"The Brief" - The ALA Blog

  • November 23, 2020 5:47 PM | Carson Griffis (Administrator)

    The Illinois Supreme Court assigned Thirteenth Circuit Judge Eugene P. Daugherity as an Appellate Court Justice in the Third District.  Judge Daugherity was assigned to fill the vacancy created by the appointment of Justice Robert E. Carter to the Supreme Court of Illinois effective December 8, 2020.  The assignment of Judge Daugherity takes effect on December 8, 2020 and will remain in effect until December 5, 2022. 

    Judge Daugherity was first appointed to the bench in 2001 in the 13th Judicial Circuit.  He was elected to his own term in the November 2002 general election and was retained in 2008, 2014, and 2020.  Judge Daugherity has served as the Presiding Judge of the Civil Division in LaSalle County since January 2010.

    Before joining the bench, Judge Daugherity was a partner with the firm Myers, Daugherity, Berry, O'Connor & Kuzma Ltd. in Ottawa, a firm with which he practiced since 1982.  Judge Daugherity earned his Bachelor of Arts from Loyola University and his Juris Doctor from the DePaul University College of Law, where he graduated with honors. 

    Judge Daugherity served as a member of the Illinois Supreme Courts Judicial Conference Committee on Complex Litigation from 2002 to 2011 and served as the Committee’s Chair from 2008 to 2010.  During his chairmanship, he directed a complete revision and update of the Manual on Complex Civil Litigation which was completed in 2011.  He additionally served as an alternate member of the Illinois Courts Commission in 2017 and 2018.

  • November 20, 2020 4:21 PM | Carson Griffis (Administrator)

    This is a great day for the Illinois appellate bar.

    Earlier today, the Illinois Supreme Court amended Supreme Court Rule 23 to allow unpublished Rule 23(b) orders issued on or after January 1, 2021 to be cited for persuasive purposes.  The amendment can be found here.

    Today’s amendment follows years of advocacy by the Appellate Lawyers Association, working in conjunction with the Illinois State Bar Association and the Chicago Bar Association, for exactly this amendment to Rule 23.  Most recently, at the public hearing of the Illinois Supreme Court Rules Committee on June 24, 2020, ALA Rules Committee Co-Chair Seth A. Horvath argued that Rule 23 should be amended to allow the citation of Rule 23 orders as persuasive authority.  We are pleased to see that the Supreme Court Rules Committee, and ultimately the Supreme Court itself, was persuaded by the ALA’s arguments.

    The ALA thanks the justices of the Illinois Supreme Court for approving this amendment to Rule 23, and the members of the Illinois Supreme Court Rules Committee for recommending it.  Special thanks also are owed to past ALA Presidents J. Timothy Eaton and Michael T. Reagan, who have advocated for amending Rule 23 for quite a long time.  We are also grateful for the tireless work of the ALA’s Rules Committee and its co-chairs, Seth A. Horvath and Garrett L. Boehm, Jr.

    The ALA remains committed to the task of recommending rule changes to promote fairness and transparency in the appellate process.

  • November 15, 2020 8:52 AM | Carson Griffis (Administrator)

    The Appellate Lawyers Association’s Special Committee on E-Filing has issued its "Report on E-Filing Issues," suggesting areas of improvement in Illinois reviewing courts’ e-filing system.  The report was compiled based on the Committee members’ own experiences as well as feedback from the ALA’s membership.

    The report highlights the positive aspects of the e-filing system, such as reduced costs, administrative ease, convenience, and responsiveness of court clerks.  The report’s recommendations for improvement fall into 10 general categories:

    1. Uniformity & Clarity of Rules:  Implementing uniform e-filing rules to reduce variance among the circuit and reviewing courts;
    2. Acceptance & Rejection of Filings:  Encouraging uniformity in the reasons for accepting or rejecting filings among courts and establishing a mechanism to backdate corrected filings;
    3. Docket Access:  Ensuring that attorneys have access to a case’s full docket through re:SearchIL, similar to federal courts’ Public Access to Court Electronic Records (“PACER”) system;
    4. Service:  Allowing Tyler to add e-mail addresses from the eFile IL service database and listing all parties on whom service is actually made in e-mails to filing attorneys;
    5. Menu Options:  Expanding the menu options for categorizing filings to include oral argument confirmations, letter filings, motions to cite additional authority, and motions to publish Rule 23 orders;
    6. Distribution of Orders & Opinions:  Allowing courts to transmit orders and opinions to parties through the e-filing system;
    7. The Record on Appeal:  Transmitting the entire record on appeal in a single link rather than separate e-mails;
    8. Courtesy Copies:  Developing a more uniform approach to the requirement and number of paper courtesy copies of briefs;
    9. Technical Issues:  Ensuring that all Electronic Service Filing Providers, not just Odyssey eFileIL, have full access to the e-filing system; and
    10. Miscellaneous:  Allowing clerks to maintain limited paper filing systems to fill gaps in e-filing until the system is updated.
    The full report may be found here.

