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.

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.

On Monday, April 20, 2015, the Association will host an Advanced Appellate Practice Seminar. The half-day seminar will bring together a distinguished group of appellate jurists and practitioners who will participate in panel discussions on various topics related to advocacy before reviewing courts. Panelists will include Justices John Simon, Nathaniel R. Howse, and Margaret McBride, all of the Illinois Appellate Court, First District. Other speakers will include ALA President Steven Pflaum, ALA Vice President and former Illinois Solicitor General Michael Scodro, ALA Director Gretchen Sperry, past ALA President Timothy Eaton, and past ALA Director Jonathan Loew. Also speaking will be past ALA President Edward Kionka, Professor Emeritus at Sourthern Illinois University School of Law, and Peter Koelling, Director and Chief Counsel of the Judicial Division at the American Bar Association.

Presentation topics will include collaboration between the appellate bench and bar, legal ethics in the appellate courts, the future of appellate practice, discretionary state court appeals, replacement of recused supreme court justices, and preparing newer attorneys for oral argument. The seminar will be held at the Chicago Bar Association in Chicago and attendees will receive 3.75 hours of CLE credit, which includes .75 hour of professionalism credit.

For more information and to register, please click here. 

In Gelboim v. Bank of America Corp., 573 U.S. ---, 135 S. Ct. 897 (2015), the United States Supreme Court held that a district court order dismissing the sole claim in a single-claim action is a final and appealable order, even when that claim is consolidated with other actions in multidistrict litigation.

The petitioners—Ellen Gelboim and Linda Zacher—filed a class action suit in the United States District Court for the Southern District of New York that was consolidated for pretrial proceedings with 60 other cases. The other cases were proceeding in various jurisdictions that included California, Iowa, Illinois, Texas, and Virginia, among others. The Judicial Panel on Multidistrict Litigation (JPML) consolidated these cases because they all involved allegations that the defendant-banks understated their borrowing costs, which depressed the London InterBank Offered Rate (LIBOR), a benchmark interest rate disseminated by the British Bankers’ Association. Understating their borrowing costs allegedly enabled the banks to pay lower interest rates. The petitioners raised a single claim that the banks, acting in concert, had violated federal antitrust law. However, once the district court determined that no plaintiff could assert a cognizable antitrust injury, it dismissed the Gelboim-Zacher case in its entirety. 

Gelboim and Zacher appealed the district court’s order. The district court assumed that the petitioners were entitled to an immediate appeal under 28 U.S.C. § 1291 and granted other plaintiffs Rule 54(b) certifications authorizing them to appeal the dismissal of their antitrust claims—even when the other plaintiffs still had separate claims pending in the district court. The United States Court of Appeals for the Second Circuit dismissed the petitioners’ appeal for lack of jurisdiction, however, because the order appealed from did not dispose of all claims from all cases in the consolidated action. 

The Supreme Court, in a unanimous decision, reversed and held that the order dismissing Gelboim and Zacher’s case removed them from the consolidated proceedings, thereby triggering their right to appeal under 28 U.S.C. § 1291. Justice Ginsburg, writing for the Court, reasoned that the petitioners’ right to appeal ripened when the district court dismissed their case, not upon the eventual completion of multidistrict proceedings in all of the consolidated cases. 

The Court emphasized the language and purpose of 28 U.S.C. § 1291 and Federal Rule of Civil Procedure 54(b). Section 1291 gives the courts of appeals jurisdiction over appeals from “all final decisions of the district courts.” Therefore, the statute’s core application is to rulings that terminate an action, such as the ruling against Gelboim and Zacher. Rule 54(b), though, permits district courts to authorize immediate appeal of dispositive rulings on separate claims in a civil action raising multiple claims. This rule, Justice Ginsburg explained, “relaxes the former general practice that, in multiple claim actions, all the claims had to be finally decided before an appeal could be entertained from a final decision upon any of them.” Thus, Rule 54(b) aimed to expand, not diminish, appeal opportunity. 

