"The Brief" - The ALA Blog

  • July 02, 2019 8:46 AM | Louis Manetti (Administrator)

    On Monday, July 8, 2019, from 4:30 - 6:30 p.m., the 7th Circuit Bar Association will hold a reception honoring Judge Rebecca R. Pallmeyer's investiture as Chief Judge.

    From the association's website:

    Please join the Chicago legal community in honoring Judge Pallmeyer. After nearly 30 years of esteemed service, Judge Pallmeyer will be the first female appointed as Chief Judge in the 200-year history of the United States District Court for the Northern District of Illinois. The reception will be held in the Grand Ballroom at the Standard Club.

    Links to register and to view a list of sponsors can be accessed at the 7th Circuit Bar Association's website, https://www.7thcircuitbar.org/

  • June 13, 2019 12:09 PM | Carson Griffis (Administrator)

    On June 20, 2019, the Appellate Lawyers Association will host its Installation Luncheon of Gretchen Harris Sperry as the 52nd President of the ALA. The ALA's Nominating Committee will present the following slate of officers and directors for election at the meeting:

    Officers (2019-2020):
    Vice-President: John M. Fitzgerald
    Secretary: Scott L. Howie
    Treasurer: Jonathan B. Amarilio 

    Directors (2019-2021):
    Director (4th Dist.): John Gabala
    Director (1st Dist.): Kimberly Glasford
    Director (1st Dist.): Carson Griffis
    Director (2nd Dist.): Richard Harris 

    Date: Thursday, June 20, 2019 

    Time: 12:00 to 2:00 p.m. 

    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here

    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included. 

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee. 

    Questions? Call (630) 416-1166, ext. 303

    Register:

    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

    2. Mail your completed registration form along with a check payable to ALA to

    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563
     

    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • June 11, 2019 2:22 PM | Carson Griffis (Administrator)

    By: Carson R. Griffis

    A recent decision of the U.S. Court of Appeals for the Seventh Circuit shows that parties cannot try to make an otherwise nonfinal order final and appealable by agreeing to dismiss the remaining claims in the case subject to the outcome of an appeal.

    In West v. Louisville Gas & Electric Co., 920 F.3d 499 (7th Cir. 2019), the plaintiff sued two different defendants over the use of a fiber optic cable on a utilities transmission tower on his property: the company that installed the wire (Charter Communications) and the utility that owned the tower (Louisville Gas & Electric). The district court dismissed the plaintiff’s claims against Charter, and the plaintiff wanted to appeal. But his claims against Louisville were still pending, so the dismissal of the Charter claims was not final and appealable. To resolve this problem, the plaintiff and Louisville struck a deal: the plaintiff agreed to dismiss his claims against Louisville with the condition that he could reinstate them, without objection, if he won on appeal. If the plaintiff lost on appeal, he agreed not to refile his claims.

    The Seventh Circuit dismissed the plaintiff’s appeal, finding it lacked jurisdiction. Because the dismissal of the claims against Louisville was conditional, it lacked “the binding effects of a truly final judgment.” So long as the plaintiff had reserved the right to reinstate its claims, there was no final judgment disposing of all claims in the district court. The court also found that the conditional dismissal was “the very sort of attempt to manufacture appellate jurisdiction” it had disapproved of in other cases. The court stressed that litigants cannot agree to finality to create appellate jurisdiction.

    The court also noted that the plaintiff had three other options for immediately appealing the district court’s ruling. First, he could have asked the district court to enter a final judgment as to the claims against Charter under Federal Rule of Civil Procedure 54(b) (although the Seventh Circuit acknowledged that this would have been “a stretch” due to the similarity of the plaintiff’s claims against both defendants). Second, he could have sought permission to pursue an interlocutory appeal under 28 U.S.C. § 1292(b). Third, he could have disclaimed his right to reinstate the claims against Louisville while on appeal. If the plaintiff waived his right to reinstate the claims, then the district court’s judgment would have been final and the Seventh Circuit would have jurisdiction. But the plaintiff refused to do so.

