The ALA regrets to inform you that Appellate Court Justice John Schmidt passed away Tuesday morning, December 19, 2017. 

Please click here for more information. 

Former Illinois Appellate Court Justice Robert Chapman Buckley passed away on Tuesday, November 28, at the age of 94. A funeral mass is set for 10 a.m. Tuesday at St. James Catholic Church in Arlington Heights.

Justice Buckley served on the appellate court from 1978 until 2002. More information about his life can be found in the Chicago Sun-Times and Legacy.com.

The City of Chicago Department of Law is looking to fill an Assistant Corporation Counsel position in its Appeals Division. The Assistant Corporation Counsel will brief and argue cases in state and federal appellate courts and do not specialize in a particular subject matter, but instead handle a range of matters, including labor and employment, torts, civil rights, tax and revenue, regulation, issues arising under ordinances and statutes, and other cases involving city government and programs.

The ideal candidate will have graduated from law school in 2014 or earlier, and have a demonstrated interest in appellate practice, as evidenced by at least a one-year appellate clerkship or research position with an appellate court, or having participated in briefing at least two appellate cases. All employees of the City of Chicago must be actual residents of the City of Chicago as outlined in 2-152-050 of the City of Chicago Municipal Code.

The submission deadline is December 19, 2017.

More information about the position can be found here.

On December 7, the Appellate Lawyers Association will host a roundtable luncheon featuring the justices of the Illinois Supreme Court. The luncheon will provide attendees the rare opportunity to speak to the justices in an informal setting, allowing attendees to ask questions and discuss appellate practice.

The event will be from 12:00 p.m. to 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Attendees to the event will receive one hour of MCLE credit. To register, please visit here.

By E. King Poor (Partner, left) and Jerome C. Mohsen (Associate),

Quarles & Brady LLP

Justice Frankfurter once observed that the term “jurisdiction” was “a verbal coat of too many colors.” United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952). But in its recent decision in Hamer v. Neighborhood Hous. Servs. of Chicago, 2017 WL 5160782 (Nov. 8, 2017), the Supreme Court makes plain that the color choices for that term are now more black and white.

In particular, when considering the time to appeal, the Court in Hamerheld that only time limits set by Congress, as opposed to those set by a court rule, are jurisdictional.

In Hamer, a plaintiff’s discrimination claims were dismissed by the district court. Her lawyer then withdrew shortly before the notice of appeal was due, and the court granted her an extension of time to appeal, but beyond what was permitted by Federal Rule of Appellate Procedure 4(a)(5)(C). The defendants did not oppose that request in the district court. But the Seventh Circuit, on its own, ruled that it lacked jurisdiction because the district court had no authority to extend the time to appeal beyond what it termed was a “jurisdictional” deadline and dismissed the appeal.

In a unanimous decision, the Supreme Court reversed. In doing so, it reinforced the distinction between jurisdictional deadlines and what it described as mandatory “claim-processing rules.” Drawing on earlier precedent, the Court explained that time limits are jurisdictional only when set by Congress in a statute. Such statutory deadlines cannot be waived or forfeited even if a party fails to raise the issue. These time limits may be raised at any time, even on appeal, and a court has a duty to raise them.

On the other hand, a time limit set by a court-made rule may still be enforced, but only if it is timely raised by a party. If it is not timely raised, it may be waived or forfeited, and a court has no duty to raise it on its own. The Supreme Court also explained that the distinction between time limits that are court-made and those that are statutory arises from the principle that “[o]nly Congress may determine a lower federal court’s subject matter jurisdiction.”

The Supreme Court pointed out that the Seventh Circuit, like other courts of appeal, have “tripped over” the statement, in Bowles v. Russell, 551 U.S. 205 (2007), that the time for taking an appeal is “mandatory and jurisdictional.” This statement is still correct, the Court explained, when applied to Bowles. Yet Bowles was different. There, the district court granted an extension of the time to appeal, because the appealing party lacked notice of the judgment under Rule 4(a)(6)(B), which mirrors the fourteen-day statutory time limit in 28 U.S.C. § 2107(c). Because the time limit was grounded in a statute, it is jurisdictional and the district court had no authority to extend it.

On the other hand, the time limit in Hamer differed in this essential respect: it was derived only from a court-created rule. In Hamer, the district court granted an extension beyond the time limit based only on a court rule that had no statutory counterpart, and that made all the difference.  As a result, the time limit for the extension was only a mandatory claim-processing rule. When the defendants raised no objection to it, the Seventh Circuit could not dismiss the appeal on its own for lack of jurisdiction.

The Hamer decision reinforces that whether a federal time limit is jurisdictional is not a coat of many colors, but actually a black or white question: Is the time limit set by Congress or a court?

On November 28, the Puerto Rican Bar Association and the Hispanic Lawyers Association of Illinois in conjunction with the Chicago Bar Association will host “Lawyers for Puerto Rico,” a social event with live music, drinks and appetizers benefiting the Hurricane Relief Fund of The Puerto Rican Agenda.

