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.

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.

After a successful event in April 2016, the Illinois Supreme Court Commission on Professionalism is again hosting “The Future Is Now” Conference. On May 18, the Commission will host the conference focusing on innovations and practices impacting the delivery of legal services and the legal profession as a whole.
 
The Commission will host nine speakers with each addressing different issues impacting the profession, including legal insurance, online dispute resolution, alternative fee arrangements, legal project management, competency-based learning, immigration services, and practice management tools that can make attorneys more competitive in the current legal climate.
 
The conference will be held at the Art Institute Rubloff Auditorium (230 South Columbus Drive in Chicago), beginning at 10 a.m. and ending at 3:30 p.m.
 
The conference will be broken up into four sessions. Each session will consist of two to three talks followed by a town hall meeting where attendees will have expanded opportunities to question, comment, and react to each of the speaker talks. The complete conference schedule is posted on the event website.
 
The registration fee is $75 and will cover the cost of a light breakfast, lunch, and refreshments. Registration is currently open; however, seating is limited. Last year, the conference reached capacity and opened up a waiting list more than one month prior to the event.
 
The conference will be approved for 5.0 hours of professional responsibility CLE credit in Illinois. To receive credit, attendees must complete conference feedback forms, which will be sent to participants via email along with their certificates of attendance after the event.
 
For additional questions and concerns, please email Lindsay Shaw (lindsay.shaw@2civility.org) or call her at (312) 363-6210.

On Tuesday, April 4, the ALA will host a roundtable luncheon and panel discussion featuring the Justices of the Illinois Appellate Court’s Second District and the Second District’s Research Director. 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 in the Heritage Ballroom of the Centre of Elgin in Elgin, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.

Following the 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.

This presentation is free to attendees, including those who wish to attend only the e-filing presentation.

Attendees will receive 1.5 hours of MCLE credit.

On Friday, April 21, the ALA will host a luncheon featuring Erwin Chemerinsky, renowned lecturer on the United States Supreme Court and the Dean of the University of California, Irvine School of Law. Dean Chemerinsky will discuss the United States Supreme Court’s current docket and other topical issues on the High Court.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees will receive one hour of MCLE credit.
On Friday, April 28, the ALA will host an advanced appellate practice seminar, which will feature presentations on such topics as remedies in the Illinois Supreme Court, interlocutory appeals, legal ethics on appeal and preserving issues for appellate review.

Presenters include current ALA President Joanne Driscoll, former ALA Presidents Bill Hardy, Karen K. DeGrand, and Michael A. Scodro, ALA Director Don R. Sampen, former Cook County Circuit Court Judge Rita Novak, Kathy Byrne, Isaac Melton, and Douglas Richmond.

The seminar will take place at Quarles & Brady at 300 North LaSalle Street, Suite 4000 in Chicago, beginning at 1 p.m. and ending at 5 p.m.

Participants will receive 3.75 hours of MCLE credit, including .75 hours of professional responsibility credit.

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

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP

In P.H. Glatfelter Co. v. Windward Prospects Ltd., 847 F.3d 452 (7th Cir. 2017), the Seventh Circuit addressed three total appeals—two taken by P.H. Glatfelter Co. (Glatfelter) arising out of discovery-related orders and one cross-appeal taken by non-party subpoena respondent Windward Prospects, Ltd. (Windward), who sought costs and fees from Glatfelter under Federal Rule of Civil Procedure 37—all three of which the Seventh Circuit dismissed for lack of jurisdiction.

The underlying case involved an ongoing multi-party environmental cleanup being performed on the Lower Fox River in Wisconsin pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under CERCLA, the parties responsible for creating the hazard and potentially responsible parties (PRPs) may be liable for the full costs of remediation. Glatfelter, 847 F.3d at 453-54.

Paper manufacturer Appvion, Inc. (Appvion), a PRP, sued other PRPs, including Glatfelter, in the Eastern District of Wisconsin, to recover the cleanup costs it incurred and to require other PRPs to pay for future remedial work. Id. at 454. Glatfelter sought discovery from Windward, an English entity conducting Appvion’s defense of the CERCLA claims and managing its cleanup operations, relating to Appvion's costs and possible offsets from insurance, settlements or indemnification payments in connection with the underlying cost recovery action. Id.

When Glatfelter could not obtain compliance with the subpoena it attempted to issue to Windward, it instituted an ancillary proceeding in the District of Massachusetts. Id. at 455. In addition to seeking an order compelling Windward to respond to the subpoena, Glatfelter sought to transfer the case to the Eastern District of Wisconsin, where the main cost recovery action was pending. Id. 

