"The Brief" - The ALA Blog

  • October 26, 2021 4:03 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court's November Term begins Tuesday, November 9, 2021.  Oral arguments are scheduled for November 9, 10 and 16, 2021.  A total of 10 cases will be heard -- 4 criminal and 6 civil.  The following civil cases are scheduled for argument this Term:

    November 10, 2021

    Doe v. Lyft, Inc., No. 126605

    In re Application of the County Collector, No. 126929

    Suburban Real Estate Services v. Carlson, No. 126935

    November 16, 2021

    In the Matter of the Estate of John W. McDonald, III, No. 126956

    International Association of Firefighters, Local 50 v. City of Peoria, No. 127040

    Munoz v. Bulley & Andrews, No. 127067

    Below is a summary for one of those cases, Doe v. Lyft, Inc. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

    Doe v. Lyft, Inc., No. 126605

    This petition asks the Illinois Supreme Court to determine whether ride sharing companies such as Uber and Lyft may be held vicariously liable for the tortious conduct of their drivers against their passengers in the same manner as other common carriers or whether they are immune from such heightened standards under the Transportation Network Providers Act (“TNPA”).

    In 2017, Plaintiff was sexually assaulted by her Lyft driver. She sued Lyft, alleging, inter alia, that as the driver’s employer, it should be vicariously liable for his conduct. Lyft moved to dismiss Plaintiff’s complaint pursuant to Section 2-615 of the Code of Civil Procedure, arguing that it was a Transportation Network Company (“TNC”) within the meaning of Section 25(e) of the TNPA (625 ILCS 57/25(e)), and could not be treated as a common carrier subject to heightened standards of vicarious liability. In response, Plaintiff challenged the constitutionality of Section 25(e), arguing that it constituted special legislation and that its enactment violated the “three readings rule” found in Section 8(d) of Article IV of the Illinois Constitution.  The trial court granted Lyft’s motion to dismiss, finding that Section 25(e) plainly exempted ridesharing companies from common carrier status, meaning that Lyft may not be deemed a common carrier as a matter of law.  The court also certified two questions for immediate review under Supreme Court Rule 308: whether Section 25(e) of the TNPA “preclude[s] TNCs, such as Lyft, from otherwise being subject to the highest duty of care under common law, like that of a common carrier’s elevated duty to its passengers;” and, if so, whether it violates the Illinois Constitution’s ban on special legislation or whether the Act itself was passed in violation of the Illinois Constitution’s three-readings rule.

    The Illinois Appellate Court, First District granted leave to appeal and answered the first question in the affirmative and the second question in the negative. The court first held that Section 25(e) of the TNPA exempted Lyft from common carrier standards of liability. Rejecting Plaintiff’s argument that TNCs provide the same functions as common carriers—and finding that, but for Section 25(e), TNCs would be common carriers—the court reasoned that imposing common carrier liability on TNCs would render that section meaningless and concluded that the section “exempts TNCs from common carrier standards of liability.”  The court accepted Plaintiff’s argument that Section 25(e) discriminates in favor of ridesharing companies vis-à-vis taxicabs, but determined that such discrimination was not arbitrary under a rational basis review. The court justified this conclusion by noting: (i) the part-time nature of Lyft drivers and how the company’s “business relationship” with them differs substantially from taxicab medallion holders; (ii) its exclusive use of technological platforms to deliver their services; and (iii) the fact that TNC passengers receive “relevant information [about their driver] before they enter the vehicle.”

    The appellate court further rejected Plaintiff’s argument under the three-readings rule, which requires the general assembly to read a bill three times before passage. The court acknowledged that the TNPA originated as a wholly different bill regarding public accounting. After two readings in the House, the text of that bill was completely eliminated and replaced with entirely new language which ultimately became the TNPA. The “new” bill was then read only once in the House. While recognizing that such a procedure violates the three-readings rule under Giebelhausen v. Daley, 407 Ill. 25 (1950), the court found that the enrolled bill doctrine—which prevents judicial inquiry into legislative bill-passing procedure—foreclosed any challenge under the three-readings rule.

    Concurring in part, and dissenting in part, Justice Robert Gordon agreed with the majority’s conclusion regarding Section 25(e), but opined that the section failed to pass constitutional muster under the prohibition against special legislation.

    Appellate Court Decision:  2020 IL App (1st) 191328.  Lampkin, J., with Burke, J., concurring. Gordon, P.J., concurring in part and dissenting in part.

