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."

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On February 23, 2017, the ALA gathered at the Union League Club in Chicago for a special luncheon honoring Illinois Supreme Court Chief Justice Lloyd A. Karmeier, who assumed the position late last year.

ALA President Joanne R. Driscoll began the luncheon by welcoming ALA members and guests, which included Illinois Supreme Court Justice Anne M. Burke, as well as numerous Illinois Appellate Court justices and Circuit Court judges. Thereafter, Chief Justice Karmeier shared his vision for the state’s High Court. Drawing a large laugh from the audience, the Chief Justice remarked that his top priority is to create a “Hail to the Chief” twitter account. Turning to a more serious note, Chief Justice Karmeier noted that the Illinois Supreme Court changes the position of Chief Justice every three years, which it does with “little fanfare.” His role as the state’s top jurist is to oversee the operation of the Illinois courts, including budgetary matters.

Chief Justice Karmeier outlined a number of court initiatives. These included a commitment to promptly and fairly deciding cases; bolstering the Illinois Supreme Court’s commission on professionalism to improve ethical standards; continuing the Illinois Supreme Court’s Access to Justice program in order to help pro se litigants navigate the legal system; pursuing criminal justice reform, including alternatives to cash bond to address situations in which people are held because they cannot afford nominal bail; and the transition to a statewide e-filing system.

Finally, Chief Justice Karmeier discussed his desire to remedy negative campaigning that has become commonplace in judicial elections. He explained that such campaigning is not limited to a certain political ideology or interest group. Sharing his own experience, the Chief Justice recounted a $2.6 million dollar negative advertising campaign against him, most of which was spent during the last two weeks before election day. Chief Justice Karmeier stressed that the judiciary’s integrity has “taken a beating” from negative campaigns and expressed his belief that lawyers have a duty to help ensure that debates regarding judicial candidates are factually based.

The ALA thanks Chief Justice Karmeier for his insightful and engaging comments.

By Jonathan B. Amarilio 
Partner, Taft Stettinius & Hollister LLP

Trial and appellate practitioners are often reminded that the failure of a losing party to immediately appeal once a federal district court enters a Rule 54(b) order can be fatal. The entry of a partial final judgment and order in those circumstances starts the appeal clock running. It is a “use it or lose it” scenario. Less well known is a rule in the Seventh Circuit requiring parties to timely request a Rule 54(b) order from the district court where a partial final judgment has been entered.

In Kingv. Newbold, 845 F.3d 866, the Seventh Circuit recently reminded us of this rule. In this case, Raymond King, an Illinois prisoner, sued a number of defendants claiming the medical treatment he received in prison was an Eighth Amendment violation. The defendants moved for summary judgment, which was granted in part, and later one defendant moved for judgment on the pleadings, which was also granted in part. The combined effect of the orders was to narrow the claims such that only two doctors remained in the suit. More than 30 days after the order granting judgment on the pleadings was entered, and more than a year after partial summary judgment was granted, King moved for entry of a Rule 54(b) judgment. The district court granted the motion and the matter went up on appeal.

Examining its own jurisdiction to consider the matter, the Seventh Circuit stated that “[l]ong ago we added a timeliness requirement as a hedge against dilatory Rule 54(b) motions,” further explaining that “as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates.” The court explained that there may be cases of “extreme hardship where dilatoriness is not occasioned by neglect or carelessness in which application of this general rule might be abrogated in the interest of justice,” but it said those instances are “extremely rare,” and found those circumstances lacking here.

King is a cautionary tale reminding us all of a simple and important lesson: If a district court enters partial final judgment excusing defendants from a lawsuit, file a Rule 54(b) motion immediately or you will risk losing the right to take such an appeal.

By Louis J. Manetti
Attorney, Codilis and Associates, PC
 
An appeal’s dismissal for lack of jurisdiction is usually unremarkable. But in Oruta v. B.E.W., 2016 IL App (1st) 152735, the First District Appellate Court’s dismissal marked the fourth time—in the same case—that it ejected the plaintiff from the Appellate Court because it lacked jurisdiction.
 
The court-characterized “bizarre” litigation began when Larry Oruta filed a lawsuit against several defendants to enforce a workers’ compensation judgment “that never existed.” Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 5. Then, Oruta filed a garnishment against a bank, and the trial court issued an $80,000 turnover order in Oruta’s favor. Id. But when the court learned that no judgment actually existed, it vacated the turnover order and commanded Oruta to give back any money he may have received. Id. Oruta filed the first appeal, seeking review of the order vacating the turnover order. Id. However, the Appellate Court noted that Oruta filed the appeal before the final order in the underlying case had been entered, so the first appeal was dismissed for lack of jurisdiction. Id. ¶ 6.
 
Back in the circuit court, Oruta failed to comply with the court’s mandate that he return any ill-gotten turnover funds. Id. ¶ 9. Eventually, the court found him in civil contempt, and months later it reaffirmed in an order that he would be in civil contempt until he returned the money. Id. Three weeks later, however, the court ordered Oruta’s immediate release from custody. Id. This caused Oruta to file the second appeal, in which he sought review of the order reaffirming the civil contempt and the order mandating his release from custody. Id. ¶ 10. But the Appellate Court found that the appeal from the continued contempt order was untimely because it was not filed within 30 days, and that the incarceration was terminated by the time Oruta appealed, so the second appeal was dismissed. Id.

