"The Brief" - The ALA Blog

  • April 12, 2019 9:32 AM | Anonymous member (Administrator)

    By Margaret Manetti
    Sosin, Arnold & Schoenbeck, Ltd.

    A complete appellate record is one of the most precious things an appellant can build for an appeal. Its primary importance was established again in People v. Burnett.
     

    In that case, the defendant appealed his conviction stemming from his arrest for unlawfully possessing a weapon. 2019 IL App (1st) 163018, ¶ 1. Three police officers spotted Burnett in a van with no front license plate. Id. ¶ 3. The officers approached the van, and noticed Burnett remove an “L” shaped object from his waistband and place it in the back of the van. Id. ¶ 4. The object turned out to be a semiautomatic handgun, and Burnett was arrested. Id. He did not have a FOID card or a concealed carry license. Id. ¶ 5. Burnett was later convicted, and he appealed. Id. ¶ 6.

    On appeal, Burnett argued that he was deprived of his constitutional right to effective assistance of counsel because his attorney should have moved to quash his arrest. Id. ¶ 7. He claimed that mere possession of a gun is no longer sufficient to establish probable cause to justify an arrest. Id. The First District acknowledged that the Illinois Supreme Court had determined in People v. Aguilar, 2013 IL 112116, that a statute was unconstitutional because it categorically criminalized the possession of a weapon outside the home. Id. ¶ 10.

    There was a problem, though: the record did not “contain sufficient information about the circumstances of defendant’s arrest from which we could determine whether he has an arguably meritorious claim.” Id. ¶ 11. The Court noted that because the case just went to trial, the State had no reason to factually demonstrate probable cause in the first place. Id. It specified that due to the insufficiency of the record about the arrest, “we have no way of knowing what the officers’ probable cause determination was based upon[.]” Id. ¶ 12.

    The Court forcefully rejected the defendant’s argument that holes in the record should go in his favor. It recognized that the defendant “attempts to spin the lack of testimony about probable cause into a conclusion that there was no probable cause.” Id. ¶ 14 (emphasis in original). This reasoning could not work, because the defendant was “drawing an affirmative conclusion from a negative premise. The lack of evidence currently in the record concerning probable cause and the officers’ pre-arrest beliefs cannot be equated with fact—that there was no evidence to support a probable cause determination.” Id. (emphasis in original).

    The Court concluded that it “would be imprudent for us to reach the question about the existence probable cause at this stage in the case because there is too much potential information to which we are not privy and because the issue was not visited by the circuit court.” Id. ¶ 16. “Because the record is insufficient, we must affirm.” Id.

    This case should serve as an important reminder to jealously guard the state of the trial court record for a potential appeal.


  • April 10, 2019 4:38 PM | Anonymous member (Administrator)

    On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.  


    A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.


    In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.


    The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.

    Date: Monday, May 13, 2019


    Time: 11:30 a.m. to 1:00 p.m. (Please note start time.)


    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.


    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.


    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.


    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303


    Register:


    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2. Mail your completed registration form along with a check payable to ALA to: 


    Chris Teed 
    Appellate Lawyers Association 
    1717 North Naper Boulevard, Suite 102 
    Naperville, Illinois 60563

  • March 29, 2019 11:48 AM | Anonymous member (Administrator)

    The Illinois Supreme Court Rules Committee adopted the Appellate Lawyers Association's proposed amendment to Illinois Supreme Court Rule 274 today. The amendment clarifies that a postjudgment motion is not due until the judgment order is both final and appealable.

    Rule 274 previously stated, in relevant part, "A party may make only one postjudgment motion directed at a judgment order that is otherwise final."

    The ALA proposed the following amendment to clarify exactly when a postjudgment motion must be filed: "A party may make only one postjudgment motion directed at a judgment order that is otherwise final and appealable. The motion must be filed either within 30 days of that judgment order or within the time allowed by any extensions."

