"The Brief" - The ALA Blog

  • March 13, 2015 1:41 PM | Anonymous member (Administrator)

    Each year, the Association sponsors a series of roundtable luncheons with the United States Court of Appeals for the Seventh Circuit and the five districts of the Illinois Appellate Court. Numbers permitting, the ALA typically seats one judge at each table, providing ALA members and guests with a unique opportunity to converse with a reviewing court jurist in a collegial and informal setting. The luncheons also typically include a panel discussion with the judges sharing their insights on appellate practice and procedure. 

    The roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will take place on March 24, 2015, at the Union League Club in Chicago. 

    The roundtable luncheon featuring the justices of the Illinois Appellate Court, Fourth District, will take place on March 30, 2015. The luncheon will be held at the University of Illinois at Springfield. A panel of the Appellate Court will sit for oral arguments before the luncheon, and an interactive judicial panel moderated by Association President Steven F. Pflaum will follow the luncheon. 

    The roundtable luncheon featuring the justices of the Illinois Appellate Court, Second District, will take place on April 7, 2015, at The Centre in Elgin, which is conveniently located across the street from the Appellate Court. 

    The luncheons for the remaining districts of the Appellate Court and the Seventh Circuit will be held later in the year. 

    CLE credit will be offered for each of the luncheons. For more information and to register, please click here

  • March 10, 2015 12:44 PM | Anonymous member (Administrator)

    The Cases Pending Committee, co-chaired by Joanne R. Driscoll (photo on left) and Clare J. Quish (photo on right), provides Association members with valuable information regarding matters set to be heard by the Illinois Supreme Court. The Supreme Court’s March Term began this week, with oral arguments scheduled for Tuesday and Wednesday, March 10 and 11, and next Tuesday and Wednesday, March 17 and 18. The Court will hear a total of 11 cases – 6 civil and 5 criminal. Below is a list of the civil cases scheduled to be heard, with the dates of oral argument:

    In re Marriage of Mueller, No. 117876 – March 11

    One West Bank, N.A. v. Standard Bank & Trust Co., No. 117950 – March 11

    In re Pension Reform Litigation, No. 118585 – March 11

    Coleman v. East Joliet Fire Protection Dist., No. 117952 – March 17

    Turcios v. The DeBruler Co., No. 117962 – March 17

    McVey v. M.L.K. Enterprises, L.L.C., No. 118143 – March 18

    The Court will hear two pension cases this term, including one concerning the constitutionality of the law affecting pensions of state workers.  Summaries for all these cases can be accessed by ALA members on the Association

    ’s website by clicking on our Cases Pendingpublication. To read abbreviated summaries for the two pension cases, please continue reading this post. 


    No. 118585
    In re Pension Reform Litigation

    This case involves the direct appeal of five lawsuits, one filed in Cook County, three filed in Sangamon County, and one filed in Champaign County, which were consolidated and decided in Sangamon County. The lawsuits each alleged that Public Act 98-0599 (the “Act”) violated the pension protection clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, § 5), which prohibits the diminishment or impairment of any membership benefit in any pension or retirement system of the State. Relying on Kanerva v. Weems, 2014 IL 115811, the circuit court granted plaintiffs’ joint motions for partial summary judgment and judgment on the pleadings as to defendant’s affirmative defense or, in the alternative, to strike the affirmative defense that the Act is a justified exercise of the State’s reserved sovereign powers or police powers.

    The circuit court found that the pension protection clause was plain and unambiguous in its prohibition against diminishing or impairing anything that qualifies as a benefit of an enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems. The court also rejected the State’s sovereign or police powers defense as being not legally valid, citing Kanerva’s holding that the court “may not rewrite the pension protection clause.” Because the Act expressly provided for nonseverability, the court held the entire Act unconstitutional.

    Direct Appeal – Supreme Court Rule 302(a): 12/03/14

    Oral Argument: 03/11/15

    * * * * * *


    No. 117876
    In re Marriage of Mueller

    The issue in this case involves whether the court can offset the value of a spouse’s pension in lieu of Social Security to put the spouse participating in a pension program in a similar position as the spouse participating in Social Security.