    West shows that parties must be careful to ensure all claims have been disposed of before appealing. And conditioning a dismissal of certain claims on the outcome of an appeal will be viewed as an improper attempt to manufacture appellate jurisdiction. West also lays out a party’s options for appealing an order that disposes of less than all of the claims in a case: Rule 54(b), 28 U.S.C. § 1292(b), or abandoning the still-pending claims.


  • June 07, 2019 10:47 AM | Carson Griffis (Administrator)

    The Illinois Supreme Court Commission on Access to Justice has approved four new suites of standardized Appellate Court Forms:

    1. Docketing Statement;
    2. Request for Preparation of Record on Appeal;
    3. Bystander's Report or Agreed Statement of Facts; and
    4. Request for Report of Proceedings (Transcripts).

    The Commission's standardized forms are designed to promote, facilitate, and enhance equal access to justice with an emphasis on access to the Illinois Civil Courts. They may be used for filing in any of the five Districts of the Appellate Court statewide. The new forms are available here.

  • May 31, 2019 10:16 AM | Anonymous member (Administrator)

    By Louis J. Manetti, Jr.
    Hinshaw & Culbertson LLP

    The Supreme Court recently clarified that the 14-day window to appeal from a federal district court order granting or denying class certification is not subject to equitable tolling. In Nutraceutical Corp. v. Lambert, the plaintiff, Lambert, sued Nutraceutical Corp. and alleged that its dietary supplement marketing violated a California consumer protection law. 586 U.S. ___ (2019). Although the district court initially certified a class, on February 20, 2015, it decertified the class. At that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. See Fed. R. Civ. P. 23(f).


    Instead, 20 days after the decertification order, Lambert moved for the district court to reconsider the order. On June 24, 2015, the court denied the motion to reconsider. Fourteen days after that, Lambert petitioned the Ninth Circuit to take the appeal on the decertification order. Nutraceutical’s response to the petition argued that the petition was untimely. The Ninth Circuit deemed the appeal timely. It reasoned that Rule 23(f)’s time limit was nonjurisdictional, and therefore equitable remedies softening the deadline were available.

    The Supreme Court rejected the Ninth Circuit’s approach. Rule 23(f) authorizes federal appellate courts to permit a discretionary appeal if the petition is filed within 14 days after the order is entered. The Court began by noting that because Rule 23’s time limitation is in a procedural rule, and not a statute, it is properly classified as a nonjurisdictional claim-processing rule. Thus, the opposing party can waive or forfeit a noncompliance argument. But merely because a rule is not jurisdictional does not render it “malleable in every respect.” Specifically, some claim-processing rules are “mandatory” in the sense that the rule is unalterable if noncompliance is properly raised.

    With that, the Court stated that whether a rule allows for equitable tolling turns on whether the rule’s text leaves room for that flexibility. It first noted that Rule 23(f) is phrased unequivocally. And while that, by itself, was not determinative, the Federal Rules of Appellate Procedure singled out Rule 23(f) for inflexible treatment. Although FRAP 2 authorizes appellate courts to suspend the application of the rules in a particular case on a showing of good cause, it also warns: “except as otherwise provided in Rule 26(b).” And Rule 26(b), while allowing for extensions of time generally, specifies that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Given the clear expression of “rigorous enforcement”, compliance with 23(f) could not be suspended on equitable tolling grounds. The Court concluded that this comported with applicable precedent, and was fully consistent with the notion that, because interlocutory appeals disrupt the rule that appeals must ordinarily wait until the end of a case, Rule 23(f)’s time limit would be “purposefully unforgiving.”

    Finally, the Court specified that the petition for leave to appeal would have been timely if the motion to reconsider had been filed within the 14-day appeal window. Lambert argued that courts of appeal uniformly hold that, so long as a motion to reconsider is filed within 14 days of an order granting or denying class certification, a Rule 23(f) petition filed within 14 days of the resolution of the reconsideration motion is timely. The Court explained that Lambert’s argument that the same outcome should occur here relied on a mistaken premise. A motion to reconsider filed “within a window to appeal” does not toll anything. Instead, it renders an otherwise final decision of a district court not final for the purposes of appeal. It determines when the 14-day window begins to run—not the availability of tolling. Thus, Lambert’s petition for leave to appeal was untimely, and the case was remanded for further proceedings. 

