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. 

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

On October 04, 2016, the ALA, in conjunction with the Cook County Bar Association, will host a business development and networking program featuring Steve Fretzin, a business development and networking expert. Fretzin is the author of Sales-Free Selling: The Death of Sales and the Rise of a New Methodology and The Attorney’s Networking Handbook, and a contributing writer for the National Law Review and the Chicago Daily Law Bulletin.

Fretzin’s presentation will focus on the best strategies for attorneys to grow their practices, including the use of LinkedIn and the more traditional networking event. 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 credit.

The following day, October 5, 2016, the ALA, in conjunction with the Champaign County Bar Association, will host an Appellate Practice Seminar featuring the justices of the Illinois Appellate Court, Fourth District. Prior to the seminar, a luncheon honoring the justices will be held. The luncheon is open to seminar attendees, but requires an additional cost. The seminar will focus on such topics as preserving matters for appeal during post-judgment proceedings and feature a judicial panel of the Fourth District justices. Seminar attendees will also have the opportunity to ask questions.

The luncheon and seminar will take place at the University of Illinois College of Law. The luncheon begins at 12:30 p.m. and runs until 1:30 p.m. The seminar begins at 1:45 p.m. and concludes at 4:30 p.m. Attendees will receive 2.5 hours of MCLE credit.

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

By Katherine A. Grosh
Partner, Beermann Pritikin Mirabelli Swerdlove LLP
 
In Construction & General Laborers’Local Union No. 330 v. Town of Grand Chute, Wisconsin, No. 15-1932, 2016 WL 4410073 (7th Cir. Aug. 19, 2016), the Seventh Circuit Court of Appeals confronted a labor union’s First Amendment challenge to a town ordinance in Grand Chute, Wisconsin, which, as construed and applied, prohibited the display of giant inflatable rats and cats used by unions during wage disputes to the extent they were “staked to the ground on the public way.”  2016 WL 4410073, at *1. 

In the district court, the union had moved for a preliminary injunction, which the court denied, and then entered summary judgment for the defendant town. Id. The union appealed. Id. However, without resolving the merits of the appeal, the Seventh Circuit reversed and remanded for a determination as to whether the union’s claim was moot, since the union had not requested an award of damages. Id. at *1-2.

Whether the dispute was moot was an issue that neither the parties nor the district court had considered. Id. at *1. As the Seventh Circuit noted in its opinion, however, by the time the district court entered summary judgment, the construction project that led to the use of the demonstrative rats and cats had been completed and the union was no longer picketing. Id. Also complicating the mootness analysis was the fact that the language of the ordinance had changed between the district court’s denial of the union’s motion for preliminary injunction and the entry of summary judgment. Id. at *2.

As the Seventh Circuit put it, “[w]e cannot decide this suit on the merits without being confident that we have a justiciable controversy.” Id. at *2. A controversy is still considered “live” if it is capable of repetition. Id. at *1-2. For a case to remain live because it is capable of repetition, the Court clarified, “there must be ‘a reasonable expectation that the same complaining party would be subjected to the same action again.’ ” Id. at *1 (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). Despite counsel for the union’s statement at oral argument that a dispute “might crop up again” if the union decides to demonstrate against a future construction project, the Court found that the record failed to contain any information about this likelihood. 2016 WL 4410073, at *1. 

The Court further noted that, even if such a construction project in Grand Chute is built and a labor dispute arises, this particular suit may still be moot “if the controversy about that future project would not evade review.” Id. The Court continued, “Labor disputes are often short-term affairs, but many are long-lived,” and only the possibility of damages – which the union did not seek in this case – keeps a case alive when the project and resulting dispute have ended. Id.

Remanding for the district court to “take another look at it,” the Seventh Circuit explained: “If the Union persists in abjuring damages, the district court must determine whether the probability of a fresh dispute between this union and Grand Chute is high enough—and the risk that it would be over too quickly to allow judicial review also high enough—to satisfy the ‘capable of repetition yet evading review’ proviso to the mootness doctrine.” Id. at *2. The Court also instructed the district court to address the validity of the town’s current ordinances, rather than the version that was changed before the entry of summary judgment. Id.

