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"The Brief" - The ALA Blog

  • August 15, 2016 7:21 PM | Anonymous member (Administrator)

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

    On August 15, 2016, the Illinois Supreme Court amended Rule 367, which guides a party's request for a rehearing in either the Illinois Supreme Court or Illinois Appellate Court. 

    Subsection (c) of the rule was amended to account for the new address of the Reporter of Decisions, which now is 301 N. 2nd Street, Springfield, IL 62702. The amended Rule 367(c) now reads:

    "The number of copies of the petition, and of any answer or reply (see paragraph (d)), the form, cover and service shall conform to the requirements for briefs (see Rule 341), except that, in the Supreme Court, petitions for rehearing shall be delivered or mailed by first-class mail or delivered by third-party commercial carrier, and a copy of the petition or any motion seeking to change the time for filing the petition shall also be delivered or mailed by first-class mail or delivered by third-party commercial carrier to the Reporter of Decisions, 301 N. 2nd Street, Springfield, IL 62702, and a certificate of mailing or delivery shall be supplied to the clerk of the Supreme Court."

    The amendment became effective immediately, and the order can be found here.


  • August 09, 2016 6:25 PM | Anonymous member (Administrator)

    By Louis J. Manetti

    Attorney, Codilis and Associates, PC

    To what extent are litigants allowed to raise new issues on remand from an appeal? The Seventh Circuit recently offered some insight into the scope of a district court’s authority to decide issues on remand in Frank v. Walker, 819 F. 3d 384 (7th Cir. 2016).


    The case began in the district court of Wisconsin when consolidated plaintiffs argued that Act 23—a Wisconsin law passed in 2011 that required residents to present photo identification in order to vote—violated the Fourteenth Amendment and Section 2 of the Voting Rights Act. Frank v. Walker, 17 F. Supp. 3d 837, 842 (E.D. Wis. 2014). 


    Prophetically, the Court acknowledged that, “by not addressing all constitutional claims, I am leaving the door open to successive appeals.” Id. at 843. The district court reasoned that Act 23 would be invalid if it imposed burdens on a subgroup of Wisconsin’s voting population that were not outweighed by the state’s justifications for the law. Id. at 847. It held that Act 23 unjustifiably burdened a subgroup—low-income eligible voters. Id. at 862. The district court held that invalidating Act 23 was the only practical way to remove the unjustified burdens on low-income voters (id. at 863), and it permanently enjoined the state’s officers and agents from conditioning access to a ballot on presenting photo identification. Id. at 880. 

    On appeal, the Seventh Circuit determined that the district court’s holding ran contrary to United States Supreme Court precedent. Frank v. Walker, 768 F. 3d 744, 745-46 (7th Cir. 2014). As a result, it declared that Act 23 was constitutional and reversed the district court’s judgment. Id. at 755.


    On remand in the district court, the plaintiffs tried a different tack: They sought relief for voters “who lack photo ID and face systemic practical barriers to obtaining an ID.” Frank v. Walker, 141 F. Supp. 3d 932, 935 (E.D. Wis. 2015). The plaintiffs identified this class as voters: (1) having to deal with name mismatches or other errors in an underlying document needed to obtain an ID; (2) having to obtain an underlying document from an agency other than the Wisconsin Department of Motor Vehicles; and (3) needing an underlying document that does not exist. Id. n.1. The district court held that it could not grant relief to those voters because theirs was “not a claim I left unresolved in my prior decision. It is the constitutional claim on which I granted relief: I found that Act 23 imposed unjustified burdens on voters who currently lack photo ID and will face heightened barriers to obtaining ID.” Id. It reasoned that the Seventh Circuit “did not, for example, vacate the injunction and remand with instructions to consider granting some other remedy,” and concluded, “I am not free to disregard this holding on remand.” Id. The order prompted another appeal to the Seventh Circuit. 


