"The Brief" - The ALA Blog

  • January 06, 2015 5:25 PM | Anonymous member (Administrator)

    In Bettis v. Marsaglia, 2014 IL 117050, the Illinois Supreme Court reversed the appellate court’s dismissal of an appeal of a administrative ruling of an electoral board. Interpreting a provision of the Election Code and resolving a split among appellate districts, the supreme court found that a petitioner seeking judicial review of an electoral board’s denial of a request to submit a public question for referendum satisfied the statutory service requirement. The Election Code, 10 ILCS 5/10-10.1(a) (West 2012), provides that a candidate or objector seeking judicial review of an electoral board’s decision must serve a copy of the petition upon the electoral board. The petitioner, Carolyn Bettis, wished to challenge a resolution of the Macoupin, Montgomery, and Sangamon counties’ school district to issue working cash bonds in the amount of $2 million. Bettis petitioned her local election board to place the issue on the ballot for an April 9, 2013 election. When the board sustained the objections of two individuals to Bettis’ request, she sought judicial review and served a petition on all of the members of the electoral board at their homes, but did not separately serve the board itself.


    Before considering the statutory jurisdictional question, the supreme court found that two of the three issues raised in the appeal could be considered even though the election date had passed and the questions generally would be considered moot. The public interest exception to the mootness doctrine saved the service issue and a question raised by the objectors in a cross appeal, whether the petition should have been dismissed because Bettis did not name the electoral board as a party to the petition for circuit court review. The court reasoned that questions relating to election law inherently implicate matters of public concern. Moreover, the fact that the same issues had generated conflicting appellate decisions in earlier cases established that the issues likely would recur. The court classified a third issue - whether the petition should have been dismissed because it was not numbered or securely bound – as moot, because it presented only a case specific fact question.

    On the merits, the court began its analysis by observing that a court has jurisdiction over election cases only when the legislature confers jurisdiction. A party seeking to invoke such special statutory jurisdiction must strictly adhere to the procedure established by the General Assembly. In this instance, the court determined that section 10-10.1(a) clearly required that the electoral board be served, but did not clearly state how the electoral board had to be served. Ultimately, the court determined that service on the individual board members constituted service on the electoral board; separate service on the entity would be duplicative, in the court’s view. In reaching its decision, the court noted the statutorily defined membership of the board and importance of providing the public with ballot access.


    The supreme court also rejected the objectors’ argument that the dismissal should be affirmed based on Bettis’ failure to name the electoral board or its members and failed to attach to the petition a copy of the electoral board’s decision. The court reasoned that the statute did not contain these requirements.


    The court reversed the appellate court’s judgment dismissing the appeal, but did not remand the case to the circuit court for consideration of the petition on the merits, as Bettis requested. The only remaining question had been mooted by the passage of the one and only election Bettis had specified in her petition.


    Justice Mary Jane Theis dissented. Finding no lack of clarity in the statute, Justice Theis would have affirmed the dismissal of the appeal for lack of jurisdiction, because Bettis failed to serve the electoral board.

    Recommended Citation: Karen Kies DeGrand, The Illinois Supreme Court Reinstates an Appeal Dismissed for Lack of Jurisdiction Where a Petitioner Satisfied the Notice Requirement for Invoking Special Statutory Jurisdiction for Judicial Review of an Electoral Board Ruling, The Brief, (January 6, 2015), http://applawyers-thebrief.blogspot.com/2015/01/the-illinois-supreme-court-reinstates.html#more.


  • January 02, 2015 12:26 PM | Anonymous member (Administrator)

    In Glebe v. Frost, 574 U.S. --- (2014) (per curiam), the U.S. Supreme Court held that it is not clearly established that restrictions on a defendant’s closing argument constitute structural error. At trial, Frost admitted his involvement in a series of robberies, but testified that he acted under duress. Defense counsel, however, wanted to argue in closing both that the State failed to prove its case and that Frost acted under duress. The trial court ordered that defense counsel could not present both of these alternative arguments in closing, and counsel only discussed duress. Frost was convicted of several felonies. On direct appeal, the Washington Supreme Court held that the trial court’s restriction on closing argument violated the Federal Constitution’s Assistance of Counsel Clause, but held that the error was harmless beyond a reasonable doubt.


    Frost sought habeas relief under 28 U.S.C. § 2254. He argued that the Washington courts violated clearly established federal law by treating the restriction on closing argument as trial error (subject to harmless-error review) rather than structural error (which requires automatic reversal). The district court denied his petition, but the 9th Circuit, en banc, reversed.

    The U.S. Supreme Court, in a brief per curiam opinion, reversed, holding that it does not violate clearly established federal law to treat a restriction on closing argument as trial error, rather than structural error. The Court rejected the 9th Circuit’s reasoning that the Washington Supreme Court contradicted Herring v. New York, 422 U.S. 853 (1975), which held that total denial of closing argument violates the Assistance of Counsel Clause. The Supreme Court reasoned that, even if Herring held that total denial of closing argument constituted structural error (and the Court seemed skeptical that it did), this case involved only a restriction on closing argument. And while the 9th Circuit had previously held that such a restriction constitutes structural error, the Court noted that “circuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court” under § 2254(d)(1).

