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.

The Illinois Supreme Court has announced that it is appointing Justice Lisa Holder White, currently serving on the Illinois Appellate Court, Fourth Judicial District, to the Court effective July 8, 2022, filling the vacancy that will be created by Justice Rita B. Garman's retirement.  Justice Holder White will be the first Black woman to serve on the Illinois Supreme Court.

Justice Holder White began her legal career as an Assistant State’s Attorney for Macon County before going into private practice while also serving as an Assistant Public Defender for Macon County.  In 2001, Justice Holder White was sworn in as an Associate Judge in the Sixth Judicial Circuit and, in 2008, she became a Circuit Judge.  In 2013, Justice White was sworn in as the first Black Justice on the Illinois Appellate Court, Fourth District, and was elected to that position one year later.

Justice Holder White previously served on and chaired the Illinois Supreme Court Judicial Conference Committee on Education, which is charged with planning and providing continuing judicial education for Illinois judges. She teaches at the bi-annual Education Conference, which all Illinois state court judges are required to attend, and previously served as an instructor for
“New Judge School."  She also is a member of the Decatur Bar Association, the Illinois Judges Association, the Central Illinois Women’s Bar Association, and the University of Illinois College of Law Leadership Project.

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

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

Justice Rita B. Garman has announced that she is retiring from the bench, effective July 7, 2022.  Justice Garman is the longest-serving judge in the State of Illinois.

Justice Garman was first appointed to the circuit court in 1974.  At that time, she was the first female judge to serve in the Fifth Judicial Circuit and one of only eight female judges in the State.  In 1995, she was appointed to the Illinois Appellate Court, Fourth Judicial District, and elected to that position the next year.  She has served on the Illinois Supreme Court since 2001, including serving as Chief Justice from 2013 to 2016.

Before serving on the bench, Justice Garman was an Assistant State's Attorney in Vermilion County and was engaged in private practice with Sebat, Swanson, Banks, Lessen & Garman.  Justice Garman received her J.D. degree with distinction from the University of Iowa College of Law in 1968 and her B.S. degree in economics with highest honors from the University of Illinois in 1965, Bronze Tablet.  She graduated as valedictorian of Oswego High School in 1961.

Justice Garman's full statement announcing her retirement may be found here.

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

Effective today, the Illinois Appellate Court, First District, has amended its rules of procedure.  The amended rules may be found here.

These amendments update the new local rules adopted by the First District that were effective on July 1, 2021.  The new local rules made many changes to the First District's rules, including reflecting the court's transition to electronic filing.

The new rules and their amendments were a result of the work of the court's 24-member Executive Committee and the Justices of the First District.  Justice Aurelia Pucinski is the Chair of the First District's Executive Committee.

By:  Linda Sackey

Even the most conscientious lawyer can make a mistake. Unfortunately, as the United States Court of Appeals for the Seventh Circuit recently observed in In re Cook Med., Inc., 27 F.4th 539 (7th Cir. 2022), some mistakes cannot be remedied and will doom the clients’ claims.

The attorney at issue here helped several clients file short-form complaints in the in the multidistrict litigation In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Product Liability Litigation, where plaintiffs alleged that they were injured by defendants’ medical device. The district court’s case management order advised plaintiffs to submit a profile form with general personal and medical background information, along with details about their device and alleged injuries. If a plaintiff did not complete a profile form within the specified time frame, defendants could move to dismiss the plaintiff’s claim.

In May 2019, defendants informed the attorney that four of his clients had not submitted the required forms. Several weeks later, when the forms still had not been filed, defendants moved to dismiss. The attorney never responded to the motion. The district court dismissed the cases on July 19, 2019.

More than one year later, one of the clients told the attorney about the dismissal. On August 18, 2020, the attorney moved for reconsideration and reinstatement of the cases. According to the attorney, he did not receive notice of defendants’ motion to dismiss, and he delayed in moving for reconsideration because new filters on his inbox caused the dismissal order to be sent to his junk folder. The attorney sought relief under Federal Rule of Civil Procedure 60(b)(1) and 60(b)(6).

The district court denied the attorney’s motion, finding it both untimely and meritless. In general, Rule 60(b) motions must be made within a “reasonable time.” And Rule 60(b)(1) in particular requires requests for reconsideration based on excusable neglect to be raised within one year of entry of judgment. In this case, the district court noted, plaintiffs sought reconsideration nearly 13 months after the order dismissing their cases. Thus, the court concluded that the motion was not brought within a reasonable time.

The district court also noted that “inexcusable attorney negligence is not an exceptional circumstance justifying relief” under either Rule 60(b)(1) or 60(b)(6). After determining that the attorney’s conduct fell within that category, the court denied the plaintiffs’ motion for reconsideration of the dismissal.

