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.

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.

On October 15, 2015, the Illinois Supreme Court amended three rules applicable to civil appellate practice and procedure. The following is a brief synopsis of those amendments.

The amended Rule 308 extends the time for filing an application for leave to appeal from 14 days to 30 days after the entry of the certified question in the trial court. 

The amended Rule 324 now requires the clerk of the circuit court to accept for inclusion in the record any pleading that carries an original filing stamp of the clerk.  Additionally, notice of filing must be given to all parties of record. 

The amended Rule 335 provides that a petition for review be filed in the appellate court within 35 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of an administrative agency, unless another time period is specifically authorized by the law authorizing review. 

ALA Rules Committee Co-Chair John Fitzgerald testified on the ALA's behalf at the public hearing regarding the changes. ALA Rules Committee member Jon Amarilio also participated. Past ALA presidents Tim Eaton and Mike Rathsack testified on behalf of the CBA.

In Robinson v. Sweeny, 794 F.3d 782, 2015 WL 4477987 (7th Cir. 2015), the Court of Appeals for the Seventh Circuit dismissed a pro se litigant’s appeal as untimely based on what the court called a “pitfall” of Fed. R. Civ. P. 59(e) and 6(b)(2).

In this “odd and confused case” (794 F.3d at 783), plaintiff, a prisoner in an Illinois jail, was attacked by a fellow prisoner while in custody. Plaintiff filed a pro se Section 1983 action against the guards and security personnel for failing to protect him. The district court granted summary judgment in favor of the defendants.

Two days before plaintiff’s deadline to file a Rule 59(e) motion, plaintiff moved to extend the deadline to file such a motion, unaware that under Rule 6(b)(2), that deadline could not be extended. Plaintiff then missed the deadline to file a Rule 59(e) motion.

Nonetheless, the district court ruled a month later that, although it could not extend plaintiff’s deadline to file a Rule 59(e) motion, it would treat plaintiff’s motion for an extension as a timely filed Rule 59(e) motion and ordered plaintiff to supplement that motion with substantive grounds for relief. When plaintiff failed to supplement, the court denied the “Rule 59(e)” motion. Twelve days after that ruling, plaintiff filed another such motion, which the district court construed as a Rule 60(b) motion and denied. Plaintiff then filed a notice of appeal.

In an opinion authored by Judge Posner, the Seventh Circuit dismissed the appeal as untimely. The court noted that, while a “proper and timely Rule 59(e) motion freezes the time for appeal until the judge decides the motion,” the plaintiff’s Rule 59(e) motion was not proper. The court explained that the plaintiff “missed the 28-day deadline for making a genuine Rule 59(e) motion and therefore could obtain no relief under that rule.” Id. Noting that procedural rules apply with equal rigor to pro se litigants (id. at 784), the court nonetheless lamented that no one had explained the hard deadline to the plaintiff. The court suggested that in the future, district courts should take care to advise pro se litigants of “the options and associated deadlines for reconsideration or appeal of the judgment.” Id.

Recommended Citation: Charles E. Harper and Daniel Lewin, Court Strictly Enforces Rule 59(e) Deadline Against Pro se Litigant, The Brief (October 19, 2015), http://applawyers-thebrief.blogspot.com/2015/10/court-strictly-enforces-rule-59e.html.

The Association recently updated Cases Pending, a resource that provides 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 October 14, 2015. Complete access to Cases Pending is complimentary with an ALA membership.

On October 28, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Justices Terrence Lavin and David Ellis of the Illinois Appellate Court, First District. Justices Lavin and Ellis will discuss the finer points of legal writing, as well as the importance of writing in the legal profession. 

Justices Lavin and Ellis will bring their perspectives on writing from both the judiciary's perspective and their experience in private practice before joining the bench. 

Justice Lavin was a civil litigator for 27 years prior to his appointment as a Justice of the Illinois Appellate Court. Justice Lavin also taught legal writing to third-year law students at the Chicago-Kent College of Law for nine years. Additionally, Justice Lavin has published more than 50 articles on civil trial practice.

Justice Ellis was an experienced commercial and constitutional law litigator before being elected to the Illinois Appellate Court. In addition to his legal writing background, Justice Ellis is an award-winning author, publishing more than 10 novels.

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

Participants will earn one hour of MCLE credit.

The Association recently kicked off the bar year with a luncheon featuring Professor David Strauss of the University of Chicago Law School. Held on October 1, 2015, at the Union League Club in Chicago, attendees earned valuable CLE credit as Professor Strauss provided keen insight on significant cases the Supreme Court will decide this term. 

