The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Timesjournalist who covers the United States Supreme Court. Last week, Liptak wrote multiple articles on oral arguments before the Court, including on Fisher v. University of Texas, No. 14-981 and Evenwel v. Abbott, No. 14-940. Liptak's article on Fisher may be found here while his article on Evenwel may be found here. 

In Fisher, the plaintiff, Abigail Fisher, a white student, alleged that the University of Texas denied her admission because of her race. She challenged the school's admission plan which did not make race a deciding factor, but rather one element in considering the applicant's attractiveness. Liptak noted that based on the justices' "skeptical" questions to the attorneys representing the University of Texas, it appeared that the University's affirmative action plan would be held unconstitutional.

Justice Scalia suggested that minority students with inferior academic credentials might do better at "a less advanced school" or "a slower-track school." Chief Justice Roberts wondered "[w]hat unique perspective does a minority student bring to a physics class?"

Liptak noted that, in particular, Justice Kennedy appeared "frustrated" that the Court had encountered the Fisher case again. After all, in 2013, the Court remanded Fisher back to the United States Court of Appeals for the Fifth Circuit so that it could apply the proper strict scrutiny analysis to the University's plan. However, Fisher made its way back to the Court, where Justice Kennedy opined that "[w]e’re just arguing the same case … as if nothing had happened."

Some of the liberal justices, specifically Justice Breyer, wondered if the Court was about to "kill affirmative action through a death by a thousand cuts."

Justice Kagan recused herself from the case because of her involvement in the case as Solicitor General of the United States.

Also noteworthy was that oral arguments lasted 95 minutes, where a typical case is argued in only 60 minutes.

In Evenwel, Liptak observed that the question presented is what the "one person, one vote" principle means when creating voting districts. Do states and other localities count all residents or merely eligible voters? The current practice is to count all residents.

The case was brought by individuals who were challenging voting districts for the Texas Senate.

Liptak noted that people living in the United States who are ineligible to vote—for example, children and immigrants—usually are concentrated in urban areas which tend to favor Democrats. Meanwhile, rural areas, which tend to favor Republicans, tend to have a higher percentage of eligible voters. Thus, he observed, the resolution of the case has the potential to provide a "big boost to Republican voters in state legislative races in large parts of the nation."

Liptak also observed that the justices' particular political leanings were indicative of whether they thought counting all residents or only eligible voters was proper. During oral arguments, the Court's four Democratic appointees asked questions suggesting that counting all residents was the proper protocol while the Court's five Republican appointees asked questions suggesting that counting just eligible voters was proper.

Chief Justice Roberts opined, "[i]t is called 'one person one vote,' " which "seems designed to protect voters."

Justice Sotomayor differed, stating "[t]here is a voting interest, but there is also a representation interest." Liptak suggested that Justice Sotomayor meant that politicians do not just represent eligible voters, but rather all constituents.

On December 9, 2015, the Illinois Supreme Court announced a series of amendments to the Illinois Supreme Court Rules. A full set of those rule amendments can be found here:

A number of those amendments affect appellate practice, principally in the following ways:

1. New word limits for appellate briefs: The Court amended Rules 341 and 367 to provide word limits for appellate briefs. Practitioners are given the alternative of complying with the new word limits or complying with the pre-existing page limits. The word limits are: 15,000 words for the appellant’s brief and the appellee’s brief; 7,000 words for the appellant’s reply brief; an additional 8,400 words for cross-appellants and cross-appellees; an additional 7,000 words for the cross-appellant’s reply brief; 8,000 words for a rehearing petition and an answer to a rehearing petition; and 3,500 words for a reply in support of a rehearing petition. The amendment will be effective January 1, 2016.

The ALA endorsed the adoption of word limits at the Supreme Court Rules Committee’s public hearing in July, based on our members’ widely shared view that word limits, as opposed to page limits, would encourage practitioners to use more reader-friendly formats and fonts. ALA member Alyssa Reiter has been championing this change for a long time and deserves much credit for paving the way for this development.