The specific question before the Court, then, was whether the right to appeal secured by § 1291 is affected when a case is consolidated for pretrial proceedings in multidistrict litigation. To this, the Court soundly answered no—consolidation offers convenience for the parties and promotes judicial efficiency, but it does not meld the petitioners’ action and others into a single unit. The major practical effect of taking the banks’ position—that plaintiffs whose actions have been dismissed must await the termination of all pretrial proceedings in each consolidated case before appealing—would be uncertainty as to which event triggers the plaintiffs’ 30-day appeal clock. Therefore, the “sensible solution to the appeals-clock trigger” was, according to the Court, “evident.”  That is, when a transferee court overseeing pretrial proceedings in a multidistrict litigation grants a defendant’s dispositive motion on all issues in some transferred cases, those cases become immediately appealable. However, cases in the multidistrict litigation that have unresolved issues would not be appealable at that time.

(The author would like to thank his colleague, Thomas McDonell, for his assistance in preparing this post.)

Recommended Citation: Charles E. Harper, SCOTUS Clarifies When a District Court Order is Final and Appealable in Consolidated, Multidistrict Litigation, The Brief, (April 10, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-clarifies-when-district-court.html.

On March 30, 2015, the Association hosted its annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. Held at the University of Illinois Springfield, the Sangamon County Bar Association and the University of Illinois Springfield College of Public Affairs and Administration co-sponsored the event. 

Prior to the luncheon, the Fourth District Appellate Court heard oral arguments on two criminal matters at the university. Ordinarily, oral arguments before the Fourth District Appellate Court are heard at the courthouse in Springfield, but each year, the Fourth District holds arguments at a local university. In previous years, the court has held oral arguments at the University of Illinois in Champaign, Illinois State University in Bloomington/Normal, Quincy University, Danville Area Community College, and Eastern Illinois University. Holding oral arguments at various locations within the district provides attorneys, students, and members of the public with convenient access to observe the court.  

During the luncheon, ALA members and guests, which included students from several of the university's departments, were encouraged to interact with the Justices and other court personnel. The roundtable luncheon also included a judicial panel discussion featuring the Justices of the Fourth District Appellate Court. The panel featured Justices M. Carol Pope, Thomas R. Appleton, Thomas M. Harris, Lisa Holder White, James A. Knecht, and John W. Turner; Fourth District Research Director Shirley Wilgenbusch; and Fourth District Clerk Carla Bender. ALA president Steve Pflaum moderated the discussion, which included procedural issues and practical advice germane to appellate practice and procedure. 

The ALA thanks the Justices of the Fourth District Appellate Court for another informative and enjoyable roundtable luncheon. 

It’s a common question at the beginning of an appeal: Having won in the trial court, when must a party cross-appeal? Recently, in Jennings v. Stephens, 135 S. Ct. 793 (2015), the United States Supreme Court observed that while the basic rule is familiar, “that familiarity and clarity do not go hand-in-hand.”

In Jennings, the court reached back to its precedent of some 90 years ago (United States v. American Ry. Express Co., 265 U.S. 425 (1924)(Brandeis. J.)) to repeat the familiar rule that a party may argue to affirm a judgment in its favor based on any grounds supported by the record, even if that may “involve an attack upon the reasoning of the lower court.” Only if the prevailing party seeks to enlarge its own rights or lessen those of the losing party, must it take a cross-appeal.

In the Jennings case, a Texas inmate won a federal habeas case overturning his death sentence. The state appealed and the inmate defended the appeal on two grounds that he had prevailed on in the trial court, as well as on a third ground on which he had lost. The court of appeals reversed on the two grounds that the trial court had relied on and also ruled that it did not have jurisdiction to decide the third ground because the inmate failed to take a cross-appeal as to that.

In a 6-3 decision, the Supreme Court reversed. The court reasoned that the inmate was not required to cross-appeal as to the third ground because that did not enlarge his rights or lessen the state’s rights under the judgment. Writing for the majority, Justice Scalia explained that the inmate sought the same relief under all three theories: a new sentencing hearing. “Whether prevailing on a single theory or all three, [the inmate] sought the same indivisible relief.”