    The Court also swiftly rejected the 9th Circuit’s argument that this restriction on closing argument amounted to a coerced confession or directed verdict. The Court explained that Frost was not prevented from arguing that the prosecution failed to prove its case; rather, he simply could not make that argument simultaneously with his duress defense. And at any rate, the Court explained, the introduction of an actual coerced confession is still only trial error, subject to harmless-error review, under Arizona v. Fulminante, 499 U.S. 279, 310 (1999). A “tacit” confession could not therefore be structural error.

    Ultimately, the Court remanded for the lower court to determine whether it was reasonable to find the error harmless, which the 9th Circuit had not considered.

    The Court did not hold outright that a restriction on closing argument is trial error, rather than structural error. Because the matter came to the Supreme Court on a petition for writ of habeas corpus, the Court only asked whether it was already clearly established that closing-argument restrictions are structural error, and held that it was not. Nonetheless, the Court gave a strong indication about how it might rule on direct review. The Court reiterated that “only the rare type of error” required automatic reversal, stressing that this is a “narrow category.” Further, by noting that introducing a coerced confession is not trial error and expressing skepticism that even total denial of closing argument is structural error, the Court seemed to signal that this kind of restriction on summation would not be structural error, if it is error at all.


    Recommended Citation: Charles E. Harper, SCOTUS  Holds Restrictions on Defendant’s Closing Argument are not Clearly Structural Error, The Brief, (January 2, 2015), http://applawyers-thebrief.blogspot.com/2015/01/scotus-holds-restrictions-on-defendants.html#more.


  • December 29, 2014 8:11 AM | Anonymous member (Administrator)

    In BLTREJV3Chicago, LLC v. Kane County Board of Review, 2014 IL App (2d) 140164, the Illinois Appellate Court, Second District, confronted the issue of whether tax appeals for 72 separate properties that were sent to the Kane County Board of Review (“Board”) on the due date for filing an appeal of a property tax assessment were considered timely when they were deposited with FedEx (a third-party commercial carrier) rather than the United States mail. Id. ¶ 11. Notwithstanding the 2013 amendments to Illinois Supreme Court Rules 11 and 12 (eff. Jan. 1, 2013) allowing the use of third-party commercial carriers as an acceptable method for the service of documents pursuant to the “mailbox rule,” the court ruled that the Supreme Court Rules did not control over the Board’s own rules on filing appeals, which state that only documents transmitted by United States mail will receive the benefit of the “mailbox rule.” Id. ¶¶ 13-15. Accordingly, the court held that the tax appeals were untimely because they were sent via FedEx, rather than United States mail.


    In explaining its reasoning, the reviewing court began its analysis with an examination of Section 16-55 of the Illinois Property Tax Code (“Tax Code”), which provides that “[a] complaint to affect the assessment for the current year shall be filed on or before 30 calendar days after the date of publication of the assessment list * * *.” Id. ¶ 12 (citing 35 ILCS 200/16-55 (West 2012)). Section 9-5 of the Tax Code provides that each county assessor, board of appeals, and board of review “shall make and publish reasonable rules for the guidance of persons doing business with them and for the orderly dispatch of business.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (quoting 35 ILCS 200/9-5 (West 2012)). Pursuant to this provision, the Board adopted and published rules of procedure that incorporated the Statute on Statutes’ “mailbox rule,” which provides that a document is deemed “filed” as of the date of mailing via United States mail. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 12 (citing 5 ILCS 70/1.25 (West 2012)). The Board’s rules further state that the provision that “communications transmitted through the United States mail shall be deemed filed with or received by the Board on the date shown by the post office cancellation mark stamped * * * does not apply to communications delivered by Federal Express, UPS, DHL, or any other commercial or non-commercial delivery entity.” BLTREJV3 Chicago, 2014 IL App (2d) 140164 ,¶ 13, (citing Kane County Board of Review 2014 Rules and Procedures, section R.A.5.a.; http://www.kanecountyassessments.org/rules.pdf (last visited August 27, 2014)). The Board’s rules also reference the Second District Appellate Court’s opinion in Baca v. Trejo, 388 Ill. App. 3d 193, 198 (2009), where the court decided that only the use of the United States mail triggers the mailbox rule. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 13.