    This case should serve as a clear warning that, in the wake of an order granting or denying class certification, whether a litigant intends to move to reconsider the order or to petition the appellate court for review, that action must be taken within 14 days.


  • May 30, 2019 12:42 PM | Anonymous member (Administrator)

    On June 6, 2019, the Appellate Lawyers Association (ALA), the Will County Bar Association (WCBA), the LaSalle County Bar Association (LCBA), and the Peoria County Bar Association (PCBA) will present their Roundtable Luncheon Featuring the Justices of the Illinois Appellate Court, Third District. This event provides a unique opportunity to interact with the Justices and gain the perspective of the other side of the bench>


    Date: Thursday, June 6, 2019


    Time: 12:00 p.m. to 1:30 p.m. with lunch served at 12:30 p.m.


    MCLE: Participants will earn one hour of MCLE credit for the luncheon. The ALA is an approved MCLE provider>


    Location: Uptown Grill (banquet room), 601 1st Street, LaSalle, Illinois


    Cost: $25 for public-sector members of the ALA, WCBA, LCBA, or PCBA; $30 for private-sector members of the ALA, WCBA, LCBA, or PCBA; $35 for public-sector nonmembers; and $40 for private-sector nonmembers. Lunch is included.


    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303


    Registration details may be found below.


    Register:


    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2. Mail your completed registration form along with a check payable to ALA to:


    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563


    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • May 28, 2019 12:44 PM | Anonymous member (Administrator)

    On Wednesday, May 29, 2019, the Appellate Lawyers Association will present its Annual Roundtable Luncheon with the Judges of the United States Court of Appeals for the Seventh Circuit. The luncheon provides an opportunity to converse with the Judges in an informal setting and will feature a panel discussion with several of the Judges. Attendees may ask questions and discuss appellate practice with the Judges and will gain the perspective of the other side of the bench. 

    Date: Wednesday, May 29, 2019

    Time: 12:30 p.m. to 2:00 p.m. (Please note start time.)

    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note that the Union League Club enforces a dress code, which can be accessed here.   

     
    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.
     
    Cost: $40 for public-sector members; $50 for private-sector members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

    Questions? Call (630) 416-1166, ext. 303

    Registration details may be found below.

    Register:

    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

    2. Mail your completed registration form along with a check payable to ALA to: 

    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563

    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.


  • May 23, 2019 12:53 PM | Anonymous member (Administrator)

    In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois is presenting "An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service Law." Judge Bauer will reflect on his 65 years as a public servant, including his 48 years on the federal bench. 


    Judge Bauer is a Senior U.S. Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit. Judge Bauer served in the U.S. Army from 1945 to 1947, before earning his undergraduate degree from Elmhurst College and his law degree from DePaul University College of Law. He worked in private practice and served as an Assistant State's Attorney before being elected as DuPage County State's Attorney. He served as a Circuit Judge for the Eighteenth Judicial Circuit, DuPage County, before being appointed as the U.S. Attorney for the Northern District of Illinois from 1970 to 1971. In 1971, he was nominated to the U.S. District Court for the Northern District of Illinois, where he served until he was elevated to the Seventh Circuit in 1974.


    The event will take place on June 13, 2019, from 3:00 p.m. to 4:00 p.m. in the Dirksen United States Courthouse, 219 S. Dearborn, Courtroom 2141, Chicago, Illinois. A reception will follow in the Court History Museum on the 21st Floor. 


    Those interested should RSVP to: Bauer_RSVP@ilnd.uscourts.gov.


  • May 09, 2019 12:59 PM | Anonymous member (Administrator)

    By Don Sampen
    Clausen Miller, P.C.

    The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

    A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

    Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.

    As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.

    Analysis

    Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

    The four requirements for the writ, according to Garman, are that (a) that the action to be prohibited be of a judicial or quasi-judicial nature; (b) the writ be directed against a tribunal of inferior jurisdiction; (c) the action being prohibited be outside the tribunal's jurisdiction, or if within its jurisdiction, beyond its legitimate authority; and (d) no other adequate remedy be available to the petitioner.

