By E. King Poor
Partner, Quarles & Brady LLP, Chicago

Cases can become moot at anytime—even on appeal. And the Seventh Circuit’s recent decision in DJL Farms LLC v. USEPA, 813 F.3d 1048 (7th Cir. 2016) is a reminder of that.
 
In DJL Farms, a developer sought permits from the United States Environmental Protection Agency to construct a near-zero emission coal-burning facility to produce electricity. The facility required injecting massive amounts of carbon dioxide into deep subsurface wells over a 20-year period. Id. at 1049.
 
Nearby landowners challenged the project before the EPA which overruled their objections and issued the necessary permits. The landowners then sought administrative review before the Seventh Circuit. Id. at 1050.
 
Shortly before oral argument, the developer lost the funding for the project and requested that the EPA cancel the projects’ permits, and moved, along with the EPA, to dismiss the appeal as moot. The landowners argued that the case was not moot because it was akin to merely a “voluntary cessation” of activity and it was unclear if the cancelled permits still might be transferred, sold, or reissued. Id.
 
The Seventh Circuit held that the appeal was moot. It began its analysis with the fundamental principle that federal courts lack subject matter jurisdiction when a case becomes moot, and must therefore dismiss an action when it is “impossible for the court to grant any effectual relief whatever to a prevailing party.” Id. And though the Supreme Court has long imposed a “strident standard” when determining if a case has been mooted by voluntary conduct, in this case, the Seventh Circuit held that the developer and the EPA met that burden because (a) the order was not “separately reviewable,” but was a “prerequisite to seeking judicial review,” and (b) under the EPA’s own regulations, the permits could not be transferred or reissued. Id. at 1051. Accordingly, it dismissed the appeal as moot.
 
The DJL Farms decision provides another illustration that appellate lawyers should be mindful of events that might render a case moot after the filing of a notice of appeal. Mootness may arise at any point—even on appeal.

By Louis J. Manetti
Attorney, Colidis and Associates, P.C.

In The Argument of an Appeal, 26 ABA J. 895, 895-99 (Dec. 1940), former United States Solicitor General John W. Davis laid out a seminal “Decalogue” of principles to guide oral argument before an appellate court. The article, which was originally an address delivered to the New York City Bar Association on October 22, 1940, has been called “[o]ne of the best, if not the best, single article on appellate arguments[.]” Frederick Wiener, Effective Appellate Advocacy 127 (Revised ed. 2004); see also Seth P. Waxman, In the Shadow of Daniel Webster: Arguing Appeals in the Twenty-First Century, 3 J. App. Prac. & Process 521, 522 n.4 (2001) (calling Davis’ speech a “touchstone” for another well-regarded speech by Justice Robert Jackson and stating that other similar lists have followed).

Davis begins the article by noting, in a cleverly self-deprecating manner, that a discourse on the argument of an appeal would be delivered with superior force from a judge, “who is in his judicial person the target and the trier of the argument[.]” Davis, supra, at 895. He analogizes the art of appellate advocacy to fishing, and offers, “supposing fishes had the gift of speech, who would listen to a fisherman’s weary discourse on . . . all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach.” Id. (Notably, Appellate Lawyers Association roundtable events offer just that: an opportunity to informally speak with both state and federal judges—in Davis’ vernacular, the fish.) Keeping with the fish analogy, Davis claims that the appellate advocate is constantly angling for the judicial mind, and “[w]hatever tends to attract judicial favor to the advocate’s claim is useful. Whatever repels it is useless or worse.” Id.

Davis assumes for the purposes of his discussion that the briefs have been submitted and the appeal is procedurally at argument. Borrowing a quote from Chief Justice Hughes, he notes that the value of oral argument on appeal is, “a great saving of the time of the court in the examination of extended records and briefs, to obtain the grasp of the case that is made possible by oral discussion and to be able more quickly to separate the wheat from the chaff.” Id. at 896. Davis then sets out ten principles that should govern appellate oral argument.

