Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s November Term, which began Monday, November 14, 2016, with oral arguments scheduled for November 15, 2016. A total of 4 cases were heard – 1 civil and 3 criminal. Here is the civil case with the date of oral argument:

Board of Education of Springfield School District No. 186 v. The Attorney General of Illinois—No. 120343—November 15

Below is an abbreviated summary for the case. Summaries for this case and others pending with the Supreme Court can be found in our Cases Pending publication, accessible to ALA members on our website.

No. 120343
Board of Educ. of Springfield School Dist. No. 186 v. Attorney General of Illinois

The following two issues are presented in this appeal: (1) whether the signing of an agreement during a closed session meeting constitutes a final action in violation of section 2(e) of the Open Meetings Act (“Act”) where the agreement was later approved by vote at a subsequent public meeting; and (2) whether the public was adequately informed of the nature of the public action to be taken at the subsequent meeting.

Plaintiff, the Board of Education of Springfield School District No. 186 (“Board”), terminated its superintendent’s employment contract upon mutual agreement. The superintendent signed the agreement on January 31, 2013, and at a closed session meeting on February 4, 2013, a majority of the Board signed, but did not date, the agreement. The agenda for the March 5, 2013 Board meeting included an action item to approve a resolution related to the agreement and included a copy of the agreement itself. At the next Board meeting, the Board approved the agreement in open session and added the March 5, 2013 date to the Board members’ signatures on the agreement.

The Illinois Attorney General (“AG”) issued a binding opinion concluding that the signing of the agreement during the February 4, 2013, closed session meeting constituted a “final action” in violation of section 2(e) of the Act (5 ILCS 120/2(e)). On the Board’s complaint for administrative review, the circuit court found that the “final action” occurred on March 5, 2013, when the Board members voted to approve the agreement during the public meeting.

The AG then issued a second binding opinion, concluding that the Board violated the Act by failing to adequately inform the public of the nature of the public business being conducted at the March 5, 2013, meeting. The circuit court again reversed, finding that the AG expanded the requirements of the Act to require that a public body explain the significance of the final action to be taken, rather than merely advise the public of the nature of the final action to be taken.

The Illinois Appellate Court, Fourth District affirmed both circuit court orders. Relying on Grissom v. Board of Education, 75 Ill. 2d 314 (1979), it held that a Board can discuss and vote on an employment decision in closed session and hold a final roll call vote on that decision in open session without violating the Act. The appellate court also concluded that the Act only requires that the public agency advise the public about the general nature of the final action to be taken, but it is not required to provide a detailed explanation as to the significance or impact of the final action.

In her petition for leave to appeal, the AG argues that the appellate court’s decision allows public bodies to take final action during open meetings without making a public recital at the meeting to inform the public about the business being transacted, in violation of section 2(e) of the Act. The AG also argues that the appellate court erred in holding that the Board validly approved the separation agreement at the March 5, 2013, meeting because the public was not adequately informed about the general subject matter of the agreement, which is inconsistent with the language of section 2(e) of the Act and with the Act's purpose of keeping the public “informed as to the conduct of their business.” 5 ILCS 120/1.

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

In McDonald v. Adamson, No, 15-1305, the Seventh Circuit Court of Appeals recently reversed a ruling from the District Court for the Northern District of Illinois that an inmate’s claims were barred by res judicata.
 
In 2010, Illinois state prison inmate Donald McDonald filed a complaint in the Illinois Court of Claims against the Illinois Department of Corrections. McDonald claimed that he had been denied his First Amendment free exercise rights as a practicing Muslim. He alleged that he was not permitted to attend Friday prayer services, that prison officials regularly stole prayer cassette tapes and prayer rugs, and that Christians were allowed to have more volunteers enter the prison than were Muslims. McDonald sought, among other things, a damages award of $5,000.
 
The Illinois Court of Claims conducted a hearing on McDonald’s complaint but failed to issue a decision for more than two years. In the interim, McDonald filed a similar complaint in the federal district court seeking injunctive relief under 42 U.S.C. § 1983. In 2013, the Illinois Court of Claims issued an order rejecting the allegations in McDonald’s original complaint. The district court subsequently dismissed McDonald’s federal complaint, finding that the order from the Illinois Court of Claims rendered the federal complaint barred by res judicata.