    Garman focused just on the fourth requirement, concerning the available of an alternative remedy. She noted Edwards’ argument that the circuit court had already ruled that it had jurisdiction and, over his objection proceeded to trial. 

    Edwards claimed that he now could be sentenced to jail and that, based on his conviction, the Department of Natural Resources had already initiated proceedings against his license. He thus contended that he would be subject to irremediable harm if he were required to press his claim through the normal appellate process.

    Garman observed, however, that Edwards' time to appeal had not expired, that the normal appellate process was fully available to him, and that original actions of prohibition could not be used to circumvent the normal appellate process. Rather, the remedy was available only in rare instances where none of the ordinary remedies were available or adequate.

    As for Edwards' complaints that his timber buyer's license could be adversely affected and his livelihood harmed, Garman found that he was essentially complaining of collateral consequences that may occur pending appeal, and that such consequences can attend any normal appellate process. 

    The trial court, in any event, had not ordered that his license be revoked, he offered only a vague portrayal of the situation surrounding his timber buyer's license, and he provided no documentation of the license revocation proceedings. Under these circumstances, Garman said that Edwards had not demonstrated irremediable harm.

    In sum, the Court found that Edwards had failed to demonstrate the requirement that an appeal of his conviction did not provide him an adequate alternative remedy. Hence, the Court denied issuance of the writ.

    Justice Thomas L. Kilbride dissented. He argued that Edwards had been convicted of a regulatory offense that does not exist and that he had not even violated the regulation relied on by the state. Kilbride therefore argued that the Court should exercise its supervisory authority to direct the circuit court to vacate Edwards' convictions.

    Key Point:

    A petitioner seeking issuance of a writ of prohibition must meet all four traditional requirements for issuance of the writ, including the requirement that no other adequate remedy is available to the petitioner. Pursuing an appeal in the underlying litigation normally will constitute an adequate alternative remedy.
  • May 07, 2019 1:13 PM | Anonymous member (Administrator)

    The Illinois Supreme Court's May Term begins on Monday, May 13th. The Term will include oral argument in 4 criminal cases and 3 civil cases on May 14th and 15th. Below is a listing of the cases that will be heard:

    Tuesday, May 14, 2019: People v. John Michael Custer, No. 123339
                                                People v. Ralph Eubanks, No. 123525
                                                People v. Stevie Smith, Nos. 123901 & 123902 (cons.)
                                                People v. Bethany Austin, No. 123910

    Wednesday, May 15, 2019: Carmichael v. Union Pacific Railroad Co., No. 123853
                                                     Jones v. Pneumo Abex LLC, No. 123895, 124002 (cons.)
                                                     Accettura v. Vacationland, Inc., No. 124285

    Below are summaries of one of the criminal cases and one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.


    People v. Ralph Eubanks, No. 123525

    Defendant was convicted of aggravated DUI, first degree (knowing) murder, and Class 1 felony failure to report the accident because he was the driver during a hit-and-run collision that killed one pedestrian and seriously injured a second. Related to the first issue, police officers asked defendant to submit to chemical testing of his blood and urine under section 11-501.2(c)(2) of the Vehicle Code (directing officers to pursue such chemical testing of DUI suspects given collisions resulting in death or injury; drivers refusing to submit to testing have their licenses summarily suspended as a result). The First District, in a 2-1 decision on all three issues discussed, held that section 11-501.2(c)(2) is facially unconstitutional because it permits testing in violation of the Fourth Amendment under Missouri v. McNeely, 569 U.S. 141, 147-49 (2013), which held that warrantless blood testing is reasonable only given the driver's consent or case-specific exigent circumstances (not just the natural dissipation of blood-alcohol levels present in every case). Related to the second issue, defendant, given his charge of first degree knowing murder, requested a jury instruction on the lesser-included offense of reckless homicide, but the trial court refused. Knowing murder occurs when the defendant knew that his acts created a "strong probability" of death or great bodily harm, while reckless homicide occurs when he knew that his acts were only "likely" to cause, i.e., created a "substantial risk" of, such harm. The majority reversed, holding that the trial court erred in finding no evidence of recklessness to justify the reckless homicide instruction. Related to the third issue, defendant challenged the sufficiency of the evidence for his Class 1 felony failure-to-report conviction regarding one element: the failure to report within 30 minutes of the collision. The majority reduced defendant's conviction to the Class 4 felony form of the offense in light of the fact that defendant was arrested within the reporting period because the State cannot demonstrate that a defendant failed to report within 30 minutes given that any evidence of a defendant's post-arrest silence is inadmissible.