The first, and “cardinal rule,” Davis espouses is “[c]hange places (in your imagination of course) with the Court.” Id. Judges, he notes, will not have lived with the case like the lawyers have, and simply want to reach a correct conclusion, so the appellate advocate must give them the “implements of decision.” Id. That is, you must ask: If you were the judge, what would you want to know first about the case; in what order would you want the argument to unfold; and what would make your approach to the true solution easier. Id.

Davis’ second rule is “[s]tate first the nature of the case and briefly its prior history.” Id. This point is eminently practical. He explains that by simply mentioning the general legal field that is implicated at the argument’s outset, the judges are able to recall their general knowledge of the topic, bringing the points that follow immediately into focus. Id.

Next, Davis recommends that the advocate “[s]tate the facts.” Id. He advises, “the statement of the facts is not merely a part of the argument, it is more often than not the argument itself. A case well stated is a case far more than half argued.” Id. He surmises, “[e]x facto oritur jus [the law arises from fact], and no court ever forgets it.” Id. Davis suggests “three C’s” guide the advocate in stating the facts—chronology, candor, and clarity. Id. Chronology, he states, is the natural way of telling any story; candor is the “telling the worst as well as the best, since the court has the right to expect it”; and clarity is the supreme virtue in how to communicate thought. Id. He attributes a quote to Daniel Webster that he insists should be on the walls of every law school, courtroom, and law office: The power of clear statement is the great power at the bar. Id.

The fourth principle is “[s]tate the applicable rules of law on which you rely.” Id. Davis reiterates that a correctly composed statement of facts will have done most of the heavy lifting already, and he warns that, however adequate shelter strong prior decisions may convey, “the advocate must be prepared to meet any challenge to the doctrine of the cases on which he relies and to support it by original reasoning.” Id. Next, he advises to “[a]lways go for the jugular vein.” Id. That is, to find the “cardinal point around which lesser points revolve like planets around the sun[.]” Id.; see also Waxman, supra, at 530 (Waxman calls this “planting the kernel,” and advises, “however difficult the kernel may be to discern, and however late it reveals itself [he relays a story about how one time the kernel only became apparent the night before an oral argument], you must have it in mind when you appear before the court.”)

For his sixth principle, Davis insists that the advocate “[r]ejoice when the Court asks questions.” Davis, supra, at 897. First, he states that, if nothing else, it assures the advocate that the court is not comatose. Id. Second, “a question affords you your only chance to penetrate the mind of the court.” Id. He counsels the advocate to not evade or postpone answering questions, no matter how embarrassing or how much it interrupts the thread of the argument. Id. Next, Davis states that advocates should “[r]ead sparingly and only from necessity.” Id. at 898. He stresses eye contact with the judges, and argues that “the speaker does not live who can long hold the attention of any audience without looking it in the face.” Id. Davis’ eighth principle is to “[a]void personalities.” Id. The advocate’s goal is to keep the mind of the court on the issues at hand without distraction, and personal attacks “can irritate, [but] they can never persuade.” Id.

The ninth principle is “[k]now your record from cover to cover.” Id. Davis acknowledges that this advice “might properly have headed the list for it is the sine qua non of all effective argument.” Id. (In the invaluable work Effective Appellate Advocacy, Frederick Wiener characterizes complete knowledge of the record as “the advocate’s secret weapon.” Wiener, supra, at 177.) Davis notes that, in the heat of appellate argument, at any moment the advocate may be called to correct some misstatement of the opposing side, or may be called on to answer a question that will both put the question to rest and enhance the advocate’s credibility with the judges. Davis, supra, at 898. Otherwise admirable arguments, Davis states, have been destroyed because advocates failed to provide apt references to the record. Id.

Finally, the tenth principle Davis espouses is to “[s]it down.” Id. Even with brief page limits and oral argument time restrictions, “[t]he mere fact that you have an allotted time does not constitute a contract with the Court to listen for that length of time.” Id.

For principles that were relayed over 75 years ago, these rules remain practical and valuable guidelines for advocates facing appellate oral argument in 2016.

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

On May 24, 2016, the ALA hosted its annual luncheon honoring the judges of the United States Court of Appeals for the Seventh Circuit. Held at the Union League Club in downtown Chicago, the luncheon was attended by many of the judges who currently sit on the court, and each judge sat at an individual table alongside ALA members and guests. Also in attendance were many court personnel.

