December 27, 2006

Seventh Circuit Posts Notice of Proposed Circuit Rule Changes

The Seventh Circuit Court of Appeals has posted notice of circuit rules changes. The proposed changes will add Local Rule 32.1 and rescind Local Rule 53, regarding disposition of appeals by orders and opinions. The changes are designed to conform the local rules to Supreme Court Rule 32.1. The proposed changes are available by clicking here. Comments will be taken by mail or online by March 1, 2007.

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December 26, 2006

Appealability of Immunity Order. Seventh Circuit Invites Re-Evaluation Of Jurisdictional Precedent.

The Seventh Circuit Court of Appeals dismissed an appeal by defendant prison guards for lack of jurisdiction. The guards first moved to dismiss the complaint based on official immunity. That motion was denied. Despite being interlocutory in character, denial of an immunity claim is appealable. But instead of appealing, defendants took discovery and then moved for summary judgment, also based on official immunity.

Defendants did appeal the denial of their summary judgment motion. But that appeal was dismissed because “public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint.”

The court discussed the propriety of Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 1986), disallowing appeal from a summary judgment motion based on immunity that mimicked a prior motion “because the maneuver is nothing but an effort to get around the time limit” to appeal the order denying the earlier motion. The court’s majority questioned the wisdom of Garvin, but declined to decide whether it should be overruled.

The whole opinion and dissent in Fairley v Fermaint, No. 06-2411 (2006), is available here.

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December 22, 2006

Exasperated Illinois Supreme Court Instructs Lower Courts On Constitutional Analyses.

The Illinois Supreme Court flashed frustration in an opinion that instructs appellate and circuit court judges to stop deciding cases on constitutional grounds when other issues first offer a resolution. The case involved an adjudication of wardship of a minor accused of improper sexual conduct with other minors in her care. On rehearing, the Illinois Appellate Court ruled that Section 115–10 of the Code of Criminal Procedure, which allows certain out-of-court statements of non-testifying minors, was unconstitutional.

An exasperated Supreme Court stated that the constitutional analysis was unnecessary. Practitioners and judges must listen to the supreme court’s chafing.

We have repeatedly stated that cases should be decided on nonconstitutional grounds whenever possible, reaching constitutional issues only as a last resort … Yet our admonitions on this topic seem to fall not infrequently on deaf ears. The situation has become so untenable that we have recently taken the somewhat extraordinary step of adding to our rules a requirement that before deciding a case on constitutional grounds, the court must state, in writing, that its decision cannot rest upon an alternate ground. See 210 Ill. 2d R. 18(c)(4) (eff. September 1, 2006). We have also spelled out that we may “summarily vacate and remand” any circuit court judgment which fails to comply with this or any other provision of our new Rule 18. See 210 Ill. 2d R. 18(c)(4).

The appellate court’s decision presents yet another example of
reaching constitutional issues unnecessarily. The appellate court
initially filed a decision based on nonconstitutional grounds–the court
ruled the evidence at issue was inadmissible for failure to comply with
the statutory requirements, but that this error was harmless. No.
1–01–2776 (2004). On rehearing, however, the court inexplicably
deleted this analysis and, over dissent on this precise point (see 355 Ill.
App. 3d at 578-79 (Quinn, J., dissenting)), proceeded directly to a
confrontation clause analysis without addressing any possible
nonconstitutional grounds for deciding the case. 355 Ill. App. 3d at

This alone was erroneous, as we have repeatedly attempted to
make plain. However, the appellate court went on, having already
decided the case before it, to evaluate the facial constitutionality of
section 115–10 and declare the entire statute unconstitutional. Not
only did this latter ruling violate the prohibition against deciding
constitutional issues without first exhausting all potential
nonconstitutional grounds for resolving the case, it was entirely
unnecessary to decide the case before it.

Yikes! This court was annoyed. Practitioners who want to avoid the slippery slope the appellate court slid on here should listen to the supreme court’s design for this kind of analysis. Here it is:

When a court is asked to evaluate the admission of out-of-court statements into evidence, the first step is determining whether the statement passes muster as an evidentiary matter. If the proponent seeks to admit the statement pursuant to section 115–10, the statement must be evaluated to see whether it meets that statute’s requirements; if it is sought to be admitted pursuant to an exception to the hearsay rule, that claim must be evaluated. Only once the statement has first been found admissible as an evidentiary matter should constitutional objections–including Crawford-based confrontation clause claims–be dealt with … This is the only analytical “flow chart” that comports with the rule that courts must avoid considering constitutional questions where the case can be decided on nonconstitutional grounds.
The entire case, In re E.H., is available here.

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December 21, 2006

Unringing The Bell. Illinois Second District Appellate Admonishes Counsel For Argument In The Facts.

Argument should be saved for the Argument section of your brief. In Illinois, Supreme Court Rule 341 prohibits argument in the Fact section. When Commonwealth Edison filed a brief that stepped into foul grounds, the Second District Appellate Court “admonish[ed] counsel for ComEd to comply with the supreme court rules in the future.” The court read Com Ed’s facts, but disregarded the statements that violated Rule 341.