    In the second appeal, the Seventh Circuit was faced with the issue of whether its prior decision precluded the district court from granting relief to the three groups of voters identified on remand. It referred to the groups collectively as those who were unable “to obtain a qualifying photo ID with reasonable effort.” Frank, 819 F.3d at 386. [1] The Court instructed, “[t]he scope of an appellate mandate depends on what the court decided—and we did not decide that persons unable to get a photo ID with reasonable effort lack a serious grievance.” Id. Instead, the district court originally determined that “because some voters face undue difficulties in obtaining acceptable photo IDs, Wisconsin could not require any voter to present a photo ID.” (Emphasis in original.) Id. 


    This broad holding included people “who could get a state-issued photo ID but disliked the hassle.” Id. The district court could resolve the claims brought by the unable-despite-reasonable-effort voters because “[t]he argument plaintiffs now present is different.” Id. That is, instead of arguing that the burden on a subgroup means that nobody should be forced to present a photo ID, the plaintiffs were arguing that high hurdles for some eligible voters entitled those particular persons to relief from Act 23. Id. The Court determined that this new argument was compatible with its prior opinion and mandate. Id. at 386-87. It rejected the state’s claim that the plaintiffs needed to raise the new argument in the prior appeal as an alternative reason to affirm the injunction for two reasons. First, the injunction prohibited the requirement of any voter to present a photo ID, so an alternative argument about the unable-despite-reasonable-effort voters would not have supported the much broader injunction. Id. at 387. Second, an alternative argument in support of a district court’s judgment is a privilege, not an obligation. Id. As a result, the Seventh Circuit reversed the district court’s judgment and remanded for further proceedings on the new argument. Id. at 388.
    ---------------------------
    [1] The court identified a “gastonette” in the second category of voters (those needing a credential from another agency that would not issue the credential without a photo ID). For an entertaining recount of the word’s etymology, see Jon O. Newman, Birth of Word, 13 Green Bag 2d 169 (2010) (available at http://www.greenbag.org/v13n2/v13n2_newman.pdf (last accessed August 3, 2016)).


  • July 27, 2016 10:05 AM | Anonymous member (Administrator)

    By Josh Wolff

    Research Attorney, Illinois Appellate Court, First District

    In Bell v. McAdory, No. 15-1036, Timothy Bell was civilly detained as a result of being adjudicated sexually dangerous. At a treatment facility, he violently attacked a security guard. He was subsequently convicted and sentenced to prison. Once he completed his prison term, he returned to the treatment facility. There, he refused to cooperate with intake procedures, threatened guards, placed paper over his windows to prevent monitoring and disrupted the facility's normal operations. After being insubordinate for 20 days, guards moved Bell into a secure room at the center's infirmary and took away his clothes. Bell spent the next eight days in the room naked, and according to him, uncomfortably cold. On the ninth day, he agreed to cooperate and in return, he was given clothes and returned to the general population.

    As a result of his eight-day confinement, Bell filed a lawsuit under section 1983 against various security personnel of the facility, arguing his confinement in the infirmary without a hearing violated the Due Process Clause of the United States Constitution's Fourteenth Amendment. On August 11, 2014, the United States District Court for the Central District of Illinois granted summary judgment in favor of the defendants.

    Bell then had until September 8 to file a motion to reconsider or September 10 to file the notice of appeal, the latter necessary to confer appellate jurisdiction. Bell did neither. Instead, on September 11, he filed a motion which the district court treated as one under Rule 60(b) of the Federal Rules of Civil Procedure as requesting relief from a final judgment.

    The district court denied the Rule 60(b) motion, which itself was separately appealable. Although Bell did not file a proper notice of appeal from the Rule 60(b) denial, the Seventh Circuit Court of Appeals found a document he filed subsequent to the denial contained sufficient information as required by Rule 3(c) of the Federal Rules of Appellate Procedure to be treated as a notice of appeal. Consequently, the Seventh Circuit had jurisdiction over the matter, although its jurisdiction was limited to reviewing the Rule 60(b) denial.

    On appeal, however, Bell wanted to challenge the district court's finding of summary judgment in favor of the defendants. Consequently, he argued his failure to timely appeal the underlying judgment was due to his mistake as to when the period to file the notice of appeal began to run. The Seventh Circuit, however, concluded that to allow review of the underlying judgment "would be equivalent to accepting a jurisdictionally untimely appeal," citing Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n.7 (1978). Furthermore, the Seventh Circuit noted "there can be no equitable exceptions to the time for appeal" because "[t]hat's what it means to call the time limit jurisdictional."

