By:  Kimberly Glasford

Recently, in Armstead v. National Freight, Inc., 2021 IL 126730, the Illinois Supreme Court reiterated that the distinction between claims and issues is crucial under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016).

Following a vehicular collision in Illinois, the plaintiff brought a workers’ compensation claim against his Pennsylvania-based employer in Pennsylvania. The order adjudicating the plaintiff’s claim incorporated an agreement stating that he had sustained only right knee strain, to the exclusion of other injuries.

The plaintiff then filed a two-count negligence claim against the other driver and his employer in Illinois. The circuit court granted defendants’ “Motion for Partial Summary Judgment or Summary Determination of a Major Issue” and determined that the plaintiff’s judicial admission in the workers’ compensation agreement prohibited him from raising any injury other than right knee strain. The court also found there was no just reason to delay enforcement or appeal under Rule 304(a).

The plaintiff appealed.  The circuit court, however, subsequently granted his motion to voluntarily dismiss without prejudice the rest of his action as to injuries pertaining to right knee strain. The plaintiff then filed a second notice of appeal. After consolidating the appeals, the appellate court affirmed on different grounds.

Justice Overstreet, writing for the majority, found that the court lacked jurisdiction to consider the circuit court’s partial summary judgment ruling.

Rule 304(a) states, in pertinent part, that “[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both.” (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Conversely, Rule 304(a) does not authorize the review of orders disposing of mere issues within a claim. Armstead, 2021 IL, 126730, ¶ 24.

The supreme court found that the circuit court’s order granting the plaintiff’s motion for partial summary judgment disposed of an issue that was ancillary to, rather than separate from, his negligence claims. Id. ¶ 27. Specifically, the order resolved the issue of whether the workers’ compensation agreement contained a judicial admission precluding him from asserting injuries to his shoulder and back. Yet, the order did not resolve either negligence claim. Consequently, the circuit court’s Rule 304(a) language had no effect and jurisdiction remained in that court.

Moreover, because the plaintiff failed to refile the action within one year (735 ILCS 5/13-217 (West 2016)), his action remained dismissed. Accordingly, the supreme court vacated the appellate court’s decision in its entirety and remanded for the circuit court to dismiss the case.

Chief Justice Anne M. Burke, joined by Justice Neville, concurred in part and dissented in part. She agreed that the plaintiff’s appeal under Rule 304(a) was improper because it merely resolved an issue. The same reasoning, however, precluded the court from addressing the order on the plaintiff’s motion for voluntary dismissal.

Specifically, Chief Justice Burke observed that while the majority concluded that the plaintiff dismissed “his action,” he had actually attempted to dismiss his “claim” for right knee strain, a claim which did not exist. Even assuming the plaintiff had dismissed the entire action, the appeal was moot because the plaintiff did not attempt to refile. The appropriate remedy would be to vacate the circuit court’s voluntary dismissal order and return the case to the circuit court with the partial summary judgment ruling intact.

The distinction between issues and claims appears to plague both litigants and courts alike. Tread carefully.

By:  Linda Sackey

In part, the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194, authorizes a reduction of a sentence for a prisoner who is serving a sentence for a covered crack-cocaine offense. Under the First Step Act, the prisoner is entitled to ask a judge to treat him as if the Fair Sentencing Act of 2010 had been in force on the date of his original sentence.

At issue in United States v. Hible, 13 F.4th 647 (7th Cir. 2021), was whether a motion to reconsider a decision under the First Step Act extends the time to file an appeal. Each prisoner in the consolidated cases before the United States Court of Appeals for the Seventh Circuit sought a shorter sentence and filed, within the time allowed for appeal, a motion asking the district court to reconsider an adverse decision. The judges in each case denied that motion, and the prisoner appealed. Each prisoner filed a notice of appeal within 14 days of the decision on the motion to reconsider but more than 14 days after the original decision.

Observing that the Supreme Court has held repeatedly that motions to reconsider in criminal cases extend the time for appeal, the Seventh Circuit concluded that a motion to reconsider a decision under the First Step Act suspends the decision’s finality and extends the time to appeal. The court’s ruling was of no help to either prisoner in these cases, as their requests for lower sentences remained denied, but it settles the law in this area going forward.

