"The Brief" - The ALA Blog

  • January 26, 2015 2:03 PM | Anonymous member (Administrator)

    On January 15, 2015, the Association hosted its annual "2014 Criminal Law Supreme Court Year in Review" seminar at the offices of Hinshaw & Culbertson in Chicago. The program featured a lively panel discussion on important criminal law decisions issued by the Illinois Supreme Court during 2014. Justice Daniel L. Schmidt of the Illinois Appellate Court, Third District; retired Justice Warren D. Wolfson of the Illinois Appellate Court, First District;  Leah M. Bendik, Assistant Attorney General; and James E. Chadd, Deputy Illinois Appellate Defender participated in the panel. ALA Vice President Michael A. Scodro of Jenner & Block LLP served as moderator. Each panel member shared her or his unique insight into a substantive area of criminal law and procedure, paying particular attention to recent cases from the state's high court.   


    Justice Schmidt opened the discussion with a moving tribute to the late Justice Patrick J. Quinn of the Illinois Appellate Court, First District. Referring to him as one of the "best and brightest," Justice Schmidt noted that Justice Quinn, a regular participant in this seminar, had a storied career as a prosecutor and a jurist. Thereafter, Justice Schmidt focused his comments on searches and seizures under the fourth amendment. Justice Schmidt voiced his disagreement with the supreme court's holding in People v. Cummings, 2014 IL 115769, a case in which the court suppressed evidence after holding that an otherwisie valid traffic stop should not have been prolonged after the initial reasons for the stop had evaporated. Deputy Defender Chadd cordially disagreed with Justice Schmidt, commenting that Cummings was a "sensible and practical" decision.   


    Justice Wolfson discussed the confrontation clause, quipping that the sixth amendment "has become his favorite amendment" because the United States Supreme Court had issued three opinions on this topic in the past five years. Justice Wolfson traced the evolution of the confrontation clause from Crawford v. Washington541 U.S. 36 (2004), to its application with respect to forensic evidence at issue in Williams v. Illinois, 132 S. Ct. 2221 (2012). Justice Wolfson advised attendees to watch out for Ohio v. Clark, No. 13-1352, (cert. granted, Oct. 2, 2014), where the United States Supreme Court is expected to discuss the meaning of "targeted individuals."

    Assistant Attorney General Bendik discussed searches incident to arrests, noting that such searches have two components: the person being arrested and the area within the person's control. Bendik emphasized that criminal attendees should pay attention to which type of search incident to arrest was at issue. Bendik also discussed the aftermath of People v. Aguilar, 2013 IL 112116, where the Illinois Supreme Court held that a state statute banning the carrying of ready-to-use guns was unconstitutional under the second amendment. 

    Deputy Defender Chadd focused his comments on postconviction petitions, including the appropriate standard for a successive postconviction petition involving the cause-and-prejudice test as discussed in People v. Smith, 2014 IL 115946. Chadd also discussed other noteworthy cases in the postconviction context, including People v. Hommerson, 2014 IL 115638, where the supreme court held that the failure to attach a statutorily mandated affidavit was a procedural defect that did not warrant dismissal at the first stage of the proceedings.

    The ALA thanks the panel members for their insightful remarks and Hinshaw & Culbertson for hosting the program.  


  • January 22, 2015 2:16 PM | Anonymous member (Administrator)

    The following article first appeared in "Circuit Rider," the official publication of the 7th Circuit Bar Association. Brian J. Paul authored the article and has kindly allowed us to republish his article.


