division and Patrick Cassidy, Supervisor, Office of the State Appellate Defender. ALA Secretary Gretchen Harris Sperry will moderate the discussion.

The Chicago event will be held on Thursday, January 18, from noon to 1:45 p.m., at Hinshaw & Culbertson LLP, 222 North LaSalle St., Suite 300.

The Wheaton event will be held on Thursday, January 25, from noon to 1:45 p.m., at the Attorney Resource Center, 505 North County Farm Road, 3rd Floor.

Attendees should bring their own lunches and will receive 1.5 hours of MCLE credit.

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

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's January Term, which begins Monday, January 8, 2018, with oral arguments scheduled for January 9-11, 2018. A total of 6 cases will be heard – 5 criminal and 1 civil.  The following cases are scheduled for argument this Term:

People v. Ricardo Vara, No. 121823: January 9

People v. Marc Pepitone, No. 122034: January 9

People v. Theophil Encalado, No. 122059: January 9

People v. Arthur Manning, No. 122081: January 10

People ex rel. Berlin v. Hon. Bakalis, No. 122435: January 10

Thounsavath v. State Farm Automobile Insurance Co., No. 122558: January 11

Below is a summary for one criminal case, People v. Theophil Encalado and one civil case, Thounsavath v. State Farm Automobile Insurance Co. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

People v. Theophil Encalado

Defendant was convicted of three counts of aggravated criminal sexual assault.  The victim, Y.C., alleged that at 6 a.m. one morning, defendant lured her into his car while she was walking to a bakery, drove her into an alley, and sexually assaulted her.  C.C. alleged that over three years earlier, defendant had also forcibly raped her, luring her into his car while she was walking from a nearby club.  DNA recovered from both victims matched defendant.  Defendant's defense was that both Y.C. and C.C. were prostitutes who had consented to sex in exchange for money and drugs after he had picked them up and asked for "a date."  Prior to the commencement of voir dire, defense counsel requested the court question prospective jurors: "you will hear evidence about prostitution.  Would that fact alone prevent you from being fair to either side?"  The trial court declined to ask the question, and the appellate court reversed, finding this ruling an abuse of discretion.

While the purpose of voir dire is to empanel an impartial jury free from bias or prejudice, it cannot be used to indoctrinate jurors.  In People v. Strain, the Illinois Supreme Court held that defendants are entitled to expose juror predisposition toward, and bias against, gangs.  Before the Illinois Supreme Court, the State argues that the trial court did not abuse its discretion in rejecting voir dire on prostitution because there was no need to depart from the general rule against allowing voir dire to preview particular evidence and potentially indoctrinate jurors.  Prostitution is not a topic that rises to the level of such intense controversy; the gang issue addressed in Strain is essentially sui generis.  In the alternative, the State argues that any error was harmless given overwhelming evidence of Encalado's guilt.  In response, Encalado asserts that the proposed question was phrased neutrally and potentially benefited the State as well given that under Encalado's version of events, State's witnesses were prostitutes.  An amicus brief filed on behalf of John Marshall Law School's Pro Bono Program and Clinic asserts that: (1) the appellate court's holding would discourage sexual assault victims, whether prostitutes or not, from coming forward in that such voir dire questioning allows defendants to insinuate that victims were prostitutes, circumventing the rape shield statute's general bar on admission of evidence about a victim's sexual history (or past work as a prostitute); and (2) bias against prostitutes is stronger than bias against patrons of prostitutes.

Thounsavath v. State Farm Mutual Automobile Insurance Co.

This issue in this case is whether a driver exclusion endorsement in an automobile policy barring coverage for the named insured violates Illinois law and public policy.

Plaintiff was insured by Defendant State Farm Mutual Automobile Insurance Company. Her policy specifically provided that State Farm would have no liability for losses incurred “while any motor vehicle is operated by: Clinton M. Evans.” Plaintiff was subsequently involved in an automobile accident while traveling as a passenger in a vehicle which was owned and operated by Mr. Evans. She thereupon filed a claim with State Farm, which denied coverage. Plaintiff filed a declaratory judgment action and on cross-motions for summary judgment, the circuit court granted Plaintiff’s motion.

On appeal, the First District Appellate Court affirmed. The appellate court noted that several cases have upheld the validity of named driver exclusions, but distinguished them on the basis that those exclusions were enforced as to parties other than the named insured. In reaching its decision, the Court relied on American Access Casualty Co. v. Reyes, 2013 IL 115601, which held that under section 7-317(b)(2) of the Financial Responsibility Law (625 ILCS 5/7-317(b)(2), which mandates insurance coverage, a named insured could not be excluded from coverage under a named driver exclusion provision in an insurance policy.

In its petition for leave to appeal, State Farm argues that the appellate court misapplied Reyes, and departed from other authority suggesting the validity of named driver exclusions in Illinois.

Justice Steigmann, of the Illinois Appellate Court, Fourth District, is seeking a judicial law clerk for his chambers located in Urbana, beginning February 15, 2018.

The law clerk will perform legal research, analysis, and writing and will review and assist in the drafting of judicial opinions, orders, and other legal documents. Qualified applicants must be graduates of an accredited law school, possess excellent academic credentials, and be members in good standing of the bar. The successful candidate will possess exceptional legal research and writing skills, excellent organizational and analytical abilities, and strong communication, decision-making, and interpersonal skills.

Preferred qualifications include an affinity for cats, as two cats call Justice Steigmann's chambers home, a pleasant demeanor, and a strong sense of humor. 

Justice Schmidt's funeral will take place at 11:00 a.m. on Thursday, December 28, 2017 at Kirlin-Egan & Butler Funeral Home, 900 S. 6th St., Springfield. Burial will follow at Old Salem Cemetery.

There will be a visitation from 4:00 to 8:00 p.m. on Wednesday, December 27, 2017 at St. Agnes Church, 245 N. Amos Ave., Springfield.

Memorial contributions may be made to: Sacred Heart-Griffin Band Program, 1200 W. Washington, Springfield, IL 62702; St. Agnes Memorial Scholarship and Tuition Fund, 251 N. Amos, Springfield, IL 62702; or the Springfield Parks Foundation, 2500 S. 11th, Springfield, IL 62703.

For Justice Schmidt's obituary, please follow the link.