The Illinois Supreme Court has announced that it is appointing Justice Joy V. Cunningham, currently serving on the Illinois Appellate Court, First Judicial District, to the Court effective December 1, 2022, filling the vacancy that will be created by Chief Justice Anne M. Burke’s retirement.  Justice Cunningham will be the second Black woman to serve on the Illinois Supreme Court, following Justice Lisa Holder White’s appointment to the Court earlier this year.

Justice Cunningham began her legal career in 1982 as an Assistant Attorney General in the Office of the Illinois Attorney General.  She went on to serve as a law clerk to Justice Glenn T. Johnson in the appellate court and later worked as Associate General Counsel and Chief Counsel for HealthCare at Loyola University.

In 1996, Justice Cunningham was sworn in as an Associate Judge in Cook County Circuit Court, where she was assigned to the civil trial division.  Four years later, she left the bench to serve as Senior Vice President, General Counsel and Corporate Secretary at Northwestern Memorial Healthcare, returning to the bench in December 2006 as an elected Appellate Court Justice in the First District.  She was retained by voters in 2016.

Justice Cunningham was the first African American woman elected President of the Chicago Bar Association, the nation’s largest municipal bar association. She currently serves on the Board of Trustees of Loyola University Health System, the Chicago Bar Association’s Strategic Planning Committee, the Governor’s Commission for Eradicating Poverty, the Board of Directors of the James R. Jordan Foundation, the Board of Directors of the Chicago Bar Association Media Organization, and as the Chair of the Associate Commissioners of the Illinois Supreme Court Historic Preservation Commission.  She also is a member of the Chicago Bar Association, the American Bar Association, the Illinois State Bar Association, the Cook County Bar Association, the Women’s Bar Association of Illinois, the Black Women Lawyers Association, the Illinois Judicial Council, the Illinois Judges Association, the Economic Club of Chicago, the Chicago Network, the CBA Past Presidents’ Council, the American Law Institute, and the American Bar Foundation.

The Illinois Supreme Court's full announcement regarding Justice Cunningham’s appointment may be found here.

The Appellate Lawyers Association congratulates Justice Cunningham on her historic appointment to the Illinois Supreme Court.

Illinois Supreme Court Chief Justice Anne M. Burke has announced that she is retiring from the bench, effective December 1, 2022.  Chief Justice Burke has served on the State’s highest court since 2006 and has served as its Chief Justice since 2019, guiding the Court and the Illinois judiciary through the COVID-19 pandemic.

Chief Justice Burke’s judicial career began in 1987, when she was appointed as the first female judge on the Court of Claims.  In 1994, she served as the Governor’s Special Counsel for Child Welfare Services and, the next year, was appointed to the Illinois Appellate Court, First Judicial District.  In 1996, Chief Justice Burke was elected to the appellate court for a full term and served there until her appointment to the Illinois Supreme Court in 2006.  She was elected to the Illinois Supreme Court for a full term in 2008 and retained in 2018.

Before serving on the bench, Chief Justice Burke practiced law on the South Side of Chicago, frequently representing families and serving as a guardian ad litem for children.  She received her Juris Doctor from the Illinois Institute of Technology, Chicago-Kent College of Law in 1983, and her undergraduate degree in education from DePaul University. 

Before attending law school, Chief Justice Burke taught physical education at the Chicago Park District and was instrumental in the creation of the first Chicago Special Olympics in 1968, which later grew to become the International Special Olympics.  She later served as the Director of the International Special Olympics and, to this day, remains involved in the Chicago Special Olympics.

Chief Justice Burke’s full statement announcing her retirement may be found here.

The Appellate Lawyers Association thanks Chief Justice Burke for her distinguished, groundbreaking career and tireless commitment to public service, and wishes her the best in her retirement.

By:  Carson R. Griffis*

In Highland Management Group, LLC v. Society Insurance, 2022 IL App (5th) 210348, the Illinois Appellate Court, Fifth Judicial District, clarified the scope of Illinois Supreme Court Rule 306(a)(4), which allows for interlocutory appeals from the grant or denial of a motion to transfer venue.

The plaintiff in Highland brought a declaratory judgment action against its insurer and insurance broker in the circuit court of Madison County, Illinois, seeking coverage for business income losses caused by the Covid-19 pandemic.  The plaintiff alleged that venue was proper in Madison County because its president and sole member resided there, and section 2-103(e) of the Code of Civil Procedure, 735 ILCS 5/2-103(e), allows actions to be brought against an insurance company "in any county in which the plaintiff or one of the plaintiffs may reside."  The defendants filed a motion to transfer venue, arguing that Madison County was not the plaintiff's county of residence, which the circuit court denied.  The defendants then filed a petition for leave to appeal under Rule 306(a)(4).

The appellate court dismissed the defendants' interlocutory appeal because it lacked jurisdiction.  The court noted that Rule 306(a)(4) only allows for interlocutory appeals of the grant or denial of a motion to transfer venue "based on the assertion that the defendant is not a resident of the county in which the action was commenced."  That language tracks the language of section 2-101 of the Code of Civil Procedure, 735 ILCS 5/2-101, which states that venue is generally proper "in the county of residence of any defendant." 

