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"The Brief" - The ALA Blog

  • June 06, 2017 3:29 PM | Anonymous member (Administrator)

    The Appellate Lawyers Association now offers CLE programs online for credit. As part of the ALA’s continuing efforts to bring programming to our members, the ALA now has two recorded programs available online: one featuring Adam Liptak of the New York Times and the other featuring Dean Erwin Chemerinsky, who this July will become the Dean of the University of California Berkeley School of Law.

    In Liptak’s program, he offered his reflections on the Supreme Court’s last decade, discussed the challenges and rewards he faces as a national legal reporter, and shared stories from the front lines covering our nation’s highest court. Liptak’s program was recorded live at the Union League Club of Chicago on January 21, 2016.

    In Dean Chemerinsky’s program, he discussed five topics relating to the U.S. Supreme Court: the possible outcomes of a 4-4 split on the Court; the pivotal role of Justice Anthony Kennedy; the centrality of issues relating to race in many of the Court’s cases; the confirmation of Justice Neil Gorsuch; and the long-term picture for the Court. Dean Chemerinsky’s program took place at the Standard Club in Chicago on April 21, 2017.

    Each program is available to members for $25 and can be watched on any device with Internet access, including a computer, smart phone, tablet, or TV. Viewers will receive one hour of CLE credit for each program.

    Instructions on how to purchase and view the programs are available here.

  • May 26, 2017 1:24 PM | Anonymous member (Administrator)

    By Nate Nieman
    Nieman Law Group


    The juvenile appellant in U.S. v. Sealed Defendant Juvenile Male (4), No. 16-3311, (7th Cir. 2017), along with two other juveniles and an adult, allegedly robbed a CVS store in Indianapolis at gunpoint. They were charged in federal court with Hobbs Act Robbery and possession of a firearm during a robbery. The Government sought to transfer the juveniles’ cases for adult prosecution under 18 U.S.C. § 5032. In order to transfer a case under 18 U.S.C. § 5032, the transfer must be “in the interest of justice,” which the court determines by making certain findings related to the offense and the juvenile offender.


    The Government moved to have the juveniles examined by government psychologists to provide evidence showing that it would be in the interest of justice to try the juveniles as adults. The juveniles objected, arguing that the examinations, which would be conducted without their lawyers present, violated their Fifth and Sixth Amendment rights. The magistrate disagreed and ordered the juveniles to submit to the examination without their lawyers present. The district court agreed with the magistrate, and the juvenile appellant in this case filed an interlocutory appeal, arguing that the examination would violate his constitutional rights.


    The Seventh Circuit never reached the merits of his appeal because the court dismissed the appeal after determining that it was without jurisdiction to hear it. The court has jurisdiction only over final decisions from the district court. 28 U.S.C. § 1291. A final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of Am. Corp., 135 S. Ct. 897, 902 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). However, the court also noted that “There does exist a ‘small class’ of nonfinal orders that ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). These are called “collateral orders,” and they are “immediately appealable if three elements are satisfied: the nonfinal order must ‘(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.’ ” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)).


    In determining whether the district court’s order allowing the defendants to be examined by the psychologists without their lawyers present was an immediately appealable collateral order, the Seventh Circuit focused on the third factor—whether the district court’s order allowing this evaluation was “effectively unreviewable” on an appeal from the final judgment of the underlying action. An order is “effectively unreviewable” only when it involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860 (1978). The court determined in this case that the district court’s order allowing the examination was not “effectively unreviewable” under this standard, explaining that “Had M.G. waited to appeal until after the district court had issued an order granting the government’s motion to transfer under 18 U.S.C. § 5032, then we would be able to consider the merits of his argument now,” citing United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an appealable collateral order).


    In other words, the defendant would have had to submit to the government psychologist’s examination and then the court would have to enter a transfer order under 18 U.S.C. § 5032 before the defendant could file an interlocutory appeal challenging the transfer order itself. The court cited cases from three other circuits where defendants had done just that. See Juvenile Male, 554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d Cir.). Because the defendant in this case did not wait until the transfer order was entered before filing his interlocutory appeal, the order allowing the defendant to be examined by the government psychologist was not considered appealable and the Seventh Circuit dismissed his appeal without considering the merits.