    The parties married in 1992 and in 2012, the wife filed a petition for dissolution of marriage. The trial court awarded the wife a portion of the husband’s police pension benefits without considering the value of the wife’s anticipated Social Security benefits or offsetting the value of the husband’s pension benefits by the value of Social Security benefits he would have received had he participated in Social Security instead of the pension. The husband appealed.

    The Illinois Appellate Court, Fourth District, affirmed, rejecting the husband’s argument that, because the trial court could not consider the wife’s Social Security benefits in determining the equitable distribution of marital property, fairness required the court to offset its valuation of the husband’s pension by the value of Social Security benefits he would have received had he participated. The court explained that the Illinois Supreme Court’s holding in In re Marriage of Crook, 211 Ill. 2d 437 (2004) that Social Security benefits may not be divided directly or used as a basis for an offset during dissolution proceedings, did not decide whether a spouse who participates in a pension system in lieu of Social Security must be placed in a position similar to that of the other spouse whose Social Security benefits will be statutorily exempt from equitable distribution, leaving that issue to another day. The appellate court deferred to the Illinois Supreme Court to determine whether that day had arrived and how to resolve the issue.

    Appellate Court Decision: 2014 IL App (4th) 130918-U. Steigmann, J., with Knecht, J., concurring. Appleton, P.J., dissenting.

    PLA Allowed: 09/24/14

    Oral Argument: 03/11/15

  • March 09, 2015 7:45 AM | Anonymous member (Administrator)

    A short opinion from the United States Court of Appeals for the Seventh Circuit serves as a reminder that until a plaintiff’s entire case has been decided—including any claim for prejudgment interest—there’s no final judgment for appeal. In Dual-Temp of Illinois, Inc. v. Hench Control, Inc., ___ F.3d ___, 2015 WL 304124 (7th Cir., 2015), the district court entered judgment after a trial and then checked a box on a judgment form indicating that no prejudgment interest would be awarded. Checking the box was an error, and 28 days later, the plaintiff moved the court to quantify prejudgment interest. But to avoid any issue about an untimely appeal, the defendant appealed the judgment following day. 

    Later, the district court agreed it would consider the plaintiff’s motion for prejudgment interest. As a result, the defendant informed the Seventh Circuit that its appeal should be deemed premature. The Seventh Circuit agreed and ruled that there was no final judgment because prejudgment interest “makes up part of a plaintiff’s damages.” Id. at * 1. The court explained that the district court must “quantify damages before a judgment can be final.” Also, it could not consider the judgment final on the ground that determining prejudgment interest is merely “mechanical and uncontroversial.” Accordingly, the court dismissed the appeal for lack of a final judgment.

    The ruling in Dual-Temp is straightforward enough—there is no final judgment until there has been a ruling on prejudgment interest. But, at the same time, it is also well to pause and remember this rule differs significantly from a request for attorney fees. Last year, in Ray Haulch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014), the United States Supreme Court settled a split among the circuits and held that a request for attorney fees, by itself, does not toll the time for appeal. The court reasoned that even if the requested attorney fees arose from a contract, the request for fees was still collateral to the merits and did not prevent the judgment from becoming final for appeal. Id. at 780. The court noted, however, an exception under Fed. R. Civ. P. 58(e) under which a district court may allow a pending and undecided request for attorney fees to suspend the time to appeal. Id. at 781.

    Thus, requests for prejudgment interest versus those for attorney fees — though they both might be viewed as collateral to the merits — actually affect finality differently. In short, a pending request for prejudgment interest stops the appeals clock, but a request for attorney fees generally will not.

    Recommended Citation: E. King Poor, Request for Prejudgment Interest Stops the Appeals Clock in Federal Court—Unlike Attorney Fees, The Brief, (March 9, 2015), http://applawyers-thebrief.blogspot.com/2015/03/request-for-prejudgment-interest-stops.html.

