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.

On November 8, 2017, the Appellate Lawyers Association will be co-sponsoring an event titled “Benefit for Higher Education in Haiti” with the Haitian American Lawyers Association of Illinois, along with several other bar associations.

The event will take place at the Hyatt Regency in Chicago (151 East Wacker Drive). The reception begins at 5:30 p.m. followed by dinner and a program at 6:30 p.m.  All proceeds will benefit the United Council for Higher Education in Haiti, a not-for-profit 501(c)(3) organization created by the legal community for the construction of a center for higher education in Haiti.

To learn more about the event, please visit the link. Tickets are $150 per person with various sponsorships at higher levels. There will be a silent auction at the event, for which the organizers are seeking donations. In addition, they are seeking volunteers to serve on their Planning Committee. Please email Mail@UCHEH.org for more information or to volunteer. 

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

On September 15, 2017, the Illinois Supreme Court entered an order, amending several Supreme Court rules, all to be effective on November 1, 2017. The amendments, in large part, concerned word limits of several appellate documents. Here is a brief summary of the amendments:

Rule 303A

Under Rule 303A, involving expedited and confidential proceedings under the Parental Notification of Abortion Act, a petitioner who appeals the circuit court’s denial of a judicial waiver under the Act may file a brief statement of facts and memorandum of law in support of her petition. Together, those documents may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 306

Under Rule 306, involving permissive interlocutory appeals, specifically, interlocutory orders affecting the care and custody of, or the allocation of parental responsibilities for unemancipated minors, or the relocation of unemancipated minors, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 307

Under Rule 307, involving interlocutory appeals as of right, specifically those involving the temporary restraining orders, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 315

Under Rule 315, involving petitions for leave to appeal from the appellate court to the Supreme Court, the petition is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix. Similarly, the respondent’s answer, which is optional to file, is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix.

Rule 341

Under Rule 341, involving the general format of appellate briefs, reply briefs may not exceed 20 pages, or alternatively, now may not exceed 6,000 words, excluding the cover, the statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service and any matters appended to the brief under Rule 342(a).

Also, cross-appellants and cross-appellees are granted 30 additional pages, or alternatively, now 9,000 words. The cross-appellant’s reply brief may not exceed 20 pages, or alternatively, now may not exceed 6,000 words.

Rule 367

Under Rule 367, involving petitions for rehearing, unless authorized by the court, those petitions must be limited to 27 pages or alternatively, now may not exceed 8,100 words. Answers to petitions are similarly limited to 27 pages or alternatively, now may not exceed 8,100 words. Lastly, a reply is limited to 10 pages or alternatively, now may not exceed 3,000 words.

In an article for the Chicago Daily Law Bulletin, retired Judge Rita M. Novak reviewed Joel Cohen's Book "Blindfolds Off: Judges on How They Decide." The book will be the basis for the ALA's September 26th event featuring Cohen. 

Here are a few snippets from Judge Novak's review:

The explorations in Joel Cohen’s engaging book stem from reflections of Justice Benjamin N. Cardozo in “The Nature of the Judicial Process,” published nearly 100 years ago. Cardozo’s classic work examined the “ingredients” that go into judicial decisions.

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Judge Nancy Gertner, a former criminal defense and civil rights lawyer, relates how she decided a tort claim involving the wrongful conviction of innocent defendants perpetrated by FBI misconduct.

Judge John E. Jones III describes his ruling in an “intelligent design” case and the conservative firestorm that followed, one ignited by partisan attackers who perceived the decision as unfaithful to the judge’s prior political affiliations.

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Whether in the context of settlement or trial, allowing the facts to unfold and guide the outcome of the case is a check on subjective rulings. Starting with organizing facts early in discovery, as Hellerstein discusses, or awaiting the evidence on a crucial issue, as Judges Charles P. Kocoras, Jones and Walker describe, letting the facts lead where they will keeps the rulings objectively grounded.

The full article is available on the Chicago Daily Law Bulletin's website.

On Wednesday, September 27, the law firm of Banner & Witcoff will present “A New Slant on Trademarks,” a panel discussion of the recent United States Supreme Court case Matal v. Tam, which allowed a music group called The Slants to obtain a federal trademark for its name.

The panelists will include: Rebecca Glenberg, senior staff counsel at the ACLU of Illinois; Andy Kang, legal director of the Asian Americans Advancing Justice; Binal Patel, partner at Banner & Witcoff; and Simon Tam, bassist and founder of The Slants.