    MAKING ORAL ARGUMENT PRODUCTIVE: JUDGES’ EDITION

    Lawyers are taught early on what judges expect of them at oral argument. Much has been written on this topic. Know the record backwards and forwards, and stay within it. Answer the question asked, not the question you wish had been asked. Be civil to opposing counsel, and be respectful to the court. These are some of the basics.
    But just as judges have certain expectations of the lawyers who will argue a case, lawyers have certain expectations of the judges who will conduct the argument.  Much less has been written on this topic. So allow this lawyer to make a few suggestions along those lines. 
    1. Be active. I know that some cases are yawners, but we can’t address your concerns if you don’t tell us what they are. If you don’t have concerns, then maybe you have a question about the facts, or perhaps you need clarification on a point of law. Whatever it is, please ask us. Allowing us to give an uninterrupted speech probably doesn’t help you, and it doesn’t really help us either. We genuinely want to make the case easier to decide. 
    2. Presume good faith. We lawyers sometimes say things in argument that may not ring true, but in my experience most lawyers don’t lie. We may have convinced ourselves of own nonsense, and you’re right to call us on it. But resist the urge to think that we’re trying to pull the wool over your eyes, because we’re probably not. We’re more likely just trying to do the best we can with what we’ve got, even if our efforts may appear misguided. We are confined by the record, and as a result sometimes we feel compelled to try to force a square peg into a round hole. 
    3. Allow us to answer the question until we actually don’t. I have heard some arguments in which a judge asks a question, and just a few words into the answer the judge accuses the lawyer of being evasive. Lawyers should immediately answer the question asked, and as directly as possible. Most lawyers try to do that. But sometimes we think we’re answering the question when we aren’t, perhaps because we’ve misunderstood. So before cutting us off in exasperation, on the assumption we’re being less than forthcoming, consider asking the question a different way; give us a second chance. 
    4. Accept that we’ve answered your question even if you don’t like our answer.  We all know judges occasionally try to make a point with their colleagues through their questions. We also know judges often come to oral argument predisposed to decide one way or another. That’s only natural if you’ve already read the briefs, and that’s fine. But if we give you an answer that doesn’t advance your point or confirm your initial views, and if it doesn’t appear you can shake us from our answer, consider moving on. Oral arguments, like cross-examinations, get bogged down if the questioner isn’t willing to recognize that some answers just aren’t going to change. 
    5. Warn us ahead of time if you think we’ve missed something critical, or if, in a case involving several issues, there are only one or two that really interest you. It goes without saying that we should be well prepared to handle questions on all topics related to our case. But sometimes everyone involved will have missed a fundamental issue. Subject matter jurisdiction comes to mind; there have been some cases in recent years where the plaintiff and the defendant both have just flat missed the boat on jurisdiction. If you think we’ve all blown it, or if you believe a particular issue requires more attention than others, consider giving us a heads up before oral argument—maybe a notice of some sort. “Be prepared to address X” is all the notice needs to say. That way we know to be particularly prepared to discuss X, and, in turn, you’re more likely to benefit when you question us about X. 
    6. Try to remain even-tempered even when things have gone south. I can only imagine how frustrating oral argument is at times for appellate judges. You want help deciding cases, and sometimes, for one reason or another, we fail to give you that help. It probably happens more often than we lawyers would care to admit.  But berating an attorney in open court for the faults of his presentation (or worse, because he’s got a bad case) isn’t likely to help matters. Nor will disengaging. Instead, consider firmly but calmly pointing out the problem, and then switching topics. Maybe the lawyer is woefully unprepared to address issue 1 but fully prepared to address issue 2. Through measured persistence, you may find the argument can be salvaged after all. 
    7. Recognize that hypotheticals can get rather far afield. This generally isn’t a problem unless you’re using the hypothetical to determine whether a lawyer will admit defeat on a particular point. Remember that our responses to hypothetical questions go only so far; they may help you with your analysis, but they generally do not decide the case.
    8. Bear in mind that our clients are watching. No matter how badly someone may want to win, litigants usually can accept defeat if they genuinely think they’ve gotten a fair shake. Not only is it important to be evenhanded, then, it is important to display evenhandedness. After all, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954). This may require, for example, asking tough questions of both sides even if you think one side or the other should clearly win. It is also helpful to demonstrate that you have a solid understanding of the case. This will go a long way to convincing the parties that you’ve given thoughtful consideration to their arguments. 
    It has been said that a good oral argument isn’t so much an argument but a conversation. That’s true, and when both sides thoughtfully engage in that conversation, oral argument is at its most productive. This article has offered some suggestions for judges on how to foster a truly productive conversation. Next time, I’ll focus on some suggestions in the same vein for lawyers.


  • January 19, 2015 8:35 AM | Anonymous member (Administrator)

    In People v. Denson, 2014 IL 116231, the Illinois Supreme Court held that a criminal defendant properly preserved an issue for appellate review where the State filed a motion in limine to admit co-conspirator statements, the defendant filed a response, and the trial court granted the motion after a full hearing. Forfeiture did not apply even though the defendant did not file his own motion in limine or make a contemporaneous objection at trial. The high court's opinion clarified that a defendant is not required to bring his or her own motion in limine so long as the evidentiary issue is litigated in limine, and further, a contemporaneous trial objection following the denial of a motion in limine is required in civil cases but not criminal cases. 


    In Denson, a jury convicted the defendant of first-degree murder,  armed robbery, and home invasion. Prior to trial, the State filed a six-page motion in limine to admit certain hearsay statements made by the defendant's co-conspirators. The trial court conducted a hearing on the motion and afforded both sides an opportunity to present arguments. The trial court granted the State's motion.

    On appeal, the defendant argued that the trial court erred in granting the motion. The Appellate Court held that the defendant had forfeited this contention because he (1) did not file his own motion in limine to exclude the statements, and (2) did not raise a contemporaneous objection when the statements were admitted at trial. The reviewing court further held that, with one harmless exception, all of the statements were properly admitted. 