  • May 17, 2017 9:18 AM | Anonymous member (Administrator)

    By Stephen Soltanzadeh
    Associate, Ancel Glink

    The First District Appellate Court recently held that a motion for a new trial did not toll the 30-day period for filing a notice of appeal where the record was inconclusive as to the motion’s filing date, even where the prosecutor verbally agreed to “waive” the 30-day requirement for posttrial motions and consented to the defendant filing the motion later than 30 days after judgment.


    In People v. Hall, 2017 IL App (1st) 150918, a jury determined that the defendant was a sexually violent person under the Sexually Violent Persons Commitment Act, 725 ILCS 207/1, et seq. (2014), and the trial court entered an order committing him to the care of the Department of Human Services. The trial court entered judgment on May 14, 2014, after which the parties discussed scheduling posttrial motions with the court. In that discussion, the Assistant State’s Attorney stated that she would “waive the 30 days,” meaning that she would “not object if it’s after the 30 days if it’s all right with the Court.” Defense counsel followed up by asking the court for “June 20,” and the court stated that it would “set that down for any post-trial motions.” The trial court then issued a written order stating that judgment was entered and that the defendant would be transported to court on June 20, 2014, “for further status on this matter.”


    At the June 20, 2014 hearing, defense counsel requested leave to file a motion for new trial. In response, the trial court set a date for arguments on posttrial motions. Transcripts from subsequent hearings indicated that a new trial motion was ultimately filed, but it was not clear from the record when the motion was filed, and no file-stamped copy of the motion was included in the record. The court ultimately denied the motion on February 6, 2015, and defense counsel filed a notice of appeal on March 6, 2015.


    The People moved to dismiss the appeal, arguing that the appellate court did not have jurisdiction because the new trial motion was not filed within 30 days of the entry of judgment. The defendant responded that the court extended the deadline after the People agreed to the extension, and that the People’s position that a defendant cannot rely on the word of a prosecutor ran counter to the Illinois Rules of Professional Responsibility, which give prosecutors special responsibilities.


    The appellate court dismissed the appeal for lack of jurisdiction. It held that the record did not indicate when the posttrial motion was filed, and thus the defendant failed to demonstrate that it was timely, leaving the court without jurisdiction to hear the appeal.


    In so holding, the court initially explained that it does not have jurisdiction over an appeal unless the notice of appeal was filed within 30 days of the entry of judgment, or, if a timely posttrial motion was filed, within 30 days of disposition of the motion. It further explained that a posttrial motion must be filed within 30 days of the entry of judgment unless that time is extended by the court. Hall, 2017 IL App (1st) 150918, ¶ 13 (citing 735 ILCS 5/2-1202(c), Ill. Sup. Ct. R. 303(a)(1)).


    Turning to the case before it, the appellate court acknowledged that the record was “uncertain” as to whether the trial court had granted the defendant an extension of time to June 20, 2014 to file a motion for a new trial. Hall, 2017 IL App (1st) 150918, ¶ 14. But the appellate court held that even if the trial court had granted an extension, the appellate court lacked jurisdiction because the record did not indicate when the motion for a new trial was filed. Explaining that, as appellant, the defendant bore the burden of preparing a complete record, the appellate court construed the lack of a file-stamped copy of the motion against the defendant and held that he failed to establish that the notice of appeal was timely, leaving the court without jurisdiction over the appeal.


    “For the sake of completeness,” the appellate court also noted that the revestment doctrine did not apply because the defendant could not meet all three factors of the revestment doctrine test: that both parties “‘(1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that make the proceedings inconsistent with the merits of the prior judgment and support the setting aside of at least part of that judgment.’” Hall, 2017 IL App (1st) 150918, ¶ 17 (quoting People v. Bailey, 2014 IL 115459, ¶ 25). The court concluded that although the defendant could meet the first two requirements, he could not meet the third because the People actively opposed the motion for new trial and defended the underlying judgment. Accordingly, the appellate court held that the conduct of the Assistant State’s Attorney did not revest the trial court with jurisdiction to hear the defendant’s posttrial motion.


