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.
---------------------------
[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)).

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. 

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.