  • March 06, 2015 4:02 PM | Anonymous member (Administrator)

    People v. Norton, 2015 IL App (2d) 130599, concerns whether a posttrial motion alleging ineffective assistance of counsel, filed after a motion to reconsider sentence, tolls the time period for filing a notice of appeal.

    The defendant was convicted of two counts of aggravated battery. On May 11, 2012, following a sentencing hearing, the trial court sentenced defendant to prison and ordered him to pay $150,000 in restitution. On June 29, 2012, the court heard and denied a motion to reconsider sentence. Immediately following the court’s denial of that motion, defendant told the court that he wanted to assert a claim of ineffective assistance of counsel and asked the court how this would interact with his right to appeal. “The court advised defendant that if he filed the motion he had with him, ‘the notice of appeal is not filed,’ and after the court decided defendant’s motion defendant could ‘decide what [he] want[ed] to do.’ ” Upon further inquiry from defendant, the court clarified that “[i]f you file it now, I will consider this as part of a motion for a new trial, and I’ll deal with it here, right now before the appeal.” Defendant then filed his motion and the court appointed new counsel to represent him in connection with the motion.

    Thereafter, defendant’s new attorney filed a “supplemental motion for a new trial, stating that it was his understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion.” The State asserted that the court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [court] would retain jurisdiction.” On May 3, 2013, following an evidentiary hearing, the court denied defendant’s supplemental motion for a new trial and defendant immediately filed a notice of appeal, challenging the court’s restitution order.

    The appellate court, however, dismissed defendant’s appeal for lack of jurisdiction. Relying on People v. Serio, 357 Ill. App. 3d 806 (2005), the court in Norton determined that it lacked jurisdiction to entertain defendant’s appeal because the notice of appeal was not timely filed. The Serio court held that “a pro se motion asserting the ineffectiveness of counsel that is filed fewer than 30 days after the court has decided a postsentencing motion does not extend the time in which a defendant may appeal.” Norton, 2015 IL App (2d) 130599, ¶ 5 (citing Serio, 357 Ill. App. 3d at 817).

    Recall that defendant’s conviction and sentence became final on June 29, 2012, yet his notice of appeal was not filed until May 3, 2013, nearly a year later. Although the trial court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [c]ourt would retain jurisdiction” and “understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion [filed by new defense counsel],” the court in Norton held that even though the trial court had both jurisdiction to consider a timely pro se  motion alleging ineffective assistance of counsel and a duty to hear it, filing the motion did not operate to extend the time for filing a notice of appeal. Accordingly, the notice of appeal, even though it was filed immediately after the trial court disposed of defendant’s supplemental motion for new trial, was not timely. Further, because the time period in which the appellate court could grant a motion for leave to file a late notice of appeal pursuant to Illinois Supreme Court 606(c) (eff. Mar. 20, 2009), the appellate court lacked “any other possible basis to take jurisdiction of the appeal. ” Defendant’s appeal was, therefore, dismissed.

    The court in the Norton recognized that “[t]he rule in Serio creates a conundrum for a defendant when, as here, the consideration of the pro se motion delays the notice of appeal more than 30 days after the denial of the first postjudgment motion. Here, the [trial] court did not assist defendant. Instead, it misadvised defendant that the time in which he could appeal was tolled when, as we have shown, it was not. Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.”

    Recommended Citation: Nate Nieman, In Criminal Case, Incorrect Advice from Trial Court did not Save Untimely Notice of Appeal, The Brief, (March 6, 2015), http://applawyers-thebrief.blogspot.com/2015/03/in-criminal-case-incorrect-advice-from.html.

  • March 03, 2015 3:10 PM | Anonymous member (Administrator)

    On February 18, 2015, the Association gathered at the Union League Club in Chicago for its February luncheon. The luncheon featured Illinois Solicitor General Carolyn E. Shapiro, who, in 2010, was appointed by Attorney General Lisa M. Madigan to serve as the top appellate lawyer in the Attorney General's office. Association President Steven F. Pflaum opened the luncheon by welcoming ALA members and guests, which guests included three of Shapiro's predecessors: Hon. Gary Feinerman of the United States District Court for the Northern District of Illinois, ALA Vice President Michael A. Scodro, and Joel D. Bertocchi. President Pflaum noted the Solicitor General's unique role within the public service sector, quipping that, unlike the Attorney General, Shapiro "actually" practices law and, unlike a United States attorney, she gets to practice in both federal and state courts. 