  • May 10, 2017 5:30 AM | Anonymous member (Administrator)

    On May 8, President Donald Trump nominated Notre Dame University Law School Professor Amy Coney Barrett to the United States Court of Appeals for the Seventh Cirucit. 

    According to the White House's press release, Barrett currently serves as the Diane and M.O. Miller II Research Professor of Law at the Notre Dame University Law School where she teaches federal courts, constitutional law and statutory interpretation. Prior to becoming a faculty member at Notre Dame, Barrett clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Laurence H. Silberman of the United States Court of Appeals for the D.C. Circuit. She also worked as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., and served as a visiting associate professor at the George Washington University Law School and the University of Virginia Law School.

  • May 07, 2017 1:56 PM | Anonymous member (Administrator)

    By Richard Harris
    Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District


    The Illinois Supreme Court recently shed new light on appellate jurisdiction under Rule 304(a). The rule provides that, where “multiple claims” for relief are involved in a single action, an appeal may be taken from a final judgment as to a single “claim” upon the trial court’s written finding that there is no just reason for delaying an appeal. The court has previously explained that Rule 304(a) applies only to judgments that dispose of “separate, unrelated claims,” and that orders disposing only of “separate issues relating to the same claim” are not immediately appealable under the rule. (Emphasis in original.) In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983).


    In Carle Foundation v. Cunningham Township, 2017 IL 120427, the trial court issued a Rule 304(a) finding after granting the plaintiff’s request for a declaratory judgment as to which section of the Property Tax Code governed certain claims in the plaintiff’s complaint. The Supreme Court held, however, that a declaration as to what law governs a complaint “resolves nothing other than the standard by which the underlying claim will be adjudicated.” Carle Foundation, 2017 IL 120427, ¶ 18. Thus, the trial court had merely resolved an “issue” that was ancillary to the plaintiff’s underlying “claims,” and its Rule 304(a) finding was improper. Id. 


    The parties in Carle disputed whether a charitable-use tax exemption applied to four parcels of land that were used in connection with the operation of a hospital for the tax years 2004 through 2011. The plaintiff argued that the parcels qualified for an exemption that had recently been created for hospitals under section 15-86 of the Property Tax Code. See 35 ILCS 200 15-86 (eff. June 14, 2012). The defendants maintained that section 15-86 did not apply retroactively, and that the case was controlled by the older charitable purposes exemption, under section 15-65 of the Property Tax Code. See 35 ILCS 200 15/65 (eff. Jan 1, 1994).


    The plaintiff’s fourth amended complaint included 35 counts. Count II sought a declaration that section 15-86 was applicable to the parcels for the tax years in question. The remaining counts sought declarations that an exemption the plaintiff had received prior to 2004 was never lawfully terminated, and that the parcels actually qualified for an exemption under section 15-65. Additionally, the plaintiff alleged the breach of a 2002 settlement agreement that it had entered with various local taxing authorities.


    Shortly after filing its fourth amended complaint, the plaintiff filed a motion for summary judgment on count II and requested a Rule 304(a) finding. In granting the plaintiff’s motion, the trial court acknowledged that its ruling would not resolve the merits of all of the plaintiff’s claims. The court nonetheless granted a Rule 304(a) finding, reasoning that the applicable substantive law needed to be ascertained as a threshold matter before the case could proceed.


    The appellate court concluded that it had appellate jurisdiction under Rule 304(a), but it reversed the trial court’s ruling after concluding that section 15-86 was unconstitutional. The Supreme Court then vacated the appellate court’s decision on the basis of its holding that the trial court’s Rule 304(a) finding was improper, and that the appellate court therefore lacked jurisdiction to review the order granting the plaintiff’s motion for summary judgment.