The proposal that the Supreme Court adopted today was made by the CBA’s Special Committee on Appellate Practice, which is co-chaired by past ALA Presidents Tim Eaton and Mike Rathsack. ALA Rules Committee member Jon Amarilio also was instrumental in the adoption of this proposal.

2. E-mail service: Rule 11 has been amended to mandate the inclusion of an attorney’s email address on his or her appearance and on “all pleadings filed in court,” and otherwise to streamline the rules governing electronic service. The Court also adopted the ALA’s proposed amendments to Rules 306(b), 307(d)(1) and 307(d)(2), which were intended to clarify that service via e-mail is permitted. This amendment will also be effective on January 1, 2016.

On December 3, 2015, the Illinois Supreme Court adopted a new rule designed to protect personal information in cases before both the Illinois Appellate Court and Illinois Supreme Court. The new rule, Illinois Supreme Court Rule 364, will become effective July 1, 2016. The rule applies to all documents and exhibits filed in civil and criminal cases before Illinois’ reviewing courts.

The rule aims to protect personal identifiers, such as social security numbers, taxpayer-identification numbers, financial account numbers, and debit and credit card numbers. Additionally, the rule was designed to protect the names of juveniles and recipients of mental health services as referenced in Illinois Supreme Court Rule 341(f).

Documents or exhibits filed with such personal identifiers are permissible if the information is redacted. For example, a party may redact the last four digits of a social security or individual taxpayer-identification number, the last four digits of a driver’s license or state identification card number, the last four digits of a financial account number, and the last four digits of a debit and credit card number. For juveniles and recipients of mental health services, generally, the use of the individual's first name and last initial will suffice.


If the filing of documents or exhibits with personal identifiers is required by court order, law or otherwise necessary, the party filing the documents must file a form in substantial compliance with the model form appended to Rule 364. Afterward, the notice and any other attachments will remain under seal and unavailable for public access, except as the court may order. Subsequent documents filed in the case must then only contain redacted personal identifiers and if necessary, appropriate references to the sealed documents containing the unredacted personal identifiers.

In discussing the rule, Chief Justice Rita B. Garman said the "new rule protects the privacy of parties, witnesses, and others involved in cases before the Illinois Supreme Court and the appellate court while ensuring that necessary personal information is available to those with a legitimate reason to access it."

Rule 364 was modeled after Illinois Supreme Court Rule 138, which was adopted in 2012, and aimed to prevent the disclosure of personal information in civil cases in Illinois circuit courts. The Illinois Supreme Court also amended Illinois Supreme Court Rule 612 to apply Rule 364 to criminal appeals.

Rule 364 may be read here.

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. In his most recent article, Liptak noted that the Supreme Court ruled on Tuesday that a California woman injured in a train accident in Austria cannot sue in an American court. The woman lost her legs after trying to board a moving train in Innsbruck. She argued that she should be allowed to sue the railroad in federal court in California because she bought her Eurail pass on the Internet while located in the United States from a travel agent in Massachusetts.

Chief Justice John G. Roberts, writing for the Court, stated that the crucial events all took place in Austria. The United States Court of Appeals for the Ninth Circuit, in San Francisco, allowed the woman to proceed based on the fact that she purchased the Eurail pass in the United States. The Supreme Court disagreed, noting that “the conduct constituting the gravamen of [the woman’s] suit plainly occurred abroad.” The Court found that there was nothing wrongful about the sale of the Eurail pass standing alone. This case, which was the first one argued this term, resulted in a unanimous decision by the Court. The case is OBB Personenverkehr A.G. v. Sachs, No. 13-1067, and can be accessed here.

During the first week of November, the Association gathers to host its annual moot court competition. Like previous years, this year's competition attracted teams from across the country, ranging from New York to California, and included many teams from Chicago-area schools. Consistent with the Association's goals of promoting excellence and civility in appellate practice, the competition affords law students the opportunity to prepare briefs on novel legal issues and present oral arguments before esteemed jurists in a collegial environment.