    Bell proffered two arguments around this jurisdictional predicament. First, he argued Rule 60(b)(1) of the Federal Rules of Civil Procedure—grounds for relief from a final judgment based on "mistake, inadvertence, surprise, or excusable neglect"—the subsection he argued his motion came under, should be treated differently from Rule 60(b)(6) of the Federal Rules of Civil Procedure—grounds for relief from a final judgment based on "any other reason that justifies relief"—the subsection involved in Browder. Second, Bell argued the district court effectively reopened his time to appeal because in the order denying his Rule 60(b) motion, the court stated its original judgment was correct.

    The Seventh Circuit found both arguments meritless, as they would require the court to overturn Supreme Court precedent and unjustly give litigants a second opportunity to appeal. Despite rejecting Bell's arguments, the Seventh Circuit found relief was available to Bell under Rule 4(a)(5) of the Federal Rules of Appellate Procedure.

    Under Rule 4(a)(5)(A)(i), the district court may extend the time period to file a notice of appeal for 30 days if the would-be appellant requests an extension within 30 days "after the time prescribed by" Rule 4(a) expires. The Seventh Circuit wondered why the district court did not treat Bell's September 11 motion as one for an extension of time under Rule 4(a)(5), noting the district court treated the motion originally as one under Rule 60 despite the motion being captioned a Rule 59 motion. The Seventh Circuit further observed that only the district court could grant relief under Rule 4(a)(5).

    Therefore, because Bell's September 11 motion was filed within the time prescribed by Rule 4(a)(5)(A)(i) and the rule contains no "outer limit" for when the district court must act, the Seventh Circuit found the district court could still afford Bell extra time to appeal the underlying judgment. Accordingly, the Seventh Circuit remanded the matter to the district court to determine whether Bell should be granted an extension of time to file a notice of appeal against the district court's grant of summary judgment in favor of the defendants. 

  • July 20, 2016 9:57 AM | Anonymous member (Administrator)

    By Charlie Ingrassia
    Associate, Adler Murphy & McQuillen LLP

    On June 24, 2016, the Association held its annual Installation luncheon. The occasion celebrated the end to a terrific bar year and welcomed a new slate of Officers and Directors.

    Outgoing Association President Michael A. Scodro began the festivities by welcoming ALA members and guests, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, the Illinois Supreme Court, the Illinois Appellate Court, and the Circuit Court of Cook County. President Scodro proceeded to recap the many successful Association events from the past  year which, in addition to the traditional favorites such as the annual roundtable luncheons and the Illinois Supreme Court Year in Review, featured speakers from across the country. Notable speakers included New York Times reporter Adam Liptak and Professor David Strauss of the University of Chicago Law School, both of whom discussed noteworthy United States Supreme Court cases.  

    President Scodro also thanked outgoing Directors Matthew D. Elster, John M. Fitzgerald, and E. King Poor, and presided over the election of Officers for the upcoming bar, which include Evan Siegel as Vice President, Clare J. Quish as Secretary, and Gretchen Harris Sperry as Treasurer.

    Justice Mason and Joanne R. Driscoll


    Thereafter, President Scodro introduced Justice Mary Anne Mason of the Illinois Appellate Court, First District, to administer the oath of office to Joanne R. Driscoll. In doing so, Justice Mason recounted President Driscoll's storied career, which includes serving as a law clerk on two separate occasions--including as a law clerk to the first woman justice on the Illinois Appellate Court; her tenure as the Executive Director of the Lawyers Assistance Program; her many accomplishments in the private sector as an attorney with Forde Law Offices LLP; and her significant commitment to charitable organizations (such as serving as the president of the Woman's Bar Foundation).

    After being Installed as the Association's 49th President, President Driscoll thanked her many family members and friends in attendance, which included the "three men in her life," i.e, her sons Jonathan, Michael, and Jimmy. She also thanked her colleagues at Forde Law Offices, many of whom were also in attendance.