  • October 19, 2021 4:34 PM | Carson Griffis (Administrator)

    By:  Kimberly Glasford

    Section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401) generally provides a vehicle for a petitioner to obtain collateral relief for a meritorious claim or defense, even in criminal cases. Subject to certain limited exceptions, a section 2-1401 petition must be filed no later than two years after the challenged judgment was entered. 735 ILCS 5/2-1401(c) (West 2016).

    On January 1, 2016, Public Act 99-384 took effect and added subsection (b-5), which recognizes a “meritorious claim” for a defendant convicted of a forcible felony where he or she was a victim of domestic violence by an intimate partner. 735 ILCS 5/2-1401(b-5) (West 2016).

    Subsection (b-5) requires the petitioner to show, among other things, that evidence of domestic violence was not presented at sentencing, and he or she could not have learned sooner through due diligence that such evidence was mitigating. 735 ILCS 5/2-1401(b-5) (West 2016).

    Public Act 99-384 did not, however, amend section 2-1401(c) to create an exception to the two-year statute of limitations for claims based on the new subsection. The upshot is that under the express language of section 2-1401(c), relief is largely unavailable to those defendants convicted in the decades before subsection (b-5) was enacted. Yet, that hasn’t stopped defendants from trying.

    Recently, in People v. Bowers, 2021 IL App (4th) 200509, the Illinois Appellate Court, Fourth District, held that the two-year statute of limitations applies to claims under subsection (b-5). Because that defendant was convicted in 1990, the trial court properly dismissed her petition.

    The reviewing court found that the plain language of section 2-1401(c) clearly established a two-year statute of limitations and contained no exception for claims under subsection (b-5). Given that the legislature clearly would have been aware of the statute of limitations, this omission was unlikely to have been mere oversight.

    The court also rejected the defendant’s contention that the due diligence requirement set forth in subsection (b-5) was intended to take the place of the statute of limitations. The court noted that litigants frequently had to overcome multiple hurdles to obtain relief.

    While the reviewing court was sympathetic to the defendant’s argument that it was seemingly strange to limit relief to only those defendants who were recently sentenced, the court found the legislature may have started with a small number of eligible petitioners, lest the court be overburdened by a sudden rush of petitions. Thus, applying the statute of limitations would not produce an absurd result.

    Having already found that the statue was clear, the Bowers court did not delve into various legislators’ comments on the amendment. The court stated, “legislators can have differing interpretations of a law, and parties can have strong policy disagreements about the law without that law being absurd.” Bowers, 2021 IL App (4th) 200509, ¶ 42.

    It’s worth noting, however, that one legislator spoke directly to the statute of limitations. According to Representative Mitchell, “[i]t is an option for judges to provide post-judgment relief for up to two years after the original sentencing.” 99th Ill. Gen. Assem., House Proceedings, May 25, 2015, at 29. Additionally, “[t]he time lapse is because often, given the nature of domestic violence, it takes some time for a partner through counseling through time to understand what’s happened to them.” Id.

    Although not discussed in Bowers, it’s also worth noting that Public Act 99-384 amended the Unified Code of Corrections by adding a new factor that sentencing courts must consider as mitigating. Specifically, a mitigating factor exists if “[a]t the time of the offense, the defendant is or had been the victim of domestic violence and the effects of the domestic violence tended to excuse or justify the defendant’s criminal conduct.” Id.; 730 ILCS 5/5-5-3.1(a)(15) (West 2016). This may reduce the number of defendants who need relief under section 2-1401(b-5).

    The beneficiaries of subsection (b-5) may be few, but if the legislator intended something different, they’ll have to go back to the drawing board.

  • October 15, 2021 3:54 PM | Carson Griffis (Administrator)

    The stated purpose of the Judicial Districts Act of 2021 (JDA) “is to redraw the Judicial Districts to meet the requirements of the Illinois Constitution of 1970 by providing that outside of the First District the State ‘shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties.’”  Several justices of the Illinois Supreme Court and appellate court do not reside in the judicial district, as redrawn by the JDA, to which they were elected or appointed.

    In their article in the Illinois State Bar Association’s Bench & Bar newsletter entitled “Justices Denied? Impact of the Judicial Districts Act on Incumbent Justices of the Illinois Supreme Court and Appellate Court,” former ALA President Steven Pflaum and Neal, Gerber & Eisenberg LLP summer associate Andrew Hamilton dissect the statutory and constitutional issues confronting Illinois justices who wish to run for retention but, due to redistricting by the JDA, no longer reside in the district to which they were previously elected.