The event will be co-sponsored by the Asian American Bar Association of Greater Chicago and the Korean American Bar Association of Chicago. The CLE portion will be co-sponsored by The South Asian American Bar Association of Chicago.

The event will take place at Google (320 N. Morgan Street, #600) in Chicago, beginning at 5:30 p.m. Advanced registration is required. To register, please visit: https://anewslantontrademarkspanel.eventbrite.com.

Cost is $15 for members, $25 for non-members.

By Zachary Johnson

Research Attorney, Illinois Appellate Court, First District 

In Chambers v. United States, No. 16-2977, a panel of the United States Court of Appeals for the Seventh Circuit held that the district court did not abuse its discretion when it denied defendant Keith Chambers’ Rule 60(b) motion for relief from judgment in his habeas corpus proceeding.

In the decision, the Seventh Circuit discussed the district court’s authority to provide relief under Rule 60(b) and held that the rule does not provide a district court the authority to instruct a circuit court what to do, i.e., Chambers could not use a Rule 60(b) motion to direct the Seventh Circuit to allow him to file a pro se memorandum in support of his request for a certificate of appealability.

In 2008, Chambers pled guilty to distributing and possessing child pornography (18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B)), and was sentenced to 14 years in prison. Chambers voluntarily dismissed his direct appeal. He filed a motion challenging his sentence (28 U.SC. § 2255) based on ineffectiveness of his trial counsel. The district court appointed representation for Chambers (“appointed counsel”) and conducted a hearing on the motion. It concluded that his trial counsel’s performance was not deficient and denied the § 2255 motion. The district court declined to issue a certificate of appealability.

Chambers appealed to the Seventh Circuit and, as the Seventh Circuit stated in its decision, “that is when things went awry.” Although appointed counsel was listed as counsel of record on appeal, he refused to represent Chambers, but did not file a motion to withdraw. Chambers contacted the clerk and district court for help, but was ultimately unsuccessful in getting appointed counsel removed so that he could file a pro se memorandum in support of his request for a certificate of appealability. In February 2013, the Seventh Circuit declined to issue the certificate.

Thereafter, Chambers unsuccessfully filed a motion to recall the mandate and a § 2244(b) application. He then asked the district court for relief from the judgment under Rule 60(b), which gave rise to the appeal in this case.

In his Rule 60(b) motion, Chambers argued that he was deprived of his opportunity to be heard when he was prevented from filing a pro se memorandum in support of his request for a certificate of appealability. The district court concluded that it lacked the authority to direct the appellate court to allow Chambers’ memorandum in support of his request and, therefore, denied his Rule 60(b) motion.

On appeal to the Seventh Circuit, Chambers argued the district court had the authority to grant relief based on the new and unforeseeable circumstances. The government argued that Chambers was relitigating an issue that the Seventh Circuit had already considered and rejected.

In the decision, the Seventh Circuit distinguished Chambers’ circumstances from those in cases where the district court remedied errors made in filing an appeal. The court explained that “all of the cases Chambers cite[d] involved errors either committed or properly remedied in the district court.”

The Seventh Circuit held that the proper vehicle to remedy an error in the circuit court is a motion to recall the mandate, which serves the same purpose as Rule 60(b) does in the district court. But therein lies the problem, as the Seventh Circuit held: “Chambers sought that relief and we rejected it. He cannot now relitigate that claim in the district court through the vehicle of Rule 60(b).”

The Seventh Circuit affirmed the district court’s order finding it did not have authority to consider Chambers’ Rule 60(b) motion. The court briefly addressed the merits of his Rule 60(b) motion and memorandum in support of a certificate of appealability, determining that they would have been unsuccessful.

On Tuesday, September 26, the ALA will host a discussion with author Joel Cohen on his research into how judges decide cases. The event is titled “Blindfolds Off: Judges on How They Decide,” and Cohen will share his insights into an unexpected human range of judicial philosophies, practicalities, and biases, a rare perspective he gleaned in researching and writing his book, also titled “Blindfolds Off: Judges on How They Decide.”

In the book, Cohen interviewed more than a dozen members of the federal bench, including judges of the United States Court of Appeals for the Second and Ninth Circuits and the United States District Court for the Northern District of Illinois. All of them provided candid, revealing, and personal assessments of their approaches to rulings and decisions in high-profile and complex cases.