    The amendment was submitted to the Rules Committee as Proposal 17-05. After consideration, the Rules Committee adopted the proposed amendment. The new amendment takes effect on July 1, 2019.

  • March 29, 2019 11:45 AM | Anonymous member (Administrator)

    The Appellate Lawyers Association and the Sangamon County Bar Association are co-sponsoring a Roundtable Luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. This event provides a unique opportunity to interact with the Justices and gain insight into the perspective of the other side of the bench.


    Date: Wednesday, April 10, 2019

    Time: Check-in for the luncheon will begin at 11:45 a.m. and lunch will be served promptly at 12:00 p.m.

    MCLE: Participants will earn one hour of MCLE credit for the luncheon. The ALA is an approved MCLE provider.

    Location: Sangamo Club, 227 E. Adams Street, Springfield, Illinois

    Cost: $25 for ALA or SCBA members; $40 for nonmembers. Lunch is included.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Information on how to register may be found after the jump.

    Questions? Call (630) 416-1166, ext. 303

    Register:

    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

    2. Mail your completed registration form along with a check payable to ALA to:
    Chris Teed
    Appellate Lawyers Association
    1717 North Naper Boulevard, Suite 102
    Naperville, Illinois 60563


    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • March 27, 2019 11:39 AM | Anonymous member (Administrator)

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

    The recent passing of our dear friend and colleague, Charlie Ingrassia, has been well documented in The Brief. As former editor and co-chair, “Charlie made The Brief a go-to resource for everyone who wants to learn more about recent developments in the appellate world.” John M. Fitzgerald, A Gentleman and a Scholar: Charlie Ingrassia (1979-2019), Feb. 18, 2019. Outside of his many contributions to the Appellate Lawyers Association, Charlie is also remembered as a “gifted writer and excellent strategist.” Austin Bartlett, Remembering Charlie Ingrassia, Feb. 18, 2019. It is fitting, then, that Charlie’s keen eye for jurisdictional issues would win the day in his final case. Our sincere thanks to Lawrence S. Gosewisch, a partner at Charlie’s law firm, for sharing his memories of Charlie’s prevailing argument in Elite Storage Sols., LLC v. Ratajczak, 2019 IL App (1st) 172346-U.

    “Charlie Ingrassia worked with me at Adler Murphy & McQuillen, LLP and he and Tim Parilla handled the Elite Storage case. We successfully moved to dismiss the case against our client and Charlie and Tim handled the appeal. Charlie’s years clerking for Justice Hutchinson in the Second District Appellate Court served him well and he always looked first at jurisdictional issues. When Charlie suggested we pursue a dismissal of the appeal on jurisdictional grounds, I was at first skeptical but as usual, I deferred to my appellate specialist. Charlie pursued the argument and the appeal was dismissed. This was a particularly rewarding result for Charlie, who was battling Stage IV cancer during the entire appellate process and during most of the trial court proceedings as well. The decision came down on February 15, 2019, the same day Charlie was scheduled for yet another surgery. We immediately emailed the decision to Charlie, who acknowledged the result, gave the credit to Tim, and said he was being rolled into surgery and would study the opinion later. Charlie passed away on February 17, 2019 without ever leaving the hospital. He loved being a lawyer and he was a great one. I am so glad Charlie knew that he prevailed for our client. It was very important to him. We miss him every day.”

    Lawrence S. Gosewisch, Adler Murphy & McQuillen, LLP.

    On the merits, Elite Storage involved the denial of an insurance claim due to an alleged lapse in coverage. The plaintiff entered into a contract with Precision Builders & Contractors, LLC (Precision), to provide equipment and services for a project in Elgin. As part of the contract, Precision agreed to procure an insurance policy naming the plaintiff as an additional insured. Precision procured the policy through Maciel Ratajczak and Mr. Insurance Agency (the Ratajczak defendants). The plaintiff was later named as a defendant in a separate lawsuit relating to an injury on the work site. After learning that its claim for insurance coverage was denied based on the alleged lapse in coverage, the plaintiff filed a complaint against Precision and the Ratajczak defendants for negligence and breach of contract.

