Cases Pending, edited by Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s March Term that began today, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, March 15-17 and Tuesday, March 22, 2016. A total of 13 cases will be heard – 7 criminal and 6 civil. Here are the civil cases with the dates of oral argument:

Carney v. Union Pacific Railroad Co., No. 118984 – March 16

Fattah v. Bim, No. 119365 – March 17

Moline School District No. 40 Board of Education v. Hon. Pat Quinn, No. 119704 – March 17

Hampton v. Metropolitan Water Reclamation District of Greater Chicago, No. 119861 – March 17

Valfer v. Evanston Northwestern Healthcare, No. 119220 – March 22

J & J Ventures Gaming, LLC v. Wild, Inc., Nos. 119870, 119871, 119872, 119873, 119874 (cons.) – March 22 
 
The Court will hear several cases of interest this term, including Fattah v. Bim involving the implied warranty of habitability and J & J Ventures Gaming, LLC v. Wild, Inc., a case interpreting the Illinois Gaming Act. Below are abbreviated summaries for these two cases. Summaries for all these cases can be accessed by ALA members on the ALA website by clicking on our Cases Pending publication.
 
CONSTRUCTION LAW – IMPLIED WARRANTY OF HABITABILITY

No. 119365
Fattah v. Bim

The issue presented in this appeal is whether a subsequent purchaser of a home is bound by the initial purchaser’s waiver of the implied warranty of habitability, such that the subsequent purchaser is precluded from suing the developer for latent defects.

Defendants were residential real estate developers and constructed a home for sale. They sold it to the initial purchaser, who executed a waiver and disclaimer of the implied warranty of habitability, which became part of the real estate contract by incorporation. The waiver stated that it was binding on the purchaser and her successors. Several years later, the initial purchaser sold the home to Plaintiff as-is. Four months after Plaintiff moved into the home, the porch collapsed. He sued Defendants asserting, among other things, a breach of the implied warranty of habitability. Following a bench trial, the circuit court found in favor of Defendants, concluding that Plaintiff was bound by the initial purchaser’s waiver of the implied warranty of habitability. Additionally, the court noted that Plaintiff purchased the home as-is.

The Illinois Appellate Court reversed, holding that the initial purchaser’s waiver was not binding on Plaintiff because he had no knowledge of the waiver executed by Defendants and the initial purchaser and was not a party to that agreement. Furthermore, the appellate court held that the as-is provision was an agreement between Plaintiff and the initial purchaser and was not a waiver of the implied warranty of habitability as to Defendants.

Appellate Court Decision: 2015 IL App (1st) 140171, 31 N.E.3d 922. Palmer, J., with McBride and Reyes, JJ., concurring.

PLA Allowed: 09/30/15

Oral Argument: 03/17/16

 

SUBJECT MATTER JURISDICTION – ILLINOIS GAMING ACT

Nos. 119870, 119871, 119872, 119873, 119874 (cons.)
J & J Ventures Gaming, LLC v. Wild, Inc.

This consolidated appeal concerns the circuit court’s subject matter jurisdiction over contract disputes arising out of the operation of video gaming terminals.

Under the Illinois Gaming Act (the “Act”) (230 ILCS 40/1 et seq.), the operation of a video gaming terminal is governed by a written use agreement between the owner of the terminal license and the owner of the establishment. Plaintiff J & J Ventures Gaming claimed to have an exclusive right to operate video gaming terminals at various establishments pursuant to its written use agreement with those establishments. Accel Entertainment Gaming, LLC likewise claimed that it had the right to operate video gaming terminals at those establishments under written use agreements it acquired by assignment. Plaintiff filed lawsuits in the circuit court against five establishments seeking a declaration that it was entitled to operate the video gaming terminals in those establishments. Accel Entertainment Gaming moved to intervene in each of those lawsuits. Following the decision in Triple 7 Illinois, LLC v. Gaming & Entertainment Management-Illinois, LLC, 2013 IL App (3d) 120860, the circuit court found in favor of Plaintiff.