This year's problem asked the competitors to argue a complicated issue involving the extraterritorial reach of the Racketeer Influenced and Corrupt Organizations statute. The problem required the students to understand the three different approaches adopted by the federal district courts in answering such an inquiry. On a more practical level, participants were asked to address whether, under Federal Rules of Civil Procedure Rule 

11, a letter to an opposing counsel requesting that a frivolous pleading be withdrawn was sufficient to comply with Rule 11's procedural requirements, or whether Rule 11 requires strict compliance and a request for sanctions to be brought in a separate motion. 

As in years past, both the final bench and semifinal rounds consisted of a who's who of judges and appellate practitioners. Judge William J. Bauer of the United States Court of Appeals for the Seventh Circuit, Judge Edmond E. Chang of the United States District Court for the Northern District of Illinois, and Judge William E. Holdridge of the Illinois Appellate Court, Third District, presided over the final round. Judges for the semifinal rounds included Judge Maureen E. Connors of the Illinois Appellate Court, First District, Association President and former Illinois Solicitor General Michael Scodro, and former Association president Steven F. Pflaum. Many Association members graciously served as judges for the preliminary rounds. 

In the final round, two local schools went toe-to-toe, as Justin Joffe and Matthew Smart of the Chicago-Kent College of Law narrowly bested Patrick Simonaitis, Haley Wasserman, and Michael Ovca of the Northwestern University School of Law. The Association also recognized various individual achievements, including best oralist during the preliminary, semifinal, and final rounds.

The Association congratulates all participants for their hard work and superior advocacy, the Association's Moot Court Committee for organizing the popular competition, and the Association members and others who served as judges.

On November 18, 2015, the Association hosted a luncheon at the Union League Club in Chicago featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada-Las Vegas).

Dean Hamilton brought many Association members and guests back to their law school days, as he delivered an educational presentation on the history of the United States and its federal court system. During the late 1700’s and the 1800’s, the United States Supreme Court was not regarded as an equal to the President or Congress. Many Association members and guests were taught that the landmark case of Marbury v. Madison established that Court’s power as the final arbiter on the law and the meaning of the Constitution, but Dean Hamilton noted that academia no longer views the Marbury decision in that light. He said the strength of the Court has always depended upon the will of the people, who at that time viewed the President as more powerful. Had the President publicly criticized that decision, the public would likely have followed the president. 

Dean Hamilton also noted that public perception of the Court has grown out of its decisions directed at commerce. Dean Hamilton suggested that there was concern about the public outcry after the Bush v. Gore and Citizens United v. Federal Election Commission decisions. Dean Hamilton believed that Chief Justice John Roberts is currently attempting to recapture some public support for the Court (and its powers) through its recent decisions concerning the Patient Protection and Affordable Care Act. 

The ALA thanks Dean Hamilton for a dynamic and enthusiastic luncheon, and all of the guests for their attendance.

The Association’s upcoming January luncheon will feature Adam Liptak, New York Times reporter who covers the United States Supreme Court. In his Friday article, Liptak noted that the Supreme Court agreed to hear its first major abortion case since 2007, Whole Woman's Health v. Cole, No. 15-274. Many states have enacted restrictions that test the limits of the constitutional right to abortion established in the seminal case of Roe v. Wade in 1973. The Cole case is a challenge to a Texas law that would reduce the number of abortion clinics in the state from 40 to 10. One part of the law requires all clinics in the state to meet the standards for "ambulatory surgical centers," and another part requires doctors performing abortions to have admitting privileges at a nearby hospital. Officials in Texas claimed that the provisions are needed to protect women's health, while abortion providers responded that the regulations are "expensive, unnecessary, and intended to put many of them out of business."

Liptak opined that the "future of abortion rights in the United States probably rests almost entirely in [Justice Anthony M. Kennedy's] hands, given the deadlock on the court between conservatives and liberals." Liptak based this opinion on the fact that Justice Kennedy helped write the controlling opinion in the 1992 case of Planned Parenthood v. Casey, which said states may not place undue burdens on the constitutional right to abortion before fetal viability. 

The Cole case, which will likely "produce the term's most consequential and legally significant decision," will probably arrive in June.