The Seventh Circuit ruled that the district court had acted within its discretion, and it affirmed the decision. The appellate court observed that the only stated ground for relief in plaintiffs’ Rule 60(b) motion was the attorney’s “neglect—his mishandling of the submission of his clients’ profile forms and, even more, his inattentive monitoring of both the docket and the email notifications from the district court.” The court determined that there was no showing of extraordinary circumstances that would warrant relief under Rule 60(b).

By:  Kimberly Glasford

The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2018)) contemplates the filing of one petition. Successive petitions may only be filed with leave of court after satisfying the cause-and-prejudice test. Defendants, however, are entitled to one complete opportunity to demonstrate constitutional violations.

In People v. Taylor, 2022 IL App (2d) 190951, the Second District of the Appellate Court considered the interplay of these rules as well as the impact of the mootness doctrine.

Defendant Johnny Taylor filed a petition under the Act, asserting that appellate counsel’s ineffectiveness led the appellate court to dismiss his direct appeal. When the appellate court recalled the mandate in Taylor’s direct appeal, the trial court dismissed his postconviction petition as moot. Taylor later filed a second postconviction petition, which the trial court treated as successive. Because Taylor had not obtained leave of court, the court denied him relief.

On appeal, the reviewing court first determined whether the petition before it was successive, which in turn depended on the characterization of Taylor’s first postconviction proceedings.

The reviewing court recognized that a trial court may summarily dismiss an initial postconviction petition that is frivolous or patently without merit but found no case law associating mootness with that standard. The court found that while it was well-settled that res judicata, forfeiture or a lack of standing renders a petition frivolous and patently without merit, untimeliness does not.

The reviewing court found that mootness was akin to untimeliness in that it did not speak to whether a petition raised a constitutional violation or to an inherent element required to file a postconviction petition. The court also found that a petition need not establish that an actual controversy exists. Moreover, mootness, unlike res judicata, did not involve a judgment on the merits. 

Having determined that mootness does not render a petition frivolous or patently without merit, the reviewing court determined that the trial court erred in treating the defendant’s first petition as an initial postconviction petition. Thus, it followed that his second petition was not successive within the meaning of the Act.

Moreover, even if mootness could render a petition frivolous and patently without merit, Taylor’s second petition could not be treated as a successive filing, as Taylor had not received his one complete opportunity to show that his constitutional rights were substantially violated. Specifically, the trial court dismissed his first petition after the reviewing court recalled the mandate on direct appeal but before Taylor had the opportunity to withdraw his petition.

Taylor shows that courts must protect a defendant’s right to a complete opportunity to demonstrate that constitutional violations occurred. Practitioners should be aware, however, that an earlier Second District decision determined that “the mootness doctrine shares with the doctrine of res judicata all of the features that led our supreme court to hold that a trial court could consider res judicata at the first stage of postconviction proceedings.” People v. Angarola, 387 Ill. App. 3d 732, 742 (2009). Thus, the matter of mootness may not be a moot point.

By:  Carson R. Griffis*

In Parker v. Liberty Insurance Underwriters, Inc., 2022 IL App (1st) 200812, the appellate court highlighted the risks that filing successive postjudgment motions, including sanctions motions, may pose to ensuring that an appeal is perfected.

Jimette Parker and Liberty Insurance Underwriters, Inc., reached an agreement to settle Parker’s lawsuit against Liberty.  The circuit court then dismissed Parker’s action with prejudice, but retained jurisdiction to enforce the settlement’s terms. 

A few days later, Liberty filed a motion to enforce the agreement claiming that Parker refused to sign some of the documents memorializing their agreement.  In response, Parker moved to vacate the settlement and the dismissal of his action.  The court granted Liberty’s motion to enforce the settlement and rejected Parker’s request to vacate it.  Parker then filed a second motion to vacate the settlement, but withdrew that motion a few weeks later. 

More than 30 days after the court had denied Parker’s first motion to vacate the settlement, he filed a motion for sanctions under Illinois Supreme Court Rule 137.  The circuit court denied that motion, finding that it lacked jurisdiction.  Three days later, Parker filed a notice of appeal that listed the denials of his first motion to vacate and his sanctions motion as the orders he was appealing.

The appellate court held that it lacked jurisdiction because Parker’s notice of appeal was untimely.  To begin, the court noted that the dismissal of Parker’s action with prejudice based on the parties’ settlement was a final judgment because it disposed of all of Parker’s claims.  It thus construed the first motion to vacate the settlement as a postjudgment motion.  And once the circuit court denied that motion, Parker had 30 days to either file a notice of appeal or a Rule 137 sanctions motion. 