  • November 13, 2020 7:40 AM | Carson Griffis (Administrator)

    The Illinois Supreme Court has announced that Cook County Circuit Judge LeRoy K. Martin, Jr. has been assigned to the Illinois Appellate Court, First Judicial District.  Judge Martin will fill the vacancy created by the appointment of Justice Robert E. Gordon to the Appellate Court of Illinois effective December 7, 2020.  Justice Gordon is filling the vacancy of Justice Shelvin Louise Marie Hall and his appointment is through December 5, 2022.  Judge Martin will occupy the rotation position of Justice Hall in the Fourth Division of the First District and will be assigned Justice Hall’s cases.

    Judge Martin earned his Bachelor of Arts from DePaul University and his Juris Doctor from the North Carolina Central University School of Law.  Judge Martin served as a Cook County Public Defender from 1985 to 1987, then engaged in private practice for 15 years.  Judge Martin was first appointed to the bench in 2002, serving in the Chancery Division and, since 2015, as the Presiding Judge of the Criminal Division. 

    Judge Martin has been appointed to several Illinois Supreme Court committees, including the Civil Justice Committee.  He has presented at New Judges School and the Judicial Education Conference.  He was the 2016 recipient of the Earl B. Dickerson Award.  He taught trial practice at the Loyola University School of Law in 2012 and 2014.

  • November 12, 2020 7:44 AM | Carson Griffis (Administrator)

    The Illinois Supreme Court recently announced the statewide expansion of the Volunteer Pro Bono Program for Criminal Appeals as of December 1, 2020. 

    The initiative launched this past February to assist the Office of the State Appellate Defender with the backlog of criminal appeals that are pending before the Illinois Appellate Court.  Since the program’s inception, 78 attorneys have been approved to participate and 43 cases have been assigned to pro bono attorneys (33 in the First District and 10 in the Second District).   The program will now be expanding to all appellate districts and it provides a unique opportunity for appellate attorneys to get involved in pro bono service throughout Illinois.

    You can participate by:

    1. Volunteering to handle a direct criminal appeal.  Complete details about the program’s parameters, eligibility criteria, and application are on the Court’s website.  Volunteer attorneys must be admitted for at least five years and have participated in two prior appeals or have served for at least two years in various governmental agencies or as a judicial clerk in a reviewing court.  Oral argument will be strongly considered in these appeals.
    2. Supervising an attorney who does not meet the eligibility criteria. Newly licensed attorneys and friends and colleagues who do not otherwise meet the eligibility criteria may handle these appeals under the supervision of a qualified appointed attorney. This is an excellent opportunity to help others get appellate experience.
    3. If you do not meet eligibility criteria, you can qualify by completing OSAD’s free, CLE-eligible online training program, “Criminal Appeals in Illinois: An Introduction to Law and Procedure.”  The training program is a 5-week online course intended to assist pro bono attorneys with substantive and procedural criminal law.  The training is offered on a quarterly basis by OSAD with the next seminar scheduled from January 4 - February 5, 2021.  To sign-up, please email the Office of the State Appellate Defender at probono@osad.state.il.us. You can also read more about the training program here.
  • November 10, 2020 5:04 PM | Carson Griffis (Administrator)

    Justice Robert L. Carter of the Illinois Appellate Court, Third Judicial District, was selected to join the Illinois Supreme Court on December 8, 2020.  Justice Carter will fill the vacancy of Justice Thomas L. Kilbride.

    Justice Carter, a native of Ottawa, Illinois, has been a judge since 1979.  He was elected Circuit Judge in 1988 and became Chief Judge in 1993.  He has served on the Third District Appellate Court since 2006.

    In December 2002, Justice Carter was elected Chair of the Conference of Chief Judges and re-elected in 2003 and 2005.  He completed a one-week course in mediation at the National Judicial College in Reno, Nevada, in the summer of 2001.  Since 1980, Justice Carter has been a lecturer at judicial education programs on topics such as jury trials, evidence, contempt, and domestic relations.

    Before serving on the bench, Justice Carter served in the United States Army in Vietnam between 1969 and 1970 and was awarded the Army Commendation Medal.  He worked as a law clerk to Justice Howard C. Ryan of the Illinois Supreme Court from 1974 to 1975 and engaged in private practice from 1975 to 1979.  He holds A.B. and J.D. degrees from the University of Illinois at Champaign-Urbana, and a Master of Arts in Administration from Sangamon State University. 

