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.

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. 

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.

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.

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.