    Click here to read the article.

  • October 05, 2021 5:02 PM | Carson Griffis (Administrator)

    Justice Kathryn Zenoff of the Illinois Appellate Court, Second Judicial District, is seeking a judicial law clerk/secretary for an opening in early November in her chambers in Rockford, Illinois.  Remote with in-chambers-as-needed working arrangements considered.  The position offers an annual salary of $84,681 and an attractive judicial branch benefits package.

    The judicial law clerk/secretary will conduct legal research and draft memoranda, orders, and opinions for the Justice.  Duties also include reviewing and editing the work of other clerks, and administrative duties.

    The position requires graduation from an ABA-accredited law school.  Law Review/journal experience and prior experience as a judicial law clerk or appellate lawyer are strongly preferred, but all applicants with an outstanding academic record in core courses and superior research, analytical, and writing skills will be considered. 

    Instructions on how to apply, as well as other details about the position, may be found here.

  • September 22, 2021 9:31 PM | Carson Griffis (Administrator)

    By:  Linda Sackey

    In Wadsworth v. Kross, Lieberman & Stone, Inc., 2021 WL 3877930, at *1 (7th Cir. Aug. 31, 2021), the United States Court of Appeals for the Seventh Circuit addressed “a problem that has become familiar to our circuit: alleged violations of the Fair Debt Collection Practices Act that have not caused the plaintiff any concrete harm.” Concluding that Article III prevented it from adjudicating such claims, the court reversed and remanded the case to the district court with instructions to dismiss for lack of subject matter jurisdiction.

    In September 2016, a healthcare research company hired plaintiff as a study manager responsible for developing clinical trials. The company offered plaintiff a $7,500 signing bonus, half of which would be payable after 30 days of employment and the other half would be payable after roughly six months’ employment. That said, the company provided that if plaintiff left her position or if it fired her for cause within 18 months of the second payment, she would have to repay the full bonus. Plaintiff agreed. In September 2017, after one year on the job, the company discharged her.

    The following week, the company hired a debt-collection agency to retrieve the bonus payments. The agency mailed plaintiff a collection letter shortly after she was fired, and one of its employees called her by telephone four times in the weeks after that. Plaintiff sued the debt collection agency, arguing that its letter and phone calls violated the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. §§ 1692 et seq.

    Both parties moved for summary judgment. The agency did not dispute her allegations about its conduct but argued that the Act was inapplicable because (1) the signing bonus was not a “debt” within the meaning of the Act, and (2) the agency was not acting as a “debt collector” under the Act because plaintiff’s debt was not in default at the time of the letter and phone calls. The district court rejected both arguments and entered summary judgment for plaintiff.

    On the agency’s appeal, the Seventh Circuit found that plaintiff had not suffered a concrete injury traceable to the agency’s alleged violations of the Act; therefore, she lacked standing to sue. The court explained that to establish standing in federal court, a plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the defendant’s conduct, and (3) that is likely to be redressed by a favorable judicial decision.

    On the first prong, the court noted that an injury must be concrete to be cognizable in federal court. In other words, it must be real, and not abstract. A plaintiff cannot establish standing simply by pointing to a procedural violation of a statute; instead, she must show that the violation harmed or presented an appreciable risk of harm to a concrete interest that Congress sought to protect.

    In this case, the Seventh Circuit found that plaintiff had not established that the agency’s communications caused her any harm under the Act. Plaintiff alleged that she suffered personal humiliation, embarrassment, mental anguish, and emotional distress because of the agency’s conduct. The court concluded that anxiety and embarrassment were not injuries in fact. Rather, it determined that stress and embarrassment were “quintessential abstract harms” that were beyond its power to remedy.

  • September 21, 2021 8:24 PM | Carson Griffis (Administrator)

    The Seventh Circuit is seeking public comments on its proposal to rescind Circuit Rule 57.  That rule currently provides that a party who files a motion to modify a final judgment in the district court while an appeal is pending should request the district court to indicate whether it is inclined to grant the motion.  If the district court indicates that it is, then the Seventh Circuit "will remand the case for the purpose of modifying the judgment" and a party "dissatisfied with the judgment as modified must file a fresh notice of appeal."  