Because successive postjudgment motions do not toll the time to file a notice of appeal or a sanctions motion, however, Parker’s decision to file a second motion to vacate the settlement did not stop the clock on his time to appeal.  Parker’s sanctions motion and notice of appeal were thus untimely.

*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.

The Illinois Supreme Court's March Term begins Tuesday, March 15, 2022.  Oral arguments are scheduled for March 15, 16, 17, 22 and 23, 2022.  A total of 13 cases will be heard -- 7 criminal and 6 civil.  The following civil cases are scheduled for argument this Term:

March 17, 2022

Prate Roofing Installations LLC v. Liberty Mutual Insurance Corp.

Midwest Sanitary Service, Inc. v. Sandburg, Phoenix & Von Gontard, P.C.  

March 22, 2022

Chicago Title Land Trust Co. v. Village of Bolingbrook

Holm v. Kodat

O’Connell v. The County of Cook

March 23, 2022

Dawkins v. Fitness International, LLC

Below is a summary of one of those cases, Dawkins v. Fitness International, LLC.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, available to ALA members on the ALA’s website. 

Dawkins v. Fitness International, LLC, No. 127561

This issue in this appeal is whether the Physical Fitness Facility Medical Emergency Preparedness Act (the “Act”), 210 ILCS 74/1 et seq., or common law imposes a duty on a fitness center to use an automated external defibrillator (“AED”) when it knows that one of its patrons is experiencing a medical emergency.

The Act requires fitness facilities to have an AED available, retain staff trained in using it, and schedule at least one trained staff member to be present during business hours.  It also states that, so long as a facility has and maintains its AED, “[a] right of action does not exist in connection with the use or non-use of an automated external defibrillator at a facility governed by this Act, except for willful or wanton misconduct.”  210 ILCS 74/45.

Dollett Dawkins was exercising at a gym owned by Defendant Fitness International LLC (“Fitness”), when she collapsed, stopped breathing, and lost her pulse.  Although there was an AED present and a staff member trained to use it, eight minutes passed before a Fitness employee applied the AED to Dollett.  During that time, other patrons attempted to administer CPR and called for assistance from Fitness staff.  Dollett, who has a heart condition, was suffering ventricular fibrillation, which caused cardiac arrest and, ultimately, permanent brain damage.  Leo Dawkins, Dollett’s husband, sued Fitness on his own behalf and on Dollett’s, alleging claims for both negligence and willful and wanton misconduct and alleging that Fitness should be held liable for its employees’ failure to use the AED despite knowing that she was experiencing a medical emergency.  Fitness moved to dismiss the complaint under section 2-619(a)(9) of the Code of Civil Procedure, 735 ILCS 5/2-619(a)(9), arguing that it complied with the Act by having an AED and trained staff present, and it could not be held liable for an alleged failure to use the AED.  The trial court granted the motion to dismiss and dismissed all counts of the complaint with prejudice.

Plaintiff appealed from the dismissal of his willful and wanton counts only. The Illinois Appellate Court reversed.  The court concluded that, in passing the Act, the General Assembly intended fitness facilities to have AEDs available for use during medical emergencies. Because section 45 of the Act explicitly stated that a fitness facility has immunity except for willful and wanton misconduct, the appellate court reasoned that the Act imposed liability for willful or wanton misconduct.  The appellate court rejected Fitness’s argument that the Act only created liability for willful and wanton misuse, as opposed to non-use, of an AED, noting that the immunity provision expressly referenced “non-use” of an AED.  The appellate court also held that, regardless of the Act, Fitness had a common-law duty to use the AED as part of the business invitor-invitee relationship between it and Dollett.  According to the appellate court, that duty required Fitness employees to administer reasonable first aid to Dollett, which could include the use of an AED.  The Act did not clearly abrogate this common-law duty — in fact, it created a private right of action for willful and wanton failures to use an AED.  Finally, the appellate court held that Leo’s complaint alleged willful and wanton conduct, noting that it alleged that Fitness employees knew that Dollett was suffering a medical emergency but failed to use the AED, which violated Fitness’s own policy on AED use.

In its petition for leave to appeal, Fitness argued that the appellate court erred in imposing on non-medical personnel an affirmative duty to use an AED and construing the Act as creating a private right of action for non-use of an AED.  Fitness argued that, contrary to the appellate court’s interpretation, the Act imposes no affirmative duty to use AEDs.  Fitness also noted that several other states’ courts, interpreting similar statutes, have held that they do not impose an affirmative duty to use an AED.  Some of those decisions also held that there is no common-law duty to use an AED.

Appellate Court Decision: 2020 IL App (3d) 170702-U.  Holdridge, J., with Carter, J., and O’Brien, J., concurring