    The Supreme Court rejected the Appellate Court's forfeiture holding. The court first noted that, with respect to motions in limine, a criminal defendant preserves an issue for review by raising an objection in either a motion in limine or through a contemporaneous trial objection, and including the objection in a posttrial motion. The Supreme Court rejected the Appellate Court's conclusion that a criminal defendant must raise the objection in his own motion in limine, as opposed to raising it in response to the State's motion in limine. The Supreme Court concluded that the Appellate Court's emphasis on which party filed the motion in limine, as opposed to an objection being raised in a motion in limine regardless of the filing party, elevated form over substance. The purpose of forfeiture rules is to encourage defendants to raise an issue at trial to ensure both that the trial court had an opportunity to correct any errors before an appeal is taken and that a defendant does not obtain a reversal through his or her own inaction. The court noted that, regardless of which party initiated the motion in limine, the interests served were exactly the same. 

    Regarding a contemporaneous objection at trial, the Supreme Court emphasized that it has consistently held that, to preserve an issue for review, a criminal defendant must raise the objection in either a motion in limine or object at trial, and raise the objection in a posttrial motion. The Supreme Court noted that the Appellate Court correctly concluded that, "in other cases," the denial of a motion in limine was not enough to preserve an issue for review and that a contemporaneous objection at trial was necessary. However, the Appellate Court "went astray" in failing to recognize that those were civil cases and that "the forfeiture rules for civil and criminal cases are different."

    After concluding that the defendant properly preserved the issue for review, the Supreme Court affirmed his conviction. 

    Recommended Citation: Charlie Ingrassia, Supreme Court Clarifies Distinction Between Motions In Limine and Forfeiture in Criminal Cases Compared to Civil Cases, The Brief, (January 19, 2015), http://applawyers-thebrief.blogspot.com/2015/01/supreme-court-clarifies-distinction.html#more.


  • January 15, 2015 5:19 PM | Anonymous member (Administrator)

    The Association reminds the appellate bar that the public comment period for proposed amendments to the Federal Rules of Appellate Procedure closes on February 17, 2015. The proposed amendments include changes to rules governing tolling motions (Rule 4); length limits pertaining to appeals by permission (Rule 5); motions (Rule 27); cross-appeals (Rue 28.1); and petitions for panel rehearing (Rule 40); amicus curiae briefs (Rule 29); and computing and extending time (Rule 26); along with other proposals. 


    Please click here for a complete list of proposed amendments and for information on how to submit a public comment. 


  • January 11, 2015 6:08 PM | Anonymous member (Administrator)

    The Association recently updated Cases Pending, a resource that provides ALA members with up-to-date information on matters pending before the Illinois Supreme Court. The updated edition provides disposition information on decisions from the state's high court through December 18, 2014, and also highlights a number of important cases scheduled for oral argument during the court's January 2015 term. 


    To read an excerpt from Cases Pending discussing two cases set to be heard during the court's January term, please continue reading this post. Complete access to Cases Pending 

    is complimentary with ALA membership.

    INSURANCE – DUTY TO PROCURE INSURANCE

    No. 117021
    Skaperdas et al. v. Country Casualty Ins. Co.

    The issue in this appeal is whether insurance agents owe a duty of ordinary care  to their insureds under section 2-2201 of the Code of Civil Procedure (“Code”) (735 ILCS 5/2-2201 (West 2010)).

    Plaintiff Steven Skaperdas purchased an auto insurance policy from Country Casualty Insurance Co. (“Country Casualty”).  Plaintiff asked his insurance agent, Defendant Tom Lessaris, to add his girlfriend and her son to the policy, but Defendant failed to do so.  When Plaintiff later made a claim following an accident involving his girlfriend’s son, Country Casualty denied it.  Plaintiff then sued Defendant for negligence for failing to add his girlfriend and her son to his policy.  The circuit court dismissed the claim, reasoning that because Defendant was an insurance agent, rather than a broker, he did not owe Plaintiff a duty of care in procuring insurance. 


    The Illinois Appellate Court, Fourth District, reversed.  It recognized that under common law, an insurance agent owed a duty to the insurer by which it was employed, and an insurance broker owed a duty directly to an insured.  However, since the enactment of section 2-2201 of the Code, that distinction no longer existed. Section 2-2201(a) states that an “insurance producer” shall exercise ordinary care and skill in procuring insurance.  Although section 2-2201 does not define “insurance producer,” section 500-10 of the Illinois Insurance Code (215 ILCS 5/500-10 (West 2010)) defines the term as “a person required to be licensed *** to sell, solicit, or negotiate insurance.”  Reading those statutes together, the court concluded that both agents and brokers were “insurance producers” and both owed a duty of ordinary care to the insured.  Its holding was further supported by section 2-2201(b), which removed the common law basis for distinguishing between brokers and agents by barring any claims for breach of fiduciary duty against any insurance producers. 