Today, the Illinois Supreme Court announced that, effective January 1, 2022, it is lifting the pause on judicial redistricting in Public Act 102-11.  This law will change the judicial district boundaries, including the districts of the appellate court, for the first time since they were established in 1964.  The Court had paused the transition to give the courts sufficient time to plan and implement the significant changes it required.

Effective January 1, 2022, a notice of appeal initiating an appeal to the appellate court or a direct appeal to the Supreme Court under Rule 302(b) shall be transmitted by the clerk of the circuit court to the appropriate appellate district as established by the Public Act 102-11.  Additionally, a petition or application or motion under Rule 303(d), Rule 303A, Rule 306, Rule 307(d), Rule 308, Rule 335, Rule 604(c), or Rule 606(c) will be filed in the new appellate district established by the Act. These provisions will apply regardless of the date of the judgment appealed or sought to be
appealed.

Circuit courts will remain subject to the rule that, when a conflict arises among the districts, a circuit court is bound by the decisions of the appellate court of the district in which it sits.  In a redistricted circuit, the appropriate appellate district will be the district in which the circuit was located at the time that the circuit court action was initiated.

If a case is heard by one appellate court district on appeal and if a subsequent appeal in that case is heard by a new appellate district pursuant to the order, the new district will treat the decision of the prior district as the law of the case.  That the decision of the prior district applied the law of the prior
district that is contrary to the law of the new district will not be a basis for departing from the decision of the prior district.

The full text of the Court's order may be found here, and the full text of Public Act 102-11, which lists the counties included in each new appellate district, may be found here.

The Illinois Supreme Court has appointed retired Judge John L. Hauptman to replace Justice Vicki R. Wright, who retired from the Illinois Appellate Court, Third District, effective November 30, 2021.  Justice Hauptman's appointment is effective from December 1, 2021 through December 4, 2022.

Justice Wright began her legal career as an appellate prosecutor in the Third District in 1982, after graduating from Loyola University School of Law in Chicago.  She became an Assistant State’s Attorney in Whiteside County in 1984 and was appointed as a Circuit Judge for the 14th Judicial Circuit in 1991.  She was the first female Associate Circuit Judge appointed to the 14th Judicial Circuit and, in 2006, became the first person from Whiteside County elected to the Third District of the Appellate Court.

Before joining the bench, Justice Hauptman earned his Juris Doctor from the John Marshall Law School, worked in private practice for over 10 years, and served as an Assistant State’s Attorney in Whiteside County.  Justice Hauptman was first appointed to the bench in 1997 as an Associate Circuit Judge in the 14th Judicial Circuit.  He was elected as Circuit Judge in Whiteside County in 2004 and was retained for another term in 2010.  During his tenure as Circuit Judge, Judge Hauptman helped organize the first Drug Court in Whiteside County.  He retired in December 2016.  

The Appellate Lawyers Association thanks Justices Wright and Hauptman for their many years of service on the bench and congratulates them on their respective retirement and appointment. 

By:  Carson Griffis*

In Miller v. Thom, 2021 IL App (4th) 200410, the appellate court addressed whether forum non conveniens applied to a plaintiff's error in e-filing her complaint in the wrong county.

The plaintiff e-filed her medical malpractice complaint in the circuit court of Sangamon County, but the complaint's caption indicated that it was being brought in St. Clair County.  The defendants filed their appearances in Sangamon County and a motion to dismiss the complaint for failing to attach the necessary affidavit under section 2-622 of the Code of Civil Procedure.  735 ILCS 5/2-622.  In response, the plaintiff filed the requisite affidavit in Sangamon County.

The plaintiff then filed a motion to transfer venue, stating that her attorney inadvertently selected Sangamon County rather than St. Clair County in the Odyssey e-filing system.  The circuit court denied the motion but gave the plaintiff an opportunity to file a forum non conveniens motion instead.   The plaintiff then filed a forum non conveniens motion, which the circuit court granted.