    Charlie’s law firm represented the Ratajczak defendants, who moved to dismiss the plaintiff’s second amended complaint. Notably, Precision did not join the motion. On July 12, 2017, the trial court entered an order dismissing the second amended complaint “in its entirety and with prejudice.” There was no mention, however, of the order being final and appealable under Illinois Supreme Court Rule 304(a). On August 14, 2017, the plaintiff and the Ratajczak defendants filed a “joint and routine motion for entry of a final judgment.” The parties noted that the order of dismissal did not address Precision’s status as a named defendant. They requested the entry of an agreed order clarifying that the order of dismissal was a “final and appealable final judgment.” The agreed order was entered on August 22, 2017. On September 21, 2017, the plaintiff filed a notice of appeal from the order of dismissal.

    In the appellate court, the Ratajczak defendants argued that the order of dismissal, dated July 12, 2017, was the final order in the case, thus triggering the 30-day period in which the plaintiff was required to file either its postjudgment motion or its notice of appeal. The Ratajczak defendants argued that, because the plaintiff failed to take either action within 30 days, the appeal should be dismissed for a lack of jurisdiction.

    The appellate court agreed with the Ratajczak defendants for three reasons. First, although the order of dismissal did not address Precision’s status as a named defendant, there was no need for a Rule 304(a) finding. Ordinarily, when multiple defendants are named in an action, an order dismissing one of the defendants cannot be appealed absent an express finding under Rule 304(a) that there is no just reason to delay the appeal. However, before the plaintiff filed its second amended complaint, it brought a separate action against Precision seeking relief for the same issues. As a result, the second amended complaint made no claims and sought no relief of any kind against Precision. Because the Ratajczak defendants were the only parties against whom any relief was being sought, the trial court resolved the entire matter on the merits when it granted their motion to dismiss. Moreover, by dismissing the second amended complaint “with prejudice,” the trial court indicated that the plaintiff would not be allowed to amend its complaint to bring any future claims against any of the named defendants. Therefore, the order of dismissal was a final and appealable order.

    Second, there was no revestment of jurisdiction on August 14, 2017, when the Ratajczak defendants joined the motion for entry of a final judgment. For the revestment doctrine to apply, the parties must: (1) actively participate in the proceedings; (2) fail to object to the untimeliness of the late filing; and (3) assert positions that are inconsistent with the merits of the prior judgment. Although the first two requirements were met, the third was not. The Ratajczak defendants did not assert a position that was inconsistent with the merits of the dismissal order. To the contrary, by seeking reaffirmation that the second amended complaint was dismissed in its entirety, the Ratajczak defendants merely asserted a position that was consistent with the dismissal order.

    The third reason for the appellate court’s agreement with the Ratajczak defendants was the recognized principle that appellate jurisdiction cannot be conferred by laches, consent, waiver, or estoppel. Thus, by joining the motion for the entry of a final judgment, the Ratajczak defendants neither waived their jurisdictional argument nor were they equitably estopped from contesting appellate jurisdiction. For these reasons, the appellate court held that the agreed order on August 22, 2017, was entered more than 30 days after the final order, meaning that it was void and could not be appealed.

    Although Elite Storage was filed as an unpublished order under Rule 23, its lessons should not be lost on appellate practitioners. The case teaches the importance of identifying the finality of an order that dismisses a complaint “in its entirety and with prejudice.” It also demonstrates a rare exception to the Rule 304(a) requirement in cases involving multiple defendants. It should come as no surprise to anyone who knew Charlie that he would recognize these nuances and persuade the appellate court that jurisdiction was lacking.

