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"The Brief" - The ALA Blog

  • May 16, 2015 8:58 AM | Anonymous member (Administrator)

    In JPMorgan Chase Bank, N.A. v. Ontiveros, 2015 IL App (2d) 140145, the Illinois Appellate Court addressed whether a trial court lacked subject-matter jurisdiction to enter a judgment on a foreclosure and ensuing sale because the plaintiff was an unlicensed debt collector. While the opinion primarily focused on whether the trial court's order was void pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401(a) (West 2012)), the reviewing court provided a helpful reminder that successive postjudgment motions do not toll the clock to file a notice of appeal.

    Procedural Background

    In Ontiveros, the plaintiff brought a foreclosure complaint. The defendants appeared pro se, but did not answer. Thereafter, on November 7, 2012, the trial court entered a judgment of foreclosure, which judgment did not contain a finding of immediate appealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). 

    One month later, the defendants appeared through counsel, moved to vacate the judgment of foreclosure, and claimed several defenses. The trial court denied the motion to vacate. 

    On February 4, 2013, the trial court approved the confirmation of the sale. The defendants filed a timely postjugment motion seeking to vacate the confirmation. On July 5, 2013, with the motion to vacate still pending, the defendants filed a petition pursuant to section 2-1401, attacking the judgment as void. On July 16, 2013, the trial court "struck" the petition. One week later, on July 24, 2013, the trial court denied the defendants' motion to vacate but gave them leave to renotice their petition pursuant to section 2-1401, which defendants did. 

    On January 29, 2014, the trial court denied the defendants' petition. Within 30 days, the defendants filed a notice of appeal, seeking review of the January 29 order, the July 16 order, and the November 7 order. 

    The Court' s Jurisdictional Analysis

    The reviewing court began its analysis by addressing the defendants' argument that their 2-1401 petition constituted a second postjudgment motion, and therefore, tolled the appeal clock for all orders. The court disagreed. 

    The court noted that "it has long been the case" that a successive postjudgment motion is improper and does not toll the time to file a notice of appeal. In this case, the defendants' motion to vacate, which they timely filed after the trial court approved the confirmation of the sale, was the only motion that tolled the appeal clock. The trial court denied that motion on July 16, 2013, but the defendants did not file their notice of appeal until February 2014. Therefore, the reviewing court did not have jurisdiction to review the trial court's February 4 order confirming the sale. 

    Regarding the November 7 order, the reviewing further noted that a judgment of foreclosure is not final until the trial court enters an order approving the sale and ordering distribution. As a result, absent a Rule 304(a) finding, that order did not become appealable until the trial court approved the confirmation of sale. 

    The reviewing court further noted that, because the defendants filed their 2-1401 petition more than 30 days after the trial court's order confirming the sale and timely appealed after the trial court denied their petition, jurisdiction was proper for that issue. 

    Recommended Citation: Charlie Ingrassia, Illinois Appellate Court Offers Reminder that Successive Postjudgment Motions do not Toll Appeal Clock, The Brief, (May 16, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-offers.html.

  • May 12, 2015 9:05 PM | Anonymous member (Administrator)

    Cases Pending, edited by ALA Secretary Joanne R. Driscoll and Clare J. Quish, has been updated to discuss the Illinois Supreme Court’s May Term that began this week. Oral arguments are scheduled for Tuesday, Wednesday, and Thursday, May 12-14; and next Tuesday, Wednesday, and Thursday, May 19-21, 2015. A total of 24 cases will be heard – 16 civil and 8 criminal. 

    Here are the civil cases with the dates of oral argument (two case excerpts are provided below the page break and Association members can access the full issue at the ALA website):

    Walker v. McGuire, No. 117138 – May 13

    McElwain v. Office of the Secretary of State, No. 117170—May 14

    Matthews v. Chicago Transit Authority, Nos. 117638, 117713, 117728 (cons.) – May 14

    Folta v. Ferro Engineering, No. 118070—May 14

    Price v. Philip Morris, Inc., No. 117687 – May 19

    Nelson v. Enterprise Leasing Co. of Chicago, No. 118058 – May 19

    Lake Environmental, Inc. v. Arnold, No. 118110--- May 19

    Commonwealth Edison Co. v. Illinois Commerce Comm'n, No. 118129—May 19

    The Henderson Square Condominium Ass’n v. LAB Townhomes, L.L.C., No. 118139—May 19

    The Village of Vernon Hills v. Heelan, No. 118170—May 20

    Klaine v. Southern Illinois Hospital Services, No. 118217—May 20

    O’Toole v. The Chicago Zoological Society, No. 118254—May 20

    Gurba v. Community High School District No. 155, Nos. 118332, 118369 (cons.)—May 20

    Seymour v. Collins, No. 118432—May 21

    Ballard RN Center, Inc. v. Kohll’s Pharmacy and Homecare, Inc., No. 118644—May 21

    Stevens v. McGuireWoods L.L.P., No. 118652—May 21 

    The Court will hear several cases of interest this term, including Price v. Philip Morris and a case interpreting the Tort Immunity Act. Below are abbreviated summaries for these two cases.