    Thereafter, Shapiro reflected on her transition from law professor to advocate representing the State in appellate matters. She noted that her office developed approximately 250 briefs during her first year, and given the breadth of matters involved, she has experienced a "tremendous learning curve," but that curve has made the job enjoyable. The wide range of matters can, at times, lead to interesting scenarios where attorneys in her office are representing opposing sides. Shapiro recounted one such situation where her office represented both the State and the Department of Children and Family Services; and to the audience's amusement, noted that her office "won." 

    The Solicitor General also shared insight into her office's structure and organization. She emphasized that her office is an "institutional litigant," and that maintaining credibility with the judiciaries is key and is also in her client's long-term interests. On a practical note, Shapiro shared that she tracks all office cases on a legal pad, and that she personally reviews all briefs filed before the United States Court of Appeals for the Seventh Circuit and the Illinois Supreme Court. 

    The Association thanks Solicitor General Shapiro for her engaging and insightful comments.

  • February 27, 2015 5:12 PM | Anonymous member (Administrator)

    On February 4, 2015, the Association hosted a reception honoring the Justices of the Illinois Appellate Court, First District, at the Union League Club in Chicago. The biennial reception provided an opportunity for members of the bench and bar to socialize over cocktails and hors d'oeuvres in a collegial  setting. 

    The reception honored Justice Thomas E. Hoffman's distinguished service on the First District Appellate Court. ALA President Steven F. Pflaum opened the festivities by welcoming members of the judiciary, who included members of the Illinois Supreme Court, Illinois Appellate Court, and the Cook County Circuit Court, ALA members, and guests. President Pflaum recounted Justice Hoffman's storied career in public service, which included service as a Chicago police officer, trial court judge, and appellate court justice. By Pflaum's count, Justice Hoffman had authored more than 700 opinions, special concurrences, and dissents. Drawing a large laugh from the many practitioners in the audience, Pflaum noted that Justice Hoffman had also authored countless Rule 23 orders, which he was not allowed to reference. 

    Thereafter, Justice Margaret Stanton McBride introduced Justice Hoffman. Justice Stanton spoke of Justice Hoffman's dedication to the judiciary and noted the admiration that she and her colleagues on the court have for him.

    Justice Hoffman's heartfelt remarks expressed gratitude to his many colleagues and friends in attendance. True to his down-to-earth nature, Justice Hoffman candidly queried why he was being honored before noting that the highest professional compliment one can receive is recognition from the people one works with on a daily basis. Justice Hoffman noted the significant efforts of court personnel and his staff, including his dedicated law clerks, and thanked his judicial colleagues for their dedication and hard work.

    The ALA congratulates Justice Hoffman for his well-deserved recognition; and thanks the members of the judiciary, ALA members, and guests for an enjoyable evening. 

  • February 24, 2015 3:55 PM | Anonymous member (Administrator)

    The Rules Committee of the Appellate Lawyers Association, chaired by Garrett L. Boehm, Jr. of Johnson & Bell, Ltd. (photo on left) and John M. Fitzgerald of Tabet DiVito & Rothstein LLC  (photo on right), meets regularly to review recent changes to the Federal Rules of Appellate Procedure and Illinois Supreme Court Rules. The Committee also proposes to the Association amendments to existing rules in an effort to resolve ambiguities and address problems incurred under those rules. 

