The Seventh Circuit had the opportunity to consider the contours of pendent appellate jurisdiction in Allman v. Smith, 764 F. 3d 682 (7th Cir. 2014). The matter involved a ruling from a motions panel reviewing the district court’s denial of a motion to stay proceedings pending an interlocutory appeal. The case is important for appellate practitioners because it highlights that, although pendent appellate jurisdiction is “an embattled doctrine,” it will be invoked when compelling reasons exist.

In Allman, the plaintiffs, former employees of a city in Indiana, sued both the mayor and the city claiming that they were fired because of their political affiliations. The mayor argued that he violated no constitutional rights; and alternatively, even if the firings violated the employees’ constitutional rights, the doctrine of qualified immunity applied and absolved him from liability. The city, whose liability was derivative, claimed that the mayor’s actions did not constitute a constitutional violation and also moved for summary judgment. The district court granted the mayor’s motion for summary judgment based on qualified immunity as to some plaintiffs, but denied the mayor’s motion for summary judgment as to two of the plaintiffs after finding that an issue of fact existed. The district court further denied the mayor’s motion that the proceedings be stayed pending appeal. The district court denied the city’s summary judgment motion as well as the city’s motion to stay further proceedings against it.



The Seventh Circuit first noted that there was no question that the mayor was entitled to a stay because of the qualified immunity claim. However, the more interesting question for the court was whether the city, who could not rely on qualified immunity, was entitled to a stay under pendent appellate jurisdiction.

The reviewing court observed that pendent appellate jurisdiction is “an embattled doctrine” that is significantly narrow in scope. It requires a compelling practical reason to allow an appeal from a ruling where there is otherwise no independent jurisdictional basis. The court found that the posture of the city’s case represented a compelling practical reason to stay further proceedings relative to the city pending resolution of the mayor’s appeal. The court noted that claims against the city depended on the outcome of the mayor’s appeal—if the merits panel agreed with the mayor’s principle argument that there was no constitutional violation, then the city would also be relieved of liability. Absent a stay, any proceedings against the city would have been for naught. The court also commented that the plaintiffs’ desire to proceed against the city pending the mayor’s appeal could result in two trials involving the same facts and witnesses—an outcome that the court deemed unattractive. Also unattractive was the possibility that there would be conflicting findings on the nature of the mayor’s conduct if the case against the city was to be tried while the mayor’s appeal remained pending. The court then concluded that a stay of proceedings as to the city was warranted due to the city’s claimed status as party “ ‘pendent’ because of its interdependence with the mayor’s appeal.” But the court cautioned that the pendent jurisdiction of the city’s claim was limited to asking for review of the denial of its motion to stay. It emphasized that it lacked jurisdiction over of the city’s appeal from any district court rulings other than the district court’s denial of the city’s motion to stay.

The net result was that the proceedings against both the mayor and the city were stayed pending the mayor’s appeal. The outcome of the mayor’s appeal will then determine whether a trial against the city will be necessary, and if so, the scope of issues to be tried.

Recommended Citation: Rosa M. Tumialán, Seventh Circuit Invokes Pendent Appellate Jurisdiction, the “Embattled Doctrine”, The Brief, (October 29, 2014), http://applawyers-thebrief.blogspot.com/2014/10/seventh-circuit-invokes-pendent.html#more.

The ALA is committed to fostering and encouraging the highest professional and ethical standards within the appellate bar. Pursuant to that commitment, the Association sponsored an Appellate Practice Seminar at the University of Illinois College of Law in Champaign. Held on October 8, 2014, the event featured an interactive panel discussion, presentations by seasoned appellate attorneys, a luncheon, and an informal social gathering attended by ALA members, University of Illinois law school faculty, and law students.

Appellate Court Justice Robert Steigmann of the Fourth District, moderated the panel discussion. The panel also included Justices Mary K. O'Brien and Daniel Schmidt of the Third District Appellate Court; Justices Lisa Holder White and Thomas Harris of the Fourth District Appellate Court; and Justice S. Gene Schwarm of the Fifth District Appellate Court. The panel covered a wide range of topics germane to appellate practice and procedure, and answered questions from attendees.