    PROCEDURE – SECTION 2-1401 PETITIONS


    No. 117687 

    Price v. Philip Morris Inc.

    This case presents the issue of what criteria must be considered in determining whether to vacate a final judgment entered in 2006 after remand from a 2005 decision of the Illinois Supreme Court. In its 2005 decision, the Supreme Court reversed a $10.1 billion consumer fraud judgment on grounds of federal implied preemption, namely, that the FTC has authorized the use of “lights” descriptors for cigarettes sold by the defendant. In December 18, 2008, plaintiffs filed a petition for relief from judgment under section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401), alleging that new evidence – the United States Supreme Court’s decision in Altria Group Inc. v. Good, 555 U.S. 70 (2008), decided on December 15, 2008, and the FTC’s amicus brief filed in that case, showed that the Illinois Supreme Court’s preemption analysis was flawed. The circuit court dismissed plaintiffs’ petition as untimely, but the Illinois Appellate Court, Fifth District, reversed and remanded the matter for further proceedings. Price v. Philip Morris, Inc., 2011 IL App (5th) 130017-U.

    On remand, plaintiffs amended their petition, relying solely on the FTC’s statements in its amicus brief in Good that the FTC believed that it had never authorized the use of “lights” descriptors. Although the circuit court found that this “new evidence” was meritorious, it denied plaintiffs’ amended petition, finding that they could not show that the outcome likely would have been different. The circuit court predicted that it was likely that the Illinois Supreme Court still would have reversed the $10.1 billion judgment but on other grounds, namely, plaintiffs’ inability to prove damages.

    On appeal, the appellate court found that plaintiffs’ petition was timely, that the FTC’s statements constituted “newly discovered” evidence, that plaintiffs acted diligently to obtain that evidence, and that the Supreme Court would have reached a different conclusion on the preemption issue. The appellate court reversed the circuit court’s judgment and granted the section 2-1401 petition, holding that it exceeded its authority in predicting that the Supreme Court still would have reversed the $10.1 billion judgment. The appellate court then concluded that the effect of granting the section 2-1401 petition and vacating the circuit court’s 2006 dismissal order was to reinstate the verdict.

    Appellate Court Decision: 2014 IL App (5th) 130017, 9 N.E.3d 599. Chapman, J., with Stewart and Schwarm, JJ., concurring. 

    PLA Allowed: 09/24/14

    Oral Argument: 05/19/15

    TORT IMMUNITY ACT – PUBLIC BUSINESS

    No. 118254 

    O’Toole v. The Chicago Zoological Society d/b/a Brookfield Zoo

    The issue in this case is whether the Brookfield Zoo (“Zoo”) is considered a “local public entity” that is entitled to the protections of the Local Government and Governmental Employees Tort Immunity Act (“Act”) (745 ILCS 10/1-206).

    Plaintiff sued the Zoo for negligence after she allegedly tripped and fell on the Zoo’s premises. The Zoo filed a motion to dismiss under section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619 (a)(5)), asserting that plaintiff’s lawsuit was filed beyond the one-year statute of limitations provided for in section 8-101 of the Act (745 ILCS 10/8-101). The Zoo attached a copy of the agreement between the Chicago Zoological Society and the Forest Preserve District of Cook County (“District”), which established that the Chicago Zoological Society would maintain and operate the Zoo on public land for the public’s benefit. The circuit court granted the Zoo’s motion to dismiss with prejudice.

    The Illinois Appellate Court reversed, holding that the Zoo was not a local public entity under the Act because its operations were not “tightly enmeshed with government” and, therefore, it was not engaged in “public business” that entitled it to the protections of the Act, as is required for non-profit entities under the Act. According to the court, the Zoo was not directly owned by the government, nor did the government have operational control over the business. Under the operating agreement, the District delegated control of daily operations and maintenance of the land and the collections to the Zoo. Furthermore, the Zoo was entitled to appoint its board and managers and provide their salaries, not the District. Moreover, the Zoo was not subject to regulations typical of governmental units. Therefore, the Zoo’s operations were not tightly enmeshed with government.