ALA President Michael A. Scodro began the luncheon by welcoming the judges and guests. Thereafter, President Scodro introduced Chief Judge Diane P. Wood, the luncheon's keynote speaker, who offered insights from the bench's perspective with respect to both brief writing and oral arguments. 

Chief Judge Wood opened her remarks by noting that Federal Rule of Civil Procedure 1 was amended in 2015 to provide that both the courts and parties share in the responsibility of the efficient administration of justice. Toward that end, judges recognize the difficulty in preparing briefs and preparing for oral arguments. 

Chief Judge Wood stressed that brief writing should be a top priority, as it is the case's first introduction to the court. Attorneys should "focus, focus, focus" their writing, tell a story and "let it flow," and address the other side's arguments. Stated differently, "briefs should not be ships passing in the night." 

Regarding oral argument, Chief Judge Wood advised the parties to "bite the bullet" when it comes to answering difficult questions, including hypotheticals. The best practice is to answer questions directly with a "yes" or "no" and then explain why this specific case is different. In addition, Chief Judge Wood advised the audience that if a case is cited anywhere in the brief, a party should be prepared to discuss it at oral argument.  However, if a case was not cited in a brief and an attorney is not familiar with the holding, the attorney should not wing it but instead ask for supplemental briefing. 

Chief Judge Wood closed her remarks with a Q&A, in which she addressed topics ranging from the use of pictures and images in briefs to petitions for rehearing (which she noted are not granted often). 

The ALA thanks the judges from the Seventh Circuit for another engaging and insightful luncheon. 

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

The Association will host two events during the rest of the month of June.

On June 9, 2016, the ALA will host a roundtable luncheon featuring the justices of the Illinois Appellate Court, Third District. The luncheon will focus on “things you want to know about the court” and provide an opportunity for attendees to ask questions of the justices in a collegial and informal setting. The luncheon will be held at the Uptown Grill in LaSalle and run from noon t0 2 p.m. Attendees will receive one hour of MCLE credit.

On June 24, 2016, the ALA will host the “Installation Luncheon of Joanne R. Driscoll” at the Union League Club in Chicago. At the luncheon, Joanne R. Driscoll will be installed as the 49th President of the ALA. Additionally, the ALA’s Nominating Committee will introduce the following officers and directors for election at the meeting:

Officers (2016-2017)

Vice-President: Evan Siegel

Secretary: Clare Quish

Treasurer: Gretchen Harris Sperry

Directors (2016-2018)

Director (1st Dist.): Leah Bendik

Director (1st Dist.): Keely Hillison

Director (3d Dist.): Emily Sutton

Director (1st Dist.): Adam Vaught

For more information and to register, please click here.

The Supreme Court of the United States recently concluded in a per curiam decision that the Sixth Circuit Court of Appeals did not apply the appropriate "fairminded jurist" standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) after Timothy Etherton sought federal habeas relief pursuant to AEDPA. In turn, the High Court found it was not objectively unreasonable for Etherton's direct appellate counsel to refrain from raising Confrontation Clause and ineffective assistance of trial counsel claims where trial counsel failed to object to the admission of an anonymous tip.

Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), involved an anonymous tip that led Michigan law enforcement officers to discover 125.2 grams of cocaine in car being driven by Etherton. The lone passenger in the car was Ryan Pollie. Etherton was tried in state court for possession with intent to deliver cocaine. The central issue in the trial was whether the cocaine belonged to Etherton or Pollie; the facts reflected in the tip were not contested. Woods, 578 U.S. at ___, 136 S. Ct. at 1150. Pollie testified against Etherton pursuant to a plea agreement, claiming that Etherton left him at a restaurant at one point during their trip and returned around 45 minutes later. Pollie further claimed he had no knowledge of Etherton's intent to obtain cocaine, and he learned of the cocaine only after the pair left the restaurant and Etherton revealed its presence. Three officers testified to the content of the tip, which included a claim that two white males would be carrying cocaine while traveling in a white Audi. Etherton's trial counsel raised only one hearsay objection during the third officer's testimony, but the prosecutor agreed to move on and no ruling was made on the objection. A jury convicted Etherton, his conviction was affirmed on direct appeal, and the Michigan Supreme Court denied him leave to appeal. Id.