On appeal, the Illinois Appellate Court, Fifth District, declined to follow Triple 7 and instead determined sua sponte that the Act granted the Illinois Gaming Board exclusive authority to decide the question of which written use agreement was controlling as a matter of administrative law. Accordingly, the appellate court determined that the circuit court lacked subject matter jurisdiction over Plaintiff’s declaratory judgment actions, vacated the circuit court’s orders, and dismissed the appeals. The appellate court then issued a certificate of importance in each case pursuant to Supreme Court Rule 316, allowing them to be heard by the Illinois Supreme Court.

 

Appellate Court Decision: 2015 IL App (5th) 140092, 38 N.E.3d 194. Stewart, J., with Goldenhersh and Schwarm, JJ., concurring.

 

Certified cases – Supreme Court Rule 316: 09/23/15

Oral Argument: 03/22/16

 

  The case of Pedigo v. Youngblood, 2015 IL App (4th) 140222, makes clear that a contempt finding must be accompanied by a set, actual monetary sanction to be subject to direct appeal under Supreme Court Rule 304(b)(5).

In this matter, on March 4, 2014, the trial court orally pronounced defendant, Sean Youngblood, in contempt for failure to comply with discovery and ordered reasonable attorney fees as a sanction. On March 10, 2014, Youngblood filed a notice of appeal. On March 13, 2014, the trial court entered its written contempt order, stating in part that as a sanction for indirect civil contempt, “Youngblood shall pay reasonable attorney’s fees incurred by the plaintiffs as a result of his failure to answer plaintiffs’ first requests to produce.” Pedigo, 2015 IL App (4th) 140222, ¶ 14. The order further directed plaintiffs to file a fee petition for a determination of reasonable attorney fees. Id.

On appeal, the appellate court first dealt with the timing of Youngblood’s March 10, 2014, notice of appeal. The court noted Rule 303 provides that a notice of appeal filed after the trial court announces its decision, but before entry of the judgment or order, is treated as filed on the date of, and after entry of, the order. Id. ¶ 15. Accordingly, the appellate court treated the notice of appeal filed on March 10, 2014, as filed on the date of, and after entry of, the trial court's written order of March 13, 2014. The appellate court further treated the notice of appeal as referring to the written order. Id.

More problematic – and the real issue of the appeal – was whether a contempt order granting reasonable attorney fees in an amount later to be determined is directly appealable under Supreme Court Rule 304(b)(5). That Rule permits direct appeal from an order “finding a person or entity in contempt of court which imposes a monetary or other penalty.” Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010). The key part of the Rule is the imposition of the monetary penalty, as a contempt order which does not impose sanctions is not final and therefore not reviewable. Id. ¶ 17 (citing In re Estate of Hayden, 361 Ill. App. 3d 1021, 1026 (2005)).

In this matter, the amount of “reasonable attorney’s fees” remained pending and unresolved even by the time the record on appeal was prepared and certified. Id. ¶ 7. The Fourth District noted that because the trial court, in its March 13, 2014 written order, did not impose a “specific monetary sanction, we cannot review the appropriateness of the sanction.” Id. ¶ 17. Accordingly, because Youngblood appealed the contempt order prior to the trial court imposing a monetary sanction, the Fourth District ruled it “lack[ed] jurisdiction under Rule 304(b)(5) to entertain the merits of [this] appeal” (id. ¶ 18), and it dismissed Youngblood’s appeal. Id. ¶ 24.

As a postscript, the appellate court also considered plaintiffs’ request for sanctions pursuant to Supreme Court Rule 375. While Youngblood claimed he filed the appeal in a good-faith effort to address the underlying discovery issue, the appellate court determined the record “belies that assertion” since first, he originally withdrew his motion to vacate the order compelling discovery. Id. ¶ 21. Second, the appellate court noted this was, in fact, the third occasion that Youngblood pursued an appeal prematurely. Id. Accordingly, the appellate court granted plaintiffs’ motion for sanctions, stating the exact amount would be determined after plaintiffs’ submitted a statement of reasonable expenses and attorney fees in connection with the appeal, and after Youngblood had an opportunity to respond. Id. ¶ 22.
 