The district court transferred the case, and the same judge presiding over the recovery action in the Eastern District of Wisconsin denied the motion to compel, concluding that the court lacked personal jurisdiction over Windward and that Glatfelter had not established that the documents it sought were not already subject to production by Appvion. Id. Glatfelter filed a motion to reconsider, which the court also denied. Glatfelter appealed. Id.

The Seventh Circuit’s analysis began by reciting the general rule that pretrial discovery orders are not final in terms of winding up the underlying lawsuit, as well as the exception to that rule under the collateral order doctrine, where an order “conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal from a final judgment.” Id. at 455 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).

Examining opinions from other circuits that had directly considered the issue, the Seventh Circuit held that where a district court enters an order in an ancillary action, and that district court is located in the same circuit as the district court handling the main action, the order in the ancillary action is interlocutory and not immediately appealable. Id. at 456-57.

According to the Seventh Circuit, the problem for Glatfelter was that the ancillary action was transferred from the District of Massachusetts to the Eastern District of Wisconsin prior to the appeal. In the Seventh Circuit, pretrial discovery orders are appealable “only where they were issued by a district court in an ancillary proceeding and said district court was not within the jurisdiction of the circuit court having appellate jurisdiction to review the final adjudication of the main action.” Id. at 456 (emphasis original). 

Thus, the three appeals were dismissed for lack of jurisdiction because the ancillary action was in the same district court presiding over the main action (the cost recovery action), and the denial of Glatfelter’s motions would be reviewable on appeal from the final judgment in the main action. Id. at 459.

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, appeared on Chicago Tonight last night to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.


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

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, and Former Illinois Solicitor General Carolyn Shapiro, now a professor at Chicago-Kent College of Law, are scheduled to appear on Chicago Tonight at 7 p.m. this evening to discuss the United States Supreme Court confirmation hearings for Judge Neil Gorsuch, current judge for the United States Court of Appeals for the Tenth Circuit.

By Josh Wolff

Research Attorney, Illinois Appellate Court, First District

On Wednesday, March 29, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court’s First District. Attendees at the luncheon will have the opportunity to speak with the justices about appellate practice in an informal setting. Numbers permitting, at least one justice will be seated at each luncheon table. Justice Nathaniel R. Howse, Jr., will also discuss the First District’s e-filing initiative.

The event will take place at the Union League Club in Chicago, beginning at noon and ending at 1:30 p.m.

Attendees 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 Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term, which begins Monday, March 13, 2017, with oral arguments scheduled for March 14, 15, and 21, 2017.  A total of 6 cases will be heard – 4 civil and 2 criminal. The following cases are scheduled for argument this Term:

People v. David Holmes—No. 120407—March 14

People v. Blackie Veach—No. 120649—March 14

Bogenberger v. Pi Kappa Alpha, et al.—Nos. 120951, 120967, 120986 (cons.)—March 15

In re Estate of Thomas F. Shelton—Nos. 121199, 121241 (cons.)—March 21

Ferris, Thompson & Zweig v. Esposito—No. 121297—March 21

Better Government Association v. Illinois High School Association—No. 121124—March 21

Below is a summary of one of the civil and criminal cases to be argued this term. 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.

INEFFECTIVE ASSISTANCE OF COUNSEL

No. 120649
People v. Veach 

The issue in this case is whether the appellate court majority erred in holding that defendant’s ineffective assistance claim, raised on direct appeal, should wait until postconviction proceedings (the claim faulted trial counsel for stipulating to admission of recorded interviews with State’s witnesses without redacting inadmissible prior consistent statements and bad character evidence). The dissent would have held that the court could determine, based on the direct appeal record, that defendant received ineffective assistance of counsel.

In the PLA, defendant contended that the Fourth District holds that only in the “most extraordinary case” should an ineffective assistance claim be addressed on direct appeal.  Perhaps this broader procedural issue motivated the Court to take the case.  However, during briefing, both parties asserted that the issue could be addressed on direct appeal because the record on appeal confirms that the ineffective assistance claim is meritorious (defendant) or meritless (the State).  If the Court agrees, then the broader procedural issue would not be reached, and perhaps the Court will need to grant leave to appeal in one of the handful of PLAs that appear to be holding for resolution of this case.

FREEDOM OF INFORMATION ACT

No. 121124
Better Government Association v. Illinois High School Association

The main issue in this case involves whether the Illinois High School Association (“IHSA”) is a subsidiary “public body” under the Freedom of Information Act, 5 ILCS 140/1, et seq. (“FOIA”).