    The Seventh Circuit has stated that it intends to rescind that rule because it conflicts with recently adopted Federal Rule of Appellate Procedure 12.1. 

    Persons interested in submitting a public comment on the proposed rescission may e-mail them to mailto:USCA7_Clerk@ca7.uscourts.gov.  Or they can mail them to:  Advisory Committee on Circuit Rules c/o Clerk of Court, United States Court of Appeals for the Seventh Circuit, 219 South Dearborn Street, Room 2722, Chicago, IL 60604.

    The Seventh Circuit's press release regarding the proposed rescission may be found here.

  • September 07, 2021 8:27 PM | Carson Griffis (Administrator)

    By:  Carson Griffis*

    In Taylor v. Ways, Nos. 20-1410 & 20-1411, the Seventh Circuit clarified the scope of its jurisdiction when a party files an interlocutory appeal from a denial of qualified immunity.  

    Unlike most other defenses,  the denial of a qualified immunity defense may be immediately appealed by a defendant, but only to the extent the appeal  raises legal questions.  If the defendant's arguments are dependent on, and inseparable from, disputed facts, then the court of appeals lacks jurisdiction.  

    In Taylor, the plaintiff sued three officials in the Cook County Sheriff's Office, alleging that he was fired because of his race.  At the summary judgment stage, the district court denied all three officials qualified immunity based on evidence that one of them had used a racial slur toward the plaintiff.

    The officials filed an interlocutory appeal of the denial of qualified immunity, and the plaintiff argued that the Seventh Circuit lacked jurisdiction.  Because some of the officials' arguments raised legal questions, the Seventh Circuit concluded that it had jurisdiction, but not over every argument raised by the officials.  It concluded that it lacked jurisdiction over one official's argument that his actions were not the proximate cause of the plaintiff's termination because the facts over what caused the plaintiff's firing were disputed.  Given the conflicting evidence over whether that official had used a racial slur, the court held that it could not, as a matter of law, find that the official's alleged racial animus had no effect on the decision to terminate the plaintiff. 

    The court left open the question of whether proximate cause, which is typically a factual issue, could ever be an appropriate subject for an interlocutory appeal from the denial of qualified immunity. 

    *Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

  • August 05, 2021 6:05 PM | Carson Griffis (Administrator)

    The Illinois Appellate Court, Third District, has adopted new rules of procedure which will become effective on September 1, 2021.  The new rules will replace all existing local rules currently in effect.

    The Justices and court staff who worked on this project believe that the new rules will not only enable it to carry out its work more efficiently, but also answer procedural questions often asked by attorneys and litigants in a clear and concise manner.

    The new rules are available here.

  • July 08, 2021 4:09 PM | Carson Griffis (Administrator)

    The Second District of the Illinois Appellate Court has announced that it will resume conducting in-person oral arguments in August 2021 at its Elgin courthouse.  The court clarified that it will entertain motions for an argument to be conducted remotely depending on an attorney's or party's particular circumstances. 

    Additional information about the scheduling of August arguments will be included with the argument acknowledgment forms usually sent two weeks before an argument date.  Questions may be directed to the clerk's office at (847) 695-3750. 

    The court's full press release on this topic may be found here.

  • June 15, 2021 5:03 PM | Carson Griffis (Administrator)

    By:  John M. Fitzgerald

    In her acceptance speech at the 1954 Academy Awards, Audrey Hepburn told the audience, “I want to say thank you to everybody who in these past months and years have helped, guided and given me so much. I'm truly, truly grateful and terribly happy.”

    I have very little in common with Audrey Hepburn, but as my term as ALA President reaches its conclusion, my feelings can be described much the same way.  The past year has had its share of challenges.  This marks the first, and hopefully last, bar year in which in-person meetings were not feasible.  But our officers, directors, committee co-chairs and members responded admirably.  We held a record number of events remotely, our members volunteered countless hours for our first-ever virtual Moot Court, and our members stuck with us notwithstanding a dramatic change to the way in which we meet and hold events.

    Thank you for giving me this wonderful opportunity.  Serving as the President of the Appellate Lawyers Association has been a great honor and a joy.  I offer my best wishes to our new President, Scott Howie, and I am confident that he will be a great leader for our association.

    At this moment, as we emerge from a once-in-a-century pandemic, I feel very proud to be a member of the ALA.  I am confident that the new slate of officers and directors will do outstanding things in the months and years ahead, and I look forward to seeing all of you at future ALA events

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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