    Appellate Court Decision: 2014 IL App (1st) 132652, 17 N.E.3d 869. Lavin, J., with Fitzgerald Smith and Epstein, JJ., concurring. 

    PLA Allowed: 11/24/14 

    Oral Argument: 05/20/15

  • May 06, 2015 12:53 PM | Anonymous member (Administrator)

    Please join the Young Lawyers Section of the Chicago Bar Association at its annual All Bar Social on Wednesday, May 13, 2015, from 6:00-8:00 p.m., at Rockit Bar & Grill, 22 W. Hubbard in Chicago. Mingle and network with local legal professionals while enjoying complimentary hors d'oeuvres and drinks. The Association is cosponsoring the event with the CBA and other bar associations, including the Filipino American Lawyers Association of Chicago, the Indian American Bar Association, and the Puerto Rican Bar Association.
     

    The All Bar Social is a wonderful opportunity for members of all bar associations to come together in a casual environment and discuss how all of us can work together. 

    We hope that you will join us on May 13th.


  • May 06, 2015 5:39 AM | Anonymous member (Administrator)

    As any experienced appellate practitioner knows, Rule 307(a) permits an appeal as a matter of right in cases involving seven separate categories of interlocutory orders, including orders “granting, modifying, refusing, dissolving, or refusing or dissolve or modify an injunction.” Ill. S. Ct. Rule 307(a)(1). While this rule historically has been broadly interpreted, in The Raymond W. Pontarelli Trust v. Pontarelli, 2015 IL App (1st) 133138, the court held that two orders did not qualify as injunctions, and thus were not appealable under Rule 307(a)(1). Id. ¶ 1. Accordingly, the court dismissed the appeal for lack of jurisdiction. Id. ¶¶ 1, 18.


    In Pontarelli, a widow and two trusts, of which she was the trustee and sole income beneficiary, brought an action against her deceased husband’s children from a prior marriage, as well as others. Plaintiffs sought various forms of relief relating to various real properties and entities in which she or the trusts had an interest. Id. ¶ 4. Defendants counterclaimed for, among other things, the removal of the wife as trustee of the trusts, as well as an accounting. Id. ¶ 6. After the trial court entered a temporary restraining order barring the wife from acting as trustee and barring the sale of two condominium units owned by the trusts, the court entered three orders: (1) an order establishing the wife’s right to receive income from the trusts during the litigation (the “income order”), (2) an order allowing defendants to lease the condominium units, but imposing restrictions on the leases and prohibiting construction on the units, and ordering an accounting for rents and expenses (the “leasing order”), and (3) an order denying defendants’ motion to dismiss. Id. ¶¶ 1, 7, 8-15, 18. Defendants appealed, and the appeals were consolidated. Id. ¶ 16.


    In reviewing the income order and the leasing order for purposes of determining whether jurisdiction under Rule 307(a)(1) existed, the appellate court began its analysis with the familiar rule that a court “must look to the substance of the action, not its form” in determining what constitutes an appealable injunctive order. Id. ¶ 21. Citing the Illinois Supreme Court’s decision in In re A Minor, 127 Ill. 2d 247, 261 (1989), the court defined an injunctive order as one which requires a party to do a particular thing, or to refrain from doing a particular thing, “the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” 2015 IL App (1st) 133138, ¶ 21. However, “orders properly characterized as ‘ministerial’ or ‘administrative’ are not subject to interlocutory appeal as of right because they only regulate the procedural aspects of the case before the court.” Id.

    In explaining its findings that neither the income order nor the leasing order were nature injunctive, the court reasoned that those orders do not “regulate[] the parties’ conduct in their everyday activities outside the litigation, and they are a valid exercise of the court’s power under” the Trusts and Trustees Act (760 ILCS 5/1 et seq. (West 2012)). Pontarelli, 2015 IL App (1st) 133138, ¶¶ 24-25. Rejecting defendants’ argument that the fact that the income and leasing orders contained restrictions and requirements made them injunctive in nature, the court explained, “[v]irtually every order entered by a court compels a party to do or prohibits a party from doing something. But that does not make every order an injunction.” Id. ¶ 25. Rather, the court concluded, the leasing and income orders “were necessary and appropriate in the administration of the litigation” to ensure that the trusts’ operations continue during the litigation and that the wife received what she was due, particularly the income from the trusts for which it was undisputed that she was the sole beneficiary. Id. ¶ 25, 36.