   The Association will host two events during the next month. On March 10, 2016, the ALA's annual roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will be held at the Union League Club in Chicago. Space permitting, attendees will enjoy lunch with an individual justice, as each jurist will be seated at a separate table. Attendees will have the rare opportunity to ask the justices for tips and practice pointers in a casual and cordial atmosphere. Attendees will receive 1 hour of MCLE credit.

On March 18, 2016, from 1 p.m. to 5 p.m., the Association will host a half-day advanced appellate practice seminar at the Chicago Bar Association. The seminar will feature various seasoned appellate practitioners, including ALA President and former Illinois Solicitor General Michael A. Scodro and past ALA president Michael W. Rathsack, among others. Topics will include discretionary appeals, motion practice before reviewing courts, post-judgment practice in anticipation of an appeal, petitions for leave to appeal, and appeal bonds. The seminar will also feature a mock oral argument. Attendees will receive 3.75 hours of MCLE credit. 

For more information and to register, please click here. 

  On February 17, 2016, the ALA convened for lunch at the Union League Club in Chicago and enjoyed an interesting discussion on theories of constitutional and statutory interpretation featuring Seventh Circuit Judges Diane Sykes and David Hamilton. The topic was particularly timely in light of the recent passing of Justice Antonin Scalia; no discussion of constitutional interpretation would be complete without frequent reference to Justice Scalia, to whom both speakers paid tribute, as did ALA President Mike Scodro in greeting the luncheon participants.

Judge Sykes began with an overview of the main theories of constitutional interpretation that historically have dominated American jurisprudence: the living constitutionalism of the Warren court, which brings to mind the approach of Justice William Brennan, that the meaning of the broad terms contained in the Constitution should evolve with changes in American society; the political process theory, which confers unrestrained power on the judiciary, an approach largely confined to academia; originalism, which tethers judges to the text of the Constitution and historical context; and pragmatism, an approach that focuses on the consequences of judicial decisions. Judge Sykes explained that pragmatism is prominently featured in the opinions of Seventh Circuit Judge Richard Posner and, to a lesser extent, Supreme Court Justice Stephen Breyer. As an example of how she and her colleagues implement a variety of these constitutional theories, Judge Sykes discussed the Seventh Circuit’s 2013 decision in Moore v. Madigan, which held 2-1 that Illinois was required under the Second Amendment to license the concealed carrying of firearms.

Judge Hamilton theorized that, regardless of the various manners of constitutional interpretation at play in a given case, a judge still must exercise discretion in wielding judicial power. While the originalism/textualism approach developed to rein in what some viewed as a power hungry judiciary in the Warren years, a judge's work still involves, in significant measure, the exercise of judgment and discretion. Making this point with humor, Judge Hamilton quoted Justice Scalia as saying, "I’m an originalist, but not a nut." Judge Hamilton also critiqued the decision in Bush v. Gore and provided examples of cases in which textualism and originalism conflict.

The Association thanks Judge Hamilton and Judge Sykes for the fascinating discussion and also thanks the ALA members and guests for attending the program.

  On January 22, 2016, the Supreme Court of Illinois ordered mandatory, statewide electronic filing in civil cases, expressly abandoning its prior policy of encouraging Illinois courts to voluntarily adopt such systems. (M.R. 18368.) In less than 2 years, each court of Illinois must implement an electronic filing system for civil cases; and participants, both lawyers and pro se litigants, will not be allowed to file anything in a civil case other than through the court’s electronic system, “except in the event of an emergency.” (Id. at 3.)

In 2002, the court noted, it began an effort to encourage a voluntary transition away from paper-based filing systems in favor of electronic filing systems. However, several years after 2002, only five counties were participating in that voluntary effort, according to the order. There are 102 counties in Illinois.

The high court also noted that it further encouraged the transition in 2012 by adopting standards and principles of electronic filing systems that were intended to guide and assist in the transition. The court noted with apparent dismay that as of the date of its order -- January 22, 2016 -- only 15 counties successfully adopted an electronic filing system. The court called the current use of electronic filing systems in Illinois “scant.” The court did not mention that the clerks of the circuit courts are elected by the citizens residing in each circuit, nor did it expressly claim (for itself or the judges of the circuit courts) supervisory authority over those elected circuit clerks. The clerks of the appellate and supreme courts are not elected officials, but appointees of their respective courts.