On appeal under Illinois Supreme Court Rule 306(a)(2), which allows for interlocutory appeals from orders granting or denying forum non conveniens motions, the appellate court reversed the circuit court's transfer order.  Leaving aside the question of whether a plaintiff could bring a forum non conveniens motion at all, the court held that the plaintiff's motion did not implicate that doctrine because forum non conveniens applies when there is more than one proper venue for an action, but one venue is more convenient than the other.  In this case, Sangamon County was not a proper venue because it had no connection to the lawsuit -- the only reason that Sangamon County was involved was plaintiff's e-filing mistake.  So this was not a circumstance where both Sangamon and St. Clair Counties were appropriate venues, but St. Clair County was more convenient. 

The court also held that the venue provisions of the Code of Civil Procedure did not justify the transfer of plaintiff's action.  The court noted that a defendant must file a motion to transfer venue "on or before the date upon which he or she is required to appear or within any further time that may be granted him or her to answer or move with respect to the complaint."  735 ILCS 5/2-104(b).  Because that time had elapsed by the time the plaintiff moved to transfer venue, the court held that it would be "unjust" to allow the plaintiff to seek to transfer venue, especially since the venue statute is "designed to protect defendants."

*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.

As previously detailed, the Seventh Circuit had invited comments on its proposal to rescind Circuit Rule 57 because it conflicted with Federal Rule of Appellate Procedure 12.1.  Having received no comments, the Seventh Circuit repealed that rule effective immediately.  

Circuit Rule 57 provided that a party who filed a motion to modify a final judgment in the district court while an appeal was pending had to request the district court to indicate whether it was inclined to grant the motion.  If the district court indicated that it was, then the Seventh Circuit would "remand the case for the purpose of modifying the judgment" and a party "dissatisfied with the judgment as modified [had to] file a fresh notice of appeal."  Federal Rule of Appellate Procedure 12.1 provides that, if the district court states that it would grant such a motion or that the motion raises a substantial issue, "the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal."

The court's press release regarding the rescission of Circuit Rule 57 may be found here.

Illinois Supreme Court Clerk Carolyn Taft Grosboll, who has served in that role since January 3, 2011, has announced her retirement effective November 30, 2021. Cynthia A. Grant, currently the Court's Assistant Clerk, has been appointed as the new Clerk of the Supreme Court effective December 1, 2021.

Clerk Taft Grosboll's many accomplishments included developing the Court’s first e-filing process, migrating that process to the Court’s Statewide e-filing system, creating electronic sharing of documents among Court staff, and creating a method for law firms to register with the Clerk’s Office each year online instead of through the mail. She also increased public transparency by posting briefs in cases on the Court's Call of the Docket Online and developed new procedures to adapt to the difficulties created by the Covid-19 pandemic. 

Cynthia Grant has served as the Assistant Clerk in the Supreme Court’s Clerk’s Office since 2013. She previously served for four years as legal counsel for various departments with the Illinois Secretary of State’s office and spent two years on the staff of the Speaker of the Illinois House of Representatives.  Ms. Grant earned her undergraduate degree from the University of Wisconsin at Madison and her Juris Doctor from the University of Illinois Chicago School of Law.

The Illinois Supreme Court's full statement on Clerk Taft Grosboll's retirement and Ms. Grant's appointment may be found here. 

The Appellate Lawyers Association expresses its sincere gratitude to Clerk Taft Grosboll for her many years of service to its members and the public, and congratulates her on her retirement.  The ALA also congratulates Ms. Grant on her appointment as the Court's next Clerk.

The Illinois Supreme Court's November Term begins Tuesday, November 9, 2021.  Oral arguments are scheduled for November 9, 10 and 16, 2021.  A total of 10 cases will be heard -- 4 criminal and 6 civil.  The following civil cases are scheduled for argument this Term:

November 10, 2021

Doe v. Lyft, Inc., No. 126605

In re Application of the County Collector, No. 126929

Suburban Real Estate Services v. Carlson, No. 126935

November 16, 2021

In the Matter of the Estate of John W. McDonald, III, No. 126956

International Association of Firefighters, Local 50 v. City of Peoria, No. 127040

Munoz v. Bulley & Andrews, No. 127067

Below is a summary for one of those cases, Doe v. Lyft, Inc. 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. 