Justice Posner authored both a concurrence and a dissent, observing that “[a]ppellate courts should try to make the first appeal in a case the last and order a remand only when the need for further proceedings at the trial level is imperative.” Id. at *4 (Posner, J., concurring and dissenting). In Justice Posner’s opinion, the balance of the evidence was “clear enough” to justify a decision that the union’s constitutional right of free speech was violated. Id.

Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s September Term that began Monday, September 12, 2016, with oral arguments scheduled for September 13, 14, and 15 and September 20, 21 and 22, 2016. A total of 21 cases will be heard – 11 civil and 10 criminal. Here are the civil cases with the dates of oral argument:

In re M.I., a Minor—No. 120232—September 14

 

Schweihs v. Chase Home Finance, LLC—No. 120041—September 15

 

Wardwell v. Union Pacific Railroad Co. —No. 120438—September 15

 

The Hertz Corp. v. City of Chicago—No. 119945, 119960—September 20

 

Bueker v. Madison County—No. 120024—September 20

 

Beggs v. Board of Education of Murphysboro Community Unit School District No. 186—No. 120236—September 21

 

Blanchard v. Berrios—No. 120315—September 21

 

Murphy-Hylton v. Lieberman Management Services, Inc. —No. 120394—September 21

 

Zahn v. North American Power & Gas, LLC—No. 120526—September 21

 

Village of Bartonville v. Lopez—No. 120643—September 22

 

Grimm v. Calica—No. 120105—September 22

 

Below are abbreviated summaries for two of these cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website.

TORTS – FEDERAL EMPLOYERS’ LIABILITY ACT

No. 120438

Christopher Wardwell v. Union Pacific Railroad Company

This petition raises the question of whether a defendant railroad may, under the Federal Employers’ Liability Act (“FELA”), offer evidence at trial that a third party was the sole cause of a plaintiff’s injury. Under FELA, a railroad employer is deemed fully liable for all of a plaintiff’s injuries if any of those injuries were sustained as a result of a defendant’s negligence, regardless of the comparative fault of other parties.

 

In the proceedings below, Plaintiff Christopher Wardwell, an employee of Defendant Union Pacific Railroad (“UPRR”), sustained injuries after being struck by a drunk driver while riding as a passenger in a vehicle operated by a UPRR-contracted driver. Plaintiff contended that because the driver of the vehicle – indisputably an agent of UPRR – acted negligently by failing to check the vehicle’s blind spots prior to the accident, UPRR should be held fully liable for his injuries, notwithstanding the actions of the drunk driver.

 

UPRR took the position at trial that the drunk driver’s actions were the sole cause of Plaintiff’s injuries such that no liability could be imposed on it under FELA. The jury agreed and returned a verdict in favor of UPRR. Plaintiff’s post-trial motion was denied and he appealed.

 

Reversing, two justices of the Fifth District Appellate Court concluded that because the jury was presented with some evidence that UPRR acted negligently, the jury verdict was in error. Specifically, the appellate court held that in a FELA action involving a railroad, evidence of a third party’s negligence is inadmissible where there is circumstantial evidence establishing that the railroad contributed to the injury.

 

ppellate Court Decision: 2016 IL App (5th) 140461. Goldenhersh, J., with Stewart, J., concurring and Moore, J., dissenting.

STATUTORY IMMUNITY – SNOW AND ICE REMOVAL ACT

No. 120394
Murphy-Hylton v. Lieberman Management Services, Inc.

This issue in this case concerns the scope of the immunity provided under the Snow and Ice Removal Act, 745 ILCS 75/1, et seq. (“the Act”). The Act immunizes property owners and maintenance companies from negligence claims arising out of personal injuries caused by the snowy or icy condition of a sidewalk.