The court did acknowledge barriers to a statewide adoption of electronic filing, including variations in the ability of various circuit courts to access the necessary financial and technological resources, and the fact that there are currently 13 different case management systems in use by various parts of the state’s judicial system. Ultimately, the court agreed that “statewide e-filing efforts will develop if courts are mandated to e-file . . . .” (Id. (emphasis added).)

The court declared that its efforts to encourage voluntary adoption of electronic filing had not achieved the desired goal of state-ide e-filing on civil matters. (Id. at 2.) Accordingly, it concluded that “e-filing in civil cases in Illinois must be made mandatory.” (Id. at 2 (emphasis added).) The court’s conclusion was based on “the recommendations of multi-disciplinary committees, boards, and court staff who have spent years evaluating this issue.” (Id.)

The court’s order is addressed to all three levels of the Illinois court system, and requires the high court itself, and the appellate court, to make e-filing mandatory for civil cases by July 1, 2017. E-filing of civil cases will be mandatory in all circuit courts on January 1, 2018. Any circuit court which had not implemented their own e-filing system by January 22, 2016, must use a centralized electronic filing system that will be authorized by the court, and integrate their system with the centralized, statewide system.

In addition to requiring all of the courts of Illinois, including itself, to implement mandatory e-filing, the supreme court required that those courts “must provide designated space, necessary equipment, and technical support for self-represented litigants seeking to e-file documents during normal business hours.” (Id. at 3.) The court did not address what must be provided to attorneys to assist them with their e-filing needs, such as training or technical support.

Once each court is subject to mandatory e-filing, “attorneys and self-represented litigants may not file documents [in civil cases] through any [other] filing method, except in the event of an emergency.” (Id. (emphasis added).) “Emergency” is not defined in the order.

The very last sentence of the order provides the court with the power to extend the time for those courts that “cannot comply” with the deadline imposed on them. But those courts must petition the supreme court for an extension of time. (Id. at 3.) Such extensions “are not favored but may be granted for good cause shown.” (Id. (emphasis added).) The order does not specify what, if any, consequences might be imposed on courts that neither comply in time nor get an extension.

Yesterday, ALA President Michael Scodro, and Illinois Solicitor General and ALA member Carolyn Shapiro appeared on Chicago Tonight to discuss the legacy of Supreme Court Justice Antonin Scalia who passed away over the weekend. Joining Scodro and Shapiro on the panel were David Franklin and Andrew DeVooght. All four panel members previously clerked at the Supreme Court, though not for Justice Scalia, and each discussed a personal memory of him.

The panel discussed Justice Scalia's colorful writing, his renowned dissents and his interactions with other justices of the Court. The panel also discussed the future of the Court without Justice Scalia.

Please click here to watch the thoughtful and informative discussion.

The Association recently updated Cases Pending, a resource that provide

ALA members with up-to-date information on matters (civil, criminal and attorney discipline) pending before the Illinois Supreme Court. The updated volume provides information on cases currently pending in and recently decided by the state's high court through February 3, 2016.

Complete access to Cases Pending is complimentary with ALA membership.

  Mandatory individual arbitration agreements as a means of defeating class action lawsuits are a hot topic of late, and a recent decision from the Illinois Appellate Court has clarified the standard of proof and standard of decision parties and trial courts must meet to resolve disputes over the existence and enforceability of those agreements.

In Sturgill v. Santander Consumer USA, Inc., 2016 IL App (5th) 140380, Franklin Sturgill brought a putative class action lawsuit against Santander, a financing company, alleging the company failed to deliver the certificate of title to his truck within the time provided by law following the satisfaction of a lien placed on it at the time of purchase. In line with a litigation trend that has skyrocketed since the U.S. Supreme Court decision in AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), Santander moved to compel individual arbitration and dismiss or stay the suit. Santander claimed that Sturgill agreed to mandatory arbitration as a term of the financing agreement with Santander’s predecessor in interest. Sturgill contested whether Santander had inherited the right to compel arbitration and argued that, either way, the arbitration provision did not apply because his cause of action arose after the installment contract was satisfied. Both Santander and Sturgill’s arguments depended on several unresolved factual and legal questions. The trial court thus ordered limited discovery to address those issues, but when the parties failed to comply, the court summarily denied the motion to compel arbitration.

