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.

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.

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.