On February 18, 2011, Plaintiff Pamela Murphy-Hylton (“Murphy-Hylton”) slipped and fell while walking on the sidewalk outside of her condominium in Carol Stream. Murphy-Hylton sued Lieberman Management Services, Inc. (“Lieberman”), the management company responsible for maintaining the common areas of the property, and Klein Creek Condominium (“Klein”), alleging that negligent landscaping design or maintenance created an unnatural accumulation of ice and snow which caused her injury. Murphy-Hylton did not allege that Lieberman or Klein negligently attempted to remove natural accumulations of snow and ice on the property. Lieberman and Klein moved for summary judgment arguing that, under the Act, they were entitled to immunity. The circuit court agreed and granted summary judgment for Lieberman and Klein.

The Illinois Appellate Court reversed. The court held that the Act protects property owners from allegations of negligence arising out of acts or omissions in actual snow removal efforts. However, the Act does not protect property owners from allegations of negligence arising out of negligent maintenance, defective design, or defective construction. In this case, Murphy-Hylton alleged that she was injured as a result of an unnatural accumulation of snow and ice and that Lieberman and Klein had notice of property defects which created the unnatural accumulation. Murphy-Hylton did not allege negligence in actual snow removal efforts. Therefore, the court concluded, the Act did not apply and Lieberman and Klein were not entitled to immunity.

Appellate Court Decision: 2015 IL App (1st) 142804. Connors, J. with Liu, P.J., and Cunningham, J., concurring.

By Kevin R. Malloy
Partner, Forde Law Offices LLP

In Federal Court, one cannot simply rely upon a district court granting an extended deadline in which to file a notice of appeal. You had better check and make sure the extension is within the time limit set forth in Federal Rule of Appellate Procedure 4(a)(3)(C). The Seventh Circuit’s decision in Hamer v. Neighborhood Housing Services of Chicago, No. 15-3764, 2016 WL 4536523 (7th Cir. Aug. 31, 2016), shows that the consequences of failing to do so can be fatal to your appeal.

In Hamer, the plaintiff, Charmaine Hamer, lost on summary judgment, and her original deadline in which to file a notice of appeal was October 14, 2015. On October 8, her counsel filed a “Motion to Withdraw and to Extend Deadline for Filing Notice of Appeal.” The district court granted the motion and extended the deadline by 61 days to December 14. Hamer filed her notice of appeal on December 11. Even though Hamer filed her notice of appeal three days earlier than the extended deadline ordered by the district court, the Seventh Circuit held that the notice was filed too late and dismissed the appeal. Id. at *2.

Timeliness was not raised until the Seventh Circuit sua sponte asked for briefing on the issue. The appellees argued the notice was untimely under Federal Rule of Appellate Procedure 4(a)(5)(C), which states: “No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” 

Hamer argued, however, that (1) the extension was proper under 28 U.S.C. § 2107(c), which provides that “[t]he district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause,” (2) the district court did not consider Rule 4(a)(5)(C) when it granted the extension and therefore it did not apply; and (3) the appellees waived their timeliness challenge by not initially challenging it. Hamer, 2016 WL 4536523 at *1.

In rejecting Hamer’s arguments and holding her notice of appeal was untimely, the Seventh Circuit cited the Supreme Court’s holding in Bowles v. Russell, 551 U.S. 205 (2007), wherein it held that the statutory requirement for filing a timely notice of appeal is “mandatory and jurisdictional” and explained the relationship between the 30-day statutory filing period set out in § 2107(a) and the district court’s authority to extend that period under § 2107(c) and Federal Rule of Appellate Procedure 4. Hamer, 2016 WL 4536523 at *1. 

In Bowles, the Supreme Court explained that Rule 4 “carries § 2107 into practice,” and in particular, Rule 4(a)(6), which concerns the district court’s authority to reopen and extend the time for filing after the lapse of the usual 30 days, is limited by § 2017(c). Id. (quoting Bowles, 551 U.S. at 208, 213). Since “Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple ‘claim-processing rule,’” and an “when an ‘appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.’” (Emphasis in original, internal citation omitted.) Id. (quoting Bowles, 551 U.S. at 213).