    Before the Illinois Supreme Court, the State challenges the majority's three holdings. First, the facial invalidation of section 11-501.2(c)(2) should be reversed because such holding was unnecessary: the State acknowledged that the police violated defendant's Fourth Amendment rights in gathering the samples and that his aggravated DUI conviction should be reversed so that it was unnecessary to consider the facial validity of the statute. In addition, the provision was facially constitutional because it could sometimes operate constitutionally: when police obtain a warrant, when the suspect consents to testing, and when police document case-specific exigent circumstances. Second, the trial court did not abuse its discretion in refusing the reckless homicide jury instruction because defendant's driving was so dangerous under the circumstances that it was not unreasonable to conclude that he could not have had only the lesser (reckless) understanding of the riskiness posed by his driving. Third, the majority erred in reducing the failure-to-report conviction on unbriefed self-incrimination grounds, and sufficient evidence supported the Class 1 conviction: it was reasonable to infer defendant failed to report within 30 minutes from his later denials that he was in the car at the time of the collision.

    Defendant defends the three holdings. First, defendant argues that the constitutionality of the statute must be addressed because there are no nonconstitutional grounds to resolve his challenge to the chemical testing. In addition, he asserts that because section 11-501.2(c)(2) does not direct officers to seek a warrant, denies drivers the ability to revoke their implied consent, and implicitly codifies a per se exigent circumstance of the type rejected in McNeely, it is facially unconstitutional. Second, defendant claims that the trial court improperly considered some evidence not relevant to recklessness and erroneously ignored other evidence of recklessness, reflecting an abuse of discretion in rejecting the reckless homicide jury instruction. Third, his failure-to-report was correctly reduced to a Class 4 felony because inferring his failure to report from his later denials of involvement infringed on his right against self-incrimination.

    Jones v. Pneumo Abex, No. 123985, 124002 (cons.)

    The issue in this case is whether the clear and convincing evidence standard for proving civil conspiracy at trial also applies when the court is evaluating a motion for summary judgment.

    The plaintiff sued the defendants, Pneumo Abex and Owens-Illinois, for his injuries related to lung cancer, which he claims was caused by asbestos exposure. His theory was that these defendants, who were not the plaintiff’s employers, entered into a civil conspiracy with other manufacturers of asbestos-containing products to conceal information from the public that showed the harmful effects of asbestos. The plaintiff’s case is one of many filed against these defendants and others across the state on this theory.

    The defendants moved for summary judgment on the ground that the plaintiff did not present clear and convincing evidence that they engaged in this civil conspiracy. They relied on two decisions issued by the Fourth District Appellate Court—Rodarmel v. Pneumo Abex, 2011 IL App (4th) 100463 and Gillenwater v. Honeywell International, 2013 IL App (4th) 120929—which held that under nearly identical circumstances, under a clear and convincing evidence standard, there was insufficient evidence to establish that the defendants engaged in a conspiracy to conceal the challenged information from the public. The circuit court agreed with defendants and granted summary judgment, noting that the case was “indistinguishable” from the Fourth District cases “on the material issues.”

    The Fifth District Appellate Court reversed. It did not disagree with the conclusions reached in the cited cases. Rather, it distinguished them on their procedural posture—those cases were decided on motions for judgment notwithstanding the verdict after all trial evidence was presented. It found that on a motion for summary judgment, there was sufficient evidence presented to allow a fact finder to conclude that the defendants engaged in a civil conspiracy.

    In their petitions for leave to appeal, the defendants argue that the appellate court failed to apply the clear and convincing standard when evaluating the evidence on summary judgment and erred in finding that issues of fact existed. They argued that the evidence presented was the same as that presented in Rodarmel and Gillenwater, in which the Fourth District held that the so-called parallel conduct was insufficient by itself to establish a civil conspiracy as a matter of law.

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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