The Association will once again host the Illinois Supreme Court Civil Cases Year-in-Review, an information-packed seminar featuring Illinois Appellate Court Justice Ann B. Jorgensen of the Second District, along with past ALA presidents J. Timothy Eaton and Michael T. Reagan. The panel will discuss the significant civil cases decided by the Illinois Supreme Court during the past year. 

 As in years' past, the seminar will be presented in multiple locations. The initial presentation will be held on January 21, 2016, at Maldaner’s Restaurant in Springfield. The panel will also present the seminar on January 28, 2016, in Chicago at Neal Gerber & Eisenberg LLP and on February 4, 2016, in Wheaton at the DuPage County Judicial Center.

Justice Jorgensen began her practice as an assistant State’s Attorney in DuPage County. She then entered private practice before beginning her career in the judiciary as an Associate Judge in the 18th Judicial Circuit. In 2008, the Illinois Supreme Court appointed Justice Jorgensen to the Illinois Appellate Court, Second District.

J. Timothy Eaton is a partner at Taft Stettinius & Hollister LLP in Chicago where he concentrates his work in appellate practice, litigation, and energy and regulated industries. He was president of the ALA in 1989 and 1990.

Michael T. Reagan has his own law firm in Ottawa where he focuses on appellate law and civil litigation. He was president of the ALA in 1995 and 1996.

The ALA welcomes all to join our three speakers for an informative and engaging luncheon. For more information and to register, please click here.
Participants will earn 1.5 hours of MCLE credit.

 In Daniel v. Ripoli, 2015 IL App (1st) 122607-U, the appellate court dismissed an appeal for lack of appellate jurisdiction because a date stamp obtained from a self-service filing kiosk utilized by the Cook County Clerk’s office was not a sufficiently reliable indicator that the notice of appeal had been filed in a timely manner.

The Daniel case involved a business dispute among members of an accounting firm formed as a limited liability company. The estate of a deceased member sued both the LLC and the other members to recover distributions allegedly owed under the LLC’s operating agreement. The defendants contended that the operating agreement had been modified by a subsequent written agreement that permanently changed the distribution percentages to account for disparities in business production. The trial court rejected this contention, held that the changes effected by the subsequent agreement were not permanent, and awarded judgment in favor of the estate and against the LLC in the amount of $179,089.75. The trial court also rejected the estate’s attempt to impose individual liability on the other members of the LLC, and its request for distributions owed upon the death of plaintiff’s decedent. Both parties appealed.
 

The appellate court originally ruled in favor of defendants. In a published decision dated January 28, 2015 (2015 IL App (1st) 122607), the court determined, among other things, that the parties’ later agreement permanently reduced the distributive share of the plaintiff’s decedent. The appellate court accordingly reversed the trial court’s judgment in favor of the plaintiff estate; the court affirmed the other aspects of the trial court’s rulings. Id. ¶¶ 106-109.

Regarding appellate jurisdiction, the appellate court observed in its original disposition that the defendants’ notice of appeal bore a filing stamp dated within thirty days of the trial court’s final judgment. Id. ¶ 56. Although it acknowledged that there was a “dearth of authority directly so holding,” the court observed that “the file-stamp date has generally been considered by this court as the time of receipt by the clerk of the court.” Id. ¶ 57. The appellate court rejected the estate’s argument that this general rule should not apply because the file-stamp in Daniel was obtained at a self-service kiosk: “We find no supreme court rule or precedent holding that such file stamps are somehow ineffective or are not construed in the same manner as having a court clerk physically file-stamp a notice of appeal.” Id. ¶ 58.
 
Following the issuance of its decision, the court reconsidered, and reversed, its determination that the record established the existence of appellate jurisdiction. Based in part of the Illinois Supreme Court’s 2014 decision in Huber v. American Accounting Association, 2014 IL 117293 (holding that a label purchased from an automated postal center was not sufficient to establish proof of mailing under Supreme Court Rule 373’s so-called “mailbox rule”), the appellate court in Daniel held on rehearing that a file stamp obtained from a self-service filing kiosk did not sufficiently establish that the notice of appeal was timely surrendered to the “exclusive control of the clerk.” Daniel, 2015 IL App (1st) 122607-U, ¶ 73. The absence of both security against abuse and meaningful procedures for the retrieval and filing of documents deposited in such kiosks, the court held, renders such filings unreliable, standing alone, to establish a filing date. The court noted several possibilities that undermined such reliability by allowing for a delay between a party’s stamping of the document and the clerk’s actual possession of it (for example, stamping a document one day and depositing it for filing on a subsequent day). Id. ¶ 74. The court also noted that the record did not contain a notice of filing or certificate of service regarding the notice of appeal, id. ¶ 81, a fact the court found “particularly vexing,” – “so that even if we decided that the word of an officer of the court overcomes our reluctance to rely on the kiosk stamp, in this case we do not have the documents of record to make that determination.” Id. ¶ 86.
 
The court thus dismissed the defendants’ appeal for lack of appellate jurisdiction. The court stated: “We caution that relying on the date stamp from a self-service kiosk, particularly on time-sensitive documents, without more, is an invitation to trouble.” Id. ¶ 57. The court then addressed, and affirmed the trial court’s rulings with respect to, the estate’s cross-appeal. Id. ¶¶ 87-109. The Rule 23 Order did not address appellate jurisdiction to entertain the cross-appeal where the primary appeal was dismissed.

On January 21, 2016, the Association will host a luncheon at the Union League Club in Chicago featuring Adam Liptak of the New York Times. Liptak will speak about the United States Supreme Court the past 10 years under Chief Justice John Roberts. Not only will Liptak discuss the impactful stories from the Court the past decade, but he will also reflect on his own experiences covering the Court.

Liptak, an attorney by trade, joined the Times in 2002, first covering the Court in the fall of 2008. Liptak was a finalist for the 2009 Pulitzer Prize in explanatory reporting for his series, "American Exception," which explored the differences between the American legal system and those of other developed nations. 

Liptak originally was a copyboy for the Times after graduating from Yale University. He eventually returned to Yale, and in 1988, he graduated from its law school. After law school, Liptak spent four years working as a litigation associate at Cahill Gordon & Reindel in New York City, specializing in First Amendment cases. In 1992, he returned to the Times, working in its legal department. Liptak has taught media law at Columbia University's School of Journalism, the University of California, Los Angeles, School of Law and Yale Law School.

The ALA welcomes all to join Adam Liptak 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’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Last week, Liptak wrote an article focused on controversial state laws that make it a crime for motorists suspected of driving drunk to refuse blood, breath or urine tests. Currently, 13 states have such laws. 

The Court consolidated three different cases into one: Bernard v. Minnesota, No. 14-1470. In Bernard, William Bernard refused to take a breath test after his arrest for suspected drunk driving. In Minnesota, it is a crime for someone arrested for driving while impaired to refuse to submit to a chemical test of that person's blood, urine or breath to detect the presence of alcohol. Bernard challenged the Minnesota law. In rejecting his challenge to the law, the Minnesota Supreme Court reasoned that because Bernard was arrested, the search of his person was permissible in connection therewith. 

Liptak said that the defendants in the consolidated case are being represented by lawyers affiliated with Yale Law School's Supreme Court Clinic. The defendants noted that review of these laws are necessary because they " 'affect many thousands of people every year.' "

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.