    Rejecting Petitioners’ argument that Illinois Supreme Court Rules 11 and 12 supersede the Board’s rules on filing appeals because, inter alia, they were amended subsequent to Baca, the reviewing court stated: “the statutory language itself gives the best indication of legislative intent. Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions.” Id. ¶ 14 (quoting Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997)). Under the rule of statutory construction expressio unius est exclusio alterius, the lack of any negative words of limitation is of no moment because “an explicit statement of such intent is unnecessary.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14 (citing Aldridge, 179 Ill. 2d at 152). Rather, “all omissions should be understood as exclusions.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 14.
    The court also rejected Petitioners’ claim that because Illinois Supreme Court Rules 11 and 12 “apply to the practice of law,” they must apply to the tax appeals. Id. ¶ 15. “[S]ervice is not equivalent to filing,” the court stated. Id. (citing Shatku v. Wal-Mart Stores, Inc., 2013 IL App (2d) 120412, ¶ 11). In reiterating its conclusion that Illinois Supreme Court Rules 11 and 12 do not control the Board’s rule-making powers, the court explained that the Board’s authority to make reasonable rules does not require it to make rules that are identical to another particular set of rules. BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 15. The court further stated: “Petitioners employ faulty logic in suggesting that the Board is usurping the power of the supreme court by adopting its own rules.” Id. ¶¶ 15-16. Rather, the court explained, “[b]y establishing these rules, the Board is complying with the requirements of the Tax Code.” Id. ¶ 16 (citing People ex rel. Courshon v. Hirschfield, 43 Ill. App. 3d 432, 435 (1976)).

    “[U]ntil the board amends its rules to apply the ‘mailbox rule’ to third-party commercial carriers, appeals must be sent by the United States mail to benefit from the rule.” BLTREJV3 Chicago, 2014 IL App (2d) 140164, ¶ 19. Appeals sent by any other means must be actually received on or before the due date to be considered timely filed. Id. 


    Recommended Citation: Katherine A. Grosh, “Mailbox Rule” Does Not Apply to Tax Appeals to Kane County Board of Review Sent by Third-Party Commercial Carrier Rather Than U.S. Mail, The Brief, (December 29, 2014), http://applawyers-thebrief.blogspot.com/2014/12/mailbox-rule-does-not-apply-to-tax.html#more.


  • December 23, 2014 3:07 PM | Anonymous member (Administrator)

    United States v. Davis, 766 F.3d 722 (7th Cir. 2014), concerned the government’s appeal from a district court’s pre-trial discovery order entered in cases involving several defendants charged with conspiring to rob a non-existent “stash house” that the defendants believed contained many kilograms of cocaine. The defendants successfully obtained an order from the district court requiring the government to produce documents and data related to the exercise of the government’s law enforcement and prosecutorial discretion with respect to criminal charges based on non-existent stash houses. The government filed a “‘position paper’ in which it indicated that it would not comply with the discovery order and suggested that the court should dismiss the indictment without prejudice as a sanction for its noncompliance, thereby creating a final order”  that could be appealed. The district court obliged the government’s request and the government appealed pursuant to 18 U.S.C. § 3731. However, the Seventh Circuit ultimately dismissed the government’s appeal for lack of appellate jurisdiction after concluding that the district court’s order dismissing the indictments without prejudice was not a final, appealable order.

    The reviewing court began its analysis by noting that “The United States ‘has no right of appeal in a criminal case absent explicit statutory authority.’” Section 18 U.S.C. § 3731 explicitly authorizes the government to appeal from a dismissed indictment. Nevertheless, the defendants argued that the government could not appeal the district court’s order dismissing the indictment because the dismissed the indictment without prejudice. As a result, the government could re-indict the defendants regardless of any outcome on appeal. Thus, the dismissal of the indictment without prejudice was not a final and appealable order and, accordingly, not subject to appellate review.

    The Government argued that it was following “established practice” in seeking dismissal of the indictment without prejudice as a means of facilitating appellate review, and the reviewing court acknowledged that the government was correct that “an indictment need not necessarily be dismissed with prejudice in order to be subject to appeal.” The Seventh Circuit had previously found jurisdiction to entertain an appeal from an indictment dismissed without prejudice. Nonetheless, the court in this case was particularly concerned with the finality of the decision, regardless of the label given to it. The court noted that “With limited exceptions, our appellate jurisdiction is limited to review of ‘final decisions’” of the district court. While section 18 U.S.C. § 3731 allows the government to appeal from some orders that are non-final—such as orders suppressing or excluding evidence—such orders are exceptions to the rule that the order must otherwise be final in order to be appealable. Id.

    Specifically, the reviewing court’s concern was that, “unless the dismissal solicited by the government is genuinely final, invited dismissal will essentially permit any number of interlocutory appeals that section 3731 does not otherwise authorize.” Discovery orders, the court noted, “are a prime example of pretrial decisions that are entrusted to the district court’s ample discretion in the first instance and that are ordinarily not subject to review, if at all, until a final judgment in the case has been rendered.”

    In sum, the district court’s dismissal of the indictment in this case was not final, and therefore not appealable, because:

    “Although the government’s decision to request dismissal of the indictment has ended—for now—the proceedings in the district court, the fact that the dismissal was without prejudice leaves the door open to reindictment. Obviously, if we were to reach the merits of the appeal and reverse both the dismissal and the underlying discovery order that prompted it, that step would be unnecessary. But even if we affirmed the discovery order as a reasonable exercise of the district court’s discretion, and in turn sustained the dismissal, nothing other than the statute of limitations would prevent the government from reindicting the defendants and complying with the discovery order.”

    As a result, the Seventh Circuit dismissed the appeal for lack of jurisdiction.