 Etherton next sought post-conviction relief in state court, claiming, inter alia, that appellate counsel was ineffective for failing to raise the Confrontation Clause and related ineffective assistance of trial counsel issues. Id. The state court rejected this claim, noting that trial counsel may have made a strategic decision to forgo any objections because the reference to "two men" suggested Pollie's prior involvement in the crime, which arguably contradicted Pollie's claims that he had no knowledge of the cocaine and Etherton was alone when he picked up the cocaine. Woods, 578 U.S. at ___, 136 S. Ct. at 1151.

The next step for Etherton was to seek federal habeas relief under AEDPA, which allows for such relief where the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Where a state court determines that a claim lacks merit, federal habeas relief will not be available so long as " 'fairminded jurists could disagree' " on the correctness of the state court's decision. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The District Court denied relief, but a divided Court of Appeals for the Sixth Circuit reversed, with the majority concluding that Etherton's appellate counsel had been constitutionally ineffective, and that no fairminded jurist could conclude otherwise. Woods, 578 U.S. at ___, 136 S. Ct. at 1152. In concluding that Etherton's right to confrontation had been violated, the majority first noted that the contents of the tip were discussed by three witnesses and mentioned by the prosecution during closing argument. Thus, the majority held, the state's use of the evidence went beyond the details that were necessary merely for background, and the contents of the tip were therefore admitted for the truth. See Crawford v. Washington, 541 U.S. 36, 60, n. 9 (2004) (observing that the Confrontation Clause of the Sixth Amendment prohibits an out-of-court statement only if it is admitted for its truth).

Regarding the issue of whether Etherton had been prejudiced by the violation (see Strickland v. Washington, 466 U.S. 668, 687 (1984) (showing of prejudice required to demonstrate ineffective assistance of counsel)), the majority acknowledged the evidence of Etherton's guilt: Etherton owned the car; he was driving at the time of the arrest; and the cocaine was found inches away from him in a driver side compartment. The majority held, however, that the evidence was insufficient to convict Etherton without the tip, and because Pollie's testimony was reflected in the tip, the jury may have improperly concluded that Pollie was testifying truthfully. Accordingly, the majority found that Etherton had been prejudiced by appellate counsel's failure to challenge the forfeited Confrontation Clause objection or the ineffectiveness claim. Woods, 578 U.S. at ___, 136 S. Ct. at 1152.

The Supreme Court disagreed with the Sixth Circuit, holding that the majority did not apply the appropriate "fairminded jurist" standard of review under AEDPA. The High Court concluded that, because the veracity of facts pertaining to the tip was not in dispute, a fairminded jurist might find that the repeated testimony of the tip was not introduced to establish the truth. Furthermore, a fairminded jurist might find that Etherton was not prejudiced when Pollie testified consistently with the uncontested facts of the tip, as Pollie himself was aware of the information contained in the tip. This may have rendered Pollie's testimony unremarkable and not pertinent to his credibility. Id. Thus, given the deference afforded trial counsel (see Strickland, 466 U.S. at 690), it would not be objectively unreasonable for a fairminded jurist to conclude that no objection was raised in the trial court because the facts in the tip were uncontested and consistent with Etherton's defense. Woods, 578 U.S. at ___, 136 S. Ct. at 1152-53. Therefore, a fairminded jurist could similarly conclude that it was objectively reasonable for appellate counsel to reach the same conclusion.

For these reasons, the Supreme Court granted petition for certiorari and reversed the judgment of the Court of Appeals for the Sixth Circuit. Woods, 578 U.S. at ___, 136 S. Ct. at 1153.