    The Supreme Court emphasized, “ ‘it is difficult to conceive of a situation in which the issues are more interrelated’ than the pleading of a claim and the determination of what law governs that claim.” Carle Foundation, 2017 IL 120427, ¶ 23 (quoting Leopando, 96 Ill. 2d at 119). Hence, by requesting a declaratory judgment that section 15-86 was applicable to the parcels for the tax years in question, the plaintiff sought to dispose only of an “issue” that was related to the plaintiff’s “exemption claims.” Carle Foundation, 2017 IL 120427, ¶ 23.


    The Supreme Court went on to note that the plaintiff’s request for declaratory judgment was improper in the first instance. The court explained that a declaratory judgment action must relate to an “actual controversy,” which refers to a “concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the termination of the controversy or some part thereof.” Carle Foundation, 2017 IL 120427, ¶ 28. (quoting Underground Contractors Association, Ill. 2d 371, 375 (1977)). However, count II of the plaintiff’s fourth amended complaint was brought only to facilitate interlocutory appellate review of the trial court’s determination; it was not properly aimed at securing a declaration of unresolved rights as to an open legal controversy. Carle Foundation, 2017 IL 120427, ¶ 31.


    Finally, the Supreme Court declined the parties’ shared request to address the merits of the case under the court’s supervisory authority. First, the court noted that it was not inclined to accommodate “piecemeal litigation.” Second, the court noted the issue surrounding the constitutionality of section 15-86, which had been the focus of the appellate court’s decision. However, the court’s long-standing rule is that cases should be decided on non-constitutional grounds whenever possible. Because plaintiff’s fourth amended complaint included claims that had nothing to do with the constitutionality of section 15-86, the court concluded that a ruling on the merits would be “decidedly premature.” Id. ¶ 34.


  • May 05, 2017 5:12 AM | Anonymous member (Administrator)

    On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.

    Attendees will receive one hour of MCLE credit.

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

  • May 03, 2017 5:21 AM | Anonymous member (Administrator)

    Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term, which begins Tuesday, May 9, 2017, with oral arguments scheduled for May 9, 10, 11, 16 and 17, 2017. A total of 15 cases will be heard – 9 criminal and 6 civil.

    The following civil cases are scheduled for argument this Term:

    People ex rel. Lisa Madigan v. Wildermuth—No.120763—May 10

    Rozsavolgyi v. The City of Aurora—No. 121048—May 11

    Manago v. The County of Cook—No. 121078—May 11

    Cochran v. Securitas Security Services USA, Inc.—No. 121200—May 16

    Aspen American Insurance Co. v. Interstate Warehousing, Inc.—No. 121281— May 17

    Illinois Landowners Alliance v. Illinois Commerce Commission—Nos. 121302, 121304, 121305, 121308 (cons.)—May 17

    The following criminal cases are scheduled for argument this Term:

    In re Linda B.—No. 119392—May 9

    People v. Willis Reese—No. 120011—May 9

    In re Destiny P.—No. 120796—May 9

    People v. Matthew Gray—No. 120958—May 9

    People v. Richard Holman—No. 120655—May 10

    People v. Dennis Bailey—No. 121450—May 10

    In re Jarquan B.—No. 121483—May 10

    People v. Fernando Casas, Jr.—No. 120797—May 16

    People v. Byron Boykins—No. 121365—May 16

    Below is a summary for one civil case, Cochran v. Securitas Security Services USA, Inc., and one criminal case, People v. Richard Holman. Summaries for these cases and others pending with the Illinois Supreme Court can be found in our Cases Pendingpublication, accessible to ALA members on the ALA's website.

    Cochran v. Securitas Security Services USA, Inc.

    This case raises the question of whether Illinois should recognize a cause of action for negligent interference with the possession of a corpse. In a published opinion, the Fourth District Appellate Court recognized such a cause of action, departing from prior decisions of the First, Second, and Third Appellate Districts which held that willful and wanton conduct by the defendant was a prerequisite to such a claim.