On appeal, the Seventh Circuit agreed with the defendants’ concession that McDonald’s federal claim was not barred by res judicata. The court explained that Illinois law affords preclusive effect only to a final judgment rendered by a “court of competent jurisdiction.” Because the Illinois Court of Claims lacks jurisdiction to consider claims based upon a federal statute or the federal or state constitutions, it is not a “court of competent jurisdiction” under Illinois preclusion law. Thus, the adverse judgment in the Illinois Court of Claims did not bar McDonald’s federal complaint based upon the same facts.

The Seventh Circuit also declined to address the defendants’ collateral estoppel argument. The court acknowledged that res judicata and collateral estoppel are separate legal doctrines, but noted that the defendants bore the burden to raise collateral estoppel as an affirmative defense in the district court. Hence, the Seventh Circuit would not affirm a judgment based on an affirmative defense raised for the first time on appeal.

The Seventh Circuit noted in closing that, on remand, the district court would be free to grant McDonald leave to amend his complaint. The defendants would also have an opportunity to renew their motion to dismiss. 

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

On November 29, 2016, the ALA will host a luncheon focusing on ethics for appellate practitioners featuring Jim Grogan, Deputy Administrator and Chief Counsel of the Illinois Attorney Registration & Disciplinary Commission and Mary Foster, former Review Board counsel at the ARDC and current senior lecturer at the Northwestern Pritzker School of Law.

At the luncheon, Grogan and Foster will discuss ethical issues that uniquely affect appellate attorneys. The program will be held at the Union League Club in Chicago and run from noon t0 1:30 p.m. Attendees will receive one hour of MCLE ethics credit.

For more information and to register for either event, please click here.

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

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal discussing how the United State’s Supreme Court’s lack of a ninth justice has affected its docket.

 

Chemerinsky observed that, at the end of the Court’s first month, its docket only had 39 cases, which was “significantly fewer than usual for this point of the term.” In addition to the smaller docket, Chemerinsky noted that the effect of only eight justices could be seen by looking at the Court’s December schedule for oral argument. “Four of the six days that the court is hearing arguments, the justices will hear only one case, rather than the two, or occasionally three, cases usually heard per day.”

 

Chemerinsky also believed that the Court is waiting for the appointment of a ninth justice for some cases that were granted review last January and have already been fully briefed, but remain without a date for oral argument. Those cases include: Trinity Lutheran Church of Columbia,Missouri v. Pauley, which “concerns whether it violates free exercise of religion or denies equal protection for a state to give aid (the material for the bottom of playgrounds) to public and secular private schools, but not to religious schools”; Wisconsin v. Murr, which concerns “the takings clause and how it is determined whether adjacent pieces of property should be deemed to be one or two pieces of property”; and Microsoft v. Baker, which concerns “whether plaintiffs can appeal the denial of class certification by dismissing their suit.”

 

The full article can be accessed here.

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

Effective November 1, 2016, the Illinois Supreme Court has made significant amendments to Illinois Supreme Court Rule 307, which governs interlocutory appeals from, among other things, orders granting or denying motions for injunctive relief. These amendments were successfully proposed by the ALA in the hope that they would promote fairness, efficiency and clarity in Rule 307 interlocutory appeals.

Rule 307 was amended in two primary ways.

First, the amendments provide that parties to Rule 307(a) appeals no longer need to file a full record on appeal. They may instead file a Rule 328 supporting record, which is compiled by the appellant (not the circuit court clerk) and supported by affidavit. The appellee may file a supplemental supporting record if he or she feels that the appellant’s supporting record was incomplete. The process of compiling a Rule 328 supporting record can be much quicker and easier than compiling a full record on appeal, and this more expeditious manner of presenting a pertinent record to the reviewing court can be essential in a Rule 307 interlocutory appeal, in which at least one party normally claims the existence of an emergency. (Pursuant to the amendment, full records on appeal are still required in cases arising under the Juvenile Court Act where an order terminating parental rights has been entered.)

Second, the amendments effectively overrule the Illinois Appellate Court’s opinion in Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230. Nizamuddin held that, in Rule 307(d) appeals — which are appeals from orders granting or denying motions for temporary restraining orders (TROs) — the notice of appeal must be filed in the appellate court (not the circuit court) even though “the rule does not state point-blank” that the notice must be filed in the appellate court. See Nizamuddin, 2013 IL App (2d) 131230, ¶ 6. The Supreme Court’s amendment now specifies that the notice of appeal in a Rule 307(d) interlocutory appeal — as in all other types of appeals — shall be filed “in the circuit court.”