By Paul Berks
Massey & Gail LLP

In Doe v. Village of Deerfield, No. 15-2069,  __ F. 3d __ (2016), 2016 WL 1425854, the Seventh Circuit held that an order denying a plaintiff’s motion to proceed anonymously is immediately appealable under the collateral order doctrine. Though a matter of first impression in the Seventh Circuit, the court joined five other circuits, which had reached the same conclusion. Id. at *2 (citing Does I thru XXIII v. Advanced Textile Corp., 214 F. 3d 1058, 1067 (9th Cir. 2000); M.M. v. Zavaras, 139 F. 3d 798, 802 (10th Cir. 1998); James v. Jacobson, 6 F. 3d 233, 234 (4th Cir. 1993); Doe v. Frank, 951 F. 2d 320, 322 n.2 (11th Cir. 1992) (based on adoption of Fifth Circuit precedent); S. Methodist Univ. Ass’n v. Wynne & Jaffe, 599 F. 2d 707, 712 (5th Cir. 1979)).

The issue arose in a complaint by an anonymous plaintiff against two individuals and the Village of Deerfield, alleging an equal protection violation and malicious prosecution. The plaintiff alleged the two individuals falsely accused him of wrongdoing, and the Village prosecuted him, even though it knew the allegations were false. After the criminal proceedings terminated in “Doe’s” favor, he filed this civil suit.

The defendants moved to dismiss under Federal Rule of Civil Procedure 10(a), which requires a party to include its true name in the caption of all filings. “Doe” opposed the motion and moved for an order permitting him to proceed anonymously, arguing that disclosure of his identity would subject him to embarrassment and possible retaliation. The District Court denied the motion to proceed anonymously and dismissed the complaint without prejudice, permitting “Doe” to re-file under his true name.

A dismissal without prejudice is not a final order. Therefore, as a general rule it is not immediately appealable. Doe, 2016 WL 1425854 *2 (citing Bastian v. Petren Res. Corp., 892 F. 2d 680, 682 (7th Cir. 1990)). However, in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949), the United States Supreme Court identified a “ ‘small class’ of nonfinal orders that are deemed final and immediately appealable.” Doe, 2016 WL 1425854 *2.  To fall within this exception to the final order rule, the non-final order must meet three criteria, it must be “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be “effectively unreviewable” on an appeal from the final judgment of the underlying action.”  Id. (quoting Mowhawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009)). These criteria must be applied to “the entire category to which the claim applies,” ignoring the individualized idiosyncrasies that arise in any specific case. Id. (quoting Mohawk, 558 U.S. at 107). Thus, the question presented was whether the denial of motions to proceed anonymously are categorically immediately reviewable.

Joining the unanimous chorus of five other circuits, the Court answered affirmatively, concluding that each of the criteria were met. The order on appeal conclusively resolved the issue of the plaintiff’s right to proceed anonymously. The propriety of anonymity was entirely separate from, and collateral to, the merits of “Doe’s” civil rights claims. And, if not reviewed immediately, the order effectively would be unreviewable. “If parties were required to litigate the case through to a final judgment on the merits utilizing their true names, the question of whether anonymity is proper would be rendered moot.” Id. at *3 (citing Does I thru XXIII, 214 F. 3d at 1066). Thus, an order denying a motion to proceed anonymously falls within the collateral order doctrine enunciated in Cohen and is immediately reviewable.

Though “Doe” “won the jurisdictional battle, he has lost the war.” Id. at *1. After concluding it had jurisdiction to consider the issue on interlocutory appeal, the Court affirmed the District Court on the substance, agreeing that the plaintiff had not shown the exceptional circumstances necessary to justify proceeding anonymously. Nevertheless, the case remains noteworthy for identifying a rare example of the “small class” of orders that fall within the collateral order doctrine and are subject to immediate appeal.

The First District Appellate Court recently held that the circuit court’s denial of a nonparty’s motion to reconsider a judgment was not a final and appealable order, leaving the appellate court without jurisdiction over the nonparty’s appeal of the denial of the motion to reconsider. The appellate court held that an order denying a nonparty’s postjudgment motion is not final and appealable because it does not terminate the litigation or dispose of the rights of the parties. Rejecting the appellant’s alternative argument that she was appealing the underlying judgment, the court further determined that a postjudgment motion filed by a nonparty does not toll the time for filing a notice of appeal from the judgment.

In MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, MidFirst Bank filed a complaint to foreclose a mortgage that became delinquent after the homeowner died. The complaint named the homeowner’s daughter, Devita McNeal, as the defendant, but only in her capacity as the executor of the estate. With the foreclosure action pending, the probate case was filed and McNeal was named as the estate’s independent executor. MidFirst Bank later prevailed in the foreclosure action on a summary judgment motion.

In her capacity as executor, McNeal moved to set aside the judgment of foreclosure, and her motion was denied on January 7, 2014. On February 14, 2014, again in her capacity as executor, McNeal filed a motion to reconsider the judgment, arguing that MidFirst Bank failed to comply with mortgage foreclosure laws because the property had been left to McNeal in her mother’s will and the bank had failed to serve her in her individual capacity. The property was sold and the court entered an order confirming the sale on October 25, 2014.

Just two days prior to the order confirming the sale, on October 23, 2014, McNeal, in her individual capacity, filed a motion to set aside a void judgment of foreclosure pursuant to section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2012)), again arguing that MidFirst Bank violated foreclosure laws by failing to serve her in her individual capacity. The circuit court denied the motion because McNeal never sought to intervene in her individual capacity and the foreclosure case had proceeded before McNeal gained interest in the property.

McNeal appealed on the grounds that the foreclosure proceedings were improper because she was a known heir and never served. MidFirst Bank argued that McNeal lacked standing in the appeal because she was not, and had never been, a party to the case.

The appellate court agreed that, because McNeal never moved to intervene, she was not a party to the case. For this reason, the court determined, the circuit court should not have considered the postjudgment motion she filed in her individual capacity. The appellate court further determined that McNeal remained a nonparty in the appeal, but declined to dismiss the appeal on standing grounds.

Setting the standing issue to one side, the appellate court held that it lacked jurisdiction over the appeal because the order from which McNeal appealed — the circuit court’s denial of the postjudgment motion she filed in her individual capacity — was not final and appealable. The court concluded that because McNeal did not intervene in her individual capacity, the order denying her postjudgment motion did not terminate the litigation or otherwise dispose of the rights between the parties, as an order must do to be final or appealable. In so holding, the court described McNeal’s motion as a “nullity” that lacked “all the necessary prerequisites of a final judgment.” MidFirst Bank, 2016 IL App (1st) 150465, ¶ 24.

The court further rejected McNeal's alternative arguments that the appellate court should have construed her appeal as interlocutory under subsection (a) or (b) of Illinois Supreme Court Rule 304, explaining that McNeal had not demonstrated how the appeal fit within either provision and that neither could be applied. The appellate court also rejected her argument that she was actually appealing the order confirming the sale of the property, which concluded the foreclosure process. In doing so, the court explained that McNeal’s notice of appeal was filed well over 30 days after entry of that underlying judgment, and that her section 2-1203 motion did not toll her time to file a notice of appeal from that judgment because, by the statute’s express terms, only a “party” may file a section 2-1203 postjudgment motion. Id. at ¶ 31 (citing 735 ILCS 5/2-1203 (West 2012)). Accordingly, the court dismissed McNeal’s appeal for lack of jurisdiction. 
 

Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s May Term that began today Monday, May 9, 2016, with oral arguments scheduled for Tuesday, May 10, 2016; Wednesday, May 11, 2016; Tuesday, May 17, 2016; and Thursday, May 19, 2016. The Court will be hearing arguments at Benedictine University in Lisle, Illinois on May 19, 2016. A total of 8 cases will be heard – 4 civil and 4 criminal. Here are the civil cases with the dates of oral argument:

Ronald Bayer v. Panduit Corporation, No. 119553—May 11

James Kakos v. Jerry Bauer, No. 120377—May 11

William Bremer v. The City of Rockford, Nos. 119889, 119912 (cons.)—May 17

Randall W. Moon v. Clarissa F. Rhode, No. 119572—May 19

Two of the civil cases which will be heard include: James Kakos v. Jerry Bauer, which involves the constitutionality of the statute providing for six-person juries, and Moon v. Rhode, which addresses whether the discovery rule applies to wrongful death claims based on medical malpractice. Below are abbreviated summaries for these two cases. Summaries for these cases and others listed above can be found in our Cases Pending publication, accessible to ALA members on our website. 