The seminar also featured ALA President Steve Pflaum and ARDC Ethics Director Peter Rotskoff present a discussion on ethics. ALA Vice President Michael Scodro, drawing on his experience as the former Illinois Solicitor General, offered a discussion focusing on tips for presenting oral arguments. Seminar participants were also invited to join the College of Law for their annual luncheon, which followed the Fourth District Oral Argument also held at the law school that morning.

The ALA thanks the Appellate Court Justices and the other speakers for their participation, and also thanks the University of Illinois College of Law.

ALA President Steven F. Pflaum was recently named Lawyer of the Month by Attorney At Law Magazine, which highlights his career accomplishments and contributions to the legal profession. In addition to representing clients like municipalities, media entities, and hospitals at trial and on appeal, President Pflaum has dedicated his career to "raising the bar" for both practitioners and the bench. He "devotes a substantial amount of time to activities intended to improve the administration of justice and the regulation of the legal profession." Toward that end, President Pflaum has held various positions related to both judicial and legal ethics, including serving as the current chair of the Illinois Judicial Ethics Committee. 

The article also shares insight into President Pflaum's activities outside of the law. An avid cyclist and tennis player, President Pflaum lives by the motto "Work hard, play hard, hardly sleep." Between zealously representing clients, giving back to the legal community, cycling, playing tennis, and spending time with his wife Karen and their family, including six children, President Pflaum's only complaint is that "there are rarely enough hours in the day.”

President Pflaum's many friends at the Association congratulate him on this well-deserved accomplishment. To read the full article, please click here. 

Effective September 19, 2014, the Supreme Court has amended Rules 12 and 373. Rule 12 governs proof of service in the trial court and reviewing courts. The amendment pertains to subsection (4), which now provides that "in the case of service by mail by a pro se petitioner from a correctional institution," proof of service may be established by an affidavit or "by certification as provided in section 1-109 of the Code of Civil Procedure" of the person who deposited the document in the institutional mail. The certification should state the time and place of deposit, as well as the complete address to where the document was delivered. 

Rule 373 governs filing papers in reviewing courts. The Rule specifies that proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). The amendment added language providing that the rule applies to "a motion directed against the judgment" as well as to the notice of appeal filed in the trial court. 

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules 12 and 373, (October 16, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/10/supreme-court-amends-rules-12-and-373.html.

The Appellate Lawyers Association is pleased to support The Chicago Bar Association and The Chicago Bar Foundation's 10th Anniversary Celebration: 2014 Pro Bono Week "Lifting Lives, Strengthening Access," which will take place during the week of October 20, 2014 through October 24, 2014. For more information, please visit The Chicago Bar Association by clicking here.

Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit recently commented that replacing page limits with word limits in all Rules of Appellate Procedure was sensible. Nonetheless, the remaining question was what the limit should be. He recounts the process that led to the 14,000-word limit for principal briefs that currently exists. He further shares his opinion that a reduction of the word limit to 12,500 at the intermediate appellate level while, at the same time, the United States Supreme Court replaced the 50-page brief limit with a 15,000-word limit "would create an unjustified difference."

You can read his comments by clicking here. Via How Appealing.

Professor Geoffrey Stone of the University of Chicago Law School was the feature speaker at our September 22 meeting. He provided us with a fascinating look at his work as a member of a five-member Review Group appointed by President Obamato advise him on the activities of the National Security Agency. Professor Stone is the former Dean of the University of Chicago Law School, a former provost of the entire University, and the Edward H. Levi Distinguished Service Professor of Law.

Among other matters examined by the Review Group was the controversial surveillance program of the NSA authorized by section 215 of the Patriot Act of 2001. Under this program, the NSA on a daily basis collects metadata -- consisting of phone numbers and connections but no identities of callers or conversations -- on millions of American's phone calls from telephone providers. Professor Stone explained that the NSA holds and processes the metadata on its own computers. When NSA analysts determine that a particular phone number is associated with terrorism, the agency "queries" the database to find out related phone numbers from the database.

