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"The Brief" - The ALA Blog

  • October 21, 2015 3:42 PM | Anonymous member (Administrator)

    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.

  • October 19, 2015 4:09 PM | Anonymous member (Administrator)

    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.


  • October 16, 2015 7:17 AM | Anonymous member (Administrator)

    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.

  • October 13, 2015 10:46 AM | Anonymous member (Administrator)

    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.


  • October 08, 2015 6:00 AM | Anonymous member (Administrator)

    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. 


  • September 30, 2015 9:00 PM | Anonymous member (Administrator)

    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."


  • September 18, 2015 5:58 AM | Anonymous member (Administrator)

    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.


  • September 15, 2015 10:22 PM | Anonymous member (Administrator)

    "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.


  • September 12, 2015 8:20 PM | Anonymous member (Administrator)

    On October 1, 2015, the Association will host a luncheon at the Union League Club in Chicago featuring Professor David Strauss of the University of Chicago Law School. Professor Strauss, who has argued 18 cases before the United States Supreme Court and is co-editor of the Supreme Court Review, will share his insight on the High Court's upcoming term, which begins in October. 


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


  • September 05, 2015 8:07 PM | Anonymous member (Administrator)

    Under the “collateral order” doctrine, a non-final district court order may be appealable despite the “final order” requirement of 28 U.S.C. § 1291, if certain criteria are met. In general, the order must be conclusive; it must resolve an important issue apart from the merits; and it must be effectively unreviewable on an appeal in the underlying action. 



    In United States of America v. Sinovel Wind Group Co., Ltd.,  2015 U.S. App. LEXIS 12694 (7th Cir. July 23, 2015), the Seventh Circuit Court of Appeals rejected application of the collateral order doctrine and found that an appeal by a partially owned Chinese corporation lacked jurisdiction. The court also rejected use of a mandamus to obtain appellate review.


    In June of 2013, the United States Department of Justice attempted to serve Sinovel Wind Group Company (“Sinovel”), a Chinese corporation with 18% government ownership, with a criminal summons, by serving its wholly owned U.S. subsidiary, Sinovel USA, in Texas. The summons revealed that Sinovel had been indicted in the Western District of Wisconsin for criminal copyright infringement and trade secret theft involving computer software. 

    Sinovel specially appeared in district court to file a motion to quash service of the summons, complaint and indictment for lack of personal jurisdiction under applicable federal criminal rules. It contended that service on Sinovel USA was not the equivalent to service on Sinovel itself.  Id. at *4. The district court found that Sinovel USA was the alter ego of Sinovel and denied the motion. Id. Sinovel filed a notice of appeal in September of 2014. It also filed a petition for writ of mandamus directly with the Seventh Circuit. 

    In an opinion authored by Chief Judge Diane P. Wood, the Seventh Circuit dismissed the appeal and denied the writ of mandamus. She first addressed appealability, noting that the order appealed from was not “final” for purposes of 28 U.S.C. § 1291. After outlining the parameters of the collateral order doctrine, she turned to Sinovel’s arguments for why the district court order should be treated as a collateral order.

    Sinovel basically argued the importance of the district court ruling based upon the Chinese government’s partial ownership. It further contended that the order was practically unreviewable, at least until conclusion of the criminal proceeding, and that prosecution of the case could imperil foreign relations.


    Chief Judge Wood pointed out, however, that litigants routinely raise personal-jurisdiction objections that are not reviewable until after the merits of the litigation have been resolved. She further noted that special rights for foreign-government-owned corporations are not triggered under the Foreign Sovereign Immunities Act unless the foreign government owns a majority interest.In addition, she observed that the fact that the Executive Branch, through the U.S. Department of Justice, had made the decision to prosecute the case constituted adequate consideration of the impact on foreign relations.

    Ultimately, Chief Judge Wood found that the district court’s jurisdiction decision was not unreviewable after final judgment, and that the appeal therefore lacked jurisdiction. 

    Some of these considerations overlapped with Wood’s evaluation of the petition for the writ of mandamus. She noted, for example, that such writs do not issue unless the petitioner has no other adequate remedy and has demonstrated a “clear and indisputable” right to the relief sought. Wood ultimately found that no compelling reason for immediate action existed here and that Sinovel would have an adequate remedy in an appeal after final judgment.

    Accordingly, the court dismissed the appeal and denied the petition for a writ of mandamus.


    Recommended Citation: Don R. Sampen, Mere Involvement of a Foreign Government Does Not Fulfill the “Collateral Order” Criteria for an Interlocutory Appeal, The Brief (September 5, 2015), http://applawyers-thebrief.blogspot.com/2015/09/mere-involvement-of-foreign-government.html#more.


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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