The event will take place at the Chicago Bar Association (321 S. Plymouth Court), beginning at 5:30 p.m. and ending at 7:30 p.m.

Guests at the event will include Illinois State Senator Iris Martinez, and Cook County Commissioners Jesus “Chuy” Garcia and Luis Arroyo Jr.

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

The Illinois Attorney General’s Office is looking to fill an Assistant Attorney General position in its Civil Appeals division in Chicago. The Assistant Attorney General will brief and argue civil cases in state and federal appellate courts. The ideal candidate should have a minimum of three years of legal experience or an appellate clerkship, as well as a demonstrated interest in appellate work. Preference will be given to candidates who have appellate experience in both state and federal courts.

More information about the position can be found here.

By Jonathan B. Amarilio
Partner, Taft Stettinius & Hollister LLP

“We find that supreme court jurisprudence requires us to depart from the weight of First District authority.” In re Marriage ofTeymour, 2017 IL App (1st) 161091, ¶ 1.  To any practitioner of the law, these words should set off alarm bells and garner attention, and In re Marriage of Fouad Teymour, 2017 IL App (1st) 161091, provides no exception to that rule.

Teymour concerns appeals from trial court orders resolving several postdissolution matters, specifically between Fouad Teymour and his ex-wife Hala Mostafa. The underlying facts are unremarkable. Fouad and Hala’s marriage was dissolved and he was ordered to pay maintenance. Several years later, Hala filed a petition to extend the length of the payment period, for unpaid child support, and for attorney fees and costs. Fouad, in turn, sought a reduction of maintenance. Both sides sought discovery sanctions. The trial court entered an order continuing maintenance, found Fouad in indirect civil contempt (although it declined to impose a penalty in conjunction therewith), and granted Hala leave to file petitions for attorney fees, costs and sanctions on several bases, denying Fouad’s reciprocal requests.

Fouad filed a notice of appeal challenging his continued maintenance obligations, the imposition of sanctions, the contempt finding, and the trial court’s failure to dismiss Hala’s request for child support. Hala’s petitions for attorney fees and—possibly—her request for child support (this latter point was apparently unclear from the record) remained pending; however, the trial court did not enter a Rule 304(a) finding.

On appeal, the First District was confronted with a surprisingly unresolved issue: whether unrelated, pending postdissolution matters constitute separate “claims” or separate “actions” for purposes of establishing jurisdiction under Rule 304(a). The reviewing court explained that the appellate districts were split on this question, further explaining that if each pending, unrelated matter constitutes a separate “claim” in the same action, a Rule 304(a) finding is required to appeal from an order disposing of only one such claim. Whereas if each pending and unrelated matter constitutes a separate “action,” an order disposing of only one such action is final and appealable under Rule 301—regardless of the status of other, still pending, actions. And of course, if the latter were true, a party would also have to file a notice of appeal within 30 days of the relevant trial court decision or lose the right to appeal it forever.

Criticizing as imprecise the reasoning adopted in several appellate and supreme court decisions addressing closely related issues, and observing that the supreme court’s 2009 decision In re Marriage of Gutman, 232 Ill. 2d 145 “only added fuel to the jurisdictional fire” (a statement seemingly meant to draw attention), the court here broke with First District precedent and adopted the position taken by the Second and Fourth Districts to find that separate and unrelated postdissolution matters present separate claims, not separate actions, and therefore a Rule 304(a) finding is required where only one of several pending postdissolution petitions has been resolved. Recognizing the fairly unique nature of postdissolution proceedings, the court stated that “[w]here a party files one postdissolution petition, several more are likely to follow,” and any different rule would only encourage unmanageable piecemeal litigation. Teymour, 2017 IL App (1st) 161091, ¶ 39.

Applying that holding to the facts presented, the court found that, even if it assumed the child support request was not pending when the notice of appeal was filed, the several attorney fee petitions (often considered ancillary in other contexts) were still pending. Because the trial court did not make a Rule 304(a) finding, the contempt and sanctions orders were not yet appealable, and the court found it lacked jurisdiction to consider them.

Unless and until the Supreme Court wades into this matter directly, Teymour is a must read opinion for all family law practitioners and for appellate lawyers handling family-law appeals.

Cases Pending, co-chaired by Gretchen Harris Sperry (left) and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court's November Term, which begins today, November 13, 2017, with oral arguments scheduled for November 14-16, 2017. A total of 7 cases will be heard – 2 criminal and 5 civil. The following criminal cases are scheduled for argument this Term:

People v. Robert Carey, No. 121371: November 14

People v. Leshawn Coats, No. 121926: November 14

Below is a summary for one criminal case, People v. Robert Carey. 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. Robert Carey

Defendant Robert Carey was charged with multiple offenses, including felony murder while committing attempted armed robbery (count I) and attempted armed robbery with a firearm (count II). The appellate court agreed with defendant that the indictment's description of count I was deficient. The indictment alleged that the murder occurred during commission of attempted armed robbery, listed the date and location of the offense, provided the statutory citation for felony murder, and named the accused and the victim. But the court found the count deficient because it did not specify which of two forms of attempt armed robbery was alleged, i.e., attempted armed robbery with a firearm or attempted armed robbery with a dangerous weapon other than a firearm.