Cohen has published several books, including Broken Scales: Reflections on Injustice, as well as works of fiction and books on religion. His articles regularly appear in Slate, New York Law Journal, Huffington Post, ABA Journal, and other publications. A former federal prosecutor and currently an adjunct professor at Fordham Law School, Cohen counsels individuals and corporations in criminal matters, ethical issues, and disciplinary proceedings. In July 2017, he was part of the appellate team that convinced the United States Court of Appeals for the Second Circuit to reverse the conviction of the former Speaker of the New York State Assembly, a case headed to the United States Supreme Court.

The event will take place at the Union League Club of Chicago (65 West Jackson Boulevard), beginning at noon and running until 1:30 p.m. Attendees to the event will receive one hour of MCLE credit.

For more information about any of the events and to register, please click here.

Cases Pending, edited by Gretchen Harris Sperry and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court’s September Term, which begins Monday, September 11, 2017, with oral arguments scheduled for September 12, 13, 14, 19 and 20, 2017. A total of 16 cases will be heard – 9 criminal and 7 civil. The following criminal cases are scheduled for argument this Term:

In re Benny M.—No. 120133—September 12
 
People v. Salimah Cole (In re Amy Campanelli)—No. 120997—September 12
 
People v. Walter Relerford—No. 121094—September 12
 
People v. Kevin Hunter & Drashun Wilson—Nos. 121306 & 121345, cons.—September 12

People v. Michael Brooks—No. 121413—September 13
 
People v. Julio Chairez—No. 121417—September 13
 
People v. Antoine Hardman—No. 121453—September 13
 
People v. Anthony Brown—No. 121681—September 13
 
People v. Jared Staake—No. 121755—September 14

Below is a summary for one of the criminal cases. Summaries for these cases 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.

CRIMINAL
No. 121413
People v. Michael Brooks

Defendant Michael Brooks was involved in a single-vehicle motorcycle accident around midnight on a summer evening in 2014.  When ambulance personnel and police arrived at the scene, they determined that Brooks appeared to be intoxicated and appeared to have a serious injury, a visibly broken foot.  Brooks stated that he did not want medical treatment, but ambulance personnel insisted that he needed medical treatment and requested police assistance.  A police officer compelled Brooks onto a gurney and into an ambulance, later handcuffing him to a gurney inside the ambulance when he tried to exit the moving vehicle.  At the hospital, Brooks always objected to having his blood tested, but he stayed for twelve hours to receive treatment.  The police officer left after citing him for DUI without talking to any medical personnel.  Brooks later moved to suppress blood testing results on Fourth Amendment grounds, and the State asserted that the Fourth Amendment did not apply because there was no State action involved in the blood testing.

The circuit and appellate courts agreed that the suppression motion should be granted.  The courts cited the police involvement in compelling Brooks to go to the hospital for treatment against his will as the State action triggering application of the Fourth Amendment's warrant requirement.

Before the supreme court, the State asserts that the lower courts erred by failing to apply the burden-shifting framework applicable to suppression hearings under which defendant bears the burden of making a prima facie case of a Fourth Amendment violation before the burden shifts to the State to counter that case.  Under that framework, defendant did not make a prima facie case because he offered no evidence to show a blood test occurred or, if so, to show who conducted the blood test (or why).  Even if a hospital blood test is assumed to have been conducted by hospital personnel, defendant offered no evidence to show that the blood tester should be considered a State agent.  There is no evidence that the blood tester decided to conduct the test in any way shaped by a law enforcement purpose (rather than testing for purely medical reasons).  Alternatively, even if a prima facie case were made, the circuit court erred by granting the motion before expressly shifting the burden to the State to present contrary evidence.  Brooks responds that the blood test would not have happened but for police involvement in compelling him to go to the hospital for treatment, and that he never consented to the testing.  

Cases Pending, edited by Gretchen Harris Sperry and Catherine Basque Weiler, has been updated to discuss the Illinois Supreme Court’s September Term, which begins Monday, September 11, 2017, with oral arguments scheduled for September 12, 13, 14, 19 and 20, 2017. A total of 16 cases will be heard – 9 criminal and 7 civil. The following civil cases are scheduled for argument this Term:
 
Yarbrough v. Northwestern Memorial Hospital—No.121367—September 14
 
Corbett v. City of Highland Park—No. 121536—September 19
 
Citibank v. Illinois Department of Revenue—No. 121634— September 19
 
Ramsey Herndon LLC v. Whiteside—No. 121668—September 19
 
Cohen v. Chicago Park District—No. 121800—September 20
 
In re Marriage of Goesel—No. 122046—September 20
 
Lawler v. University of Chicago Medical Center—No. 120745—September 20
 
Below is a summary for two of these civil cases, Lawler v. University of Chicago Medical Center and Corbett v. City of Highland Park. Tomorrow, a list of the criminal cases scheduled for argument and a summary of one of the cases will be posted. Summaries for these cases 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.
 