But, the appellate court explained, the plaintiff brought its action in Madison County under section 2-103(e), which allows an action against an insurance company to be brought in the county of the plaintiff's residence, rather than section 2-101.  And the defendants argued that venue was improper because the plaintiff did not reside in Madison County, not because they were residents of a different county.  Because the defendants' motion was not based on the assertion that they were not residents of Madison County, the appellate court lacked jurisdiction over their interlocutory appeal under Rule 306(a)(4).

*Carson Griffis is an Assistant Attorney General in the Civil Appeals Division of the Office of the Illinois Attorney General.  No comments made in this post are made on behalf of the Office of the Illinois Attorney General, nor do they reflect the views or opinions of the Office of the Illinois Attorney General.

Justice Eugene Doherty of the Illinois Appellate Court, Fourth Judicial District, is seeking to fill two positions in his chambers in Rockford, Illinois.  

Justice Doherty is seeking a Law Clerk to perform legal research, analysis, and writing, to review and assist in the drafting of judicial opinions, orders, and other legal documents, and to perform other duties as needed.  Applicants should possess excellent research, case analysis, and writing skills, and experience as a law clerk in a reviewing court is strongly preferred.  The annual salary for this position is $96,754.  Instructions on how to apply, as well as other details about the position, may be found here.

Justice Doherty also is seeking a Law Clerk/Judicial Secretary to conduct legal research and assist in drafting memoranda, orders, and opinions, as well as perform administrative duties such as corresponding with the Springfield courthouse and other chambers, tracking the status of motions and cases, paying bills, maintaining case files, and keeping the library up to date.  Applicants should have outstanding academic records and superior research and writing skills, and those with prior experience as a judicial law clerk or in appellate practice will be given preference.  The annual salary for this position is $87,391.  Instructions on how to apply, as well as other details about the position, may be found here.

Both positions will remain open until filled, but applicants submitting their materials by August 5, 2022, will be given first consideration.

The Illinois Supreme Court has appointed Judge Eugene Doherty to the Illinois Appellate Court, Fourth Judicial District, effective July 14, 2022.

Judge Doherty has served on the bench in the circuit court for the Seventeenth Judicial Circuit since 2007.  He won election in 2008, retention in 2014 and 2020, and served as Chief Judge from 2018 to 2021.

Before joining the bench, Judge Doherty practiced with a law firm in Rockford for 16 years and served as a law clerk to Justice Philip G. Reinhard on the Appellate Court, Second District.  Judge Doherty earned his Juris Doctor from Northern Illinois University College of Law.

Judge Doherty has served on several Illinois Supreme Court Committees, including as the current Chair of the e-Business Policy Board, as Vice-Chair of Court Operations During COVID-19 Task Force and Chairman of the Task Force’s Evictions Subcommittee, and as a member of the Weighted Caseload Task Force and the Statutory Court Fees Task Force. During his time as Chief Judge in the Seventeenth Judicial Circuit, he served as Chairman for the Technology Committee and the Supreme Court Article V Committee of the Conference of Chief Judges.

The Illinois Supreme Court's announcement of Judge Doherty's appointment may be found here.

The Illinois Supreme Court has appointed Judge Lance Peterson, who is currently serving on the circuit court for the Thirteenth Judicial Circuit, to the Illinois Appellate Court, Third Judicial District, effective August 1, 2022.

Judge Peterson earned his Juris Doctor from The John Marshall Law School in Chicago, where he served as Editor-in-Chief of The John Marshall Law Review.  Before joining the bench, Judge Peterson served as Grundy County State's Attorney from 1996 to 2001 and as a clerk for Justice Mary Ann McMorrow of the Illinois Supreme Court and Justice Tobias Barry of the Third District. 

Judge Peterson began his service on the bench as an Associate Judge from 2001 to 2010.  Since 2010, he has served as a Circuit Judge.  Judge Peterson is a member of the Illinois Courts Commission and the Illinois Supreme Court Committee on Jury Instructions in Civil Cases, as well as a past member and Chairman of the Alternative Dispute Resolution Coordinating Committee of the Illinois Judicial Conference.

The Illinois Supreme Court's announcement of Judge Peterson's appointment may be found here.

Justice Daniel Schmidt of the Illinois Appellate Court, Third Judicial District, passed away Tuesday, July 5, 2022, after a two-and-a-half battle with ALS.  He was 71.

After receiving his bachelor's degree from the University of Illinois in 1974, Justice Schmidt served as a police officer in Peoria, Illinois, for nine years.  He received his Juris Doctor from Washington University in St. Louis and practiced as a trial attorney for 19 years, trying cases to verdict across Illinois.  He was elected to the appellate court in 2002 and retained in 2012.  Justice Schmidt also was an avid sportsman and conversationist.  