ALA President Michael A. Scodro opened the luncheon by welcoming ALA members and guests, which included judges from the United States Court of Appeals for the Seventh Circuit, the United States District Court for the Northern District of Illinois, and the Illinois Appellate Court.

Thereafter, Professor Strauss—who has argued 18 cases before the High Court and also serves as co-editor of the Supreme Court Review—began his remarks by noting that, while the upcoming term may not involve a once-in-a-lifetime decision, the Supreme Court will address many significant issues. Of note, the Court will hear two seemingly repeat cases from recent terms.  

In Fisher v. University of Texas at Austin, 14-981, the justices will once again consider affirmative action in university admissions under the equal protection clause and the Fourteenth Amendment. In Friedrichs v. California Teachers Association, 14-915, the Supreme Court will again take up the issue of whether mandatory public sector union dues violate the First Amendment. Professor Strauss commented that it is unusual for the Court to revisit issues from previous terms, but cautioned that it could not serve as a prediction for how the Court will ultimately rule. 

Professor Strauss also discussed the  Supreme Court’s decision to address the one-person, one-vote doctrine under the equal protection clause. In Evenwel v. Abbott, 14-940, the justices will decide whether the doctrine is based on total population, or must be based on total voter population, when apportioning state legislative districts. Professor Strauss noted that the case could have major political implications, as non-citizens historically tend to congregate toward urban areas. 

Professor Strauss closed the luncheon with a question-and-answer session. In doing so, Professor Strauss agreed with a questioner that the Supreme Court appears to be more willing to take a case from the top down, that is, use concurring and dissenting opinions to signal to the bar that an issue is ripe for review. 

The Association thanks Professor Strauss for his engaging and insightful comments. 

The September 29, 2015 issue of the Chicago Daily Law Bulletin (accessible at the Law Bulletin's website through a paywall subscription) featured a front page story on the unanimous nature of a large percentage of opinions issued by the Illinois Supreme Court, particularly in civil appeals. The article noted that, according to some court watchers, 86 percent of recent opinions were unanimous.

The story quoted ALA President Michael A. Scodro, former Illinois Solicitor General and currently of Jenner & Block LLP.  Scodro noted that unanimous decisions present the state high court with the opportunity to speak "with one voice," which is particularly helpful in cases where lawyers or the public predict a fractured court. The story also quoted past ALA President J. Timothy Eaton, who shared his belief that the supreme court strives to be unanimous on interpretation of both common law and statutory law "so practitioners in the state can know what to expect."

As a reminder, ALA members enjoy complimentary and exclusive access to Cases Pending, a publication that provides extensive information on cases currently pending before the Illinois Supreme Court. Edited by ALA Treasurer Clare Quish (pictured on left) and former ALA Director Gretchen Sperry (pictured on right), Cases Pending can be accessed at the Association’s website.

The Illinois Supreme Court’s September Term that began Monday, September 14, 2015, with oral arguments scheduled for Tuesday, Wednesday, and Thursday, September 15-17, 2015, and next Tuesday, Wednesday, and Thursday, September 22-24, 2015. A total of 22 cases will be heard – 9 civil and 13 criminal.

Here are the civil cases with the dates of oral argument:

Commonwealth Edison Co. v. Illinois Commerce Commission, No. 118129—September 17

The Board of Education of the City of Chicago v. The Illinois Educational Labor Relations Board, Nos. 118043, 118072 (cons.)—September 22

The State of Illinois v. American Federation of State, County and Municipal Employees, No. 118422—September 23

Petrovic v. The Department of Employment Security, No. 118562—September 23

Blumenthal v. Brewer, No. 118781 – September 23

Christopher B. Burke Engineering, Ltd. v. Heritage Bank of Central Illinois, No. 118955 – September 23

1010 Lake Shore Association v. Deutsche Bank National Trust Co., No. 118372—September 24

People of the State of Illinois ex rel. Patrick McGuire v. Cornelius, No. 118975—September 24

Bowman v. Ottney, No. 119000—September 24

To read previews for two of these cases, please continue reading this post. 



The Court will hear several cases of interest this term, including Blumenthal v. Brewer, which involves property rights for same-sex domestic partners, and a case addressing the State’s obligation to pay increased wages under a collective bargaining agreement although the legislature did not appropriate sufficient funds to do so. 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. 

UNJUST ENRICHMENT – SAME-SEX DOMESTIC PARTNERS

No. 118781 

Blumenthal v. Brewer

The issue in this case is whether the Appellate Court properly disregarded the 1979 Illinois Supreme Court case of Hewitt v. Hewitt, 77 Ill. 2d 49 (1979) and permitted claims for implied contract arising out of the parties’ non-marital cohabitation to proceed.