    Recommended Citation: Nate Nieman, Seventh Circuit: In Criminal Case, No Appellate Jurisdiction Over Indictment Dismissed Without Prejudice, The Brief, (December 23, 2014), http://applawyers-thebrief.blogspot.com/2014/12/seventh-circuit-in-criminal-case-no.html#more.


  • December 18, 2014 9:56 AM | Anonymous member (Administrator)

    On December 11, 2014, the Illinois Supreme Court amended a number of rules applicable to appellate practice and procedure, for both civil and criminal appeals. The following is a brief synopsis of those amendments.


    Rule Amendments in Civil Cases

    Rule 303, governing appeals from the trial court in civil cases, was amended to include language providing that a notice of appeal may be filed by any party or any attorney representing a party, regardless of whether that attorney filed an appearance before the trial court.

    Rule 308(c), governing the application and answers for a certified question, was amended to provide that an adverse party has 21 days from the application's due date to file an answer. The prior version of the rule provided that a party had 14 days to file an answer.

    Rule 315(f), providing that a respondent may file an answer to a petition for leave to appeal from the Appellate Court to the Supreme Court, was amended to provide that a respondent may file an answer within 21 days, as opposed to 14 days, after the expiration of the time for filing the petition for leave. 

    Rule 361(b), governing motions in the reviewing court, was amended to include language providing that a response shall be filed within 5 days of email service of the motion. The prior version of the rule permitted only personal or facsimile service, while the amended rule permits service by all three.  

    Rule 367(d), governing rehearing in the reviewing court, was amended to provide that an answer to a petition for rehearing shall be limited to 27 pages and that a reply shall be limited to 10 pages, unless authorized by a court or a judge thereof. Both the answer and the reply must be supported by a certificate of compliance as provided in Rule 341(c).

    The amendments to these rules become effective on January 1, 2015. 

    Rule Amendments in Criminal Cases

    Rule 604(d), governing a defendant's appeal from a judgment entered upon a guilty plea, was amended to provide that, when a defendant files a motion to withdraw a guilty plea or to reconsider the sentence, and that motion is based on facts not appearing in the record, a pro se filing the motion from a pro se correctional institution may submit a supporting certification pursuant to section 1-109 of the Code of Civil Procedure (the Code) (735 ILCS 5/1-109) in lieu of an affidavit.

    Rule 606(c), governing the perfection of appeal and extensions of time in certain circumstances, was amended to provide that a pro se defendant filing from a correctional institution may file a certification pursuant to section 1-109 of the Code in lieu of an affidavit.

    Rule 608(d), governing the record on appeal and extensions of time, was amended to provide that, when a motion for such an extension is filed, a pro se defendant filing from a correctional institution may, in lieu of a supporting affidavit, submit a certification pursuant to section 1-109 of the Code. 

    Rule 610, governing motions in the reviewing court, provides that motions for extensions of time may be supported by a certification pursuant to section 1-109 of the Code when the motion is filed by a pro se defendant filing from a correctional institution. 

    The rule amendments relating to criminal appeals became effective on December 11, 2014. 

    Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules to Both Civil and Criminal Appeals, (December 18, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/12/supreme-court-amends-rules-to-both.html#more.


  • December 12, 2014 12:49 PM | Anonymous member (Administrator)

    In People ex rel. Madigan v. Illinois Commerce Commission, 2014 IL 116642, the Illinois Supreme Court recognized the General Assembly’s constitutional authority to enact rules for governing review of administrative decisions. Explaining the interplay between supreme court rules that set a 30-day deadline for filing a notice of appeal of final judgments and specific legislative enactments pertaining to time deadlines for review of administrative decisions, the supreme court revived an appeal brought under the Public Utilities Act (220 ILCS 5/10-201(a) (West 2010)). Under section 10-201(a), a notice of appeal filed 35 days after the denial of a request for rehearing of an Illinois Commerce Commission ruling  was timely filed. Under Supreme Court Rule 303(a), it was not. The Illinois Appellate Court held that the 30-day deadline applied and dismissed the appeal.

    The supreme court began its analysis with the observation that, under the Illinois Constitution, the state’s reviewing courts are empowered to review, as a matter of right, only final judgments of the circuit courts. The courts may review administrative actions only “as provided by law.” The General Assembly has enacted laws establishing procedures for obtaining judicial review of an administrative decision and thus confers “special statutory jurisdiction” with such provisions.

    The supreme court has concurrent constitutional authority with the legislature to promulgate rules for appellate court review of administrative decisions. Supreme Court Rule 335 applies certain other rules governing appeals – including Rule 303 - to review of administrative decisions. Rule 335, however, does not require courts to apply the 30-day provision in Rule 303(a) to the review of all administrative orders by the appellate court. Rather, Rule 335(1)(i) applies Rule 303 to the review of administrative rulings only “insofar as appropriate,” meaning when the legislature has not explicitly stated a deadline for seeking appeal of a particular type of administrative decision. In this case, section 10-201(a) provided a deadline, so the notice of appeal was timely filed. In reversing the dismissal for lack of jurisdiction, the supreme court observed that the appellate court had relied on two earlier appellate decisions that failed to take into account the concept of special statutory jurisdiction.


    Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Upholds a Statutory Deadline, Longer Than the 30 Days Allowed by Rule 303, for Filing a Notice of Appeal Seeking Review of an Administrative Ruling, The Brief, (Dec. 12, 2014), http://applawyers-thebrief.blogspot.com/2014/12/illinois-supreme-court-upholds.html#more.


  • December 07, 2014 8:11 PM | Anonymous member (Administrator)

    In a decision released December 2, 2014, the Illinois Appellate Court, Second District, held that a nunc pro tuncorder that added Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to a previously entered final, but not appealable, dismissal order, was ineffective to confer appellate jurisdiction to review the original order. As a result, the appellate court concluded it lacked jurisdiction to consider the appeal and dismissed the case. 


    In Harreld v. Butler, 2014 IL App (2d) 131065, the trial court entered an order on September 16, 2013, granting the motion of the third-party defendant, the City of Elgin, to dismiss the third-party complaint filed by DVBC, Inc. The September 16 order did not contain a finding pursuant to Rule 304(a), despite other claims pending. On October 10, DVBC filed a notice of appeal. On November 21, on DVBC’s motion, the trial court entered an agreed order correcting the September 16 order nunc pro tunc, and specifically found that the September 16 order was a final and appealable order, and that there was no just reason to delay enforcement or appeal, or both. DVBC did not file an amended notice of appeal.

    In addressing sua sponte the question of its jurisdiction, the appellate court ultimately concluded that it lacked jurisdiction to reach the merits. The appellate court noted that the trial court’s September 16 dismissal order did not originally contain a finding pursuant to Rule 304(a). It then concluded that “our jurisdiction depends on whether the dismissal order was properly corrected nunc pro tunc to include a Rule 304(a) finding.” Id. ¶ 12.


    In reviewing the law respecting nunc pro tunc orders, the appellate court observed, “[a] nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then.” Id. ¶ 13 (Emphasis in original) (citing Kooyenga v. Hertz Equipment Rentals, Inc., 79 Ill. App. 3d 1051, 1055 (1979)). The court noted that, because a nunc pro tuncamendment may reflect only what was actually done by the court but was omitted due to clerical error, “a nunc pro tunc amendment must be based on some note, memorandum, or other memorial in the court record.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citingPagano v. Rand Materials Handling Equipment Co., 249 Ill. App. 3d 995, 998-99 (1993)). Moreover, the court noted that a nunc pro tunc order “may not be used to cure a jurisdictional defect, supply omitted judicial actions, or correct a judicial error under the pretense of correcting a clerical error.” Harreld, 2014 IL App (2d) 131065, ¶ 13 (citing In re Marriage of Takata, 304 Ill. App. 3d 85, 92 (1999)). 


    Against this backdrop, the appellate court pointed out that DVBC had attempted to “correct” the September 16 dismissal order by supplying an omitted judicial action – adding Rule 304(a) language. Yet the record, it was noted, was devoid of any indication that the trial court had actually made such a finding or that the original order lacked a Rule 304(a) finding due to a clerical error. “[T]he order made no reference to Rule 304(a) and the record does not contain a transcript of the hearing on the motion to dismiss.” Harreld, 2014 IL App (2d) 131065, ¶ 14. Given these findings, the court concluded that the failure to include the Rule 304(a) finding in the original order was not a clerical error but instead was an omitted judicial action. As a result, “adding a Rule 304(a) finding is outside the power of a nunc pro tunc order.” Id. 


    The court found support for its determination in Shanklin v. Hutzler, 277 Ill. App. 3d 94 (1995), from the Illinois Appellate Court, First District, which found that, based on similar facts, a nunc pro tunc order was ineffective to confer a jurisdictionally satisfactory Rule 304(a) finding. 


    The Harreld court noted that a party may, at any time, request the circuit court to enter a Rule 304(a) finding as to a final order. Harreld, 2014 IL App (2d) 131065, ¶¶ 16-17. According to the court, “[h]ere, instead of requesting that the trial court enter a Rule 304(a) finding as to its dismissal order, DVBC sought to correct the order nunc pro tunc, despite the record being devoid of any indication that the absence of a Rule 304(a) finding in that order resulted from a clerical error. Thus, as in Shanklin, there was no proper Rule 304(a) finding and no timely notice of appeal, and we conclude that we lack jurisdiction.” Id. ¶ 17.