The whole case, Village of Roselle v. Commonwealth Edison Co., No. 2-06-0294 (2006), is right here.

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December 21, 2006

Chicago Appellate Events. For A Good Time . . . .

The Illinois Appellate Lawyers Association holds its Annual Reception on January 25, 2007. The justices of the First District Illinois Appellate Court will be feted. The late Seymour F. Simon, Retired Illinois Supreme Court Justice, will be honored.

The event is scheduled for 5:00 to 7:00 p.m. at the Walnut Room of the Hotel Allegro, 171 W. Randolph, in the Chicago Loop. Cost is $20.00 (cash bar). RSVP 312-554-2090.

Also scheduled: The Seventh Circuit Court of Appeals Roundtable, sponsored by the Federal Bar Association. (Info here.) The panel will be Judges William Bauer, Ilana Diamond Rovner, and Diane P. Wood; Clerk of the Court Gino J. Agnello; and Chief Deputy Clerk of the Court Andrew J. Kohn.

This event will be at the Chicago Bar Association, 321 S. Plymouth Ct., Corboy Room, Chicago. Date: January 17, 2007. Time: 12:15-1:45 p.m. $25 for members and guests, $30 for nonmembers. Mail reservations to Federal Bar Association, Federal Center Plaza, P.O. Box 1200, Chicago, Illinois 60690 by January 15, 2007.

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December 20, 2006

Illinois Second District Appellate Court: (1) No Objection, No Matter, No Waiver. (2) Appellate Court Not Restricted By Record In Frye Assessment. (3) Standard Of Review Manifest Weight In Release of Sexually Violent Person.

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.
• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider "sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions."
• Standard of review to determine whether the person seeking release has made “sufficient progress” is manifest weight of the evidence.

In the end, the State’s expert evidence, which relied upon the PPG, was allowed. The trial court’s ruling of insufficient progress was affirmed. Get the whole case, In re Commitment of Sandry, 857 N.E.2d 295, No. 2-04-0870 (2006), by clicking here.

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December 19, 2006

Illinois Supreme Court Does It The Other Guy’s Way. Argument Not Raised In Trial Court Is Waived In Supreme Court.

A third party drove a car through a wall at a Burger King and killed a customer. The customer’s estate sued Burger King. Burger King won a motion to dismiss in the trial court because, the court ruled, there was no legal duty to the customer. The customer’s estate appealed, and won a reversal in the court of appeals.

Burger King appealed the appellate court’s ruling. In the Illinois Supreme Court, Burger King argued the complaint failed to sufficiently allege proximate cause between its conduct and the customer’s death. That was the first time Burger King raised the insufficiency of proximate cause.

The Illinois Supreme Court ruled that Burger King waived the proximate cause argument. “…[D]efendants moved to dismiss plaintiff's complaint in the circuit court solely on the basis that they owed no duty of care to the decedent. They did not argue proximate cause in their motion to dismiss, and the trial court's ruling was limited to the issue of whether plaintiff adequately pleaded the existence of a duty. Therefore, the issue of proximate cause is not properly presented by the record in this case.”

Get the whole case here, Marshall v. Burger King Corp., No. 100372 (Ill. Sup. Ct. 2006).

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December 19, 2006

De Novo Review For Illinois Claim That Punitive Damages Are Unconstitutional

Eighteen years of litigation culminated in a dispute over punitive damages in the Illinois Supreme Court. An excavating company was picketed by the union. The excavating company claimed the picketers spread false information about the company. So the company sued for libel, tortious interference with contract, and the like. At a bench trial, the company won a modest compensatory award, but rang the bell on punitives.

At a bench trial, the company won $4,680 in compensatory damages and $525,000 in punitive damages. The appellate court lowered the punitives to $325,000.

In the Supreme Court, the question was the propriety of the punitive damage award. The first question was the proper standard of review. The company argued for abuse of discretion; the union argued for de novo review.

The Union won that battle. Relying on United States Supreme Court precedent, the Illinois court ruled that de novo review would “unify precedent” and “stabilize the law.” It made no difference, the court stated, that punitive damages in this case were awarded by a judge after a bench trial.

De novo review puts the result in the hands of the appellate court, and takes it away from juries and trial judges. So you like this opinion if you believe in the wisdom of an appellate panel over juries and trial judges.

(Caesura – This opinion must have resulted in some disappointed faces. The trial court awarded $525,000 in punitives. The appellate court reduced it to $325,000. The Illinois Supreme Court reduced it to $50,000. The compensatory damages were $4,680. So after 18 years of litigation, the total take was less than $55,000.)

Get the whole opinion in International Union of Operating Engineers v. Lowe Excavating Co. here.

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December 18, 2006

Illinois Supreme Court Eases Rule 23 Restrictions

The Illinois Supreme Court lightened restrictions on Appellate Court opinions today. Appellate opinions no longer will be limited to 20 pages. And the number of published opinions from each of the five appellate districts has been lifted.