Using the Bowles analysis, the Seventh Circuit stated “[l]ike Rule 4(a)(6), Rule 4(a)(5)(C) is the vehicle by which § 2107(c) is employed and it limits the district court’s authority to extend the notice of appeal filing deadline to no more than an additional 30 days.” Hamer,2016 WL 4536523 at *2. Thus, the district court was in error in granting “an extension that exceeded the Rule 4(a)(5)(C) time period by almost 30 days.” Id. 

The Seventh Circuit acknowledged that Hamer relied upon the district court’s order in thinking she had until December 14, 2015, to file her notice of appeal, but nevertheless noted that it “simply has no authority to excuse the late filing or to create an equitable exception to jurisdictional requirements.” Id.

Finally, the court of appeals rejected Hamer’s waiver argument, since the filing error was one of “jurisdictional magnitude,” and thus could not be waived or forfeited. Id.

Certainly, the equities of this situation favored Hamer. Her former counsel moved for an extension beyond the jurisdictional time limit and the district court erroneously allowed the extension, without any objection from the other side. Hamer met that deadline, but she still was out of luck. Hamer shows that any extensions of a deadline for filing a notice of appeal should be double-checked against the statutory requirement, not just a court’s order.

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

On September 12, 2016, the ALA will host a luncheon featuring the clerks of the Illinois Appellate Court: 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.

At the luncheon, the clerks will provide practice pointers for attorneys as well as provide an update on e-filing in their district. The luncheon 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 credit.

For more information and to register, please click here.

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

The case of Brennan v. Travelers Home & MarineInsurance Company, 2016 IL App (1st) 152830, recently presented the appellate court with an interesting question: “What happens when, following the dismissal of a complaint with prejudice, the plaintiffs file a postjudgment motion titled ‘Motion to Reconsider,’ but seek as relief only permission to file an amended complaint?” Justice Neville, with Justices Hyman and Simon concurring, answered that question, holding that a motion for leave to file an amended complaint does not extend the time for filing a notice of appeal because the motion does not qualify as a motion directed against the judgment, regardless of its title.Id. ¶ 2. But that was not the most intriguing part of the opinion.

The facts of the case, which concern an automobile insurance dispute, are not particularly remarkable. What is more interesting is that, in reaching its decision, the reviewing court weighed in on an apparent—but previously unnoticed—conflict between a nearly half-century old Supreme Court case, Fultz v. Haugan, 49 Ill. 2d 131 (1971), and a much more recent appellate court case, Muirfield Village-Vernon Hills, LLC v. K. Reinke, Jr. & Co., 349 Ill. App. 3d 178 (2d Dist. 2004). Unsurprisingly, the court found it was compelled to follow the Supreme Court’s decision in Fultz and reach the holding described above.

In Fultz, the Supreme Court’s holding was straightforward. “A motion for leave to file an amended complaint is not … a motion ‘directed against the judgment,’ ” and therefore, the filing of such a motion does not toll the 30-day period for filing a notice of appeal under Supreme Court Rule 303. Fultz, 49 Ill. 2d at 136. However, in Muirfield Village, the Second District reasoned that because the plaintiff requested leave to amend following dismissal of his claim, which necessarily included a request to reinstate the case, the plaintiff was really seeking to modify or vacate the trial court’s judgment, and therefore, the motion was properly understood as one “directed against the verdict” for purposes of Rule 303. Muirfield Village, 349 Ill. App. 3d at 185.

Observing this difference, and the fact that Muirfield Village did not discuss Fultz, the court in Brennan found that the divide between the cases could not be bridged or otherwise explained. “Every time a plaintiff files a motion for leave to file an amended complaint after the circuit court has dismissed the complaint with prejudice, the plaintiff implicitly requests reinstatement of the case and modification of the dismissal order …. If the request for such relief makes the motion one ‘directed against the judgment,’ then every postjudgment motion for leave to file an amended complaint would count as a motion directed against the judgment.” 2016 IL App (1st) 152830, ¶ 12.

Given the vintage of Fultz and the now clear district split, this case may well be further appealed for purposes of clarification. Either way, practitioners would do well to follow Brennan (and Fultz) for now.

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.

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.
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[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)).