    President Driscoll then laid out a clear vision for the upcoming bar year. She discussed initiatives to improve the Association's policies to make it more practical, efficient, and better able to serve its members; and toward that end, President Driscoll is in the process of forming a committee to review and update the Association's bylaws. President Driscoll noted that, while the Association will continue to provide its traditional programming, it will also present "out of the box" events, such as a seminar featuring a panel comprised of the clerks from each of Illinois' five appellate districts. Finally, President Driscoll advised that the Association will seek to co-sponsor more events with other bar associations, which will promote the Association's dedication to excellence in appellate law and may also provide ALA members with opportunities to attend additional functions.

    The Association thanks President Scodro and the outgoing Directors for their tireless work, and looks forward to another successful bar year.

  • July 12, 2016 9:50 AM | Anonymous member (Administrator)

    By E. King Poor
    Partner, Quarles & Brady LLP, Chicago

    Cases can become moot at anytime—even on appeal. And the Seventh Circuit’s recent decision in DJL Farms LLC v. USEPA, 813 F.3d 1048 (7th Cir. 2016) is a reminder of that.
     
    In DJL Farms, a developer sought permits from the United States Environmental Protection Agency to construct a near-zero emission coal-burning facility to produce electricity. The facility required injecting massive amounts of carbon dioxide into deep subsurface wells over a 20-year period. Id. at 1049.
     
    Nearby landowners challenged the project before the EPA which overruled their objections and issued the necessary permits. The landowners then sought administrative review before the Seventh Circuit. Id. at 1050.
     
    Shortly before oral argument, the developer lost the funding for the project and requested that the EPA cancel the projects’ permits, and moved, along with the EPA, to dismiss the appeal as moot. The landowners argued that the case was not moot because it was akin to merely a “voluntary cessation” of activity and it was unclear if the cancelled permits still might be transferred, sold, or reissued. Id.
     
    The Seventh Circuit held that the appeal was moot. It began its analysis with the fundamental principle that federal courts lack subject matter jurisdiction when a case becomes moot, and must therefore dismiss an action when it is “impossible for the court to grant any effectual relief whatever to a prevailing party.” Id. And though the Supreme Court has long imposed a “strident standard” when determining if a case has been mooted by voluntary conduct, in this case, the Seventh Circuit held that the developer and the EPA met that burden because (a) the order was not “separately reviewable,” but was a “prerequisite to seeking judicial review,” and (b) under the EPA’s own regulations, the permits could not be transferred or reissued. Id. at 1051. Accordingly, it dismissed the appeal as moot.
     
    The DJL Farms decision provides another illustration that appellate lawyers should be mindful of events that might render a case moot after the filing of a notice of appeal. Mootness may arise at any point—even on appeal.

  • June 20, 2016 9:44 AM | Anonymous member (Administrator)

    By Louis J. Manetti
    Attorney, Colidis and Associates, P.C.

    In The Argument of an Appeal, 26 ABA J. 895, 895-99 (Dec. 1940), former United States Solicitor General John W. Davis laid out a seminal “Decalogue” of principles to guide oral argument before an appellate court. The article, which was originally an address delivered to the New York City Bar Association on October 22, 1940, has been called “[o]ne of the best, if not the best, single article on appellate arguments[.]” Frederick Wiener, Effective Appellate Advocacy 127 (Revised ed. 2004); see also Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 522 n.4 (2001) (calling Davis’ speech a “touchstone” for another well-regarded speech by Justice Robert Jackson and stating that other similar lists have followed).

    Davis begins the article by noting, in a cleverly self-deprecating manner, that a discourse on the argument of an appeal would be delivered with superior force from a judge, “who is in his judicial person the target and the trier of the argument[.]” Davis, supra, at 895. He analogizes the art of appellate advocacy to fishing, and offers, “supposing fishes had the gift of speech, who would listen to a fisherman’s weary discourse on . . . all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach.” Id. (Notably, Appellate Lawyers Association roundtable events offer just that: an opportunity to informally speak with both state and federal judges—in Davis’ vernacular, the fish.) Keeping with the fish analogy, Davis claims that the appellate advocate is constantly angling for the judicial mind, and “[w]hatever tends to attract judicial favor to the advocate’s claim is useful. Whatever repels it is useless or worse.” Id.