Doe v. Lyft, Inc., No. 126605

This petition asks the Illinois Supreme Court to determine whether ride sharing companies such as Uber and Lyft may be held vicariously liable for the tortious conduct of their drivers against their passengers in the same manner as other common carriers or whether they are immune from such heightened standards under the Transportation Network Providers Act (“TNPA”).

In 2017, Plaintiff was sexually assaulted by her Lyft driver. She sued Lyft, alleging, inter alia, that as the driver’s employer, it should be vicariously liable for his conduct. Lyft moved to dismiss Plaintiff’s complaint pursuant to Section 2-615 of the Code of Civil Procedure, arguing that it was a Transportation Network Company (“TNC”) within the meaning of Section 25(e) of the TNPA (625 ILCS 57/25(e)), and could not be treated as a common carrier subject to heightened standards of vicarious liability. In response, Plaintiff challenged the constitutionality of Section 25(e), arguing that it constituted special legislation and that its enactment violated the “three readings rule” found in Section 8(d) of Article IV of the Illinois Constitution.  The trial court granted Lyft’s motion to dismiss, finding that Section 25(e) plainly exempted ridesharing companies from common carrier status, meaning that Lyft may not be deemed a common carrier as a matter of law.  The court also certified two questions for immediate review under Supreme Court Rule 308: whether Section 25(e) of the TNPA “preclude[s] TNCs, such as Lyft, from otherwise being subject to the highest duty of care under common law, like that of a common carrier’s elevated duty to its passengers;” and, if so, whether it violates the Illinois Constitution’s ban on special legislation or whether the Act itself was passed in violation of the Illinois Constitution’s three-readings rule.

The Illinois Appellate Court, First District granted leave to appeal and answered the first question in the affirmative and the second question in the negative. The court first held that Section 25(e) of the TNPA exempted Lyft from common carrier standards of liability. Rejecting Plaintiff’s argument that TNCs provide the same functions as common carriers—and finding that, but for Section 25(e), TNCs would be common carriers—the court reasoned that imposing common carrier liability on TNCs would render that section meaningless and concluded that the section “exempts TNCs from common carrier standards of liability.”  The court accepted Plaintiff’s argument that Section 25(e) discriminates in favor of ridesharing companies vis-à-vis taxicabs, but determined that such discrimination was not arbitrary under a rational basis review. The court justified this conclusion by noting: (i) the part-time nature of Lyft drivers and how the company’s “business relationship” with them differs substantially from taxicab medallion holders; (ii) its exclusive use of technological platforms to deliver their services; and (iii) the fact that TNC passengers receive “relevant information [about their driver] before they enter the vehicle.”

The appellate court further rejected Plaintiff’s argument under the three-readings rule, which requires the general assembly to read a bill three times before passage. The court acknowledged that the TNPA originated as a wholly different bill regarding public accounting. After two readings in the House, the text of that bill was completely eliminated and replaced with entirely new language which ultimately became the TNPA. The “new” bill was then read only once in the House. While recognizing that such a procedure violates the three-readings rule under Giebelhausen v. Daley, 407 Ill. 25 (1950), the court found that the enrolled bill doctrine—which prevents judicial inquiry into legislative bill-passing procedure—foreclosed any challenge under the three-readings rule.

Concurring in part, and dissenting in part, Justice Robert Gordon agreed with the majority’s conclusion regarding Section 25(e), but opined that the section failed to pass constitutional muster under the prohibition against special legislation.

Appellate Court Decision:  2020 IL App (1st) 191328.  Lampkin, J., with Burke, J., concurring. Gordon, P.J., concurring in part and dissenting in part.

By:  Kimberly Glasford

Section 2-1401 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1401) generally provides a vehicle for a petitioner to obtain collateral relief for a meritorious claim or defense, even in criminal cases. Subject to certain limited exceptions, a section 2-1401 petition must be filed no later than two years after the challenged judgment was entered. 735 ILCS 5/2-1401(c) (West 2016).