Then, in the circuit court, Oruta tried to reinstate garnishment proceedings. Id. ¶ 12. He claimed he had obtained a final judgment, and, in support, he produced a “near-illegible” order. Id. ¶ 13. The circuit court found that it never entered the purported order and struck it. Id. Oruta filed the third appeal and sought review of the order striking the purported order. Id. The Appellate Court once again dismissed the appeal because it held that the order did not finally dispose a claim against any party. Id. ¶ 14.
 
Finally, Oruta filed a motion in the circuit court that asked the court to refund a Workers’ Compensation Commission bond. The circuit court denied the motion (id. ¶ 16), and Oruta strung out the same bond argument across various motions. Id. ¶¶ 18-22. Eventually, the circuit court denied the requests for lack of jurisdiction. Id. ¶ 24. Oruta appealed.
 
In its decision, the Appellate Court immediately noted that Oruta’s brief lacked a table of contents and citations to the record, and that it could dismiss the appeal on those grounds alone. Id. ¶¶ 28-36. Turning to the merits of the appeal, the Court found that, while there was evidence that a bond was taken out in 2012, there was no indication that the bond still existed. Id. ¶ 40. Further, the Court noted that it had no more jurisdiction than the circuit court did, and circuit courts only have jurisdiction over workers’ compensation decisions if strict statutory procedures are followed. Id. ¶ 42. The record failed to show that Oruta followed these procedures, so the Court concluded it lacked jurisdiction. Id. ¶ 45.
 
In essence, Oruta is an appellate cautionary tale. From appealing non-final orders, to failing to file a timely notice of appeal, to appealing orders that do not dispose any party’s claim, to the failure to perfect jurisdiction in the lower court and filing non-conforming appellate briefs, Oruta shows the gamut of pitfalls that can lead to an appellant’s case being dismissed. 

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

On February 23, the ALA will host a special event titled “2017:  Reflections on the Past – Hopes for the Future,” featuring Chief Justice Lloyd A. Karmeier of the Illinois Supreme Court.

Chief Justice Karmeier will share his experiences from being on the state’s high court for the past 12 years. He will discuss the challenges facing the court and what he hopes to achieve during his tenure as Chief Justice.

The event will be held on Thursday, February 23, from noon to 1:30 p.m., at the Union League Club, 65 West Jackson Boulevard in Chicago.

Attendees will receive MCLE credit.

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

By Evan Siegel 
Assistant Attorney General, Illinois Attorney General's Office

The ALA honored the Justices of the Illinois Appellate Court, First District, at its bi-annual reception, held at the Allegro Hotel in Chicago, on the evening of Thursday, January 26. The Association recognized the late Justice Laura Liu and Justice Margaret Stanton McBride for their outstanding contributions to the appellate bar. Justice David Ellis paid tribute to his friend and colleague Justice Liu, and Justice Maureen E. Connors celebrated Justice McBride, her friend and mentor. Justice Liu's husband, attorney Michael J. Kasper, and their daughter, Sophie, were welcomed guests. The Association contributed in Justice Liu's honor to a scholarship fund in the Justice's name at the St. Therese’s Chinese Catholic School in Chinatown. On behalf of Justice McBride, the ALA donated to the Mercy Home for Boys & Girls, a charity located on the Near West Side. Photographs of the event can be accessed here (password is "ala"), courtesy of Jasmin Shah Photography. For reprints, please contact Jasmin here.

By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC 
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

Supreme Court Rule 23 is a topic of frequent discussion among Illinois lawyers.  A large number of Illinois Appellate Court decisions are issued not as published opinions, but as unpublished written orders (frequently known as “Rule 23 orders”), which are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.”  See Ill. Sup. Ct. R. 23(e)(1).  Many Illinois lawyers may not be aware that multiple bar associations have proposed a significant change to Rule 23, or that the Illinois Supreme Court has rendered a decision on that proposal.

On January 10, 2014, the presidents of the Appellate Lawyers Association, the Chicago Bar Association and the Illinois State Bar Association wrote a joint letter to then-Chief Justice Rita B. Garman of the Illinois Supreme Court to propose an amendment to Rule 23 that would permit Rule 23 orders to be cited as persuasive authority if they were filed on or after January 1, 2011.  The Supreme Court deferred adoption of the proposal at that time but invited the Associations to undertake a comprehensive review and “consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.”

The bar associations accepted this invitation and formed a Special Committee on Supreme Court Rule 23, chaired by former ALA Presidents J. Timothy Eaton and Michael T. Reagan and consisting of representatives of the ALA, CBA, ISBA and the Executive Committee of the Illinois Judges Association.  The ALA was represented by John M. Fitzgerald and Garrett L. Boehm, Jr., its Rules Committee co-chairs.  In August 2016, the Special Committee submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority.

After seeking input from the Illinois Appellate Court justices, the Supreme Court voted during its November 2016 Term to make no changes to Supreme Court Rule 23 at this time.