    Davis assumes for the purposes of his discussion that the briefs have been submitted and the appeal is procedurally at argument. Borrowing a quote from Chief Justice Hughes, he notes that the value of oral argument on appeal is, “a great saving of the time of the court in the examination of extended records and briefs, to obtain the grasp of the case that is made possible by oral discussion and to be able more quickly to separate the wheat from the chaff.” Id. at 896. Davis then sets out ten principles that should govern appellate oral argument.

    The first, and “cardinal rule,” Davis espouses is “[c]hange places (in your imagination of course) with the Court.” Id. Judges, he notes, will not have lived with the case like the lawyers have, and simply want to reach a correct conclusion, so the appellate advocate must give them the “implements of decision.” Id. That is, you must ask: If you were the judge, what would you want to know first about the case; in what order would you want the argument to unfold; and what would make your approach to the true solution easier. Id.


    Davis’ second rule is “[s]tate first the nature of the case and briefly its prior history.” Id. This point is eminently practical. He explains that by simply mentioning the general legal field that is implicated at the argument’s outset, the judges are able to recall their general knowledge of the topic, bringing the points that follow immediately into focus. Id.

    Next, Davis recommends that the advocate “[s]tate the facts.” Id. He advises, “the statement of the facts is not merely a part of the argument, it is more often than not the argument itself. A case well stated is a case far more than half argued.” Id. He surmises, “[e]x facto oritur jus [the law arises from fact], and no court ever forgets it.” Id. Davis suggests “three C’s” guide the advocate in stating the facts—chronology, candor, and clarity. Id. Chronology, he states, is the natural way of telling any story; candor is the “telling the worst as well as the best, since the court has the right to expect it”; and clarity is the supreme virtue in how to communicate thought. Id. He attributes a quote to Daniel Webster that he insists should be on the walls of every law school, courtroom, and law office: The power of clear statement is the great power at the bar. Id.

    The fourth principle is “[s]tate the applicable rules of law on which you rely.” Id. Davis reiterates that a correctly composed statement of facts will have done most of the heavy lifting already, and he warns that, however adequate shelter strong prior decisions may convey, “the advocate must be prepared to meet any challenge to the doctrine of the cases on which he relies and to support it by original reasoning.” Id. Next, he advises to “[a]lways go for the jugular vein.” Id. That is, to find the “cardinal point around which lesser points revolve like planets around the sun[.]” Id.; see also Waxman, supra, at 530 (Waxman calls this “planting the kernel,” and advises, “however difficult the kernel may be to discern, and however late it reveals itself [he relays a story about how one time the kernel only became apparent the night before an oral argument], you must have it in mind when you appear before the court.”)

    For his sixth principle, Davis insists that the advocate “[r]ejoice when the Court asks questions.” Davis, supra, at 897. First, he states that, if nothing else, it assures the advocate that the court is not comatose. Id. Second, “a question affords you your only chance to penetrate the mind of the court.” Id. He counsels the advocate to not evade or postpone answering questions, no matter how embarrassing or how much it interrupts the thread of the argument. Id. Next, Davis states that advocates should “[r]ead sparingly and only from necessity.” Id. at 898. He stresses eye contact with the judges, and argues that “the speaker does not live who can long hold the attention of any audience without looking it in the face.” Id. Davis’ eighth principle is to “[a]void personalities.” Id. The advocate’s goal is to keep the mind of the court on the issues at hand without distraction, and personal attacks “can irritate, [but] they can never persuade.” Id.

    The ninth principle is “[k]now your record from cover to cover.” Id. Davis acknowledges that this advice “might properly have headed the list for it is the sine qua non of all effective argument.” Id. (In the invaluable work Effective Appellate Advocacy, Frederick Wiener characterizes complete knowledge of the record as “the advocate’s secret weapon.” Wiener, supra, at 177.) Davis notes that, in the heat of appellate argument, at any moment the advocate may be called to correct some misstatement of the opposing side, or may be called on to answer a question that will both put the question to rest and enhance the advocate’s credibility with the judges. Davis, supra, at 898. Otherwise admirable arguments, Davis states, have been destroyed because advocates failed to provide apt references to the record. Id.

