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"The Brief" - The ALA Blog

  • December 07, 2015 7:14 AM | Anonymous member (Administrator)

    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.


  • December 04, 2015 10:23 AM | Anonymous member (Administrator)

    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.


  • December 01, 2015 8:16 AM | Anonymous member (Administrator)

    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.



  • November 19, 2015 8:47 PM | Anonymous member (Administrator)

    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.


  • November 16, 2015 10:31 PM | Anonymous member (Administrator)

    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.


  • November 11, 2015 9:58 PM | Anonymous member (Administrator)

    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.”


  • November 10, 2015 10:30 AM | Anonymous member (Administrator)

    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.


  • November 09, 2015 8:24 AM | Anonymous member (Administrator)

    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


  • November 06, 2015 8:29 PM | Anonymous member (Administrator)

    On September 25, 2015, the United States Court of Appeals for the Seventh Circuit held that reports issued by the National Transportation Safety Board (NTSB) are not final orders. In doing so, the Seventh Circuit joined the United States Court of Appeals for the District of Columbia and the United States Court of Appeals for the Ninth Circuit in concluding that such reports do not confer appellate jurisdiction.  


    In Helicopters, Inc. v. NTSB, No. 15-3028 (7th Cir. 2015), two people were killed in a helicopter crash in Seattle. Helicopters, Inc. (petitioner), an Illinois corporation, owned the helicopter. Pursuant to its statutory duty, the NTSB investigated the circumstances surrounding the incident, as NTSB investigations are used to "ascertain measures" to prevent future incidents. At the end of the investigation, the NTSB publishes a final report that includes factual findings, a probable cause determination, and safety recommendations. 


    In early September 2015, the NTSB released its factual report outlining the information it had gathered during its investigation, although it had not yet released its probable cause report. Three days later, petitioner sent the NTSB a letter asserting that its factual report omitted significant information, which would render it impossible for the NTSB to reach an accurate determination in its probable cause report. The NTSB responded that it would issue a final accident report which would contain all relevant facts and the probable cause of the accident, and if petitioner disagreed with the final report, it could file a petition for rehearing with the NTSB. 


    Thereafter, petitioner filed a petition for review with the Seventh Circuit, asking the court to enter a "final judgment" requiring the NTSB to rescind the factual report. To establish jurisdiction, petitioner relied on 49 U.S.C § 1153, which provides federal circuit courts with jurisdiction to review an NTSB "final order." 

    The Seventh Circuit concluded that it lacked jurisdiction. In so finding, it agreed with the D.C. Circuit and the Ninth Circuit that NSTB factual and probable cause reports are not final orders because they do not create any legal repercussions for the petitioner. Specifically, the Seventh Circuit noted that in Joshi v. NTSB, 791 F.3d 8 (D.C. Cir. 2015), the D.C. Circuit specifically rejected a petitioner's argument that reputational, emotional, or informational harm stemming from a report transformed the report into a final agency order. Thus, the Seventh Circuit rejected petitioner's argument that it would suffer "commercial and reputational harm," opining that the concern was a "practical consequence" as opposed to a legal harm.


    Further, the Seventh Circuit relied on the D.C. Circuit's conclusion that the NSTB's denial of a petition for reconsideration was also not reviewable because it was just another stage in the accident investigation procedure and did not impose any legal consequences. 


    Finally, the Seventh Circuit noted that, if it were to review the report, it would necessarily have to determine whether the factual findings were inaccurate. Therefore, it would be forced to speculate as to whether the future NTSB's probable cause report would be inaccurate. 

    Recommended Citation: Charlie Ingrassia, Seventh Circuit Joins Two Other Circuits and Holds that NTSB Reports are Not Final and Reviewable, The Brief, (November 6, 2015), http://applawyers-thebrief.blogspot.com/2015/11/seventh-circuit-joins-two-other.html.


  • October 31, 2015 10:06 AM | Anonymous member (Administrator)

    On October 28, 2015, the Association gathered at the Union League Club in Chicago to host “The Finer Points of Writing: A View from Both Sides of the Bench” featuring Justices Terrence Lavin and Mary Anne Mason of the Illinois Appellate Court, First District.


    ALA President Michael A. Scodro began the event by offering welcoming remarks as ALA members and guests enjoyed lunch. In doing so, President Scodro previewed future ALA events, including the next event in November, featuring Dean Daniel W. Hamilton of the William S. Boyd School of Law (University of Nevada – Las Vegas), who will speak about the history of the federal appellate courts.

    Justices Lavin and Mason then began their discussion on legal writing. Justice Lavin spoke about his process of drafting an opinion, from the beginning to the end product. He observed the entire process of “brief dissection, record exploration and opinion construction” has been rewarding. Justice Lavin said he has learned a lot since his appointment to the appellate court, including when to tone down an opinion. He explained that when a fellow justice writes, “I concur in the judgment only,” he knows it is time to tone down his writing. Justice Lavin described his “prolixity” as a weakness of his early opinion writing and he now knows that “less is more.”


    Briefly changing topics, Justice Lavin spoke highly of oral arguments because of his affinity to engage with the lawyers. However, he admitted that argument seldom changes the outcome of a case.

    Justice Mason opened her remarks by stating she is the “luckiest lawyer” because she has a job she loves. She focused her discussion on suggestions to appellate lawyers to improve their briefs. She described brief writing as truly an “art.”

    In the nature of the case section of a brief, Justice Mason said this is the party’s first opportunity to tell the justices what is important. She suggested improving this section by including specific facts relevant to the nature of the case, not merely a generic boilerplate paragraph.

    Justice Mason moved on to the statement of facts section of a brief. She advised against serial narration of facts. Instead, brief writers should put the reader into the moment of the action and “tell a story.” She also suggested to use the parties’ names in the statement of facts and to avoid at all costs acronyms and the generic “defendant,” “defendant’s mom,” etc. When necessary, an “understandable shorthand” is acceptable. Justice Mason’s most important advice was to make sure that every fact included in the statement of facts could be cited to the record. Justice Mason gave her own initialism for the statement of facts: “AAFF,” or “assiduously avoid fudging the facts.” She also recommended that the appellee avoid a completely new recitation of the facts in its brief. Instead, an appellee should point out what is missing or incorrect about the appellant’s brief. By approaching a statement of facts in this manner, Justice Mason said you can already highlight to the court your opponent’s weaknesses.

    In discussing the argument section of a brief, Justice Mason urged the audience to trust the reader to remember the statement of facts and to avoid unnecessarily repeating material. Justice Mason also suggested distinguishing opponents’ cases more succinctly in order to keep the brief focused.

    The event concluded  with a question-and-answer sessions, with the ALA members and guests having the unique opportunity to ask the Justices questions.

    The ALA thanks Justices Lavin and Mason for an informative and enjoyable luncheon, and all of the guests for their attendance and participation.


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

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