    The court also found that none of the three orders were appealable under Rule 304(b)(1), which allows for the immediate appeal without a special finding from orders entered “in the administration of an estate, guardianship, or similar proceeding which finally determine[] a right or status of a party.” Pontarelli,2015 IL App (1st) 133138, ¶ 26 (citing Ill. S. Ct. R. 304(b)(1)). With respect to the income and leasing orders, neither order purported to “fully resolve any matters or issues regarding the rights of any of the parties, properties, or corporations at stake.” Pontarelli, 2015 IL App (1st) 133138, ¶¶ 26, 27. As for the order denying defendants’ motion to dismiss, that order, too, was not appealable under Rule 304(b)(1) because the trial court did not make any final determination regarding the wife’s capacity to act as trustee. Id. ¶¶ 29, 30. Indeed, as the trial court noted, the issue of the wife’s competence as trustee was an issue that would not be properly disposed of on the pleadings and a single affidavit, as the court “could never reach a complicated issue about somebody’s mental health condition on a 2-619 motion to dismiss.” Id. ¶ 30.


    Finally, the court found that the filing of three interlocutory appeals by defendants’ counsel (including a previous appeal of the wife’s guardianship proceedings, which had also been dismissed for lack of jurisdiction) warranted the imposition of sanctions pursuant to Rule 375(b). Id. ¶¶ 32-39. Finding that the premature filing of the appeals was “not simply zealous advocacy in action,” the court characterized the appeals “frivolous,” “unjustified,” and indicative of “a lack of good faith,” among other choice words. Id. ¶¶ 34, 38-39.


    Recommended Citation: Katherine A. Grosh, Illinois Appellate Court Discusses Whether Trial Court Orders Were Injunctive for Purposes of Interlocutory Appeal Under Rule 307, The Brief, (May 6, 2015), http://applawyers-thebrief.blogspot.com/2015/05/illinois-appellate-court-discusses.html.


  • May 02, 2015 7:15 PM | Anonymous member (Administrator)

    On April 20, 2015, the Appellate Lawyers Association hosted more than 75 attorneys, Appellate Court Justices, and law professors at its Advanced Appellate Practice Seminar, which focused on a variety of legal topics for the appellate practitioner. In the first session, an esteemed panel featuring past ALA president Ted Kionka, Seminars co-chair Jonathan Loew, and ALA Vice President and former Illinois Solicitor General Michael Scodro, discussed techniques and strategies for collaborating with trial counsel or co-counsel on appellate brief writing and oral argument. Justice John Simon of the Illinois Appellate Court, First District, also presented an “insider’s view” of the collaborative writing process undertaken by a panel of Appellate Court Justices. ALA Board Member Gretchen Sperry moderated the panel. Mike Scodro also led a discussion on preparing for oral argument, particularly in the context of preparing newer attorneys for their first argument. ALA President Steve Pflaum and First District Appellate Court Justice Nathaniel Howse gave a thought-provoking presentation on legal ethics and issues that arise specifically in the context of appellate practice. First District Appellate Court Justice Margaret Stanton McBride also presented a discussion on interlocutory appeals, specifically interlocutory appeals as of right under Illinois Supreme Court Rule 307.


    The seminar also featured substantive theoretical discussions of the practice of appellate law. Past ALA President J. Timothy Eaton discussed how recusals by Illinois Supreme Court Justices may affect cases pending before it. Eaton suggested that there be a mechanism by which the Supreme Court may assign an Appellate Court justice to replace a Supreme Court justice who recuses to maintain a composition of seven justices to hear cases, as is done in other states. Dr. Peter Koelling of the American Bar Association also gave a fascinating presentation on the Future of Appellate Practice, in light of advances in technology.


    The ALA thanks all of the presenters and attendees for participating in the seminar. We also thank the Chicago Bar Association for hosting the event.


  • April 29, 2015 10:20 AM | Anonymous member (Administrator)

    Yesterday, ALA Vice President Michael Scodro appeared on Chicago Tonight to discuss the oral arguments before the United States Supreme Court on the right of same-sex couples to marry. Scodro, who served as a law clerk to Justice Sandra Day O'Connor and previously served as Illinois Solicitor General, was joined by ALA member Carolyn Shapiro, who succeeded Scodro as Solicitor General and also served as a law clerk on the High Court. (Solicitor General Shapiro was the featured speaker at a recent ALA luncheon.) Two other former United States Supreme Court law clerks joined Scodro and Solicitor General Shapiro on the panel. 


