By: Carson Griffis

When it comes to appellate jurisdiction, labels may not tell the whole story. That is the lesson from the Illinois Appellate Court’s recent decision in Gateway Auto, Inc. v. Commercial Pallet, Inc., 2023 IL App (1st) 230185, which held that, although an order was characterized as “final and appealable” by the circuit court, it was not immediately appealable under Illinois Supreme Court Rule 304(a).

The plaintiff, Gateway Auto, Inc., leased a building in Chicago from Les Hagan. The building next door was owned by 1300-08 W. Randolph, LLC (“Randolph”), which began negotiating with Hagan about purchasing the building that Gateway was renting. Gateway filed suit, eventually amending its complaint to assert a single claim of tortious interference with prospective business relations against Hagan, Randolph, and one of Randolph’s agents. While Gateway’s action was pending, it was evicted from the building. Hagan and Randolph then filed counterclaims against Gateway for its failure to pay rent and removal of fixtures from the building prior to its eviction. Randolph also filed a motion to dismiss Gateway’s claim against it, which the circuit court granted, disposing of the only claim against Randolph with prejudice. Gateway filed a motion to reconsider the grant of Randolph’s motion to dismiss, which the circuit court denied, adding, “This is a final and appealable order.” Gateway then filed a notice of appeal from the orders granting Randolph’s motion to dismiss and denying its motion to reconsider.

Randolph argued that the appellate court lacked jurisdiction because the counterclaims remained pending, so there was no final judgment disposing of all claims against all parties. In response, Gateway argued that the court had jurisdiction under Rule 304(a), which allows for appeals from “a final judgment as to one or more but fewer than all of the parties,” because the grant of Randolph’s motion to dismiss finally disposed of all claims against Randolph. Ill. Sup. Ct. R. 304(a). And, Randolph argued, the circuit court’s statement that its order was “final and appealable” satisfied Rule 304(a)’s requirement that the circuit court make “an express written finding that there is no just reason for delaying either enforcement or appeal or both.” Id.

The appellate court dismissed Gateway’s appeal for lack of jurisdiction. The court recognized that the order granting Randolph’s motion to dismiss was final because it disposed of the only claim against Randolph. But, the court explained, that order was not appealable under Illinois Supreme Court Rule 301 because the counterclaims remained pending in the circuit court. And although the circuit court’s order denying the motion to reconsider said that it was “final and appealable,” it did not refer to immediate appealability, the justness of delaying an appeal, or Rule 304(a) itself. Accordingly, the circuit court’s statement did not satisfy Rule 304(a)’s express written finding requirement.

In reaching that conclusion, the appellate court agreed with the reasoning of Palmolive Tower Condominiums v. Simon, 409 Ill. App. 3d 539 (1st Dist. 2011), which also held that a finding that an order was “final and appealable” was insufficient to invoke Rule 304(a). And the court declined to follow Com-Co Insurance Agency v. Service Insurance Agency, 321 Ill. App. 3d 816 (1st Dist. 2001), which held that a statement that an order was “final and appealable” implicitly recognized that an immediate appeal was proper under Rule 304(a).

Gateway Auto is a reminder that a lack of clarity can be the difference between the existence and absence of appellate jurisdiction. Requesting and drafting circuit court orders that strictly follow the language and requirements of the Illinois Supreme Court Rules is thus critically important.

Carson is counsel in the Litigation & Investigations group at Croke Fairchild Duarte & Beres, where his practice focuses on complex commercial litigation in both trial and appellate courts.

Justice James R. Moore of the Fifth District Appellate Court in Marion, Illinois is seeking an Appellate Court Law Clerk/Administrative Assistant. Approximately 80% of the work will be as a law clerk, and approximately 20% of the work will be performing administrative tasks. The salary for this position is $91,761.

To qualify for this position, the applicant must have graduated from a law school accredited by the American Bar Association and passed the Illinois Bar Exam or its equivalent. A minimum of one year of appellate practice experience as an appellate court clerk or attorney at a private firm or government office is preferred, but will consider all applicants with an excellent academic record. 

This position requires the ability to sit or stand for extended periods of time in a professional office working environment requiring telephone usage and the ability to process written documents.