In reaching this conclusion, the court emphasized that a “prevailing party seeks to enforce not a district court’s reasoning, but its judgment.” It is only a judgment that defines the rights and liabilities of the parties, not the reasons given in an opinion. Because the inmate challenged only the reasoning of the lower court without seeking to enlarge his rights under the judgment or lessen the state’s, he was permitted to argue an alternative theory to affirm the judgment without taking a cross-appeal.

The dissent argued that habeas cases arise in a “unique context” and the inmate’s raising of the third ground amounted to an additional constitutional argument that “would modify the prisoner’s rights flowing from that order.” The majority maintained that there was nothing particular about a habeas proceeding that would alter the basic rule for cross-appeals. Moreover, the court also pointed out that though relying on a different theory may alter any issue-preclusive effect in future proceedings, that should not be confused with the rights obtained under a judgment. Since the inmate did not seek to alter those rights, he was not required to cross-appeal.

In the wake of the Jennings decision, federal courts of appeal have already applied it beyond the habeas context to general civil litigation. See Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015) (bank that prevailed against investor claims could urge affirmance on grounds that trial court did not reach); cf. BNSF R. Co. C. Alstom Transp., Inc., 777 F.3d 785 (5th Cir. 2015) (having failed to cross-appeal, prevailing party could not seek full rather than partial vacating of arbitration award).

The Jennings decision reinforces that after a notice of appeal is filed, the prevailing party in the trial court must promptly assess whether any arguments it might present on appeal will simply be alternative reasons to affirm or will actually enlarge its rights or lessen those of the other side. If they are the later, then it must timely file a cross-appeal.

(The author would like to thank his colleague, Thomas McDonell, for his assistance in preparing this post.)

Recommended Citation: E. King Poor, SCOTUS Explains When a Winning Party Must Cross-Appeal, The Brief, (April 3, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-explains-when-winning-party-must.html#more.

On March 24, 2015, the Association gathered at the Union League Club in Chicago to honor the Justices of the Illinois Appellate Court, First District.  The event, which allowed ALA members and guests to sit at a table with a Justice, also included a tribute to Justice Calvin Campbell, who served on the Appellate Court for 30 years. 

ALA President Steven F. Pflaum opened the program by welcoming the Justices and the ALA members and guests. Thereafter, President Pflaum introduced Justice Shelvin Louise Marie Hall, who gave moving remarks on the passing of retired Justice Calvin Campbell. Justice Hall noted that Justice Campbell was elected to the First District in 1978, the fourth African American jurist to be elected to that court. Justice Hall recounted that Justice Campbell's "life was a lesson." He had a "genuinely courteous exterior," but would also exhibit a sharp elbow when necessary to defend his position. Justice Campbell was typically the first justice to welcome new members to the court, and he would often go out of his way to take a new justice to lunch. A veteran of World War II and an avid golfer, Justice Campbell was a passionate jurist who "left a mark of excellence."   

Following Justice Hall's comments, President Pflaum encouraged attendees to continue their conversations with the Justices. To help facilitate the conversation, the Association provided a list of suggested questions related to appellate practice and procedure. The questions covered a range of topics, including how to approach seeking a certified question for interlocutory review and tips for oral arguments.

The Association thanks the Justices of the Illinois Appellate Court, First District for another enjoyable roundtable luncheon. 

On March 4, 2015, approximately 40 litigators from all over Illinois attended the Association’s March brown bag luncheon: Appellate Practitioners’ Advice to Trial Attorneys. Baker & McKenzie hosted the event in its Chicago office. The panelists featured ALA Secretary Joanne Driscoll, partner at the Forde Law Offices; past ALA president Karen Kies DeGrand, partner at Donohue Brown Mathewson & Smyth, LLC; and past ALA president Michael Pollard, partner at Baker & McKenzie. 

The well-received presentation was a mix of war stories and hard-learned lessons from a trio of litigators with roughly 90 years’ litigation experience between them. All of the presenters emphasized the importance of having an “appeals person” involved in litigation teams and client counseling. Pollard said, after a particularly colorful story wherein his calm advice ultimately won over his client’s trust, that an appellate lawyer’s greatest asset is the ability to “think globally and act locally.” That is, an appellate lawyer is trained to think beyond any one case, but can intercede with timely advice at the trial level in order to steer the matter towards a sustainable, and hopefully the most successful, outcome. 