The Association’s upcoming January 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, and his most recent article revealed how Chief Justice Roberts assigns opinions to the other Supreme Court justices. A new study, prepared by Harvard Law Professor Richard J. Lazarus, revealed that every justice gets very close to the same number of majority opinions. However, Liptak stated that Chief Justice Roberts “plays favorites” by giving major assignments and unappealing assignments to certain justices “with keen attention to strategy.” Namely, Chief Justice Roberts assigned about a third of the most important opinions to himself, and another third to Justice Kennedy. According to Professor Lazarus, the assignments to Justice Kennedy have a distinct purpose – "to lock in his vote in close cases."

Liptak noted that perhaps the most surprising finding in Professor Lazarus’ study was that Justice Scalia, who joined the court in 1986 and is its longest-serving current member, received the same percentage of assignments in big cases as Justice Alito, who did not join the court until 2006. Lazarus opined that the reason behind this was that Justice Alito was more apt to write opinions of the sort Chief Justice Roberts prefers – “incremental, without rhetorical flourishes, and able to command five votes.” Liptak noted that the special role of Justice Alito was evident when the justices announced the last two decisions of the term on June 30, 2014. The cases, concerning contraception and public unions, were decided by 5-to-4 votes with the Court’s conservatives in the majority. Chief Justice Roberts spoke first stating, “Justice Alito has the opinion of the court in our remaining two cases this morning.”

On November 18, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada-Las Vegas). Dean Hamilton will speak about the history of the federal courts of appeal. 

Dean Hamilton is an expert on constitutional law, legal history and property law. He joined the faculty at the William S. Boyd School of Law in July 2013 from the University of Illinois College of Law where he was the Associate Dean for Faculty Development and Professor of Law and History. Prior to teaching at the University of Illinois, Dean Hamilton taught at the Chicago-Kent College of Law.

Dean Hamilton graduated with honors from Oberlin College with a degree in history. He then received his J.D. from George Washington University and later obtained a Ph.D. in American legal history from Harvard University.

Dean Hamilton is also an accomplished legal writer. His research and writing interests include American property ideology and various legal and constitutional issues from the Civil War. His work had been published in the Akron Law Review, Chicago-Kent Law Review, Journal of Supreme Court History, Journal of National Security Law, and University of Tulsa Law Review, among many others. 

The ALA welcomes all to join Dean Hamilton for an informative and engaging luncheon. For more information and to register, please click here.

Participants will earn one hour of MCLE credit.

The Illinois Supreme Court’s November Term begins today, November 9, 2015, with oral arguments scheduled for Tuesday and Thursday, November 10 and 12, and next Tuesday, November 17. A total of eight cases will be heard – two civil and six criminal. Here are the civil cases with the dates of oral argument:

Jones v. Municipal Employees’ Annuity and Benefit Fund of Chicago, Nos. 119618, 119620, 119638, 119639, 119644 (cons.)—November 17

Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings, No. 117720—November 17

Below are abbreviated summaries for these two cases. Summaries for all other cases currently pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on our website.

CONSTITUTIONAL LAW – PENSION REFORM LITIGATION

Nos. 119618, 119620, 119638, 119639, 119644 (cons.)

Jones v. Municipal Employees’ Annuity and Benefit Fund of Chicago

This appeal concerns the constitutionality of Public Act 98-641 (Public Act), which amended the Illinois Pension Code (40 ILCS 5/8-101 et seq.) (Code) as it pertains to the Municipal Employees’ Annuity and Benefit Fund of Chicago (MEABF) and the Laborers' Annuity and Benefit Fund of Chicago (LABF), which are both public employee pension funds.

The pension funds are funded through contributions made by the employer and the employee as specified in the Code. The Code also provided that upon retirement, the pension funds must make certain benefit payments to the employees based on their salary, age at retirement, and years of service. The Code also provided for an automatic 3% increase in benefit payments each year. The Public Act amended the Code by increasing the contributions required of employers and employees, reducing benefit payments, and eliminating the automatic annual increase entirely for certain years.