Before the Illinois Supreme Court, the State argues for reversal on multiple bases. First, count I fully informed Carey of the felony murder charge in compliance with longstanding precedent describing sufficiency of indictments. Second, even if count I were deficient, review of the indictment as a whole sufficiently informed Carey of the charge given that count II specifies attempted armed robbery with a firearm. Third, Carey cannot establish prejudice because the detail of the weapon used was irrelevant to his theory of the case. Finally, even if the indictment were deficient, the appropriate remedy should have been to treat the predicate felony for felony murder as attempted robbery and affirm the conviction rather than to vacate the felony murder conviction.

In response, Carey asserts that the appellate court's opinion was correct for several reasons. First, during the trial, the State argued that the predicate felony was committed on both bases, i.e., with a firearm and with a dangerous weapon other than a firearm. Second, count I cannot be interpreted in light of count II because the latter was nolle prossed before trial. In the alternative, on cross-appeal, Carey argues that the State failed to prove him guilty beyond a reasonable doubt because the State failed to prove that the firearm element given that the parties agreed that the gun Carey carried was inoperable.

The following civil cases are scheduled for argument this Term:

People v. Robert Carey, No. 121371: November 14

In re N.G., Nos. 121939, 121961 (cons.): November 14

People ex rel. Matthew Hartrich v. 2010 Harley-Davidson, No. 121636: November 15

Antonicelli v. Rodriguez, No. 121943: November 15

The Bank of New York Mellon v. Laskowski, No. 121995: November 15

Jenner v. Illinois Department of Commerce and Economic Opportunity, No. 121293: November 16

Below is a summary for one civil case, Antonicelli v. Rodriguez.

Antonicelli v. Rodriguez

At issue is whether a counterclaim alleging that a defendant is an intentional tortfeasor precludes a finding that the defendant has entered a good faith settlement shielding him from further liability. The plaintiff was severely injured when Defendant Daniel Rodriguez, who was driving under the influence of cocaine, struck the plaintiff’s vehicle, which then collided with a semi-truck. The plaintiff sued Rodriguez and two co-defendants—the truck driver and his employer—alleging that they were negligent. The co-defendants filed a counterclaim for contribution, alleging that Rodriguez’s acts were intentional and that damages should be apportioned accordingly. Rodriguez and the plaintiff settled. The circuit court entered a finding that the settlement was made in good faith, then dismissed both the plaintiff’s claims against Rodriguez and the co-defendants’ counterclaims. The circuit court affirmed the good faith finding.

Before the Illinois Supreme Court, the co-defendants argue that Section 2-1117 of the Code of Civil Procedure (735 ILCS 5/2-1117), which protects minimally responsible defendants from paying entire damage awards, requires a trial court to consider the respective fault of the defendants before making a finding of good faith. The co-defendants further argue that deciding whether to approve a settlement, courts should look to the totality of the circumstances surrounding the settlement, including, in this case, the uncontroverted evidence that Rodriguez acted intentionally. In response, Rodriguez argues that settling intentional tortfeasors may be discharged from liability under the Act, that the appellate court’s decision furthers the Act’s purpose in promoting settlements, and that Section 2-1117 does not affect a defendant’s ability to settle under the Joint Tortfeasor Contribution Act (740 ILCS 100/2).

By Louis J. Manetti 

Associate, Hinshaw & Culbertson LLP

Illinois Appellate Court Justice Delort, with the cooperation of the Chicago Bar Association, recently delivered a seminar accessible on YouTube that serves as a useful primer for appellate practice and procedure. Justice Delort serves in the First District, which is the appellate district that covers Cook County, and was elected to the Appellate Court in 2012.

In The Argument of an Appeal, 26 ABA J. 895, 895 (Dec. 1940), regarded as one of the definitive lists of practice pointers for appellate advocates, John W. Davis, a former U.S. Solicitor General, observed that “discourse on the argument of an appeal would come with superior force from a judge who is in his judicial person the target and trier of the argument[.]” Justice Delort is, in Davis’s words, the trier of the argument, and to the appellate practitioner, these kinds of seminars are invaluable.

The video is a thorough primer on appellate procedure. And Justice Delort imparts practical knowledge about litigating in the appellate court, such as:

• Common mistakes practitioners make when they try to make an order appealable under Illinois Supreme Court Rule 304(a)
• The difference between an ordinary appendix and a helpful appendix
• How to optimize the opening section of a brief—the “Nature of the Case” section
• Writing conventions that risk giving Appellate Court Justices a headache

The video is brimming with practical tips and both new and experienced appellate practitioners will learn something from it.