    Justice Carter's appointment will terminate December 5, 2022.

  • November 06, 2020 6:09 PM | Carson Griffis (Administrator)

    By:  Richard C. Harris, Adler Murphy & McQuillen, LLP

    The Illinois Supreme Court recently shed light on the circumstances in which an employer can be sued in a particular venue based on the work performed by employees from their homes. This decision is timely given the increasingly virtual business environment that has evolved in response to COVID-19. 

    The plaintiff in Tabirta v. Cummings was injured in an auto accident in Ohio. He filed suit in Cook County against the other driver and the other driver’s employer, neither of whom were residents of Cook County. However, the other driver’s employer was a food-product manufacturing company who delivered products to grocery stores in the collar counties and had hired an account representative, Bolton, who resided in Cook County. The plaintiff argued that venue was proper under the Illinois venue statute because Bolton’s home office constituted an “other office” of the company. Alternatively, the plaintiff argued that Bolton’s work from his home meant the company was “doing business” in Cook County. See 735 ILCS 5/2-102.

    The Court acknowledged that Bolton’s home office was an “office” in the plain, ordinary sense of the word, but held it was not an “other office” for purposes of the venue statute. The evidence showed that Bolton spent about 20 hours per week working from home, during which he communicated with customers by phone and email. Although Bolton acted as the “point person” for the grocery stores in the collar counties, he did not sell any products and there was no evidence that the company hired him because he lived in Cook County—he was hired based on his extensive experience in the food industry, and his employment would not have been affected if he moved to a different county. Further, the company did not pay any of the expenses associated with Bolton’s residence and did not hold out to its customers that the residence was a company office.

    As to whether the company was “doing business” in Cook County under the venue statute, the Court noted that this requirement could only be satisfied if the company was conducting “usual and customary business” from within Bolton’s residence. However, the company had no other offices or facilities in Cook County, nor did it design, manufacture, advertise, finance, or sell products from within Cook County. Although 0.19% of the company’s total sales were to customers in Cook County, this minuscule volume was insufficient to constitute “doing business” under the venue statute. Thus, the Court held that Bolton’s work from his Cook County residence was “merely incidental” to the company’s usual and customary business of food product manufacturing.

    In a special concurrence, Justice Kilbride emphasized that whether a home office qualifies as an “other office” under the venue statute turns on the specific facts adduced in each case, and there is no one-size-fits-all solution. Justice Kilbride’s cautionary concurrence should resonate with employers and employees alike. Regardless of what the future holds for post-COVID working conditions, it seems certain that a large percentage of business will continue to be conducted from home offices. Your vacation home in Galena may be lovely this time of year—but think about whether you would want your company to be sued there before you pack up your work and head west for the holidays.

  • October 27, 2020 7:33 AM | Carson Griffis (Administrator)

    By:  Kimberly Glasford

    Last week, in Goral v. Dart, 2020 IL 125085, the Illinois Supreme Court held that employees of the Sheriff of Cook County were not required to exhaust administrative remedies before challenging the statutory authority of the Cook County Sheriff’s Merit Board (Merit Board) to preside over pending disciplinary charges. The supreme court also determined that if the Merit Board lacked statutory authority, the de facto officer doctrine would not salvage the administrative proceeding.

    Thomas Dart, the Sheriff of Cook County, filed disciplinary charges against several employees. While those administrative proceedings were pending before the Merit Board, the employees filed an action in the circuit court, seeking a declaration that the Merit Board’s composition did not comply with the Counties Code (55 ILCS 5/3-7011 (West 2012)). The plaintiffs argued that this negated the board’s authority to act.

    The circuit court dismissed the action based on the plaintiffs’ failure to exhaust their administrative remedies, but the appellate court found the authority exception to that requirement applied. The appellate court also found that the de facto officer doctrine would not validate the Merit Board’s actions. The supreme court granted the plaintiffs leave to appeal.

    On appeal, the supreme court recited the well-settled principle that a party may not seek judicial review of an unfavorable administrative decision unless he has exhausted all administrative remedies. This requirement furthers efficiency by giving agencies the opportunity to correct their own mistakes and defers to agencies’ factfinding and expertise. That said, an exception exists where a party challenges an agency’s “jurisdiction” as being not authorized by statute, a matter that involves neither factual issues nor agency experience.

    The supreme court found that the plaintiffs’ challenge to the Merit Board’s composition, filed before any substantive action was taken by the board, fell within the authority exception.