    Well done, Charlie.
  • March 19, 2019 12:37 PM | Anonymous member (Administrator)

    On April 18, 2019, the Appellate Lawyers Association's annual Advanced Appellate Practice Seminar will feature six presentations by judges and experienced appellate practitioners. The seminar is geared toward seasoned appellate practitioners but will be of great benefit to anyone looking to improve his or her appellate skills. Presentations include:

    • Judicial Perspectives
      • Justices Nathaniel R. Howse, Jr., and Michael B. Hyman, Illinois Appellate Court, First District
      • Justice Mary K. O'Brien, Illinois Appellate Court, Third District
      • Justice Richard P. Goldenhersh (Ret.), Illinois Appellate Court, Fifth District
    • Standards of Review
      • Hugh C. Griffin of Hall Prangel and Schoonveld LLC
    • Appellate Ethics
      • Steven F. Pflaum of Neil, Gerber & Eisenberg LLP
    • Memory Techniques for Appellate Presentations
      • Professor Patrick G. Gould of the Appalachian School of Law
    • Amicus Filings
      • Michael A. Scodro of Mayer Brown LLP
    • Electronic Filing Update
      • Tina M. Schillaci, Chief Deputy Clerk of the Illinois Appellate Court, First District

    Moderated by ALA Vice-President Gretchen Harris Sperry, Hinshaw & Culbertson LLP. Additional details, including registration information, may be found after the jump.

    Date: Thursday, April 18, 2019

    Time: 1:00 p.m. to 5:00 p.m.

    MCLE: Participants will earn 3.75 hours of MCLE credit, including 0.75 hours of professional responsibility credit. The ALA is an approved MCLE provider.

    Location: Mayer Brown LLP, 71 South Wacker Drive, Chicago, Illinois

    Cost: $35 for public-sector ALA members; $50 for private-sector ALA members; $50 for public-sector nonmembers; and $75 for private-sector nonmembers.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

    Questions? Call (630) 416-1166, ext. 303

    Register:

    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the registration process.

    2. Mail your completed registration form along with a check payable to ALA to:

    Chris Teed
    Appellate Lawyers Association
    1717 North Naper Boulevard, Suite 102
    Naperville, IL 60563

    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • March 18, 2019 12:47 PM | Anonymous member (Administrator)

    In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois and the Northern District of Illinois Court Historical Association present, "Rivers of Commerce: The Illinois Federal Courts as Umpires of Antebellum Union," a talk by Professor Alison LaCroix about the role of the Illinois federal courts in the debates over the scope of federal power in the early nineteenth century.

    When: Tuesday, April 9, 2019, 4 p.m. to 5 p.m.

    Where: U.S. District Court Northern District of Illinois, Dirksen U.S. Courthouse, Court History Museum, 21st Floor, 219 South Dearborn Street, Chicago, Illinois.

    RSVP: ilnd_rsvp@ilnd.uscourts.gov

    More details and full flyer available at: https://www.ilnd.uscourts.gov/_assets/_news/LaCroix.pdf

  • March 15, 2019 12:56 PM | Anonymous member (Administrator)

    This luncheon provides an opportunity to speak with the Justices of the Second District, the Court’s Research Director, and the Clerk of the Court in an informal setting. The Justices, Research Director, and the Clerk will discuss cases or issues of interest they have encountered during the preceding year. Numbers permitting, the ALA will seat at least one Justice or Court official at each table. Attendees may ask questions and discuss appellate practice with the Justices and thus gain the perspective of the other side of the bench.

    Date: Tuesday, April 2, 2019

    Time: 12:00 to 1:30 p.m. (check-in begins at 11:45 a.m. with lunch promptly at noon)

    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.

    Location: Centre of Elgin, Heritage Ballroom, 100 Symphony Way, Elgin, Illinois.

    Cost: $40 for public-sector ALA members; $45 for private-sector ALA members; $50 for public-sector nonmembers; and $55 for private-sector nonmembers. Lunch is included.

    Registration information may be found after the jump.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

    Questions? Call (630) 416-1166, ext. 303

    Register:

    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.