In 2012, according to Professor Stone, the NSA queried the database for 288 different numbers. In 16 instances the suspect number was found to be in touch with another suspect number in the United States. Those 16 instances were turned over to the FBI for further investigation. In the seven years since the program was created, however, it has not provided any link that has proved critical in preventing a pending terrorist attack.

Despite the lack of measurable success to date, Professor Stone said that the Review Group was of the view that the program should continue. But at the same time it recognized the danger of government abuse. Ultimately, the Review Group recommended to the President that the metadata should be held, not by the government, but by private parties -- either the telephone providers or a newly created private entity charged with overseeing the database. In addition, the Review Group recommended that no one should be able to access the database without a court order.

Following the making of these recommendations, President Obama accepted them and directed that steps be taken to transition to the new model. Professor Stone, who is a card-carrying member of the ACLU, regarded this as a huge step forward.

The presentation provided a rare glimpse into some of the workings of the NSA. The ALA and those attending the presentation are very grateful to Professor Stone both for his service on the Review Committee and for taking time to share his experience with our group.

Recommended Citation: Don Sampen, Professor Geoffrey Stone Provides the Association With a Glimpse Into the NSA, The Brief, (October 7, 2014), http://applawyers-thebrief.blogspot.com/2014/10/professor-geoffrey-stone-provides.html.  

ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord. Also known as Lou Gehrig's disease, ALS is a crippling and fatal disease that quickly and systematically eliminates the body's ability to use its muscles. The disease has received worldwide attention in recent months with the ALS Ice Bucket Challenge.

Sadly, a member of the Illinois legal community has been inflicted with the disease. John Rooney, a longtime reporter for the Chicago Law Bulletin who has covered state and federal appeals, was diagnosed with ALS in March. A "Let's Roon ALS" fundraiser will be held on Sunday, October 19, 2014, in Merrionette Park, IL. The fundraiser will take place during a Chicago Bears game and, among other features, will include a buffet lunch, live entertainment, auction, and raffles. The proceeds will go towards John's medical costs, which given the nature of ALS, are likely to be high. 

For more information on the fundraiser and to purchase tickets, please click here.  

The Association will present the following seminars and luncheons during the month of October.

• October 8, 2014: Fourth District Appellate Seminar and Reception. 
• • Held at the University of Illinois College of Law in Champaign, the event will feature a panel discussion by justices from the Third, Fourth, and Fifth districts of the Appellate Court; an ethics discussion featuring Association President Steve Pflaum and ARDC Litigation Chief Peter Rotskoff; and former Illinois Solicitor General and Association Vice President Michael Scodro discussing tips for presenting oral arguments. The seminar will also include a roundtable luncheon with the Appellate Court justices and an informal gathering following the event. The seminar will run from 10:30 a.m. until 4:15 p.m. and offer 3.5 MCLE hours, including 1 hour of ethics. 

• October 29, 2014: Third Annual SIU/ALA Seminar. Writing Tips and Professionalism for the Appellate Practitioner.
• • Held at the Southern Illinois University School of Law in Carbondale, the event will feature justices from the Illinois Supreme Court and Illinois Appellate Court, Fifth District; Professor Cheryl L. Anderson of SIU School of Law presenting “Zombie Nouns and Other Impediments to Persuasive Written Advocacy”; and Association President Steve Pflaum presenting “Professional Responsibility for Appellate Lawyers.” The event starts at 1 p.m. and ends at 4:20 p.m., and will offer 3 MCLE hours.

• October 30, 2014: First District Luncheon Learn from the Press: Honing Writing Skills Under Pressure.
• • Pat Milhizer, the editor and a former reporter for the Chicago Daily Law Bulletin, and Teddy Greenstein, a longtime sports columnist for the Chicago Tribune, will offer the view from a different writing perspective. They will discuss how journalists gather relevant facts, think of a plan of attack, and then generate a concise discussion with a point, all the time under critical review by editors and a vocal public. The luncheon will be at the Union League Club in Chicago from 12 p.m. until 1:45 p.m. and offer 1 MCLE hour. 