CONSTITUTIONAL LAW – JURY DEMAND

No. 120377
Kakos v. Butler

This appeal concerns the constitutionality of P.A. 98-1132, which requires that all civil jury trials shall be tried by a jury comprised of six members, regardless of the amount in controversy.

In December of 2014, the General Assembly enacted P.A. 98-1132, which amended the statute governing jury demands. Before the amendment, the statue provided that in all civil jury cases seeking damages of $50,000 or less, the jury shall be comprised of 6 jurors, unless either party demands a jury of 12. The amendment changed the statute to require that all civil jury cases, regardless of the amount in controversy, shall be comprised of 6 jurors, with no option for either party to seek a 12-person jury.

Defendants filed a jury demand seeking a 12-person jury; however, the Clerk of the Circuit Court refused to accept the jury demand and payment. Defendants then challenged P.A. 98-1132 as unconstitutional on its face as being in direct conflict with article I, section 13 of the Illinois Constitution of 1970, which states: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” Defendants argued that parties previously had the right to a 12-person jury.

The circuit court agreed, finding P.A. 98-1132 facially unconstitutional. It determined that article I, section 13 was ambiguous in its reference to the right “heretofore enjoyed” with respect to jury trials. It examined previous versions of the Illinois Constitution as well as the proceedings of the 1970 Constitutional Convention and concluded that the right to a 12-person jury has been “a continuous, unbroken right” for over 100 years. The court further noted that the Convention delegates considered mandating a 6-person jury and expressly rejected it. The court rejected Plaintiffs’ argument that the United States Constitution allows for 6-person juries, as the issue before the court is whether a statute is in conflict with a provision of the Illinois Constitution.

The circuit court further found P.A. 98-1132 unconstitutional as a violation of the separation of powers. It found that the judiciary alone has the power to regulate the conduct of trials and the statute conflicts with Illinois Supreme Court Rule 285, which permits a party to elect a 12-person jury. Finally, the court determined that based on research and other scholarship, allowing for a 12-person jury is good public policy.

Direct Appeal – Supreme Court Rule 302(a): 1/27/16

PROCEDURE – DISCOVERY RULE

No. 119572
Moon v. Rhode

The issue presented in this appeal is whether the discovery rule applies to wrongful death claims brought under the Wrongful Death Act and Survival Act when those claims are based on medical malpractice.

Plaintiff’s  decedent  developed  complications  post-surgery.    Two  CT  scans  were performed shortly before she died in May 2009. Plaintiff, a licensed attorney as well the decedent’s son, was appointed as executor of his mother’s estate.  Plaintiff requested his mother’s records which he received in March 2010.  The records were reviewed in April 2011, at which time Plaintiff received oral notification that there was negligent conduct in his mother’s care with respect to interpretation of the CT scans.  Plaintiff received the written certificate of medical negligence in May 2011.

Plaintiff filed suit against Defendants in March 2013, almost four years after the decedent’s death.  Defendants filed a motion to dismiss based on the statute of limitations, which the circuit court granted.   The Illinois Appellate Court affirmed, holding that the discovery rule did not apply to claims brought under the Wrongful Death and Survival Acts.  It further explained that under section 13-212(a) of the Code of Civil Procedure (the “Code”) (735 ILCS 5/13-212(a)), the statute of limitations begins to run upon knowledge of the death and not on knowledge of the negligent conduct.

In his petition for leave to appeal, Plaintiff argued that the appellate court erred in not applying the discovery rule to his Wrongful Death and Survival Act claims, where they are based on medical negligence to which the discovery rule applies.   Plaintiff argued that the appellate court’s  ruling  creates  an  artificial  distinction  between  personal  injury  actions  premised  on medical negligence that do not result in death and those that do.  Plaintiff also argued that the reasoning adopted by the appellate court is at odds with existing appellate precedent, all of which applies the discovery rule to wrongful death and survival claims.

Appellate Court Decision:   2015 IL App (3d) 130613, 34 N.E.3d 1052.   Schmidt, J., with McDade, J., concurring; Lytton, J., dissenting.

PLA Allowed:  09/30/15

The Association will host three events during the next month.