Nizamuddin also held that parties may not file documents via mail or delivery to a third-party commercial carrier in Rule 307(d) appeals, notwithstanding that Rule 373 expressly authorizes that method of filing papers in a reviewing court and there is nothing in Rule 307 to the contrary. See Nizamuddin, 2013 IL App (2d) 131230, ¶¶ 7-11. The Supreme Court has amended Rule 307 to provide that Rule 373 may be utilized in Rule 307(d) appeals, provided that the relevant documents are sent by overnight delivery.

Conclusion

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules that are intended to promote fairness, efficiency and clarity in the appellate process. The ALA appreciates the Illinois Supreme Court’s adoption of the amendments proposed by the ALA. Any ALA members who have ideas for amending the Illinois Supreme Court Rules are encouraged to contact the co-chairs of the ALA Rules Committee, John Fitzgerald and Garrett Boehm. 

By Louis J. Manetti

Attorney, Codilis and Associates, PC

The Seventh Circuit recently broadened a prior holding and stated that, under a federal standard of finality, foreclosure judgments are not final and appealable orders. In Bank of America, N.A. v. Martinson, 2016 U.S. App. LEXIS 12402, *1, the bank filed a foreclosure action in Wisconsin, and the borrowers removed the case to federal court. The federal district court entered judgment in the bank’s favor, and the order provided for a sheriff’s sale after the borrowers’ time to redeem the property expired. Id. The borrowers appealed the judgment order to the Seventh Circuit. Id.

The Seventh Circuit began the opinion by considering its jurisdiction. It noted that, in HSBC Bank USA, N.A. v. Townsend, 793 F. 3d 771, 777-78 (7th Cir. 2015), it held that Illinois foreclosure judgments were not final orders. The Townsendmajority reasoned that Illinois foreclosure judgments were not final because the order did not resolve all the issues in the lawsuit. Specifically: (1) the owner retained statutory rights to redeem the property before the sale; (2) a judicial sale would still need to be confirmed in a further court proceeding; and (3) the court would still need to decide the amount of deficiency, if any. Id. at 775-77. The Seventh Circuit held that Townsend controlled the issue of appellate jurisdiction, and it was not material that the bank in this case was not seeking a deficiency. Martinson, 2016 U.S. App. LEXIS 12402 at *5.

The Seventh Circuit then had to resolve another difference between the present case and Townsend. The outcome in Townsend, 793 F. 3d at 777, resulted from the court’s holding that, under Illinois law, foreclosure judgments are not final and generally cannot be appealed until the sale is confirmed. But this case was different—it involved an appeal regarding a Wisconsin foreclosure judgment, and the court acknowledged that Wisconsin courts invariably treat foreclosure judgments as final and appealable orders. Martinson, 2016 U.S. App. LEXIS 12402 at *5-6; see also Anchor Sav. & Loan v. Coyle, 148 Wis. 2d 94, 100-01 (“[T]he judgment of foreclosure and sale disposes of the entire matter in litigation and is a final judgment as a matter of right . . . . [t]he proceedings after the judgment . . . are analogous to the execution of a judgment and simply enforce the parties’ rights which have been adjudicated[.]”).

Despite Wisconsin law, the Seventh Circuit held that Townsend controlled in this case because Townsend applied a federal standard of finality—“a procedural issue governed by federal law.” Martinson, 2016 U.S. LEXIS 12402 at *6 (citing Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988)). Congress’s use of “final decisions” in section 1291 did not mean to incorporate state law, and a “final decision” in federal court is one “which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Budinich, 486 U.S. at 199.

The Seventh Circuit acknowledged that it would create a significant “and potentially treacherous” difference between state and federal forums if it held that a Wisconsin state court foreclosure judgment was an appealable order but a Wisconsin federal district court judgment was not. However, it reasoned that, if it did not follow Townsend and apply a federal standard of finality, it would create an in-circuit conflict about federal procedural law, and the more palatable option was to be consistent in applying federal procedure “and to accept the inevitable potential for confusion based on the difference between federal and state procedure in such cases.” Martinson, 2016 U.S. LEXIS 12402 at *6.

As a result, the court held that Townsend’s application of a federal standard of finality is binding in the Seventh Circuit, decided that the foreclosure judgment in this case was not a final order, and dismissed the appeal for lack of jurisdiction.