On January 1, 2016, Public Act 99-384 took effect and added subsection (b-5), which recognizes a “meritorious claim” for a defendant convicted of a forcible felony where he or she was a victim of domestic violence by an intimate partner. 735 ILCS 5/2-1401(b-5) (West 2016).

Subsection (b-5) requires the petitioner to show, among other things, that evidence of domestic violence was not presented at sentencing, and he or she could not have learned sooner through due diligence that such evidence was mitigating. 735 ILCS 5/2-1401(b-5) (West 2016).

Public Act 99-384 did not, however, amend section 2-1401(c) to create an exception to the two-year statute of limitations for claims based on the new subsection. The upshot is that under the express language of section 2-1401(c), relief is largely unavailable to those defendants convicted in the decades before subsection (b-5) was enacted. Yet, that hasn’t stopped defendants from trying.

Recently, in People v. Bowers, 2021 IL App (4th) 200509, the Illinois Appellate Court, Fourth District, held that the two-year statute of limitations applies to claims under subsection (b-5). Because that defendant was convicted in 1990, the trial court properly dismissed her petition.

The reviewing court found that the plain language of section 2-1401(c) clearly established a two-year statute of limitations and contained no exception for claims under subsection (b-5). Given that the legislature clearly would have been aware of the statute of limitations, this omission was unlikely to have been mere oversight.

The court also rejected the defendant’s contention that the due diligence requirement set forth in subsection (b-5) was intended to take the place of the statute of limitations. The court noted that litigants frequently had to overcome multiple hurdles to obtain relief.

While the reviewing court was sympathetic to the defendant’s argument that it was seemingly strange to limit relief to only those defendants who were recently sentenced, the court found the legislature may have started with a small number of eligible petitioners, lest the court be overburdened by a sudden rush of petitions. Thus, applying the statute of limitations would not produce an absurd result.

Having already found that the statue was clear, the Bowers court did not delve into various legislators’ comments on the amendment. The court stated, “legislators can have differing interpretations of a law, and parties can have strong policy disagreements about the law without that law being absurd.” Bowers, 2021 IL App (4th) 200509, ¶ 42.

It’s worth noting, however, that one legislator spoke directly to the statute of limitations. According to Representative Mitchell, “[i]t is an option for judges to provide post-judgment relief for up to two years after the original sentencing.” 99th Ill. Gen. Assem., House Proceedings, May 25, 2015, at 29. Additionally, “[t]he time lapse is because often, given the nature of domestic violence, it takes some time for a partner through counseling through time to understand what’s happened to them.” Id.

Although not discussed in Bowers, it’s also worth noting that Public Act 99-384 amended the Unified Code of Corrections by adding a new factor that sentencing courts must consider as mitigating. Specifically, a mitigating factor exists if “[a]t the time of the offense, the defendant is or had been the victim of domestic violence and the effects of the domestic violence tended to excuse or justify the defendant’s criminal conduct.” Id.; 730 ILCS 5/5-5-3.1(a)(15) (West 2016). This may reduce the number of defendants who need relief under section 2-1401(b-5).

The beneficiaries of subsection (b-5) may be few, but if the legislator intended something different, they’ll have to go back to the drawing board.

The stated purpose of the Judicial Districts Act of 2021 (JDA) “is to redraw the Judicial Districts to meet the requirements of the Illinois Constitution of 1970 by providing that outside of the First District the State ‘shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties.’”  Several justices of the Illinois Supreme Court and appellate court do not reside in the judicial district, as redrawn by the JDA, to which they were elected or appointed.

In their article in the Illinois State Bar Association’s Bench & Bar newsletter entitled “Justices Denied? Impact of the Judicial Districts Act on Incumbent Justices of the Illinois Supreme Court and Appellate Court,” former ALA President Steven Pflaum and Neal, Gerber & Eisenberg LLP summer associate Andrew Hamilton dissect the statutory and constitutional issues confronting Illinois justices who wish to run for retention but, due to redistricting by the JDA, no longer reside in the district to which they were previously elected.

Click here to read the article.