  On January 21, 2016, the Association gathered at the Union League Club of Chicago to host "The Roberts Court at Ten: A Reporter's Reflections" featuring Adam Liptak, the United States Supreme Court reporter for the New York Times.

The Appellate Lawyers Association President Michael A. Scodro began the event by offering welcoming remarks as Association members and guests enjoyed lunch. President Scodro previewed future Association events, including one on February 17, 2016, at the Union League Club of Chicago, featuring Justices Diane Sykes and David Hamilton of the Seventh Circuit Court of Appeals, who will discuss the various approaches judges use in statutory and constitutional interpretation. President Scodro also took a moment to recognize former Association President Judge Jean Prendergast Rooney, a "driving force of the" Association, who recently passed away.

Liptak began his discussion previewing the three questions he intended to answer: (1) What the name the "Roberts Court" means? (2) What cases the United States Supreme Court has decided recently? and (3) What challenges he has faced covering the Supreme Court in an accelerated and fragmented news environment?

Liptak discussed the diversity, and in some ways the lack thereof, of the Supreme Court. Liptak observed that for the first time in the Court's history, there are three women justices and no Protestant members, remarking that currently there are six Catholic and three Jewish members. However, Liptak noted that all the justices had either attended law school at Harvard or Yale, and only one justice did not previously serve on a federal appellate court.

Currently, according to Liptak, there are five conservative members and four liberal members sitting on the Court. He noted that each liberal member had been appointed by a Democratic president while each conservative member had been appointed by a Republican president. Although this might seem customary, Liptak refuted that notion by pointing to various examples of liberal or moderate justices who were appointed by Republican presidents, such as Justice John Paul Stevens appointed by Gerald Ford, Justice David Souter appointed by George H.W. Bush and Justice Sandra Day O'Connor appointed by Ronald Reagan. Liptak explained that today, ideology appears to be the critical factor when appointing a justice to the Supreme Court rather than geographic diversity or judicial experience.

Liptak expressed various conclusions about the "Roberts Court." First, because of its conservative majority, the Court itself under Justice Roberts has leaned toward conservative rulings, highlighted by various decisions involving guns, voting rights and campaign finance. Liptak opined that the defining shift in the Roberts Court's ideology was in 2006, when Justice Antonin Scalia, a conservative, replaced Justice O'Connor, a moderate.

Finally, Liptak gave his unofficial slogan of the Roberts Court that "everything worth deciding is worth deciding twice," with the second decision often being the most impactful of the two. Liptak cited examples in campaign finance, voting rights, same-sex marriage and public unions.

The event concluded with a question-and-answer session.

The Association thanks Adam Liptak for an informative and enjoyable luncheon, and all of the guests for their attendance and participation.

  The Association's upcoming luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Over the years, Liptak has provided unique insight on how the High Court operates behind the scenes. His recent article featured the case, Friedrichs v. California Teachers Association, No. 14-915, whose oral argument was held on Monday.

In this highly anticipated case, the California law at issue requires public employees who do not join a union to still pay fees that compensate for the costs of collective bargaining. Ten California teachers contend they have a First Amendment right not to pay the union fees. The union argues that the non-members are trying to obtain a windfall, reaping the benefits of collective bargaining without paying for its costs.

The importance of the Court's outcome in the case, Liptak noted, is that a ruling in favor of the teachers would represent a drastic blow to unions.

Liptak observed that the Court's conservative majority seemed likely to agree with the teachers. The "best" hope unions have for a ruling in their favor, Liptak said, is Justice Antonin Scalia who has been sympathetic toward them in the past. However, Liptak observed a certain sense of hostility by Justice Scalia toward unions during oral arguments, especially when he proclaimed "[t]he problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition."

The liberal minority on the Court seemed focused, Liptak asserted, on a worthy reason to overturn past Supreme Court precedent, Abood v. Detroit Board of Education, which held in 1977 that forcing non-union members to pay for a union's collective bargaining efforts was constitutional.