    2. Mail your completed registration form along with a check payable to ALA to:

    Chris Teed
    Appellate Lawyers Association
    1717 North Naper Boulevard, Suite 102
    Naperville, Illinois 60563

    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

  • March 14, 2019 11:34 AM | Anonymous member (Administrator)

    By  Katherine A. Grosh 
    Levin Ginsburg

    This is exactly the question answered by the United States Supreme Court in Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo, 586 U.S. ___ (2019) (Feb. 25, 2019).


    This case involved the en banc review of an April 9, 2018 decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in an interlocutory appeal involving the Equal Pay Act, in which the Ninth Circuit reversed the district court based on a prior Ninth Circuit deci­sion involving the Equal Pay Act, Kouba v. Allstate Ins. Co., 691 F.2d 873 (1982) (“Kouba”), which the panel “believed it was compelled to follow.” 586 U.S. at ___, citing 887 F. 3d 453, 459 (2018) (en banc). The Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.” Id.

    Because a panel decision like Kouba can be overruled only by a decision of the en banc court or the United States Supreme Court, a purpose of the April 9, 2018 en banc decision was to announce new and binding Ninth Circuit precedent interpreting the Equal Pay Act. Judge Reinhardt, who died 11 days after the decision was issued, was the author of the Ninth Circuit opinion – but its status as a “majority opinion” of the en banc court depended on counting Judge Reinhardt’s vote; without his vote, the opinion would have been approved by only 5 of the 10 members of the panel who were still living when the decision was filed.

    The Supreme Court ruled that Judge Reinhardt was no longer a judge at the time the en banc decision in this case was filed, and therefore, the Ninth Circuit erred in counting him as a member of “the majority.” Counting his vote, the Court reasoned, effectively allowed a deceased judge to exercise the judicial power of the United States after his death. “[F]ederal judges are appointed for life, not for eternity.” Even though Judge Reinhardt fully participated in this case and authored the opinion, which (along with all concurrences) was final with voting completed by the en banc court prior to his death, the Supreme Court found that the opinion was not endorsed by a majority of the living judges at the time the opinion was “filed,” entered on the docket, and released to the public.

    In support of its decision, the Supreme Court relied on the rule it endorsed in United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960), that “a judge may change his or her position up to the very mo­ment when a decision is released,” along with 28 U. S. C. §46(c), the statutory provision authorizing the courts of appeals to hear cases en banc. In the Court’s view, Judge Reinhardt was without statutory or judicial power to participate in the en banc court’s decision at the time it was rendered. Accordingly, the Court granted the petition for certiorari, and vacated the Ninth Circuit’s judgment and remanded the case.

  • March 13, 2019 11:31 AM | Anonymous member (Administrator)

    This luncheon provides an opportunity to converse with the Justices of the First District in an informal setting. Numbers permitting, the ALA will seat at least one Justice at each luncheon table. Attendees may ask questions and discuss appellate practice with the Justices and thus gain the perspective of the other side of the bench.


    Additionally, Justice Terrence J. Lavin will provide remarks about oral arguments in the First District.


    Date: Tuesday, March 19, 2019

    Time: 12:00 to 1:30 p.m.

    MCLE: Participants will earn one hour of MCLE credit. The ALA is an approved MCLE provider.


    Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Please note the Union League Club enforces a dress code, which can be accessed here.


    Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers. Lunch is included.


    Information on how to register for the event may be found after the jump.

    PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.


    Questions? Call (630) 416-1166, ext. 303

    Register:
    1. Use our online registration system here to register for the event and also pay with a credit card. Or, if you prefer, you can register online but send a check for payment. Please note, credit card payments can only be accepted through the online registration process.


    2. Mail your completed registration form along with a check payable to ALA to:


    Chris Teed
    Appellate Lawyers Association
    1717 North Naper Boulevard, Suite 102
    Naperville, Illinois 60563


    Cancellations/Refunds: Cancellations must be received two business days prior to the event in order to receive a full refund. No refunds will be processed after this time. Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418. Additionally, payment is expected from no-shows.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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