    In reaching this decision, the supreme court rejected the defendants’ assertion that the authority exception is limited to situations where an agency promulgates a rule outside the scope of the subject matter assigned by statute. Additionally, the legislature did not vest the Merit Board with the authority to make decisions regarding its own composition and such decisions did not fall within the board’s expertise. The supreme court also rejected the defendants’ assertion that the court’s ruling would expose the circuit court to a wave of interlocutory challenges, noting that lawyers are prohibited from filing frivolous lawsuits.

    While defendants raised concerns about piecemeal litigation, the court found that “the height of inefficiency and waste is to allow the proceedings to continue before an administrative tribunal that is being challenged as illegally comprised,” which could lead to a void administrative decision. Goral, 2020 IL 125085, ¶ 63.

    The supreme court also rejected the defendants’ assertion that the de facto officer doctrine saved the administrative proceedings and required dismissal of the circuit court action.

    Under that doctrine, acts performed by a person acting under the color of official title are valid even though the legality of that person’s appointment is later discovered to be deficient. Such acts are valid to the extent that the public or interested third parties are concerned. The doctrine protects the public by preventing repetitious suits challenging actions by officials with questionable claims to office. Yet, the doctrine, a defense against collateral proceedings, does not preclude a timely challenge to an agency’s authority. “Thus, our precedent embraces the notion that, before being subjected to an administrative proceeding, a party should have some avenue to timely question and verify that the agency has authority to act.” Id. ¶ 73.

    The supreme court found that the de facto officer doctrine did not apply because the plaintiffs challenged the Merit Board’s authority before the board had acted on the disciplinary charges.

    The supreme court also disagreed with the notion that the plaintiffs were required to challenge the Merit Board’s authority via a quo warranto action, which is a proceeding to oust  an illegally appointed officer from office. The plaintiffs could not file a quo warranto action unless the State’s Attorney were to refuse to file the action and the circuit court granted the plaintiffs leave to do so. Consequently, a quo warranto action was not the most effective means of challenging the Merit Board’s authority.

    Justice Michael J. Burke, joined by Justices Garman and Theis, dissented.  According to the dissent, the majority had misunderstood the historical context of the de facto officer doctrine and the authority exception to the requirement that parties exhaust administrative remedies did not apply. 

    The Goral decision rewards prompt attacks on an administrative agency’s authority. Whether this results in an uptick in administrative litigants rushing to the circuit court remains to be seen.

  • October 12, 2020 5:03 PM | Carson Griffis (Administrator)

    By:  Linda Sackey

    In Prairie Rivers Network v. Dynegy Midwest Generation, LLC, No. 18-3644, 2020 WL 5867923 (7th Cir. Sept. 24, 2020) (Scudder, J., in chambers), Circuit Judge Michael Y. Scudder wrote a short and informative opinion on a topic that is of great interest to many appellate practitioners: how to write an amicus brief that assists the court in evaluating a case.

    Judge Scudder observed that many amicus briefs do nothing more than rehash arguments that the parties have made. He notes that “[n]obody benefits from a copycat amicus brief,” and the court’s practice is to reject such briefs. Rather, Judge Scudder emphasized that an amicus brief should add something new, different, and important to the court’s consideration of the issues.

    Among Judge Scudder’s suggestions for helpful avenues to pursue in an amicus brief are:

    • Offering a different analytical approach to the legal issues before the court;

    • Highlighting factual, historical, or legal nuance glossed over by the parties;

    • Explaining the broader regulatory or commercial context in which a question comes to the court;

    • Providing practical perspectives on the consequences of potential outcomes;

    • Relaying views on legal questions by employing the tools of social science;

    • Supplying empirical data informing one or another question implicated by an appeal;

    • Conveying instruction on highly technical, scientific, or specialized subjects beyond the ken of most generalist federal judges;

    • Identifying how other jurisdictions—cities, states, or even foreign countries—have approached one or another aspect of a legal question or regulatory challenge.

  • October 05, 2020 4:18 PM | Carson Griffis (Administrator)

    The Chicago 7 Trial was one of the most famous trials ever to take place in a Chicago courtroom, and is the subject of a new Netflix film.  On Tuesday, October 20, 2020, from 3 to 4:30 p.m., the United States District Court for the Northern District of Illinois, along with the Federal Bar Association and Seventh Circuit Bar Association, is hosting a conversation with former Assistant United States Attorney Dick Schultz, the last living member of the Chicago 7 trial team.  U.S. District Judge Thomas Durkin and U.S. Magistrate Judge Jeffrey Cole will interview Mr. Schultz as he discusses one of the most notable trials in American history.

    This is a free virtual seminar offering 1.5 credit hours of Illinois CLE (pending approval).  Registration is required, and those interested may register here.

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.

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