ALA President Steven F. Pflaum was on hand to lend a personal touch to the discussion, and sharing a quick story involving each of the three panelists. During the Q&A portion, the panelists discussed a wide range of topics including interlocutory appeals as a matter of right, certified question appeals, and issues concerning the preparation of the record on appeal.

The ALA thanks the speakers for their thoughtful insights and Baker & McKenzie for graciously hosting the event. 

In re Henry B., 2015 IL App (1st) 142416, concerns whether an order of supervision entered pursuant to section 5-615 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-615 et seq. (West 2014)) after a minor’s criminal trial is appealable.
 As discussed below, the short answer is “no.”

The State charged 12-year-old defendant, Henry B., as a juvenile with felony aggravated battery and misdemeanor battery. At the defendant’s bench trial, the court granted the defendant’s motion for a directed verdict on the felony count but found him guilty on the misdemeanor battery count. At sentencing, the court “did not enter either a finding of guilty or any judgment. The judge continued the case under supervision pursuant to section 5-615(1)(b) of [the] Act (705 ILCS 405/5-615(1)(b) (West 2014) (as amended by Public Act 98-062, eff. Jan. 1, 2014)) for a period of six months ***.” (Emphasis in original). Henry B., 2015 IL App (1st) 142416, ¶ 18.

The defendant appealed, seeking reversal of the juvenile court’s order of supervision. On appeal, the defendant argued that the State failed to prove him guilty beyond a reasonable doubt because the victim suffered no physical pain or injury as a result of the minor’s conduct. Id. ¶ 3. The State argued that the reviewing court lacked jurisdiction to entertain the appeal because the “Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision.” Id. ¶ 4. The Illinois Appellate Court, First District, agreed with the State.

In general, the appellate court has jurisdiction to review appeals from final judgments, and does not have jurisdiction to review an interlocutory order, unless jurisdiction is specifically provided for by supreme court rule. Henry B., 2015 IL App (1st) 142416, ¶ 21 (citing In re J.N., 91 Ill. 2d 122, 126 (1982)). Two Illinois Supreme Court rules provide for appeals in juvenile delinquency proceedings: Rule 660(a) (Ill. S. Ct. R. 660(a) (eff. Oct. 1, 2001)) and Rule 662 (Ill. S. Ct. R. 662 (eff. Oct. 1, 1975)). Henry B., 2015 IL App (1st) 142416, ¶ 22. Rule 660(a) deals with final judgments and provides that in juvenile delinquency proceedings  “[a]ppeals from final judgments *** shall be governed by the rules applicable to criminal cases,” except where otherwise specifically provided. Henry B., 2015 IL App (1st) 142416, ¶ 23. Rule 662 specifically provides for interlocutory appeals in delinquency proceedings, but only under limited circumstances - when a dispositional order had not been entered within 90 days from either an adjudication of wardship or a revocation of probation or conditional discharge. Id. ¶ 24.

The defendant conceded that Rule 662 did not apply. Id. Instead, the defendant argued that his order of supervision was a “final judgment,” and therefore appealable under Rule 660(a). Henry B., 2015 IL App (1st) 142416, ¶ 26. The reviewing court disagreed, concluding “the juvenile court judge’s order continuing the case for supervision contained no finding of guilty and no judgment order.” Id. ¶ 27. The order continuing the case for supervision was therefore not final and appealable. Id. (citing Kirwan v. Welch, 133 Ill. 2d 163, 167 (1989) (“a disposition of supervision is not a final judgment," because "supervision does not dispose of the proceedings on the underlying offense but merely defers the proceedings until the conclusion of the period of supervision”); In re A.M., 94 Ill. App. 3d at 89-90 (holding that an order of supervision of a minor was a continuance of the cause and did not finally dispose of the delinquency petition on the merits and was not subject to appellate review). 