The parties in this case are two same-sex partners who were involved in a long-term relationship of 26 years. During that time, the parties raised several children together and “intentionally comingled and shared their assets based on a mutual commitment and expectation of a lifelong relationship.” Upon the dissolution of their relationship, the plaintiff sued to partition a home she jointly owned with the defendant. The defendant counterclaimed, alleging that she was entitled to a portion of the parties’ jointly acquired assets under theories of constructive trust, unjust enrichment, and quantum meruit. Relying on our Supreme Court’s decision in Hewitt, which prohibited such claims between unmarried cohabitants, the trial court dismissed the defendant’s counterclaims and she appealed.

The Illinois Appellate Court, First District, found that much of Hewitt’s underlying authority had been abandoned or superseded, noting that subsequent amendments to the Illinois Parentage Act of 1984 (750 ILCS 45/3 (West 2012)), the Illinois Probate Act (755 ILCS 5/2-2 (West 2012)), and the Illinois Pension Code (40 ILCS 5/1-104.2 (West 2012)) have extended certain rights to the children of unmarried parents, implicitly signaling a shift in Illinois public policy away from disfavoring such relationships. Accordingly, the First District reversed the trial court’s dismissal of the defendant’s counterclaims for equitable relief and remanded with instructions to consider the plaintiff’s remaining arguments regarding the sufficiency of those claims.

In her petition for leave to appeal, the plaintiff argues that the First District acted beyond its jurisdiction by refusing to follow Hewitt, and further reinstated the concept of common-law marriage by potentially affording rights previously only available to married parties (such as the right to an equitable division of property pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/503 (West 2012)) to the litigants below.

Appellate Court Opinion: 2014 IL App (1st) 132250, 24 N.E.3d 168. McBride, J. with Gordon and Reyes, J.J., concurring. 


PLA Allowed: 03/25/15

ARBITRATION

No. 118422 

State of Illinois v. American Federation of State County & Municipal Employees, Council 31

The issue in this case is whether section 21 of the Public Relations Act (5 ILCS 315/21 (West 2012)) (the “Act”) requires the State to spend more than $52 million in public funds pursuant to an arbitration award without a legislative appropriation.

In 2008, the Illinois Department of Central Management Services (“CMS”), on behalf of several state agencies, and the American Federal of State County & Municipal Employees, Council 31 (“AFSCME”), on behalf of employees at the state agencies, entered into a collective bargaining agreement that provided, among other things, for scheduled wage increases in each year of the agreement. After the State budget for fiscal 2012 did not include appropriations sufficient to cover the wage and salary amounts provided in the agreement, CMS suspended scheduled wage increases for that year. An arbitrator ruled that the State was obligated to pay the increases and the circuit court affirmed in part, but postponed full enforcement until the legislature appropriated additional funds. Both parties appealed. The Illinois Appellate Court, First District, held that the Act required immediate payment regardless of whether the funds were appropriated.

The State argues that the Appellate Court disregarded the Appropriations Clause of the Illinois Constitution (Ill. Const. 1970, art. VIII, § 2(b)) by holding that a statutory contracting authority is not limited to the amount of actual legislative appropriations. It argues that this holding is in conflict with Board of Trustees of Community College District No. 508 v. Burris, 118 Ill. 2d 465 (1987); People ex rel. Board of Trustees of University of Illinois v. Barrett, 382 Ill. 321 (1943); Cook County v. Ogilvie, 50 Ill. 2d 379 (1972); and American Federation of State, County and Municipal Employees, AFL-CIO v. Netsch, 216 Ill. App. 3d 566 (4th Dist. 1991) (per curiam).

Appellate Court Opinion: 2014 IL App (1st) 130262, 19 N.E.3d 1127. Neville, J., with Simon, P.J., and Pierce, J., concurring.

PLA Allowed: 03/25/15 

Appellant Counsel: Lisa Madigan, Attorney General of State of Illinois, Carolyn E. Shapiro, Solicitor General, Richard S. Huszagh, Assistant Attorney General, 100 West Randolph Street, 12th Floor, Chicago, Illinois 60601, (312) 814-2587.

"Unexpected Justice: The Rise of John Paul Stevens," is a documentary about the historic 1969 investigation of a bribery scandal in the Illinois Supreme Court. The investigation, led by then-attorney John Paul Stevens, was a remarkable chapter in the history of the Chicago bar and was a catalyst for Stevens' judicial career.  

The film will be broadcast on WTTW, the PBS station in Chicago, on Friday, September 18th at 7:30 p.m. and on Sunday, September 20th at 5:30 pm.  

The ALA thanks Butler Rubin Saltarelli & Boyd LLP, which generously funded the "Illinois Justice" Documentary Film Project. 

To view a short clip of the film, click here.