Plaintiffs are participants in the pension funds. They filed a lawsuit challenging the constitutionality of the Public Act on the ground that it violates the pension protection clause of the Illinois Constitution (Ill. Const. 1970, art. XIII, § 5), which guarantees that public pension benefits shall not be diminished or impaired. Defendants, including the City of Chicago and the pension funds, argued that because the Public Act imposed new payment obligations on the City that eliminated the potential for insolvency and contained enforcement mechanisms, Plaintiffs actually received a net benefit rather than an unconstitutional diminishment of their benefits. Defendants also argued that because the City and the labor unions negotiated these new terms, the Public Act was a bargained-for exchange rather than a unilateral diminishment of benefits.

The circuit court found that the Illinois Supreme Court’s holding in In re Pension Reform Litigation, 2015 IL 118585, controlled the analysis. As in that case, the circuit court found that the changes to the funding and payment calculations contained in the Public Act were an unconstitutional diminishment of public pension benefits. The circuit court rejected Defendants’ argument that the City’s new payment obligations resulted in a net benefit to Plaintiffs because the funding sources are not constitutionally protected, while pension benefits are. The court also concluded that under the circumstances, the unions did not have the authority to bargain away their members’ individual constitutional rights. Because the Public Act expressly provided for nonseverability, the court held the entire Public Act unconstitutional.

Direct Appeal – Supreme Court Rule 302(a): 7/30/15

ADMINISTRATIVE LAW

No. 117720

Stone Street Partners, LLC v. City of Chicago Department of Administrative Hearings

The main issue in this case is whether a corporation is required to be represented by an attorney in administrative hearings.

In 1999, a City building inspector found several building code violations in a building owned by Plaintiff Stone Street Partners, LLC. Rather than mailing a notice of violation and a summons for an administrative hearing to Stone Street’s registered agent or its business address, as required by a City ordinance, the City sent the notice to the property itself. At the hearing, a person named Keith Johnson, a non-attorney, appeared on Stone Street’s behalf. Stone Street claimed that the violations had been cured and submitted a photograph and work order for repairs. The hearing officer found Stone Street liable for various violations and assessed penalties and costs of $1,050. In 2009, the City recorded the court’s judgment with the Cook County Recorder of Deeds. In October 2011, Stone Street moved the Department of Administrative Hearings to vacate the 1999 order, arguing that it never received notice of the 1999 violations. Stone Street also claimed that Johnson was never authorized to represent Stone Street. The Department struck the motion, finding that it lacked jurisdiction to reach the merits because it could only consider vacating default judgments and Johnson’s participation meant that Stone Street had not defaulted, but lost on the merits. Stone Street then filed suit in the circuit court, seeking administrative review of the Department’s 2011 order and a declaratory judgment that the 1999 judgment was invalid. The circuit court dismissed the complaint upon the City’s motion.

The Illinois Appellate Court, First District, affirmed in part, reserved in part and remanded the case for further proceedings. The appellate court found that, ordinarily, vacating judgment after the passage of years was virtually impossible due to the presumptions of validity that apply to the judicial process, but the City had made two critical errors which invalidated the judgment. First, the City served the defendant corporation, not through its registered agent as is required by the City Ordinance, but at its property address. Second, the City’s administrative hearing officer allowed a non-attorney to appear and litigate the case on behalf of the corporation. The appellate court held that the City’s administrative hearings were similar to judicial proceedings as they involved the admission of evidence and the examination and cross-examination of sworn witnesses, and that those actions constituted the practice of law. The appellate court was not persuaded by the City’s argument that these hearings were so inconsequential that corporations need not be represented by licensed attorneys. Representation of corporations at administrative hearings ‑ particularly those which involve testimony from sworn witnesses, interpretation of laws and ordinances, and can result in the imposition of punitive fines ‑ must be made by a licensed attorney at law. The Department correctly determined that it had no jurisdiction to consider Stone Street’s motion to vacate because its jurisdiction was limited to default orders, and the circuit court correctly confirmed that administrative decision on review. The court also held that the complaint and affidavits set forth sufficient facts to support a valid claim based on voidness of the 1999 order, reversed the circuit court’s order dismissing this claim, and remanded the case.

Appellate Court Decision: 2014 IL App (1st) 123654, 12 N.E.3d 691.

PLA Allowed: 09/24/14