    Justice Zenoff authored a special concurrence, agreeing that the parties and trial court improperly used a nunc pro tunc order to “add” a Rule 304(a) finding to the original dismissal order. Id. ¶ 23. The special concurrence first questioned the reliance on the Shanklincase, since it had been decided prior to the 2007 amendments to Rule 303(a)(2), which provide a safety valve for prematurely filed notices of appeal. Ill. S. Ct. R. 303(a)(2) (eff. June 4, 2008). Justice Zenoff observed that Rule 303(a)(2)’s saving provision applied in two scenarios: (1) when a notice of appeal is filed before the last pending post-judgment motion is resolved, or (2) when a notice of appeal is filed when other claims remain pending. Id. ¶ 25. The saving provision provides that a prematurely filed notice of appeal “becomes effective” in the second scenario when a final judgment as to all pending claims is entered. The second scenario, the special concurrence noted, is concerned with jurisdiction pursuant to Rule 304(a), which generally provides that a court lacks jurisdiction where a party appeals from “a final judgment as to one or more but fewer than all of the parties or claims” unless the trial court has made “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a). However, “if a litigant files a notice of appeal from a final judgment that neither resolves all pending claims nor contains a Rule 304(a) finding, then Rule 303(a)(2) steps in to ‘save’ the notice of appeal by making it effective when a final judgment is entered as to all remaining claims.” Harreld, 2014 IL App (2d) 131065, ¶ 26.


    Justice Zenoff said that, “[w]hat DVBC should have done *** was to file a motion for a Rule 304(a) finding,” and in its motion explain why a Rule 304(a) finding was warranted. Id. ¶ 30. “Had DVBC filed a motion for a Rule 304(a) finding ***, and had the trial court granted it, then DVBC's premature notice of appeal would have become effective on the date the trial court made the finding.” Id. ¶ 31.


    Although seemingly placing form over substance, the Harreld decision suggests that in future scenarios, the better course of action is to simply move in the trial court for entry of a Rule 304(a) order, and then either amend the original notice of appeal, or file a new notice of appeal from the order containing the Rule 304(a) language. It is also at least open for thought as to whether an amended notice of appeal would suffice. The court mentions that DVBC failed to do so and then again makes note of this omission when discussing the Shanklin decision. However, the court’s ultimate ruling seems to foreclose this option.


    In the Harreld case, it seems the court may have lost sight of the fact that there was, indeed, a Rule 304(a) finding made, regardless of whether it was in a fresh order or part of the original order via the nunc pro tunc order. This author believes that the details of how it came about should be irrelevant. Had the attempt to affect jurisdiction truly affected a party’s right, the given interpretation may well have been warranted. But DVBC will likely simply move to have a new Rule 304(a) finding made, and then file a new notice of appeal, after which the case will return to the appellate court on the merits. Indeed, the special concurrence even notes this likelihood, stating, “[w]e presume that DVBC can timely file a new notice of appeal once the trial court either enters a final judgment resolving all pending claims or enters a proper Rule 304(a) finding.” Id. ¶ 32. Moreover, “if during the pendency of this appeal the trial court has resolved all pending claims or entered a proper Rule 304(a) finding, and the time for filing a new notice of appeal has expired, then DVBC can file a petition for rehearing and to supplement the record, thereby establishing the effectiveness of the present notice of appeal.” Id.


    Recommended Citation: Brad Elward, A Nunc Pro Tunc Order Cannot Be Used To Impart Rule 304(a) Language  To A Prior Final, But Not Appealable, Order Where There Is No Indication Such A Finding Was Made When The Original Order Was Entered, (December 7, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/12/a-nunc-pro-tunc-order-cannot-be-used-to.html#more.


  • December 03, 2014 10:24 AM | Anonymous member (Administrator)

    How does advancing technology affect the judicial process? How do jurors react when, after having near-constant access to smart phones, being able to frequently check email, and being able to make decisions in a fraction of a second, they are placed in a courtroom, where evidence slowly unfolds and they are required to make decisions based on instructions that a judge provides? In a society where people primarily communicate through technological devices, will jurors' ability to assess a witness's tone and body language decrease? Will judges be able to make credibility determinations as interpersonal communication and interaction decrease? And, important for appellate practitioners, if a reviewing court can be virtually where the trial court was through technological innovation, will that affect the deference trial courts are afforded for factual determinations? 


    These are just a few of the thought-provoking questions posed by Judge Daniel Tinder of the United States Court of Appeals for the Seventh Circuit during a recent ALA luncheon. Held on November 19, 2014, at the Union League Club in Chicago, the ALA hosted the luncheon in honor of Judge Tinder's many years of service on the federal bench. Judge Tinder has announced that he will retire early next year. 

    The festivities began with Association President Steven F. Pflaum welcoming ALA members and guests, who included judges from the Seventh Circuit, the Illinois Appellate Court, and the Cook County Circuit Court. Thereafter, President Pflaum introduced Judge Tinder, noting that he has dedicated his career "almost exclusively" to public service. Before being appointed to the federal bench by President Reagan, Judge Tinder had served as a public defender and as the United States Attorney for the Southern District of Indiana, among other positions.

    Judge Tinder began his remarks by sharing with the audience that he told his wife that his plan for retirement was to "drink beer and play golf." His wife responded, "that is a fantasy, not a plan." Judge Tinder also reflected on his talent of interpreting the language of judges, which he characterized as "exotic and nuanced." For example, when a judge says, "counsel, this is a fairly obscure area of law," the judge is really saying, "I have absolutely no clue what you are talking about." When a judge says, "I have read the briefs and I have a good handle on the issue," the judge is really saying, "I have a tee time." 