    Recently, the Association, at the recommendation of the Rules Committee, submitted a letter to the Illinois Supreme Court Rules Committee proposing amendments to Supreme Court Rules 306 and 307. The proposals seek to clarify that, under Rules 306(b), 307(d)(1), and 307(d)(2), documents may be served via email. The ALA's proposals also include amendments to Rule 307(a) to authorize the filing of a supporting record pursuant to Rule 328. Finally, the proposals seek to amend Rule 307(d) to provide that, in interlocutory appeals authorized under that rule, the notice of appeal shall be filed in the circuit court, and further, that Rule 373 (which authorizes the filing of documents via mail or delivery to a third-party commercial carrier) may be utilized in Rule 307(d) appeals.

    To read the letter, please click here.

  • February 23, 2015 1:40 PM | Anonymous member (Administrator)

    In re Marriage of Eckersall, 2015 IL 117922, a Cook County dissolution of marriage proceeding, was finalized in 2014. While the case was pending, the husband sought joint custody of the couple’s three children. When the parties did not meet the circuit court’s deadline for reaching a visitation agreement, the court entered a form order that restricted the parents’ conduct and communications with the children during the proceedings. Among other restrictions, the order prohibited the parents from using corporal punishment in disciplining the children, from discussing the pending litigation with them, and from removing the children from the state without the other parent’s consent or a court order. The wife objected to the order and pursued an interlocutory appeal under Supreme Court Rule 307(a) (eff. Feb. 26, 2010), which allows interlocutory appeals from injunctions. With one justice dissenting, the appellate court found that the order did not constitute an injunction and dismissed the appeal for lack of jurisdiction.

    After accepting the wife’s petition for leave to appeal, the Illinois Supreme Court dismissed the appeal, but for a different reason than the appellate court had stated. By the time the supreme court addressed the substance of the appeal, the circuit court had entered its final dissolution order, which superseded the “form” order to which the wife had objected.  Undisputedly, the form order that was the subject of the appeal was moot. The question for the supreme court, however, was whether the public interest exception to the mootness doctrine called for the court to address the substance of the superseded order.

    The supreme court found that the form order, which was “generally only used” in Cook County dissolution proceedings when the parties could not agree on visitation terms, did not meet the first requirement for the public interest exception: the appeal presents an issue that has widespread effect on the public. The absence of conflicting authorities led the court to conclude that the second requirement, a need for authoritative determination, also was not present. Finally, the third factor, a likelihood of future recurrence, had not been met given the lack of past litigation involving this issue. Distinguishing this case from other cases presenting important issues involving minors, such as a minor’s physical safety or the protection of neglected or abused children, the supreme court found that the narrowly construed public interest exception to the mootness doctrine did not apply. The supreme court concluded “this type of  ‘form’ order has a limited application and does not have a significant effect on the public as a whole.” Therefore, the petition for leave to appeal had been improvidently granted, and the high court dismissed the appeal as moot. 

    Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody DisputeThe Brief(February 23, 2015), http://applawyers-thebrief.blogspot.com/2015/02/illinois-supreme-court-finds-public.html.

  • February 19, 2015 3:05 PM | Anonymous member (Administrator)

    For the third consecutive year, the ALA and the DuPage County Bar Association (DCBA) cosponsored the "Supreme Court Civil Litigation Year in Review" brown bag luncheon seminar. The popular program, which offered attendees 1.5 hours of valuable CLE credit, focused on Supreme Court Rule changes, statistics regarding petitions for leave to appeal, and opinions issued by the Illinois Supreme Court during the 2014 calendar year. The seminar was conveniently presented in both Wheaton and Chicago, and as a membership benefit, ALA and DCBA members could attend either seminar free of charge.

    The program featured Justice Ann B. Jorgensen of the Illinois Appellate Court, Second District, along with seasoned appellate practitioners J. Timothy Eaton of Taft Stettinius & Hollister LLP and Michael T. Reagan of Law Offices of Michael T. Reagan. The program began with an overview of Supreme Court Rule changes, many of which are germane to appellate practice and procedure. The panel noted that, for example, the supreme court amended Rules 138, 201, 303, 306, 308, 313, and 367, among others.

