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.

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.