    Plaintiff, the mother of the decedent, filed suit against Defendant, claiming that they negligently mishandled her son’s remains such that they were switched with those of another decedent, resulting in an unwanted cremation. Plaintiff alleged that Defendant violated its duty not to interfere with her right to possession of her son’s remains by failing to follow certain procedures with respect to the handling and transferring of decedents’ remains. Plaintiff did not allege that the defendant acted willfully or wantonly. Defendant moved to dismiss, arguing that plaintiff failed to state a cause of action. The trial court agreed, dismissing Plaintiff’s complaint with prejudice, and finding that Plaintiff could not allege any facts which would give rise to a duty owed on the part of the Defendant. Plaintiff appealed.

    Reversing, the Fourth District Appellate Court disagreed, holding that requiring a plaintiff to plead willful and wanton conduct is no longer consistent with the current state of the law. In so holding, the Court departed from prior rulings of the First, Second, and Third District Appellate Court, which uniformly have held that a cause of action for negligent interference with possession of a corpse is not recognized under law. The Fourth District Appellate Court held that the rationale for requiring such a heightened pleading standard had been eroded, as evidenced by the decisions of several other states providing for a cause of action based upon the negligent mishandling of a corpse. It therefore held that “the more modem view supports the position taken by plaintiff in the instant case and recognizes an ordinary negligence cause of action arising out of the next of kin’s right to possession of a decedent’s remains,” and that the cases relied upon by the trial court “do not take into account the evolution of the law in this area and fail to persuade us to accept defendant's argument that circumstances of aggravation are necessary.”

    People v. Richard Holman

    In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held that mandatory-life-without-parole sentences for juveniles (under the age of 18) violated the Eighth Amendment.  Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held that Miller had adopted a substantive rule that applied retroactively.  Drawing a line between children whose crimes reflected transient immaturity and those reflecting permanent incorrigibility, the Court explained that an individualized hearing about the juvenile's youth and attendant considerations was required to separate out those who could be sentenced to life-without-parole and those who could not.  In Illinois, a criminal defendant can file a successive postconviction (PC) petition only with leave of court, 725 ILCS 5/122-1(f), which the court may grant if defendant demonstrates cause for failing to bring the claim(s) in the initial PC petition and prejudice resulting from that failure.

    In July 1979, weeks shy of his 18th birthday, Richard Holman and a codefendant burglarized a farmhouse in Southern Illinois and murdered its 83-year-old resident.  Holman confessed to committing seven murders with his codefendant (of which he was later convicted of three, including this case).  For the instant case, Holman and his codefendant were tried and convicted for first degree murder in 1981; because of his age he was ineligible for the death penalty and faced a 20-to-40-year sentencing range (for which he could earn day for day credit) and the judge, in his discretion, could impose a natural life sentence if Holman was convicted of multiple murders (as he was here).  The trial judge received a detailed pre-sentencing investigation (PSI) report regarding Holman's age, background, delinquency record, and family circumstances; statutory-required mitigating factors at the time did not mention youth.  The trial judge acknowledged considering the PSI, found no mitigating factors were present, and commented that this defendant could not be rehabilitated before imposing a natural life sentence. Neither Holman's direct appeal nor his initial PC petition challenged his sentence on Eighth Amendment grounds.

    In October 2010 (before Miller), Holman sought leave to file a successive PC petition, challenging the statute under which he was sentenced as unconstitutional under the Sixth and Fourteenth Amendments; on appeal from denial of leave to file (before Miller), Holman argued that the sentencing statute was void ab initio under the Eighth Amendment; the post-Miller PLA argued that the sentencing statute violated the Eighth Amendment.  In January 2015, the Illinois Supreme Court denied leave to appeal but remanded to the appellate court to reconsider in light of People v. Davis, 2014 IL 105595 (rejecting Eighth Amendment facial challenge to sentencing statute mandating natural life sentence, but holding Miller was retroactively applicable and satisfied cause-and-prejudice for juvenile defendant sentenced to mandatory natural life raising as-applied Eighth Amendment challenge).