Interested individuals should submit a letter of interest, resume, professional writing sample, a transcript, official or unofficial, of law school grades, and two (2) references to Megan Orso at: morso@illinoiscourts.gov.

This position will remain open until filled. However, those individuals submitting materials by October 20, 2023, will be given first consideration.

Justice William E. Holdridge of the Illinois Appellate Court, Third District, is seeking a Judicial Law Clerk/Administrative Assistant for an opening in his chambers in Peoria, Illinois. This is a remote position with in-chambers presence as needed. Illinois residency is required or willingness to obtain upon job offer. The salary for this position is $91,761 per year. 

ESSENTIAL DUTIES:  The Judicial Law Clerk/Administrative Assistant will conduct legal research and draft memoranda, orders, and opinions for the Justice. Duties also include reviewing and editing the work of fellow clerks and administrative duties.

EDUCATION AND EXPERIENCE:  Graduation from an ABA-accredited law school and licensed to practice law. Law review/journal experience and prior experience as a judicial law clerk and/or appellate lawyer is strongly preferred. Applicants with an outstanding academic record in core courses and superior research, analytical, and writing skills preferred.

PHYSICAL REQUIREMENTS:  This position requires the ability to sit for extended periods of time. This is a professional office working environment requiring telephone usage and the ability to process and read large volumes of written documents in electronic formats.

To apply, submit a cover letter, resume, one writing sample, law school transcript, and two references to holdridgeoffice@illinoiscourts.gov.  The position will remain open until filled.

The Child Protection Division of the Cook County Circuit Court is looking for attorneys to represent indigent parties at both the trial and appellate level. There are two panels - one for trial work and one for appellate work. You can be on one or both. The fees are $112.50 for in court hours and $75 for out of court work.

If you don't have experience in this area, the Child Protection Division will provide mentors. Most cases are conducted entirely by Zoom with occasional hearings/trials in person. Appellate cases are entirely electronic. Orders in both are electronically filed.

If you are interested, contact Presiding Judge Robert Balanoff at robert.balanoff@cookcountyil.gov

The Child Protection Division is also seeking a Court Coordinator. The annual salary is $59,828 and includes benefits. Individuals must have an Illinois Law License or J.D. and taking the bar exam. Qualified persons are invited to submit, via USPS or email, a letter of interest and a resume outlining their skills and experience to:

Cristina Borjon (cristina.borjon@cookcountyil.gov), Supervisor of the Court Coordinators, Cook County Juvenile Court, Child Protection Division, 2245 W. Ogden Avenue, Rm. C23AW, Chicago, IL 60612.

The Illinois Supreme Court returns to session for the September Term, with oral arguments scheduled for September 12-14 and September 19-21.  A total of 24 cases will be heard this Term: 13 criminal and 11 civil.  The civil cases will be heard on the following dates:

September 19, 2023

128275 - Hart v. The Illinois State Police

128575 - Pinkston v. The City of Chicago

128602 - Alave v. The City of Chicago

September 20, 2023

128731 - Shawnee Community Unit School District No. 84 v. Illinois Property Tax Appeal Board

128841 - Muhammad v. Abbott Laboratories, Inc.

128867 - In re Estate of Mark A. Coffman

128935 - M.U. v. Team Illinois Hockey Club, Inc.

September 21, 2023

129031 - Direct Auto Ins. Co. v. Guiracocha

129081 - Mosby v. Ingalls Memorial Hospital

129087 - Acuity v. M/I Homes of Chicago, LLC

129097 - Doe v. Burke Wise Morrissey & Kaveny, LLC

The Court will hear several cases of interest this term, including M.U. v. Team Illinois Hockey Club and Mosby v. Ingalls Memorial Hospital. Below are abbreviated summaries for these two cases.  Full summaries for these cases, as well as criminal and disciplinary cases pending before the Court, can be accessed by ALA members on our website: www.applawyers.org/casespending. 

M.U. v. Team Illinois Hockey Club raises the question of whether section 5 of the Illinois Human Rights Act (“IHRA”) applies to a youth hockey club that is not itself a “place of public accommodation,” but rents time at an ice rink that is, such that the club’s exclusion of a team member for a mental health condition would violate the IHRA.