    Please click here to watch the thoughtful and informative discussion. 


  • April 27, 2015 7:54 PM | Anonymous member (Administrator)

    Over the next few days, the Association will be advertising on 98.7 WFMT, Chicago's classical music station. The advertisements will focus on the ALA's upcoming luncheon featuring attorney and author Robert Dubose, who will discuss tips for writing documents that are primarily read by others on screens or tablets. The advertising campaign will seek to reach both practicing attorneys and other writers and professionals who are likely to benefit from the program. For more information about the program and to register, please click here.


    The Association encourages its members to keep an ear out for the ads while listening to wonderful music by tuning into WFMT, which is available at radio station 98.7 or on your device at wfmt.com.


  • April 21, 2015 12:24 PM | Anonymous member (Administrator)

    Failure to comply with the requirements of Illinois Supreme Court Rule 341 (eff. Feb. 6, 2013), which governs the form and content of appellate briefs, may result in the dismissal of your appeal. In McCann v. Dart, 2015 IL App (1st) 141291, the plaintiff Brian McCann appealed from the circuit court’s grant of defendant Thomas Dart’s motion to dismiss plaintiff’s petition for mandamus and declaratory relief pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2012)). On appeal, plaintiff contended that the circuit court erred in dismissing his complaint for lack of standing and that defendant failed to fulfill a legal duty pursuant to several immigration statutes. McCann, 2015 IL App (1st) 141291, ¶ 1. 


    However, the appellate court never reached the merits of this case, instead exercising its discretion in striking plaintiff’s brief and dismissing his appeal for failure to comply with Rule 341(h). The court began by noting that plaintiff’s appellant brief was a “scant eight pages.” Id. ¶ 11. It then reiterated the familiar maxim that compliance with procedural rules was mandatory, and that the court may, in its discretion, strike a brief and dismiss an appeal based on the failure to comply with the applicable rules of appellate procedure. Id. ¶ 12. 


    The reviewing court remarked that plaintiff’s opening brief violated Rule 341(h)(5), which provides that, “[i]n a case involving the construction or validity of a statute, *** ordinance, or regulation,” the appellant’s brief “shall” include “the pertinent parts of the provision verbatim, with a citation of the place where it may be found, all under an appropriate heading, such as ‘Statutes Involved.’ ” Ill. S. Ct. R. 341(h)(5). The court noted that plaintiff’s entire complaint was based on the federal immigration statutes, yet plaintiff never referenced or provided a citation to those statutes, and his opening brief was entirely devoid of any indication of which statutes or ordinances he may have invoked in the circuit court. Id. ¶ 13.


    The reviewing court further found that plaintiff failed to comply with Rule 341(h)(6), which requires that an appellant include a “Statement of Facts, which shall contain the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.” Plaintiff’s “Statement of Facts” was a mere sentence in length, did not reference the pertinent federal immigration statutes under which he was claiming to be entitled to relief, did not reference any ordinances, and did not provide any of the case’s procedural background. Id. ¶ 14. 


    Plaintiff also failed to comply with Rule 341(h)(7), which requires the appellant to present reasoned argument, as well as citation to legal authority and to specific portions of the record in support of his claim of error. Ill. S. Ct. R. 341(h)(7). The court noted that this rule was especially important since the appellate court begins with the presumption that the circuit court’s ruling was in conformity with the law and the facts. Moreover, the court noted that it is entitled to have the issues clearly defined, and to be cited pertinent authority. Id. ¶ 15. Plaintiff cited to the record only three times, and cited to several Illinois cases, none of which involved the federal immigration statutes under which plaintiff was seeking relief. Id. ¶ 16. The court found that the “subject of plaintiff’s actual argument is completely and conspicuously missing from his opening brief,” and that the appellate court was not a depository in which the burden of argument and research may be dumped. Id. ¶ 18. 


    Finally, the court stated that plaintiff referenced the federal immigration statutes for the first time in his reply brief. However, Rule 341(h)(7) specifically states that “[p]oints not argued [in the opening brief] are waived and shall not be raised in the reply brief.” Accordingly, the court found that because plaintiff did not argue the merits of his underlying claim in his opening brief, he waived consideration of the merits on appeal. Id. ¶ 19. The court acknowledged that it seldom enters an order dismissing an appeal for failure to comply with supreme court rules, but found that it was in its discretion to do so, and that plaintiff’s brief warranted dismissal of his appeal. Id. ¶ 20.