    Finally, the tenth principle Davis espouses is to “[s]it down.” Id. Even with brief page limits and oral argument time restrictions, “[t]he mere fact that you have an allotted time does not constitute a contract with the Court to listen for that length of time.” Id.

    For principles that were relayed over 75 years ago, these rules remain practical and valuable guidelines for advocates facing appellate oral argument in 2016.

  • June 09, 2016 9:40 AM | Anonymous member (Administrator)

    By Charlie Ingrassia
    Associate, Adler Murphy & McQuillen LLP

    On May 24, 2016, the ALA hosted its annual luncheon honoring the judges of the United States Court of Appeals for the Seventh Circuit. Held at the Union League Club in downtown Chicago, the luncheon was attended by many of the judges who currently sit on the court, and each judge sat at an individual table alongside ALA members and guests. Also in attendance were many court personnel.



    ALA President Michael A. Scodro began the luncheon by welcoming the judges and guests. Thereafter, President Scodro introduced Chief Judge Diane P. Wood, the luncheon's keynote speaker, who offered insights from the bench's perspective with respect to both brief writing and oral arguments. 

    Chief Judge Wood opened her remarks by noting that Federal Rule of Civil Procedure 1 was amended in 2015 to provide that both the courts and parties share in the responsibility of the efficient administration of justice. Toward that end, judges recognize the difficulty in preparing briefs and preparing for oral arguments. 

    Chief Judge Wood stressed that brief writing should be a top priority, as it is the case's first introduction to the court. Attorneys should "focus, focus, focus" their writing, tell a story and "let it flow," and address the other side's arguments. Stated differently, "briefs should not be ships passing in the night." 


    Regarding oral argument, Chief Judge Wood advised the parties to "bite the bullet" when it comes to answering difficult questions, including hypotheticals. The best practice is to answer questions directly with a "yes" or "no" and then explain why this specific case is different. In addition, Chief Judge Wood advised the audience that if a case is cited anywhere in the brief, a party should be prepared to discuss it at oral argument.  However, if a case was not cited in a brief and an attorney is not familiar with the holding, the attorney should not wing it but instead ask for supplemental briefing. 

    Chief Judge Wood closed her remarks with a Q&A, in which she addressed topics ranging from the use of pictures and images in briefs to petitions for rehearing (which she noted are not granted often). 

    The ALA thanks the judges from the Seventh Circuit for another engaging and insightful luncheon. 

  • June 06, 2016 9:38 AM | Anonymous member (Administrator)

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

    The Association will host two events during the rest of the month of June.

    On June 9, 2016, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court, Third District. The luncheon will focus on “things you want to know about the court” and provide an opportunity for attendees to ask questions of the justices in a collegial and informal setting. The luncheon will be held at the Uptown Grill in LaSalle and run from noon t0 2 p.m. Attendees will receive one hour of MCLE credit.

    On June 24, 2016, the ALA will host the “Installation Luncheon of Joanne R. Driscoll” at the Union League Club in Chicago. At the luncheon, Joanne R. Driscoll will be installed as the 49th President of the ALA. Additionally, the ALA’s Nominating Committee will introduce the following officers and directors for election at the meeting:

    Officers (2016-2017)

    Vice-President: Evan Siegel

    Secretary: Clare Quish

    Treasurer: Gretchen Harris Sperry


    Directors (2016-2018)

    Director (1st Dist.): Leah Bendik

    Director (1st Dist.): Keely Hillison

    Director (3d Dist.): Emily Sutton

    Director (1st Dist.): Adam Vaught

    For more information and to register, please click here.

  • June 02, 2016 9:35 AM | Anonymous member (Administrator)

    The Supreme Court of the United States recently concluded in a per curiam decision that the Sixth Circuit Court of Appeals did not apply the appropriate "fairminded jurist" standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) after Timothy Etherton sought federal habeas relief pursuant to AEDPA. In turn, the High Court found it was not objectively unreasonable for Etherton's direct appellate counsel to refrain from raising Confrontation Clause and ineffective assistance of trial counsel claims where trial counsel failed to object to the admission of an anonymous tip.

    Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), involved an anonymous tip that led Michigan law enforcement officers to discover 125.2 grams of cocaine in car being driven by Etherton. The lone passenger in the car was Ryan Pollie. Etherton was tried in state court for possession with intent to deliver cocaine. The central issue in the trial was whether the cocaine belonged to Etherton or Pollie; the facts reflected in the tip were not contested. Woods, 578 U.S. at ___, 136 S. Ct. at 1150. Pollie testified against Etherton pursuant to a plea agreement, claiming that Etherton left him at a restaurant at one point during their trip and returned around 45 minutes later. Pollie further claimed he had no knowledge of Etherton's intent to obtain cocaine, and he learned of the cocaine only after the pair left the restaurant and Etherton revealed its presence. Three officers testified to the content of the tip, which included a claim that two white males would be carrying cocaine while traveling in a white Audi. Etherton's trial counsel raised only one hearsay objection during the third officer's testimony, but the prosecutor agreed to move on and no ruling was made on the objection. A jury convicted Etherton, his conviction was affirmed on direct appeal, and the Michigan Supreme Court denied him leave to appeal. Id.

     Etherton next sought post-conviction relief in state court, claiming, inter alia, that appellate counsel was ineffective for failing to raise the Confrontation Clause and related ineffective assistance of trial counsel issues. Id. The state court rejected this claim, noting that trial counsel may have made a strategic decision to forgo any objections because the reference to "two men" suggested Pollie's prior involvement in the crime, which arguably contradicted Pollie's claims that he had no knowledge of the cocaine and Etherton was alone when he picked up the cocaine. Woods, 578 U.S. at ___, 136 S. Ct. at 1151.

    The next step for Etherton was to seek federal habeas relief under AEDPA, which allows for such relief where the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Where a state court determines that a claim lacks merit, federal habeas relief will not be available so long as " 'fairminded jurists could disagree' " on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

    The District Court denied relief, but a divided Court of Appeals for the Sixth Circuit reversed, with the majority concluding that Etherton's appellate counsel had been constitutionally ineffective, and that no fairminded jurist could conclude otherwise. Woods, 578 U.S. at ___, 136 S. Ct. at 1152. In concluding that Etherton's right to confrontation had been violated, the majority first noted that the contents of the tip were discussed by three witnesses and mentioned by the prosecution during closing argument. Thus, the majority held, the state's use of the evidence went beyond the details that were necessary merely for background, and the contents of the tip were therefore admitted for the truth. See Crawford v. Washington, 541 U.S. 36, 60, n. 9 (2004) (observing that the Confrontation Clause of the Sixth Amendment prohibits an out-of-court statement only if it is admitted for its truth).

    Regarding the issue of whether Etherton had been prejudiced by the violation (see Strickland v. Washington, 466 U.S. 668, 687 (1984) (showing of prejudice required to demonstrate ineffective assistance of counsel)), the majority acknowledged the evidence of Etherton's guilt: Etherton owned the car; he was driving at the time of the arrest; and the cocaine was found inches away from him in a driver side compartment. The majority held, however, that the evidence was insufficient to convict Etherton without the tip, and because Pollie's testimony was reflected in the tip, the jury may have improperly concluded that Pollie was testifying truthfully. Accordingly, the majority found that Etherton had been prejudiced by appellate counsel's failure to challenge the forfeited Confrontation Clause objection or the ineffectiveness claim. Woods, 578 U.S. at ___, 136 S. Ct. at 1152.

    The Supreme Court disagreed with the Sixth Circuit, holding that the majority did not apply the appropriate "fairminded jurist" standard of review under AEDPA. The High Court concluded that, because the veracity of facts pertaining to the tip was not in dispute, a fairminded jurist might find that the repeated testimony of the tip was not introduced to establish the truth. Furthermore, a fairminded jurist might find that Etherton was not prejudiced when Pollie testified consistently with the uncontested facts of the tip, as Pollie himself was aware of the information contained in the tip. This may have rendered Pollie's testimony unremarkable and not pertinent to his credibility. Id. Thus, given the deference afforded trial counsel (see Strickland, 466 U.S. at 690), it would not be objectively unreasonable for a fairminded jurist to conclude that no objection was raised in the trial court because the facts in the tip were uncontested and consistent with Etherton's defense. Woods, 578 U.S. at ___, 136 S. Ct. at 1152-53. Therefore, a fairminded jurist could similarly conclude that it was objectively reasonable for appellate counsel to reach the same conclusion.