On May 13, 2016, the ALA’s annual roundtable luncheon featuring the justices of the Illinois Appellate Court, Fifth District, will be held at the Gateway Center in Collinsville. Attendees will receive 1 hour of MCLE credit. Following the luncheon, the ALA will host an appellate practice seminar featuring a panel of the Fifth District justices and presentations conducted by local appellate practitioners. Attendees will receive 3 hours of MCLE credit for the seminar.

On May 24, 2016, the ALA’s annual roundtable luncheon featuring the Judges of the United States Court of Appeals for the Seventh Circuit will be held at the Union League Club in Chicago. Attendees will receive 1 hour of MCLE credit.

Also on May 24, 2016, the ALA will host a roundtable luncheon and panel discussion featuring the justices of the Illinois Appellate Court, Fourth District, at the Second Presbyterian Church in Bloomington. Attendees will receive 1.75 hours of MCLE credit.

At all three events, attendees will have the opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere.

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The Illinois Appellate Court, Third District, recently dismissed a criminal appeal for lack of appellate jurisdiction after the defendant failed to file a notice of appeal within 30 days after the trial court denied a timely post-trial motion, but instead, filed a successive post-trial motion directed against the judgment. As discussed below, the reviewing court held that the successive post-trial motion did not toll the timeframe to file the notice of appeal.

In People v. Kibbons, 2016 IL App (3d) 150090, Williams Kibbons was charged with two counts of aggravated DUI and one count of leaving the scene of an accident involving personal injury or death. Kibbons pled guilty to one count of aggravated DUI in exchange for the State dismissing the other two counts and agreeing to a sentencing cap of eight years in prison. Kibbons was eventually sentenced to eight years in prison and was admonished of his appeal rights in accordance with  Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001) (“…prior to taking an appeal the defendant must file in the trial court, within 30 days of the date on which sentence is imposed, a written motion asking to have the trial court reconsider the sentence or to have the judgment vacated and for leave to withdraw the plea of guilty, setting forth the grounds for the motion.”).

Defense counsel filed a motion to reconsider sentence within 30 days of sentencing. That motion was denied on October 18, 2013. Kibbons then retained new counsel, who filed a motion to withdraw the guilty plea on November 15, 2013, alleging that the State’s Attorney was conflicted because he had represented the defendant on a DUI case in 1997. The court denied the motion on April 24, 2014, but gave the defendant time for filing additional pleadings regarding the alleged conflict.

The defendant filed a motion to withdraw the guilty plea on May 22, 2014, alleging “actual prejudice.” The motion was once again amended on November 13, 2014 and ultimately denied on January 16, 2015. Kibbons appealed the denial of his motion to withdraw the guilty plea and his sentence after filing a notice of appeal on February 6, 2015.

The Third District Appellate Court dismissed Kibbons’ appeal for lack of jurisdiction. That State argued on appeal that the notice of appeal was untimely when it was not filed within 30 days of the trial court’s denial of Kibbons’ motion to reconsider sentence. To resolve the issue, the court looked to Illinois Supreme Court Rule 606(b) (eff. Feb. 6, 2013), which provides that “[e]xcept as provided in Rule 604(d), the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.”

It was undisputed that the notice of appeal was not filed within 30 days of sentencing. Kibbons filed a timely motion to reconsider sentence, but this motion was improper because under Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013), a defendant who enters into a partially negotiated plea agreement must first move to withdraw his guilty plea before asking the court to reconsider sentence. Notwithstanding that Kibbons’ motion to reconsider sentence was not properly before the court, the Kibbonscourt still considered the motion to reconsider sentence a timely “motion directed against the judgment” for purposes of tolling the time for appeal under Rule 606(b).

Nonetheless, the Kibbons court did not consider the appeal perfected under 606(b) because the defendant filed a motion to withdraw guilty plea (which he should have done initially, under Rule 604(d)) within 30 days of the denial of the motion to reconsider sentence instead of a notice of appeal. That second motion post-trial motion, however, did not toll the timeframe for defendant to file a notice of appeal.

Thus, the notice of appeal that Kibbons filed on February 6, 2015 was untimely and the appellate court did not have jurisdiction to hear Kibbons’ appeal.