    Turning to a more serious note, Judge Tinder focused his remarks on the judicial process in the Internet era. He noted metaphorically that children today are born with a smart phone in one hand and that increased access to technology and information influences everyone, including judges and jurors. He noted studies showing that the average person checks his or her email 30 times per hour, only 4% of website page views last longer than 10 seconds, and the average attention span in 2013 was 8 seconds (by comparison, Judge Tinder noted, a goldfish has an attention span of 9 seconds). Judge Tinder advised the audience that the next generation of judges will bring these experiences with them to the bench, which could significantly impact how controversies are adjudicated. 

    Judge Tinder closed his remarks by reflecting on his retirement plans, which include taking some time off, consulting lawyers, partaking in arbitrations, and speaking out on public policy issues. Drawing a large laugh from his many colleagues in attendance, Judge Tinder advised that he will not be arguing cases before the Seventh Circuit.  

    The Association thanks Judge Tinder for his engaging remarks and for his many years of service on the bench, and wishes him the very best during retirement. 


  • November 24, 2014 10:52 PM | Anonymous member (Administrator)

    During the first weekend in November, the Association convened in Chicago to host its annual moot court competition. The two-day event draws law students from across the country - from New York to California. The competition provides the students with an opportunity to draft an appellate brief and present oral arguments. ALA members serve as judges during the preliminary rounds, while members of the Illinois judiciary mainly comprised the bench for the semi-final and final rounds.

    The competitors were asked to argue a challenging hypothetical involving two issues on appeal. The first issue involved whether the trial court erred in denying a defendant's motion suppress evidence of certain statements the defendant made during a search of his home, which included whether the defendant was "in custody" for the purposes of Miranda, whether the defendant's silence should have been admissible as evidence of guilt, and whether the public safety exception to Miranda applied. The second issue involved whether the trial court erred in concluding that a federal agent's testimony was admissible as opinion testimony under Federal Rule of Evidence 701. The hypothetical was fact intensive and required students to address conflicting case law from the federal circuits. It also required the students to address different standards of review and be able to comprehend the deference a reviewing court must afford the trial court based on the issue presented.

    In the final round, a hometown team from Loyola University Chicago comprised of Jon Puskar and Scott Kater, bested a strong team from Western State College of Law, which is based in Fullerton, California. The Western State participants were Kylie Starr, Lynet Shigg, and Alexander Shaaban. The Association also presented awards for the best oral arguments and best briefs.

    The ALA thanks our many sponsors, which included Neil, Gerber & Eisenberg LLP (platinum sponsor); Sidley Austin LLP (gold sponsor); Adler Murphy & McQuillen LLP, Donohue Brown Mathewson & Smyth LLC, Forde Law Offices LLP, Hall Prangle and Schoonveld LLC, Law Offices of Michael W. Rathsack, and Quarles & Brady LLP (silver sponsors); and Kavanagh Grumley & Gorbold LLC (bronze sponsor). The Association congratulates all participants for their hard work and the moot court committee on another successful competition. The Association also thanks members of the judiciary, ALA members, and appellate practitioners who served as judges.



  • November 17, 2014 7:35 AM | Anonymous member (Administrator)

    Staying apprised of recent developments in the state’s high court is a necessity for both trial and appellate practitioners. By simply becoming an ALA member, you can enjoy complimentary and convenient access to Cases Pending, a must-have resource that compiles and synthesizes data from the Illinois Supreme Court’s docket to provide ALA members with up-to-date information about current civil, criminal and disciplinary matters before the court. Chaired by seasoned appellate practitioners Joanne R. Driscoll and Clare J. Quish, the Cases Pending committee publishes the catalogue five times each year.

    To view two excerpts from the recent edition of Cases Pending, please continue reading this post. The excerpts discuss In re Marriage of Eckersall, No 117922, which will address whether a custody and visitation order was injunctive and immediately appealable under Rule 307(a)(1), and  Anthony Williams v. BNSF Railway Co., No. 117444, which addresses whether a notice of appeal was timely filed. Both cases are scheduled for oral argument on Thursday, November 20, 2014.

    FAMILY LAW – JURISDICTION

    No. 117922
    In re Marriage of Eckersall

    The issue in this case is whether a trial court’s interlocutory order imposing certain restrictions on the parents when the minor children were with them during the pendency of divorce proceedings constitutes an injunction under Supreme Court Rule 307(a).

    In 2013, Raymond Eckersall filed a petition for the dissolution of his marriage, and his wife, Catherine, filed a counter petition. Raymond moved out of the family home and filed a petition to set up a temporary parenting schedule. At the status hearing, the parties could not reach an agreement, so the court entered an order that prohibited the parents from engaging in certain conduct with their children, including:  interfering with their minor children’s personal liberty; discussing any aspect of the ongoing litigation in the presence of the children; questioning the children about their preference with custody or visitation; and engaging in any kind of electronic surveillance of the children. This order was entered over Catherine’s objection that it infringed upon her right to parent and communicate with her children. Catherine appealed under Supreme Court Rule 307, arguing that the order was an injunction.