MEDICAL MALPRACTICE – STATUTE OF REPOSE
No. 120745
Lawler v. The University of Chicago Medical Center
 
The issue in this case concerns whether a medical malpractice claim brought under the Wrongful Death Act, 740 ILCS 180/0.01 et seq., can relate back to an existing claim, or is barred by the statute of repose.
 
On August 4, 2011, Jill Prusak (“Prusak”) filed a medical malpractice claim against Defendants, including The University of Chicago Medical Center, alleging Defendants failed to diagnose her macular pathology, an injury she alleged she discovered on August 7, 2009, leading Defendants to fail to recognize Prusak’s lymphoma. Prusak died on November 24, 2013.  Prusak’s daughter, Sheri Lawler, substituted as Plaintiff as the executor of Prusak’s estate.  On April 11, 2014, Lawler filed an amended complaint, adding a wrongful death claim.  Defendants moved to dismiss the wrongful death claim as barred by the four-year statute of repose applicable to medical negligence cases, 735 ILCS 5/13-212(a).  The circuit court granted the motion to dismiss, finding that the wrongful death claim was a new action and did not relate back to the original claims.
 
The Illinois Appellate Court reversed.  The court concluded that the wrongful death claim arose out of the same occurrence set out in the original pleading, and that Defendants had notice of both the facts and allegations underlying the medical malpractice claims in a timely-filed complaint.  Therefore, the Illinois Appellate Court held, Defendants would not be prejudiced by claims filed after the expiration of the statute of repose.  The relation-back doctrine saved the wrongful death claim which otherwise would be barred by the statute of repose.
 
In their petition for leave to appeal, Defendants argue that the court improperly evaluated the issue using principles applicable to the statute of limitations, not the statute of repose.  By doing so, Defendants explained, the court improperly allowed the relation-back statute to supersede the statute of repose.
 
TORT IMMUNITY ACT
No. 121536
Corbett v. City of Highland Park
 
The issue presented in this case involves whether, under Section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act (“the Tort Immunity Act”), a bicycle path qualifies as a “riding trail” such that a local public entity is immune from liability for injuries caused by a condition of that path.  That section provides that “[n]either a local public entity nor a public employee is liable for an injury caused by a condition of *** any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107.
 
This action arose after plaintiff, a cyclist, sustained an injury while riding her bicycle on a portion of the Skokie Valley Bike Path known as the “bunny trail” due to the frequent appearance of rabbits thereon. She sued the County of Lake and the City of Highland Park (“the City”), alleging that they were both liable for the defects present on the path which caused her injuries. The circuit court entered summary judgment in favor of both defendants, concluding that the bicycle path constituted a “riding trail” for purposes of the Tort Immunity Act such that the defendants were immune from liability for Plaintiff’s injuries. Plaintiff appealed the entry of summary judgment in favor of the City.
 
Reversing, the Illinois Appellate Court, Second District concluded that the section of the paved bicycle path upon which Plaintiff was injured, which was located in a semi-urban area, did not qualify as a “trail,” as intended by the legislature. Relying on prior case law defining a trail as being located within a “forest or mountainous region,” the Illinois Appellate Court determined that the path was not a trail and therefore, the City was not entitled to absolute immunity under the Tort Immunity Act. The court further opined that “[t]he frequent appearance of bunnies on the trail does not, in our judgment, call the foregoing analysis into question.” The court reversed the trial court’s entry of summary judgment and remanded Plaintiff’s claims against the City to the circuit court.
 
In its petition for leave to appeal, the City argues that the Second District’s restrictions on what constitutes a “trail” under the Tort Immunity Act– limiting it to forested or mountainous regions – would effectively preclude any public entity other than Forest Preserve Districts from seeking immunity, would ignore the purpose of the statute, and would lead to absurd results insofar as there are no mountainous regions within Illinois.