Information on the services honoring Justice Schmidt may be found here.  The Appellate Lawyers Association expresses its deepest condolences to Justice Schmidt's colleagues and family.

Yesterday, Judge Michael S. Kanne of the United States Court of Appeals for the Seventh Circuit passed away.  He was 83 years old.

Judge Kanne earned his bachelor's degree in 1962 from Indiana University and, after his graduation, served as a lieutenant in the United States Air Force.  Following his military service, he attended Indiana University's Maurer School of Law, where he received his Juris Doctor in 1968. 

From 1968 to 1982, Judge Kanne worked in private practice, served as a City Attorney for the city of Rensselaer, Indiana, and served as a judge on the Indiana Circuit Court, Thirtieth Judicial Circuit.

In 1982, President Reagan appointed Judge Kanne to the United States District Court for the Northern District of Indiana and, five years later, to the Seventh Circuit.  During his tenure on the Seventh Circuit, Judge Kanne held several important positions in federal-court administration and governance, including as chair of the Judicial Conference Committee on Space and Facilities and the Committee on Judicial Security.

The ALA extends its deepest condolences to Judge Kanne's family and colleagues.

By:  Kimberly Glasford

Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) generally requires postconviction trial counsel to file a certificate stating that she has fulfilled her duties to the defendant under that rule. In People v. Smith, 2022 IL 126940, the supreme court considered whether substitute counsel in a postconviction proceeding must show Rule 651(c) compliance where the defendant’s original counsel in the same proceeding has already filed a certificate. The answer is no.

The right to counsel in postconviction proceedings is statutory (725 ILCS 5/122-4 (West 2018)), not constitutional, and a defendant is entitled to only reasonable assistance. To further the reasonable assistance of counsel, Rule 651(c) states:

“The record *** shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner *** to ascertain his or her contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”

Postconviction counsel’s filing of a Rule 651(c) certificate creates a rebuttable presumption that the defendant received reasonable assistance.

 In Smith, the defendant’s original postconviction counsel filed a Rule 651(c) certificate, creating a presumption of reasonable representation. Counsel also filed a response to the State’s motion to dismiss the petition. Before the hearing on the State’s motion, however, substitute counsel was appointed. She did not file her own Rule 651(c) certificate.

The supreme court observed that while Rule 651(c) requires appointed counsel to investigate and properly present a defendant’s pro se contentions, the defendant’s substitute counsel was not appointed to represent a pro se litigant; rather, the defendant’s original counsel had already determined that no amendments were needed to shape defendant’s pro se petition. The two attorneys played significantly different roles given that substitute counsel needed only to argue the motion.

The court also found that requiring substitute counsel to file a Rule 651(c) certificate would waste resources. Specifically, original counsel took almost 16 months to fulfill her Rule 651(c) duties, and the State took a year to review the defendant’s petition and file a motion to dismiss. If substitute counsel were required to perform the duties stated in Rule 651(c), she would be starting over and could potentially file a modified petition. This would in turn mean that the State would be starting over.

Accordingly, the supreme court held that substitute counsel was not required to file her own Rule 651(c) certificate.

In reaching that determination, the court stressed that even where a presumption of reasonableness has arisen due to the filing a Rule 651(c) certificate, a defendant may nonetheless pursue a claim that counsel’s representation was unreasonable. Yet, the defendant in Smith had not argued that either of his postconviction attorneys failed to provide reasonable assistance.

Following Smith, substitute counsel generally need not file a Rule 651(c) certificate if prior counsel has already done so. Still, Smith does not prevent substitute counsel from filing a certificate where she has taken the steps enumerated in the rule. In that instance, substitute counsel should consider filing her own certificate for good measure, particularly where counsel anticipates that the defendant will later challenge the adequacy of postconviction representation.

After 30 years of service on the Illinois Appellate Court, Third District, Justice Tom M. Lytton has announced that he is retiring effective July 1, 2022.  The Illinois Supreme Court has appointed Judge Joseph P. Hettel of the circuit court for the Thirteenth Judicial Circuit to fill the vacancy left by Justice Lytton's retirement.

Justice Lytton was first elected to the appellate court in 1992 and was retained by voters in 2002 and 2012.  Before joining the bench, Justice Lytton was a partner at the firm of Lytton, Lytton & Sutton for nearly 20 years and also served as a special Assistant Attorney General for the Illinois Office of the Attorney General.

Justice Lytton earned his Bachelor of Arts and his Juris Doctor from Northwestern University.  He also received a degree from the International School of Law in The Hague, Netherlands.  In 2018, he was honored by the Jewish Judges Association as the recipient of the Hon. Richard J.
Elrod Public Services Award.

Judge Hettel has served in the Thirteenth Circuit since being appointed to the bench in 2006.  He was retained by voters in 2014 and 2020.  Before his service on the bench, Judge Hettel worked in private practice and served for six years as LaSalle County’s State’s Attorney.  He earned his Juris Doctor from the Chicago-Kent College of Law.

The Illinois Supreme Court's full announcement may be found here.