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

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

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

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Over the years, Liptak has provided unique insight on how the High Court operates behind the scenes, and his most recent article revealed how Chief Justice Roberts assigns opinions to the other Supreme Court justices. A new study, prepared by Harvard Law Professor Richard J. Lazarus, revealed that every justice gets very close to the same number of majority opinions. However, Liptak stated that Chief Justice Roberts “plays favorites” by giving major assignments and unappealing assignments to certain justices “with keen attention to strategy.” Namely, Chief Justice Roberts assigned about a third of the most important opinions to himself, and another third to Justice Kennedy. According to Professor Lazarus, the assignments to Justice Kennedy have a distinct purpose – "to lock in his vote in close cases."

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

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

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

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

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

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

Participants will earn one hour of MCLE credit.

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

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

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

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

CONSTITUTIONAL LAW – PENSION REFORM LITIGATION

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

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

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

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

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

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

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

ADMINISTRATIVE LAW

No. 117720

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

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

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

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

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

PLA Allowed: 09/24/14

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.