    The panel then noted that, in 2014, 1,365 petitions for leave to appeal were filed, a decrease from years' past, and that the percentage of petitions granted slightly increased due to fewer petitions being filed.  The panel noted that 85% of the petitions granted involved issues of statutory construction. Further, approximately 22% of the petitions granted resulted in an affirmance while approximately 78% resulted in a reversal (either in part or outright). Thus, it is reasonable to infer that, if the supreme court grants a petition for leave to appeal in a civil matter, some relief from the reviewing court's disposition is likely. Finally, emphasizing the uniformity of the court, the panel noted that, out of approximately 30 civil opinions, there were 5 dissents and 1 special concurrence.  

    Thereafter, the panel discussed supreme court opinions issued during the 2014 calendar year. The discussion covered a variety of substantive topics, including conflicts of law, forfeiture, mootness, personal jurisdiction, preservation of error, administrative law, pensions, real estate, retaliatory discharge, and tort law, among many others.  

    The ALA thanks the panel members for an information-packed seminar, the DCBA for cosponoring the seminar and hosting the Wheaton presentation, and Neal Gerber & Eisenberg LLP for graciously hosting the Chicago presentation. 

  • February 15, 2015 12:51 PM | Anonymous member (Administrator)

    Subject matter jurisdiction over interpleader actions as well as the constitutional case-or-controversy requirement are at the center of a recent decision from the United States Court of Appeals for the Seventh Circuit. In State Farm Life Insurance Co. v. Jonas, __F.3d__, 2014 WL 7399115 (7th Cir. Dec. 31, 2014), a husband and wife named each other as beneficiaries of their life insurance policies. After they divorced, the policies remained in force and later the wife died. The husband then sought to collect the $1 million proceeds from his ex-wife’s policy. The insurer resisted paying because of its concerns that the couple’s children may have been the rightful beneficiaries under their mother’s policy. 

    But under the Texas law that governed, an insurer that fails to pay within 60 days of receiving a claim may be assessed interest at 18% a year, plus attorney fees. The only way to avoid such interest and fees under Texas law was to bring an interpleader action, and the insurer did so in federal court. And because the couple’s children did not make a competing claim in this action, the district court ordered the insurer to pay the husband. Yet the husband was dissatisfied that the district court did not also award attorney fees and interest and appealed.

    But the Seventh Circuit never reached the merits and dismissed the case for lack of jurisdiction. First, the court pointed out that, though the parties satisfied the “minimal diversity” requirement under the federal interpleader statute (28 U.S.C. § 1335), the insurer failed to meet the requirement that it actually pay the proceeds into the court’s registry. Because the statute requires, in the court’s words, “cash on the barrel-head,” no jurisdiction existed under the interpleader statute.

    The Seventh Circuit next considered whether the interpleader action could, in the alternative, be maintained under the general diversity jurisdiction statute (28 U.S. C. § 1332). The parties met the requirements of complete diversity and the jurisdictional amount. But diversity jurisdiction still failed because there was no actual dispute to meet the case or controversy requirement of Article III of the Constitution. The court first noted that there was no competing claim to the proceeds, and the insurer not being “comfortable” paying the proceeds to the husband was not enough. 

    The husband argued that there was a sufficient controversy because of the fees and interest that arose after he filed suit. That too failed because, “a case or controversy must exist when a suit begins — and on that date there was no live controversy.” The court stated that if disputes over attorney fees and interest “during litigation could create a justiciable controversy, then no case could be dismissed for lack of one,” since every prevailing party is entitled to some costs. Thus, the court concluded that a dispute over fees and interest arising during the litigation could not “retroactively create jurisdiction.”

    Without the paid-in proceeds necessary for the statutory interpleader, and without a live controversy on the date when suit was filed, the Seventh Circuit vacated the district court’s judgment and dismissed the case for lack of subject matter jurisdiction.

    Recommended Citation: E. King Poor, No Cash on the Barrel-head, No Controversy, No Interpleader Jurisdiction, The Brief, (February 15, 2015), http://applawyers-thebrief.blogspot.com/2015/02/no-cash-on-barrel-head-no-controversy.html.

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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