Plaintiff Better Government Association (“BGA”) submitted written requests under FOIA to the IHSA seeking all of IHSA’s contracts for accounting, legal, sponsorship, and public relations/crisis communications services and all licensed vendor applications for the 2012-2013 and 2013-2014 fiscal years. IHSA responded that it was a nonprofit 501(c)(3) charitable organization that was not subject to FOIA. BGA then filed a complaint against IHSA and Consolidated High School District 230, requesting that the court declare IHSA a subsidiary “public body” under FOIA, declare that IHSA performs a governmental function on behalf of its member schools, including District 230, and order IHSA and District 230 to produce the requested documents. IHSA moved to dismiss, arguing that it was not subject to FOIA because it was neither a public body nor a subsidiary as the terms are used in FOIA. The trial court granted IHSA’s motion to dismiss (and District 230’s motion to dismiss), holding that IHSA was not a subsidiary public body covered by FOIA. Plaintiff appealed.

The Illinois Appellate Court affirmed, explaining that FOIA provides that all records in the custody or possession of a public body are presumed to be open to inspection or copying. FOIA defines “public body” to be “all legislative, executive, administrative, or advisory bodies of the State, state universities and college, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing including but not limited to committees and subcommittees thereof ...” 5 ILCS 140/2. A subsidiary public body is itself a public body for purposes of compliance with FOIA. “Subsidiary public body” is not defined in FOIA so the court followed the three-part test articulated in Rockford Newspapers, Inc. v. Northern Illinois Council on Alcoholism & Drug Dependence, 64 Ill. App. 3d 94 (1978) for determining whether an entity is a “subsidiary body” as that term is used in the Open Meetings Act (5 ILCS 120/1.02).

The Rockford Newspapers test instructed courts to consider: (1) whether the entity has a legal existence independent of governmental resolution; (2) the nature of the functions performed by the entity; and (3) the degree of government control exerted. Applying the first factor to the IHSA, the court determined that IHSA was a voluntary, unincorporated association of member Illinois high schools, both public and private and had an independent legal existence separate from its member schools where IHSA has independent standing to sue and be sued. As for the second factor, the Illinois Appellate Court determined that although a public body could perform the same functions of the IHSA in developing, supervising, and promoting interscholastic competitions among its member schools, the private, independent not-for-profit IHSA does not perform public, governmental functions in this case. Under the third factor, the court concluded that IHSA was not controlled by a government entity to such a degree that it constitutes a subsidiary public body. Therefore, the appellate court held that IHSA was not a subsidiary public body as the term was used in FOIA and affirmed the circuit court’s order granting IHSA’s motion to dismiss.

By Andrew Kwalwaser 
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In Cox v. Nostaw, Inc., No. 16-1389, the appellant, the bankruptcy trustee for an energy company, filed an appeal in the Seventh Circuit Court of Appeals. While the appeal was pending, however, the parties engaged in mediation and agreed to a settlement that was contingent on approval by the bankruptcy court. The parties filed a joint motion in the bankruptcy court, seeking an indicative ruling as to whether the court would approve the proposed settlement. The bankruptcy court issued an order stating that it would approve the settlement, subject to the objection of creditors, if the case was remanded for that purpose.

The trustee then moved the appellate court, pursuant to Federal Rule of Appellate Procedure 12.1, to dismiss his appeal and remand to the district court with instructions to remand to the bankruptcy court "for proceedings consistent with its indicative ruling."

The Seventh Circuit denied the trustee's motion without prejudice. The court noted Rule 12.1 provides that, if a district court indicates it would grant a motion that is barred by a pending appeal, the reviewing court "may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal." Similarly, Circuit Rule 57 of the Seventh Circuit specifies that the court "will remand" if the district court intends to modify its judgment. These rules, the Seventh Circuit explained, "allow for coordination of proceedings between a district court and a court of appeals."

Because the litigation involved an appeal from the district court's decision to affirm a bankruptcy court order, remand to the bankruptcy court required coordination between three courts: the appellate court, the district court, and the bankruptcy court. In this case, however, there was no record that the parties "sought or obtained an indicative ruling from the district court." The Seventh Court held that "the proper procedure when asking this court to remand to the district court and then to the bankruptcy court is to obtain an indicative ruling from both courts that will need to act." Consequently, the Seventh Circuit denied the trustee's motion "without prejudice to renewal after obtaining an indicative ruling from the district court."