The minor plaintiff joined a girls’ hockey team operated by defendants Team Illinois Hockey Club and the Amateur Hockey Association of Illinois. Defendants lease and operate a public ice rink which is generally open to the public and at which the team holds practices and games. In late 2019, defendants suspended plaintiff from participating in any team activities upon her disclosure of certain mental health conditions. Two weeks later, defendants lifted plaintiff’s suspension.

Plaintiff sued defendants, alleging they violated article 5 of the IHRA, which states “[i]t is a civil rights violation for any person on the basis of unlawful discrimination to *** [d]eny or refuse to another the full and equal enjoyment of the facilities, goods, and services of any public place of accommodation.” 775 ILCS 5/5-102(A). Defendants moved to dismiss her complaint, arguing that the team did not constitute a “place of public accommodation” under the IHRA, and the trial court agreed. The Second District Appellate Court reversed. It held that defendants, as entities, are not places of public accommodation, but the ice rink is, and defendants “may nevertheless be subject to civil rights laws if they exercise sufficient control over a place of public accommodation by, for example, leasing or operating the venue where its public sporting events are held.”

Defendants sought leave to appeal, primarily arguing that the Second District’s ruling subjects private organizations to liability under the IHRA simply by virtue of conducting private activities in public places (i.e. social clubs, political organizations, and church groups holding monthly meetings at a restaurant), without providing any parameters for how frequently or how pervasively a private organization must frequent a place of public accommodation before triggering liability under article 5 of the IHRA.

* * * * *

Mosby v. Ingalls Memorial Hospital addresses whether healthcare workers who are required to scan their fingerprints to use medication dispensing systems have their biometric information collected without consent in violation of BIPA. The employers moved to dismiss lawsuits brought by these health care workers based on section 10 of BIPA, which provides that biometric information does not include “information captured from a patient in a health care setting or information collected, used, or stored for health care treatment, payment, or operations under” HIPAA. They argued that dispensing medication fell within the definitions of “treatment” and “operations” under HIPAA and the collection of fingerprints for this purpose was exempt under section 10.

The trial court denied the motions to dismiss, but certified a question under Illinois Supreme Court Rule 308 regarding whether section 10’s exemption applied to the collection of healthcare workers’ fingerprints for healthcare treatment or operations. The appellate court answered the certified question in the negative. The court interpreted the exemption to apply only to patient information that is already protected by HIPAA. And because information collected from healthcare workers is not protected by HIPAA, the exemption was inapplicable. The appellate court modified the opinion on rehearing, noting that section 10 made no mention of employee information; it applied to information collected “under HIPAA,” not information collected for treatment and operations “as defined by HIPAA.” Justice Mikva dissented, observing that section 10 exempted two distinct types of information: (1) information captured from patients; and (2) any other information collected for healthcare treatment, payment, or operations as those terms are defined under HIPAA. Justice Mikva believed that the majority’s reading of section 10 disregarded the General Assembly’s use of the word “information” twice, which suggested that it intended to exempt two distinct categories of information.

In their petition for leave to appeal, the employers argued that Justice Mikva correctly interpreted section 10 and that the majority’s reading of that section conflicted with U.S. Department of Health and Human Services guidance directing healthcare facilities to use biometric scanners on medication dispensers. In their answer to the petition for leave to appeal, the employees argued that the employers’ reading of section 10 would amount to creating a BIPA exemption for the entire healthcare industry.

The Illinois Appellate Court, First District, has adopted updated rules, effective August 31, 2023. The updated rules reflect changes to Rules 2, 3, and 5 in order to address and comply with the requirements and effects of the Illinois Pretrial Fairness Act. 

The updated Rules will be available on the First District's website in the coming days. 

U.S. Senators Dick Durbin and Tammy Duckworth have announced that they will begin accepting applications from those interested in serving as a U.S. District Judge for the Northern District of Illinois. 

A copy of the announcement can be found at this link.