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

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal, previewing the United States Supreme Court new term, which began on October 3.

 

Initially, Chemerinsky noted that, for the first time in 30 years, the Court will begin its new term with only eight justices. He also discussed the possibility that the Court goes the entire term without having a ninth justice, observing that if Donald Trump were to be elected president, “hearings would not likely be held until spring” and if Hillary Clinton were to be elected president, various possibilities exists including nominating someone other than Merrick Garland.

 

Chemerinsky divided the Court's new term into three major areas of law: race discrimination, criminal justice and constitutional rights.

 

Among the race discrimination cases is Pena-Rodriguez v. Colorado, which “concerns whether a jury verdict can be reconsidered after it is learned that one of the jurors expressed racial bias during deliberations.” Additionally, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris concern “the use of race in drawing election districts.”

 

Among the criminal justice cases is Moore v. Texas, which concerns how to determine “whether a person is intellectually disabled and thus cannot be executed.”

 

Finally, among the constitutional rights cases is Trinity Lutheran Church of Columbia v. Pauley, which concerns “whether a state may deny aid to parochial schools that it provides to public and secular private schools in the state.” Additional, in Murr v. Wisconsin, the Court discuss “how to determine what constitutes a parcel of land for purposes of the takings clause of the Fifth Amendment.”

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On October 6, 2016, the Illinois Supreme Court entered an order amending various rules that govern appellate practice and procedure. The amendments, which become effective on November 1, 2016, are:

Rule 12: Governing proof of service in trial and reviewing courts, amended Rule 12 now allows proof of service to be established by a certificate of “the person, as provided in section 1-109 of the Code of Civil Procedure” who delivered, deposited, faxed, or e-mailed the document. Language requiring non-attorneys to establish proof of service by an affidavit has been stricken.

Rule 307(a): Rule 307(a) governs interlocutory appeals as of right. The amendments clarify that, when such an appeal is filed, a supporting record pursuant to Rule 328 must be filed within the same 30-day period as filing the notice of appeal, unless the timeframe for filing the supporting record is extended by the Appellate Court. However, the amendments clarify that a Rule 328 supporting record “shall not” be filed in cases arising under the Juvenile Court Act. In those cases, a record pursuant to Rule 323 must be filed. The amendments also incorporate Rule 328 language into subsections (b) and (c).

Rule 307(d): Rule 307(d) governs appeals from temporary restraining orders. Pursuant to the amendments, Rule 307(d)(1) provides that documents to be filed with the Appellate Court may be filed by mail in accordance with Rule 373, but only if those documents are sent by overnight delivery. Relatedly, subsection (d)(2)—governing the legal memoranda in an appeal from a temporary restraining order—now provides that documents may be served on the other party personally, by facsimile, or e-mail. Moreover, the legal memoranda may be filed with the Appellate Court by mail pursuant to Rule 373 so long as it is sent by overnight delivery.

Rule 373: Rule 373 governs the date of filing of papers in the reviewing court. Consistent with the amendment to Rule 12, the title of Rule 373 has been amended to strike the currently existing reference to an affidavit. In addition, the body of the rule added language to provide that proof of mailing by a pro se petitioner from a correctional institution shall be established by Rule 12(b)(4).

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

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules. Just this week, the ALA proposed several new amendments to the Illinois Supreme Court Rules that are intended to foster the efficient and speedy resolution of civil appeals. These amendments, which would change certain language in Illinois Supreme Court Rules 306, 308, 315 and 321, have been submitted to the Illinois Supreme Court Rules Committee for its consideration. The proposed amendments, which are discussed below, were authored by ALA Board member Don Sampen and were unanimously approved by the ALA Rules Committee.

I. Proposed Amendment to Illinois Supreme Court Rule 306

The ALA proposes adding a new Rule 306(c)(8), which would provide as follows: 

“After the petitioner has filed the petition and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the petition within 30 days thereafter.”

 

The purpose of this amendment is to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a petition for leave to appeal from one of the types of orders described in Rule 306(a). Importantly, this amendment would not require the Illinois Appellate Court to render any decision on the merits of any such appeal within 30 days. It would set a timeframe only on the Illinois Appellate Court’s decision whether to grant a petition for leave to appeal. This amendment is intended to provide certainty and predictability as to when a petitioner or respondent should expect a decision to be made as to whether an interlocutory appeal will proceed.

