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.

By Su Wang,
Law Clerk to Justice Aurelia Pucinski, Illinois Appellate Court, First District 

In Haynes v. United States, No. 17-1680 (7th Cir. 2017), the Court of Appeals held that it lacked jurisdiction to review the partial denial of a section 2255 (28 U.S.C. § 2255) motion to vacate until after resentencing on certain counts.

In 1988, Stacy Haynes was convicted of 12 federal crimes after committing several armed robberies in Iowa and Illinois. As to the Iowa robberies, Haynes was convicted of three counts of interstate travel in aid of racketeering (18 U.S.C. § 1952). As to the Illinois robberies, he was convicted of three counts of Hobbs Act robbery (18 U.S.C. § 1951). Haynes was also convicted of six counts of using and carrying a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)). Pursuant to 18 U.S.C. § 3559(c)(1), the Government sought a mandatory life sentence on each count of Hobbs Act robbery and interstate travel in aid of racketeering. The district court sentenced Haynes accordingly, after finding that he had the requisite number of prior “serious violent felonies” because of two prior residential burglary convictions in Illinois.

Haynes was unsuccessful on direct appeal and collateral attack under section 2255 until the United States Supreme Court made its decision in Johnson v. United States, 135 S. Ct. 2551 (2014), retroactive on collateral review (Welch v. United States, 136 S. Ct. 1257 (2016)), and the Seventh Circuit allowed Haynes to pursue another collateral attack. In Johnson, the Supreme Court held that the definition of “violent felony” in the residual clause of the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)) was unconstitutionally vague. The residual clause defined “violent felony” to include an offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In the case at bar, the district court determined that Johnson, as construed in United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015), and United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), implied the invalidity of another residual clause, one that Haynes’s life sentences depend upon, i.e., 18 U.S.C. § 3559(c)(2)(F)(ii). The district court did not set aside any of Haynes’s convictions but concluded that his § 1952(a)(2) convictions should be classified in the same manner as the § 1951 offense because Haynes’s interstate travel “set the stage” for the robberies.

On appeal, Haynes contended that interstate travel in aid of racketeering did not satisfy the elements clause of § 924(c)(3)(A). The Seventh Circuit, however, declined to consider the issue, noting that the resentencing ordered on the § 1951 and § 1952 convictions may affect the sentences on the § 924(c) convictions, and that a defendant generally must wait until the entire prosecution is complete before taking an appeal. Citing its agreement with five circuits holding that every count in a multi-count situation must be resolved before the decision may be appealed as to any count, the Seventh Circuit held that “whether a § 2255 proceeding concerns one count or many counts, when a district court orders resentencing on any count, the decision is not final until the new sentence has been imposed.” See United States v. Hammer, 564 F.3d 628, 632-34 (3d Cir. 2009); United States v. Hayes, 532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch, 518 F.3d 887, 894 (11th Cir. 2008); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir. 2006); and United States v. Martin, 226 F.3d 1042, 1048 (9th Cir. 2000). Because the district court had yet to resentence Haynes, the Seventh Circuit dismissed Haynes’s appeal for want of jurisdiction.

The Appellate Lawyers Association welcomes newly confirmed Seventh Circuit Court of Appeals Judge Amy Coney Barrett as an esteemed new member of the organization. Judge Barrett has been a professor at Notre Dame Law School, where she teaches and researches in the areas of federal courts, constitutional law, and statutory interpretation, and practiced law at Miller, Cassidy, Larroca & Lewin in Washington, D.C.  She served as a law clerk for Justice Antonin Scalia of the United States Supreme Court and for Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. She received her Juris Doctor degree from Notre Dame Law School and her undergraduate degree from Rhodes College.

On November 15, 2017, the Appellate Lawyers Association and the South Asian Bar Association of Chicago will host a conversation with appellate strategist Kirk C. Jenkins, chair of the Appellate Task Force at Sedgwick LLP. Jenkins will discuss how data analytics can enhance appellate practices and whether data can help predict a case's result. Jenkins has focused his practice in appellate litigation for more than 20 years and has created a database containing approximately 275,00 data points from Illinois Supreme Court decisions from 1990 to 2016.

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. 

The Chicago Bar Association and the Chicago Bar Foundation will once again celebrate their Pro Bono Week from October 23 through October 27. Over the course of the week, there will be several complimentary events, including one titled “Justice: An Evening of Stories and Community” focusing on five-minute stories of justice from members of the crowd. That event will take place on Tuesday, October 24 from 6 to 8 p.m. at Revolution Brewing.

Another highlight of the week will be the 24th Annual Pro Bono and Community Service Fair, which will be presented by the Chicago Bar Association’s Young Lawyers Section. The fair provides the opportunity for attorneys and law students to meet with more than 40 different legal aid, pro bono, community service and mentoring organizations. The event will take place on Thursday, October 26 at the law firm of Kirkland & Ellis LLP (300 North State Street in Chicago) from 5 to 7 p.m.

To learn more about Pro Bono Week and to register, please visit here.

On October 23, the ALA will co-sponsor with the Diversity Scholarship Foundation and the Lesbian and Gay Bar Association of Chicago a fundraiser to support relief in Mexico and Puerto Rico after both have suffered tremendous damage from natural disasters. All profits raised from the event will be given in equal amounts to the Mexican Consul and the Puerto Rican Agenda.

The event will take place at Latinicity, 108 North State Street (Third Floor) in Chicago, beginning at 5 p.m. and ending at 7 p.m.

Guests at the event will include Illinois Congressman Luis V. Gutierrez and Carlos Martin Jimenez Macias, the Mexican General Consul in Chicago.

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

On October 20, 2017, the Appellate Lawyers Association and the 7th Circuit Bar Association will present a panel discussion on significant cases recently decided by the United States Court of Appeals for the Seventh Circuit. The discussion will focus on civil, commercial, and criminal developments. It will also cover the Court’s recent en banc cases and Seventh Circuit decisions that will be decided this term by the United States Supreme Court. 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.

Our distinguished panelists will be Judge Gary Feinerman of the United States District Court for the Northern District of Illinois, Illinois Solicitor General David L. Franklin, and Michael A. Scodro, a partner at Mayer Brown and former Illinois Solicitor General. Scodro is also a past president of the Appellate Lawyers Association.

The Appellate Lawyers Association is excited to present this panel discussion with the 7th Circuit Bar Association. Attendees to the event will receive one hour of MCLE credit. Further details and instructions on how to register are available here. 

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the "blockbuster" term for the United States Supreme Court. 

The discussion included Gill v. Whitford, a case involving the constitutionality of gerrymandering in Wisconsin, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a baker who refused to create a wedding cake for a same-sex couple and his right to free speech, and Janus v. AFSCME, a case involving union fair-share fees. 



If the embedded video does not work, you may watch here.

On September 28, 2017, the Illinois Appellate Court, Third District, entered an administrative order on the filing of briefs. According to the order, electronically filed briefs will be considered the official original brief filed in the appellate court. However, the parties must file five duplicate paper copies of all briefs. The paper copies must bear the electronic file stamp and be filed within five days of the electronically filed copy. Lastly, the paper copies must comply with all applicable Supreme Court rules, including the color cover requirement as detailed in Supreme Court Rule 341.

Below is a copy of the order.