    On remand, the appellate court excused Holman's forfeiture and upheld Holman's discretionary natural life sentence imposed in April 1981.  The court held that Miller provided an illustrative list of factors related to a juvenile defendant's youth without requiring courts to consider any set list of factors.  The court held that the sentencing hearing comported with Miller because Holman's age and other mitigating factors were known by the court and because Miller/Montgomery did not prohibit a natural life sentence for all juvenile offenders.

    Before the Illinois Supreme Court, Holman argues that he is entitled to a new sentencing hearing because sentencing courts must consider the Miller factors, and the trial court did not do so in his case.  Alternatively, Holman argues he is entitled to a new sentencing hearing because the sentencing court did not even consider youth and its attendant circumstances as a mitigating factor.  The State argues that the as-applied Eighth Amendment claim is forfeited because it was not presented in any level of review prior to this court's supervisory order.  Forfeiture aside, the State asserts that the Rehabilitation Clause of article 1, section 11 of the Illinois Constitution and decades of Illinois precedent on juvenile justice reflect that the Illinois sentencing scheme pre-Miller comported with Miller's requirements. Additionally, the sentencing judge's comment that Holman cannot be rehabilitated (and the record of his extensive delinquency record and multiple murders) is precisely the finding of permanent incorrigibility justifying a natural life sentence under Miller/Montgomery.  Finally, the State argues that rather than grant a new sentencing hearing as Holman requests, the Court should remand for additional PC proceedings solely regarding whether Holman qualifies as the rare juvenile offender who is permanently incorrigible because only if he is not is there an Eighth Amendment violation warranting a new, full sentencing hearing.  An amicus brief in support of Holman filed by the Bluhm Legal Clinic at Northwestern School of Law asserted, among other things, that the Court should flatly ban natural life sentence for juvenile offenders.

  • April 20, 2017 12:32 PM | Anonymous member (Administrator)

    On May 10, the ALA and the Sangamon County Bar Association will co-sponsor a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Fourth District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. The event will take place at Maldaner's Restaurant, 222 South Sixth Street in Springfield, beginning at noon and ending at 1:30 p.m.
     
    On May 19, the ALA will host the same event featuring the Justices of the Illinois Appellate Court’s Fifth District. The event will take place at The Gateway Center, 1 Gateway Drive in Collinsville, beginning at noon and ending at 2 p.m.
     
    Attendees to the luncheon will receive one hour of MCLE credit.
     
    Following each luncheon, Tyler Technologies will provide an e-filing presentation, covering such topics as: (1) filing fees; (2) the Illinois Supreme Court mandate requiring e-filing; (3) implementation of the mandate around the State; (4) the mechanics of e-filing; and (5) third-party vendors who can be retained to provide e-filing services to the bar. The event will run from 1:45 p.m. until 3:15 p.m. in Springfield and from 2:15 p.m. until 3:45 p.m. in Collinsville. 
     
    This presentation is free to attendees, including those who wish to attend only the e-filing presentation.
     
    Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.

    On May 16, the ALA will host a roundtable luncheon and panel discussion featuring the Judges of the Seventh Circuit Court of Appeals. Attendees at the luncheon will have the opportunity to speak with the judges about appellate practice in an informal setting. The event will take place at the Union League Club in Chicago, beginning at 12:30 p.m. and ending at 2 p.m.
     
    Attendees will receive one hour of MCLE credit.
     
    Finally, on May 25, the ALA will host a brown bag lunch featuring the e-filing presentation from Tyler Technologies. The event will take place at Mayer Brown LLP, 71 South Wacker Drive, 32nd Floor in Chicago, beginning at noon and ending at 1:30 p.m.
     
    Attendees to the e-filing presentation will receive 1.5 hours of MCLE credit.
     
    For more information about any of the events and to register, please click here.