For more information on these events and to register, click here.

In re Marriage of Sheth, 2014 IL App (1st) 132611, examines the technical requirements for filing a notice of appeal by mail. Respondent, Sushil Sheth, was a cardiologist in the Chicago area who had been federally charged with healthcare fraud on January 28, 2009, and sentenced to 60 months' imprisonment in the federal corrections center on August 10, 2010. His wife, Anita Sheth, filed a petition for dissolution of marriage approximately six months after Sushil was charged. Sushil was originally represented by an attorney in the dissolution proceedings, but eventually proceeded pro se. During the dissolution proceedings, a dispute regarding disbursement of monies to their children arose. On May 13, 2013, and while incarcerated, Sushil filed a motion by mail resisting the disbursement of funds and seeking a continuance. Sushil’s motion went ignored, and on May 15, 2013, the trial court granted Anita’s motion to disburse the children’s funds into a trust administered by her brother. On June 4, 2013, Sushil filed a motion to reconsider by mail. On June 28, 2013, the trial court denied the motion to reconsider. 

Sushil filed a pro se notice of appeal by mail. The notice of appeal was received and filed by the clerk on August 13, 2013. The notice of appeal contained a “Certificate of Service,” which was signed by Sushil and dated July 22, 2013, certifying that he placed the notice of appeal in the prison’s legal mailbox, with United States “First Class Certified Mail, Return Receipt Requested,” postage affixed, addressed to the circuit clerk of Cook County. The Certificate of Service, which was also file-stamped with a date of August 13, 2013, was signed by Sushil but, important to this appeal, not notarized. Also attached to the notice of appeal and Certificate of Service was tracking information showing that documents had been processed through the USPS sort facility in Indianapolis on July 24, 2013, and delivered in Chicago on July 29, 2013.

Before reaching the merits, the reviewing court, as it was required to do, considered whether it had jurisdiction. This inquiry required the court to consider whether Sushil’s pro se notice of appeal received and filed by the clerk on August 13, 2013, was timely. The court noted that, under Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008), Sushil’s notice of appeal was required to be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the judgment or order, which would have made the notice of appeal due on Monday, July 29, 2013. However, Sushil’s notice of appeal was not received and filed by the clerk until August 13, 2013, almost two weeks beyond the due date.

Nonetheless, the reviewing court noted that Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009) provides that, when a notice of appeal is mailed, the time of mailing shall be deemed the time of filing if it is received after the due date. Therefore, the court opined, Sushil had to rely on Rule 373 for his notice of appeal to be considered timely. For a party to rely on Rule 373, it must also file proper proof of mailing or delivery to a third-party commercial carrier as required by Rule 12(b)(3), which provides:

“(3) in case of service by mail or by delivery to a third-party commercial carrier, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail or delivered the document to a third-party commercial carrier, stating the time and place of mailing or delivery, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid[.]” Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4, 2013). 

The reviewing court concluded that Sushil’s certificate of service attached to the pro se notice of appeal, which was signed but not notarized, failed to meet the requirement of an “affidavit of a person other than the attorney” under Rule 12(b)(3). Citing Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009), and People v. Tlatenchi, 391 Ill. App. 3d 705 (2009), the court in Sheth emphasized affidavits must be sworn to by a party before a person who has legal authority to administer oaths. Because the certificate of service was signed but not notarized, the notice of appeal received by mail after the 30-day period was untimely, and the Sheth court dismissed the appeal for lack of jurisdiction.

Recommended Citation: Nate Nieman, You've Got Mail: First District Discusses the Requirements of Rules 373 and 12(b)(3) to Non-Attorneys, The Brief, (October 1, 2014), http://applawyers-thebrief.blogspot.com/2014/10/youve-got-mail-first-district-discusses.html.