Applicants must submit a cover letter, resume, and a completed copy of this questionnaire to applications@durbin.senate.gov by 5:00 p.m. CT on Monday September 11, 2023. Applicants are requested to incorporate their cover letter, resume, completed questionnaire, and any attachments to the questionnaire into a single PDF document if possible. 

The Senators will be assisted by a screening committee, which will review candidates and advise the Senators, who will make recommendations on potential nominees to the President. 

Justice Eugene G. Doherty of the Illinois Appellate Court, Fourth District, seeks a judicial law clerk/administrative assistant for an opening in his chambers in Rockford, Illinois. This position may be considered on a limited term or an indefinite basis depending on the strength of the application. 

The judicial law clerk/administrative assistant conducts legal research and drafts memoranda, orders, and opinions for the justice, and may be asked to review and edit the work of other clerks. The position also requires sharing administrative duties with the other clerks, including paying bills, submitting reimbursement requests, etc. The administrative aspects of the position represent a very small part of overall clerking responsibilities. The successful applicant must have the ability to act in a manner consistent with the Court’s ethical responsibilities.

Graduation from an ABA-accredited law school is required. Law Review/journal experience is preferred. Preference will be given to those with prior experience as a judicial law clerk and/or appellate lawyer or as a legal practitioner, but all applicants with an outstanding academic record and superior research and writing skills will be considered. Excellent computer and technology skills required.

To apply, submit a cover letter, resume, official law school transcript, class rank, writing sample and three references to edoherty@illinoiscourts.gov . The position will remain open until filled; submissions received by Friday, June 16, 2023, will be given first consideration.

Justice Tom M. Lytton of the Illinois Appellate Court, Third Judicial District, passed away Wednesday, May 17, 2023.  Justice Lytton retired from the bench in July 2022 after 30 years of service on the appellate court.

After graduating from Northwestern University's School of Law, Justice Lytton began his legal career volunteering for VISTA in West Virginia and working at Legal Services in Pittsburgh, Pennsylvania.  He then practiced law with his father in East Moline, Illinois, for 19 years.

In 1992, Justice Lytton was elected to the appellate court, where he served the People of the State of Illinois for the rest of his career.  While on the bench, he served on the Illinois Continuing Education Committee, the Law and Literature Committee, and as president of the Council of Chief Judges of State Appellate Courts.  In 2018, he received the Honorable Richard J. Elrod Public Service Award from the Jewish Judges Association of Illinois.

Funeral services will be at held at 10:30 AM on Monday, May 22, 2023, at Wheelan-Pressly Funeral Home and Crematory, Rock Island, Illinois.  Services also will be livestreamed at www.wheelanpressly.com/live-stream.

Justice Lytton's full obituary, which includes additional details on funeral services, how to send flowers or plant a tree in Justice Lytton's honor, and where to post memories of Justice Lytton, may be found here.

On behalf of its membership, the Appellate Lawyers Association expresses its deepest condolences to Justice Lytton's family, friends, and colleagues.

Effective May 11, 2023, the Illinois Supreme Court assigned Justice Margaret J. Mullen to the Illinois Appellate Court, Second Judicial District.  Justice Mullen is filling the vacancy created by the passing of Justice Donald C. Hudson.  The assignment will continue until June 1, 2027, or until further order of the Illinois Supreme Court.

Justice Mullen was first appointed to the bench in 1992 as an Associate Judge in the 19th Judicial Circuit.  She was appointed by the Supreme Court as a 19th Judicial Circuit Judge in 1997 and won election in 1998.  She served as Chief Judge of the 19th Judicial Circuit from 2002 to 2004, and served as Presiding Judge of the Law, Juvenile, and Consolidated Family Divisions.  She retired from the circuit court in 2017.

Before serving on the bench, Justice Mullen worked in private practice at Tressler, Soderstrom, Maloney & Priess (now Tressler LLP) and served as an Assistant State’s Attorney in Lake and DuPage Counties.  She earned a Bachelor of Arts degree from Illinois State University and her juris doctor from The John Marshall Law School.

The Illinois Supreme Court's announcement of Justice Mullen's assignment may be found here. The Appellate Lawyers Association congratulates Justice Mullen on her assignment to the appellate court.