II. Proposed Amendment to Illinois Supreme Court Rule 308

 

The ALA proposes adding a new Rule 308(f), which would provide as follows:

 

“After the applicant has filed the application and supporting record, and the time for filing any answer has expired, the Appellate Court shall consider and decide the application within 30 days thereafter.”

 

Like the proposed amendment to Rule 306, this proposed amendment is intended to set forth a reasonable time within which the Illinois Appellate Court shall decide whether or not to accept a Rule 308 application for leave to appeal. This amendment would thereby provide certainty as to when such a decision will be made. This language, of course, would not require the Illinois Appellate Court to decide the merits of any Rule 308 appeal within any set timeframe.

 

III. Proposed Amendment to Illinois Supreme Court Rule 315

 

The ALA proposes amending Supreme Court Rule 315(f) to delete the phrase “within such 21-day period” from the end of the first sentence of that provision. As amended, the first sentence of Rule 315(f) would read:

 

“The respondent need not but may file an answer, with proof of service, within 21 days after the expiration of the time for the filing of the petition, or within such further time as the Supreme Court or a judge thereof may grant within such 21-day period.”

 

The rationale for this proposal is that, in many instances, 21 days may be too short a period of time in which to file a motion for an extension of the filing deadline and receive a ruling on that motion, especially if an extension is necessitated by an unforeseen occurrence.

 

IV. Proposed Amendment to Illinois Supreme Court Rule 321

 

The ALA proposes adding this underscored language to Supreme Court Rule 321:

 

“The common law record includes every document filed, including compact disks and other electronic filings, and judgment and order entered in the cause and any documentary exhibits offered and filed by any party.”

 

This amendment is intended simply to clarify that the common law record in a given case may include not only paper documents but also electronic filings. If a party was permitted to file a document in electronic format in the circuit court, that fact should not provide a basis for excluding it from the common law record.

 

Conclusion

 

The ALA remains active in proposing amendments to the Illinois Supreme Court Rules that are intended to promote fairness and efficiency in the appellate process. The ALA appreciates the Illinois Supreme Court Rules Committee’s consideration of these proposed amendments to the Illinois Supreme Court Rules. Any ALA members who have ideas for amending the Illinois Supreme Court Rules are encouraged to contact the co-chairs of the ALA Rules Committee, John Fitzgerald and Garrett Boehm.

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On September 12, 2016, the ALA began a new bar year by sponsoring a luncheon at the Union League Club in Chicago featuring the Clerks of each of the five Illinois Appellate Court districts. ALA President Joanne R. Driscoll opened the program by welcoming ALA members and guests, which included many justices from the Illinois Appellate Court as well as new Illinois Solicitor General David L. Franklin.

Thereafter, President Driscoll introduced the Clerks—Steven M. Ravid of the First District; Robert J. Mangan of the Second District; Barbara Trumbo of the Third District; Carla Bender of the Fourth District; and John J. Flood of the Fifth District. The speakers provided an update on the Appellate Court’s transition to e-filing and also provided district-specific practice pointers.

Regarding e-filing, the Clerks noted that the system, while moving slowly, is gradually being implemented as all circuit courts in the Second District use e-filing, along with two circuit courts in the Third District, three in the Fourth District, and one in the Fifth District. Despite feeling a “bit rushed,” the Clerks assured the audience that their respective offices are working with Tyler Technologies, Inc., to implement a state-wide e-filing system as seamlessly as possible.

The Clerks proceeded to provide practice pointers for the audience. For example, Clerk Ravid noted that, if a party files a motion seeking an extension within the First District, the party should specify the date to which the extension is sought. In addition, if an appeal involves multiple appellees, the parties should advise the Clerk whether more than one appellee brief will be filed so as to reduce delay.

For the Second District, Clerk Mangan advised against mailing emergency motions. And, if a party desires an oral argument, it may file a motion under Illinois Supreme Court Rule 352 (eff. Feb. 6, 2013), while Clerk Bender noted that oral argument is usually given when requested in the Fourth District. Clerk Trumbo helpfully advised litigants in the Third District to avoid using plastic covers on briefs, as her office removes them. Finally, Clerk Flood reminded litigants that, if a party has a conflict with a scheduled oral argument, it should advise his office as soon as possible, as rescheduling an argument that has already been set can be administratively challenging.

The ALA thanks the Clerks for their engaging and informative presentation.