    Recommended Citation: April Oboikowitch, Parties on Appeal Beware: Failure to Comply With Supreme Court Rules on Content of Briefs May Result in Dismissal, The Brief, (April 21, 2015), http://applawyers-thebrief.blogspot.com/2015/04/parties-on-appeal-beware-failure-to.html.


  • April 18, 2015 7:00 PM | 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 edition, available through the ALA website, provides information on cases currently pending in and recently decided by the state's high court through April 10, 2015. The Cases Pending Committee is chaired by Joanne R. Driscoll (photo on left) and Clare J. Quish (photo on right), and complete access to Cases Pending is complimentary with ALA membership.


    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.



  • April 16, 2015 9:02 AM | Anonymous member (Administrator)

    In Grady v. North Carolina, 575 U.S. ___ (per curiam) (decided March 30, 2015), the U.S. Supreme Court confirmed the scope of its recent jurisprudence concerning the Fourth Amendment implications of law enforcement’s use of satellite-based technology, and important for appellate practitioners, also reiterated that the reasonableness or unreasonableness of a search generally is not an issue that can be suitably resolved in the first instance on appeal.


    Under North Carolina law, a recidivist sex offender may be ordered by a court to wear a satellite-based tracking device at all times. Torrey Dale Grady, a recidivist sex offender, argued that this monitoring would violate his Fourth Amendment rights. The trial court rejected his argument. So did the North Carolina Court of Appeals, apparently on the theory “that the State’s system of nonconsensual satellite-based monitoring does not entail a search within the meaning of the Fourth Amendment.” (Slip Op. at 2.) The North Carolina Supreme Court declined to hear Grady’s appeal.


    When Grady petitioned the U.S. Supreme Court for certiorari, the State of North Carolina did not file any substantive response until the Court ordered it to do so. Then, in a single per curiam decision, the U.S. Supreme Court not only granted certiorari, but also vacated the North Carolina Supreme Court’s judgment and remanded the case for further proceedings, even without entertaining merits briefing or hearing oral argument.


    As the Court explained, the “theory” that forced satellite-based monitoring does not constitute a search “is inconsistent with this Court’s precedents.” (Slip Op. at 2-3.) In United States v. Jones, 565 U.S. ___ (2012), the Court had held that the Government’s installation of a GPS tracking device on a vehicle constituted a search for Fourth Amendment purposes because, when it installed the device, the Government “physically occupied private property for the purpose of obtaining information.” (Slip Op. at 3 (quoting Jones)). Similarly, in Florida v. Jardines, 569 U.S. ___ (2013), the Court applied the same standard and concluded that the State of Florida had engaged in a search when its drug-sniffing dog sniffed around someone’s front porch. In that case, the State likewise had obtained information “by physically entering and occupying” private property. (Slip Op. at 3 (quoting Jardines)). “In light of these decisions,” the Grady Court explained, “it follows that a State also conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” (Slip Op. at 3.)


    The Court easily dispensed with the arguments raised in the State’s response to Grady’s certiorari petition. Contrary to the State’s argument, it did not matter whether the forced monitoring was deemed civil, as opposed to criminal, in nature. (Slip Op. at 3-4.) The State also attempted to create some ambiguity as to whether “its program for satellite-based monitoring of sex offenders collects any information.” (Slip Op. at 4 (emphasis in original)).


    That argument, unsurprisingly, was not persuasive. The obvious point of the monitoring was to gather information about the whereabouts of sex offenders.


    Thus, the satellite-based monitoring constituted a search for Fourth Amendment purposes. But that finding did not resolve the case. Of course, the “Fourth Amendment prohibits only unreasonable searches.” (Slip Op. at 5 (emphasis in original)). Because the “reasonableness of a search depends on the totality of the circumstances,” and because the Court was unwilling to make findings on the search’s reasonableness in the first instance on appeal, the Court remanded the case for further proceedings.


    Now the focus will shift to whether the satellite-based monitoring of a recidivist sex offender’s movements is a reasonable search. Grady’s victory may turn out to be short-lived.


    Recommended Citation: John M. Fitzgerald, SCOTUS Addresses Fourth Amendment Implications of Satellite-Based Tracking, The Brief, (April 16, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-addresses-fourth-amendment.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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