  • April 11, 2017 8:18 AM | Anonymous member (Administrator)

    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 confirmation of Judge Neil Gorsuch, formerly of the United States Court of Appeals for the Tenth Circuit, to the United States Supreme Court.


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

  • April 10, 2017 3:30 PM | Anonymous member (Administrator)

    By Kevin R. Malloy
    Partner, Forde Law Offices LLP

    Can the appellate court allow a Rule 306 interlocutory appeal of a temporary order setting child support and maintenance payments? After first doing so, the First District took a closer look and decided that it could not, and thus dismissed an appeal for lack of jurisdiction in the case of In reMarriage of Dougherty, 2017 IL App (1st) 161893.

    Rule 306(a)(5) allows parties to petition for leave to appeal from “interlocutory orders affecting the care and custody of or the allocation for parental responsibility for unemancipated minors.” Ill. Sup. Ct. R. 306(a)(5) (emphasis added). At issue in In re Marriage of Dougherty was whether temporary orders entered by the trial court awarding child support and spousal maintenance could be appealed under that Rule. No issues were raised regarding custody.

    After the appellate court had granted the petitioner’s petition for leave to appeal, the respondent moved for reconsideration and/or to dismiss for lack of jurisdiction. The court took the motion with the case. In its opinion, after first noting its obligation to consider its jurisdiction at any time, the appellate court framed the jurisdictional issue as whether the phrase “orders affecting the care and custody” of minor children in Rule 306(a)(5) referred only to orders relating to the custody of minor children. The court held that it does, and dismissed the appeal.

    The petitioner had argued that the temporary child support order concerned the “care” of the child, as did maintenance, since it affected the financial circumstances of the custodial parent. But the petitioner did not cite any relevant authority to support his position. In contrast, the First District pointed to a number of sources to support its construction of Rule 306(a)(5).

    The court first noted that the Illinois Supreme Court in Gill v. Gill, 56 Ill. 2d 139, 143-44 (1973), stated that the “obligation of the father to support his minor child is not affected by the decree…granting the care and custody of his child.” Thus, that use of language was relevant in clarifying that “care and custody” is separate from support. In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 9.

    Next, the First District pointed to Rules Committee comments to the March 2016 amendment to Rule 306, which reflected changes of the term “custody” to “allocation of parental responsibilities” in the Illinois Marriage and Dissolution of Marriage Act. Those comments specifically focused on the term “custody”, and thus did not suggest that Rule 306(a)(5) extended into temporary orders on “child support and maintenance.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶¶ 10-11.

    Further, the First District noted, Rule 306(a)(5) provides that once the petition for leave to appeal has been granted, Rule 311(a)’s expedited procedures apply. Rule 311(a), in turn, states that the expedited procedures in that rule shall apply to “interlocutory appeals in child custody or allocation of parental responsibilities cases from which leave to appeal has been granted pursuant to Rule 306(a)(5).” Ill. Sup. Ct. R. 311(a). That rule further provides, in contrast, that a reviewing court may use the expedited procedures in an appeal from an order “affecting other matters, such as support.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 12 (quoting Rule 311(a) (emphasis by court)).

    Finally, the Rules Committee’s comments for Rule 311(a) offered additional guidance, noting that its 2010 amendment was “intended to clarify that the rule addresses only the procedures to be followed in order to expedite disposition of child custody appeals.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 14.

    Interpreting Supreme Court Rules the same as statutes, the appellate court applied the doctrine of in pari materia to read Rule 306(a)(5) and Rule 311(a) together, so as to give them “harmonious effect.” The First District concluded that both rules “relate to expedited interlocutory appeals involving custody or the allocation of parental responsibilities,” and that “neither rule, nor any comment suggests that a temporary support of maintenance order may be brought independently.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 15. Thus, the court would not read additional language into the rules in order to confer jurisdiction. Id. Considering the language of the rules together, the court held that “Rule 306(a)(5) does not provide for petitions for leave to appeal from temporary support and maintenance orders.” Id. ¶ 16. Thus, it did not have jurisdiction and dismissed the appeal.


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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