The defendant argued in the alternative that the court had appellate jurisdiction under Rule 604(b) (eff. Feb. 6, 2013), but the court found that rule was not applicable to juvenile delinquency proceedings. Rule 604(b) permitted appellate review only for “conditions of supervision” that resulted from convictions (such as restitution), and not findings of guilt. Henry B., 2015 IL App (1st) 142416, ¶ 31. Unmoved by the defendant’s arguments, the reviewing court dismissed the appeal for lack of jurisdiction under both Rules 660(a) and 662, the only rules conferring jurisdiction to the appellate court in juvenile delinquency proceedings.

Recommended Citation: Nate Nieman, Order of Supervision Following Trial in Juvenile Proceeding is Interlocutory and Not Appealable, The Brief, (March 22, 2015), http://applawyers-thebrief.blogspot.com/2015/03/order-of-supervision-following-trial-in.html.

The construction of a patent is typically a matter for a judge to determine as a matter of law. Accordingly, the standard of review for a Court of Appeals reviewing a district court’s decision upholding or striking down the validity of a patent is de novo. On occasion, however, the district court must make factual findings concerning evidence extrinsic to the patent itself. The question then arises what standard of review applies to those findings.

That question now is resolved by Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (Jan. 20, 2015). The case involves a drug patent holder, Teva, that sued a generic manufacturer of the drug, Sandoz, for patent infringement, in which Sandoz raised a defense attacking the validity of the patent. In deciding validity, the district court heard conflicting expert evidence concerning the meaning of a term used in defining one of the patent claims, “molecular weight,” and whether that term was sufficiently definite in the context of the claim. Id. at 835-36. The court found that it was sufficiently definite and held the patent valid. Id.

On appeal to the Federal Circuit, however, that court applied a de novo review standard to all aspects of the district court’s decision. The Federal Circuit then found the term “molecular weight” too indefinite, and it held the patent invalid. Id. at 836. Teva petitioned for certiorari, which the Supreme Court allowed.

In an opinion by Justice Stephen Breyer, the Supreme Court reversed. He initially pointed to Fed. R. Civ. P. 52(a)(6), which states that a court of appeals “must not ... set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Id. at 836-37. That mandate, according to Breyer, applies both to subsidiary and ultimate facts. Id.

Rule 52(a)(6), moreover, is not inconsistent with statements by the Court in cases like Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), that patent claim construction falls exclusively within the province of the court. Id. at 837. Construction of patents, said Breyer, is akin to the construction of contracts and other written instruments that present questions solely of law. Id. 837-38. Where extrinsic evidence is used to determine the meaning of terms in the instrument, any factual finding regarding such evidence “precedes” the actual construction of the instrument and is reviewed for clear error like other factual findings. Id. at 837-38.

Breyer observed that this approach is consistent with the district court’s role in presiding over the entirety of the patent proceeding and the opportunity the court has to gain familiarity with live witness testimony. Id. at 838-39. He also rejected the parallel that Sandoz sought to draw to statutory construction, which is decided as a matter of law but may include consideration of extrinsic matters such as legislative hearings. Breyer said that statutes typically involve only “general facts” and do not involve private parties and experts. Id. at 840. 

As for how the Federal Circuit must apply clear-error review of factual findings, Breyer observed that such review does not apply to evidence intrinsic to the patent. Rather it applies only to the “evidentiary underpinnings” of claim construction when extrinsic evidence is introduced, such as disputes between experts. Id. at 840-41. The Federal Circuit here, however, rejected the district court’s fact findings without determining that they were clearly erroneous. Id.

The Court therefore vacated the Federal Circuit’s judgment and remanded for further review.

Justice Clarence Thomas, joined by Justice Samuel Alito, dissented. They argued generally that Rule 52(a)(6) should not apply because the subsidiary findings underlying claim construction more closely resemble the subsidiary findings underlying the construction of statutes than those underlying the construction of contracts. See id. 847-48.

Recommended Citation: Don R. Sampen, A “Clearly Erroneous” Standard Applies to a Court of Appeals’ Review of Factual Issues Underlying a Patent Claim, The Brief, (March 17, 2015), http://applawyers-thebrief.blogspot.com/2015/03/a-clearly-erroneous-standard-applies-to.html#more.