    For these reasons, the Supreme Court granted petition for certiorari and reversed the judgment of the Court of Appeals for the Sixth Circuit. Woods, 578 U.S. at ___, 136 S. Ct. at 1153.

  • May 18, 2016 9:33 AM | Anonymous member (Administrator)

    By Paul Berks
    Massey & Gail LLP

    In Doe v. Village of Deerfield, No. 15-2069,  __ F. 3d __ (2016), 2016 WL 1425854, the Seventh Circuit held that an order denying a plaintiff’s motion to proceed anonymously is immediately appealable under the collateral order doctrine. Though a matter of first impression in the Seventh Circuit, the court joined five other circuits, which had reached the same conclusion. Id. at *2 (citing Does I thru XXIII v. Advanced Textile Corp., 214 F. 3d 1058, 1067 (9th Cir. 2000); M.M. v. Zavaras, 139 F. 3d 798, 802 (10th Cir. 1998); James v. Jacobson, 6 F. 3d 233, 234 (4th Cir. 1993); Doe v. Frank, 951 F. 2d 320, 322 n.2 (11th Cir. 1992) (based on adoption of Fifth Circuit precedent); S. Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F. 2d 707, 712 (5th Cir. 1979)).

    The issue arose in a complaint by an anonymous plaintiff against two individuals and the Village of Deerfield, alleging an equal protection violation and malicious prosecution. The plaintiff alleged the two individuals falsely accused him of wrongdoing, and the Village prosecuted him, even though it knew the allegations were false. After the criminal proceedings terminated in “Doe’s” favor, he filed this civil suit.

    The defendants moved to dismiss under Federal Rule of Civil Procedure 10(a), which requires a party to include its true name in the caption of all filings. “Doe” opposed the motion and moved for an order permitting him to proceed anonymously, arguing that disclosure of his identity would subject him to embarrassment and possible retaliation. The District Court denied the motion to proceed anonymously and dismissed the complaint without prejudice, permitting “Doe” to re-file under his true name.

    A dismissal without prejudice is not a final order. Therefore, as a general rule it is not immediately appealable. Doe, 2016 WL 1425854 *2 (citing Bastian v. Petren Res. Corp., 892 F. 2d 680, 682 (7th Cir. 1990)). However, in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949), the United States Supreme Court identified a “ ‘small class’ of nonfinal orders that are deemed final and immediately appealable.” Doe, 2016 WL 1425854 *2.  To fall within this exception to the final order rule, the non-final order must meet three criteria, it must be “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.”  Id. (quoting Mowhawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). These criteria must be applied to “the entire category to which the claim applies,” ignoring the individualized idiosyncrasies that arise in any specific case. Id. (quoting Mohawk, 558 U.S. at 107). Thus, the question presented was whether the denial of motions to proceed anonymously are categorically immediately reviewable.

    Joining the unanimous chorus of five other circuits, the Court answered affirmatively, concluding that each of the criteria were met. The order on appeal conclusively resolved the issue of the plaintiff’s right to proceed anonymously. The propriety of anonymity was entirely separate from, and collateral to, the merits of “Doe’s” civil rights claims. And, if not reviewed immediately, the order effectively would be unreviewable. “If parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot.” Id. at *3 (citing Does I thru XXIII, 214 F. 3d at 1066). Thus, an order denying a motion to proceed anonymously falls within the collateral order doctrine enunciated in Cohen and is immediately reviewable.

    Though “Doe” “won the jurisdictional battle, he has lost the war.” Id. at *1. After concluding it had jurisdiction to consider the issue on interlocutory appeal, the Court affirmed the District Court on the substance, agreeing that the plaintiff had not shown the exceptional circumstances necessary to justify proceeding anonymously. Nevertheless, the case remains noteworthy for identifying a rare example of the “small class” of orders that fall within the collateral order doctrine and are subject to immediate appeal.

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