    In his petition for leave to appeal, Defendant argues that Illinois cases and other legal authorities have continued to honor the agent-broker dichotomy subsequent to the enactment of section 2-2201.  He also argues that the legislative history of section 2-2201 demonstrates that it was intended to insulate brokers from liability for breach of fiduciary duty, but did not intend to create a new duty for agents. 


    Appellate Court Decision:  2013 IL App (4th) 120986, 996 N.E.2d 1071.  Steigmann, J., with Appleton and Pope, J.J., concurring.

    PLA Allowed:  01/29/14

    Oral Argument:  01/13/15

    * * * * * *

    PROCEDURE – RULE 224 DISCOVERY

    No. 118000

    Hadley v. Subscriber Doe


    This case raises several issues concerning the proper procedures for seeking the identity of unknown persons, here, an Internet subscriber who posted alleged defamatory matter about the plaintiff during his political campaign.

    The circuit court found that Plaintiff had adequately pled defamation per se and granted Plaintiff relief under Rule 224, ordering disclosure of the identity of Subscriber Doe.  The court also made a Rule 304(a) finding with respect to its ruling granting Rule 224 relief.

    The appellate court affirmed both with respect to how Plaintiff invoked Rule 224 and the sufficiency of Plaintiff’s defamation per se allegations.  The court found that it had jurisdiction to hear the appeal because Rule 224 orders are considered final for purposes of appeal, but because the defamation claim remained pending, a Rule 304(a) finding was necessary.  

    The dissent disagreed, contending lack of jurisdiction because:  (1) the appealed-from order did not result from a Rule 224 proceeding and, thus, could not be appealed under Rule 301 as an independent action; and (2) the appealed-from order is an ordinary discovery order that is not final or amenable to appeal pursuant to Rule 304(a). 

    The petitioner argues that the appellate court decision brings confusion to the requirements of a Rule 224 proceeding and violates the Illinois Supreme Court’s decision in Bogseth v. Emanuel, 166 Ill. 2d 507 (1995), that makes any suit filed against a defendant “whose legal name is unknown” a nullity.  The petitioner further argues that the decision conflicts with Guava LLC v. Comcast Cable Communications, LLC, 2014 IL App (5th) 130091, on the issue of whether the identity of someone associated with a given I.P. Address is a proper subject for a Rule 224 petition when an I.P. Address is frequently a shared portal to the Internet.  Lastly, the petitioner argues that the circuit and appellate courts erred in sanctioning the use of extra-judicially acquired information to supplement the complaint’s defamation allegations to reject application of the innocent construction rule and First Amendment protections of speech.

    Appellate Court Decision:  2014 IL App (2d) 130489, 12 N.E.3d 75.  Jorgensen, J. with Zenoff, J., concurring.  Birkett, J., dissenting.

    PLA Allowed:  09/24/14

    Oral Argument:  01/22/15




  • January 08, 2015 3:38 PM | Anonymous member (Administrator)

    The Association begins 2015 with events in January featuring Illinois Appellate Court Justices and seasoned appellate practitioners offering their unique insight on important Illinois Supreme Court decisions issued in 2014. The events are part of the ALA's brown-bag luncheon series, which ALA members can attend for free, and will cover both criminal and civil cases. 


    On January 15, 2015, the Association will host the "Illinois Supreme Court Criminal Law Update" at the offices of Hinshaw & Culbertson in Chicago. The event will feature a panel consisting of Justice Daniel L. Schmidt, Illinois Appellate Court, Third District; retired Justice Warren D. Wolfson, Illinois Appellate Court, First District; Leah M. Bendik, Assistant Attorney General; and James E. Chadd, Deputy Illinois Appellate Defender. ALA Vice President Michael A. Scodro of Jenner & Block LLP will moderate the panel discussion. 

    On January 29, 2015, the Association, along with the DuPage County Bar Association, will present the "Illinois Supreme Court 2014 Civil Litigation Year in Review" at the DuPage County Judicial Center in Wheaton. The program will feature Illinois Appellate Court Justice Ann B. Jorgensen, together with ALA past presidents J. Timothy Eaton and Michael T. Reagan, presenting a panel discussion on the significant civil litigation cases decided by the Illinois Supreme Court in 2014. The discussion will also include an overview of Illinois Supreme Court Rule changes from 2014. 

    For more information and to register, please click here


  • 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.


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