    The Illinois Appellate Court, First District, dismissed the appeal for lack of jurisdiction, holding that the trial court’s order did not constitute an injunction and thus, jurisdiction was not proper under Rule 307(a). The court explained that what constitutes an appealable injunctive order under Rule 307(a) depends on the substance of the action, not its form. There was no indicia of injunctive relief and no evidence suggesting the minor children’s representative or either party sought an injunction. Rather, the function of the order more closely conformed to appropriate temporary relief set forth in the Illinois Marriage and Dissolution of Marriage Act. The order was intended to place restrictions on the parents during visitation and was not the equivalent of a preliminary injunction. 

    Justice Mason dissented, stating that the appellate court had jurisdiction to review the “broad-ranging injunction” entered by the trial court. She explained that the very definition of restraining Catherine or Raymond from engaging in certain behavior constituted an injunction. Further, she concluded that the order was overly broad and defective on both procedural and substantive grounds.


    Appellate Court Decision:  2014 IL App (1st) 132223.  Hyman, P.J. with Pucinski, J., concurring.  Mason, J., dissenting. 

    PLA Allowed:  07/24/2014

    Appellant Counsel:  Benton H. Page, Pamela Hutal, David Friedman, LLP, 135 South LaSalle Street, 36th Floor, Chicago, Illinois 60603, (312) 782-2220. 

    Amicus Curiae:  Illinois Chapter of the American Academy of Matrimonial Lawyers.

    * * * * * *

    APPELLATE JURISDICTION

    No. 117444

    Williams v. BNSF Railway Co.

    The issue in this case is whether the 30-day period for filing the notice of appeal began to run when the circuit court orally denied the defendants’ post-trial motions, leaving open a request for setoff (which was not directed at the judgment), or when the court subsequently entered a written order addressing the setoff issue.


    In November 2011, the circuit court entered judgment on the jury’s verdict in favor of the plaintiff, assigning 50% fault to the plaintiff, 37.5% to BNSF and 12.5% to a third-party defendant, Quality Terminal Services, LLC (“QTS”). It also denied BNSF’s separate claim against QTS for contractual indemnity. QTS and BNSF filed post-trial motions. BNSF sought a new trial or judgment notwithstanding the verdict. It also sought a remittitur of the award for lost wages or Railroad Retirement Board (“RRB”) disability payments to Williams and a setoff for the RRB taxes that BNSF would be required to pay on the award of lost wages.


    On April 18, 2012, at the hearing on post-trial motions, the circuit court orally denied the post-trial motions with the exception of BNSF’s taxation issue, taking that issue under advisement. No entry was made on the court docket reflecting these rulings. On June 6, the circuit court heard additional argument on the remittitur issue (noting that it had already denied that request) and the taxation issue. A written order was entered on that day stating, in part, “For the reasons stated by the Court, on record, on June 6, 2012, post-trial motions related to disability payments [and] taxes are denied.” The order also stated, “This order is final and appealable.” BNSF filed its notice of appeal on June 29, 2012. Williams moved to dismiss BNSF’s appeal, joined by QTS, arguing that BNSF’s notice was untimely because it was not filed within 30 days of April 18.

    The appellate court initially denied the motion to dismiss; but, after merits briefing in which Williams again raised jurisdiction, the appellate court dismissed BNSF’s appeal holding that the April 18 oral ruling was effective on that date and that the 30-day period to appeal began to run from that date.  The court reasoned that the circuit court unequivocally denied the post-trial motions on April 18,  did not refer to or request preparation of a written order, and if there was any question as to finality, it was incumbent on BNSF to seek clarification within 30 days of April 18.  The court also reasoned that BNSF’s pending setoff request did not make the April 18 ruling nonfinal because it was not post-trial relief directed at the judgment and that the circuit court’s reconsideration of BNSF’s remittitur argument on June 6 did not delay finality because the court lacked jurisdiction to consider that issue after 30 days from April 18. 

    BNSF contends that the appellate court’s opinion violates Supreme Court Rule 272 and conflicts with Swisher v. Duffy, 117 Ill. 2d 376, 378-80 (1987) and Scott v. Dreis & Krump Manufacturing Co., 26 Ill. App. 3d 971, 983-84 (1st Dist. 1975), in which the courts held that when the trial court does not require the submission of a written judgment order, an oral judgment does not become final until the clerk makes an entry on the official docket. It further argues that the appellate court’s opinion renders the effective date of judgments uncertain whenever the trial court issues an oral ruling.


    Appellate Court Decision:  2013 IL App (1st) 121901, 998 N.E.2d 543.

    PLA Allowed:  05/28/14

    Appellant Counsel:  Raymond H. Groble III, Sean M. Sullivan, Jeffrey J. Scolaro, Daley Mohan Groble P.C., 55 West Monroe Street, Suite 1600, Chicago, Illinois  60603, (312) 422-9999.




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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