The Administrative Order under Supreme Court Rule 23 placed limits on appellate courts in 1994. Many practitioners grumbled about the restrictions, claiming they forced appellate courts to issue non-publishable orders instead of published opinions. Many lawyers consider non-published orders often to be less thoughtful rulings. Unpublished orders are not precedential and generally may not be cited.

This stands to be a positive turn of events – if the appellate courts use the relaxed Order to issue more published opinions that are not page restricted. We’ll see now whether the courts have become conditioned to issuing so many non-publishable orders, most of which do not work their way into the public literature. If the courts continue to issue lots of non-publishable orders — which apparently is still within their discretion — then we will not get the benefits of a softer SC Rule 23.

More detail is available at this Chicago Daily Law Bulletin article.(Subscription required.)

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December 18, 2006

It Was Just Criminal

Dismissal of a complaint without prejudice is not appealable. It’s a common nonfinal interlocutory order. “However, the State may appeal an order dismissing an indictment for prosecutorial misconduct … even if the dismissal is without prejudice.” People v. Mattis, 854 N.E.2d 1149, No. 2-05-0586 (2006).

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December 17, 2006

Illinois Second District Appellate: No Waiver Where Court Is The Culprit

In another grandparent visitation case, the Illinois Second District ruled that a due process argument was not waived even though it had not been raised in the trial court. The trial court ordered the parents not to talk to their daughter about the case. The parents argued that the order violated their due process rights to raise and care for their daughter as they see fit.

The appellate court ruled the argument was not waived. “… [D]efendants failed to make any argument before the trial court that the order prohibiting them from telling their daughter the outcome of the case violated their fourteenth amendment rights. However, the application of the forfeiture rule is less rigid where the basis of the objection is the trial court's own conduct.”

Take a look at Felzak v. Hruby, 855 N.E.2d 202, 2-05-0848 (2006).

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December 16, 2006

One Is Not Enough

An Illinois First District opinion recently ruled that citation to just one case did not prevent waiver of an argument of unjust enrichment. The court stated there was a failure to discuss the relevancy of the case. The failure to cite relevant authority was a violation of Illinois SCR 341, and the argument therefore was waived. The whole case is here, Fortech LLC v. R.W. Duntemann Co., 852 N.E.2d 541, No. 1-05-1526 (2006).

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December 15, 2006

Second District Appellate Reviews The First District. We’re All One Court.

Can the Second District Appellate Court review an order issued by the First District? Sure, if it’s an interlocutory order, not law of the case. Here’s what the Second District said about this:

“There is but one appellate court … Thus, a panel of the Second District of the Appellate Court revisiting, during the course of an ongoing appeal, an issue that a panel of the First District of the same court implicitly addressed in ruling on the motions to transfer is no different from a successor trial judge revisiting the interlocutory decision of the trial judge he succeeded. Consequently, we reject the foregoing arguments by Ameren, ComEd, and the ICC that the law-of-the-case doctrine precludes our dismissal of case Nos. 2--06--0149 and 4--06-- 0118.”

The case is Commonwealth Edison Co. v. ICC, 2-06-149 (2006), and you can get it here.

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December 14, 2006

Illinois Supreme Court Overlooks Waiver; Rule 318 trumps 315

A legal malpractice action spawned a dispute over whether a law firm waived crucial arguments concerning due process and damages. The firm did not include those points in its petition for leave to appeal. The Illinois Supreme Court has already ruled that failure to raise an issue in the PLA may be deemed a waiver of that issue. (Look at Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152, No. 96978 (2004). So the client claiming malpractice moved to dismiss the law firm’s appeal of those questions.

But in this appeal, the client filed a separate PLA. The court resorted to Illinois SCR 318, which allows an appellee to “seek and obtain any relief warranted by the record on appeal without having filed a separate petition …” The Illinois Supreme Court denied the motion to dismiss and said the law firm could rest on Rule 318 to raise the issues it did not include in its own PLA. See the whole case here, Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, Nos. 99584, 99595 (2006).

(Caesura – This is the case that ruled a legal malpractice plaintiff, in its lawsuit against the law firm, cannot obtain punitive damages that may have been available in the underlying case.)

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December 13, 2006


I am writing a series of articles for the DCBA Brief, the journal for the DuPage County, Illinois Bar Association, that we’re calling “Thoughts Of An Unconstrained Practitioner.” The first article, published in November 2006, is titled, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.” This article suggests the steps a lawyer and writer must take to prepare an appellate brief. The article is available on my website,, by clicking here.

Next in the series, to be published in January 2007, I think will be titled, “Writing An Appellate Brief, Or, How To Make Tax Law An Interesting Read.” This article suggests ideas for good writing. It’s not a rehash of the stuff you can get from Strunk and White, and any number of other good writing manuals. It’s Merican’s unconstrained thoughts on good writing for appellate briefs.

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December 12, 2006

Quick, File; No, Wait. Are You Covered? Fourth District Illinois Appellate Weighs In On Post-Dissolution Jurisdiction

Appeal from orders on post-dissolution of marriage petitions raises precarious problems. Suppose the court rules on a post-dis petition to modify maintenance, but leaves the child support-modification petition pending. Must you file your Notice of Appeal within 30 days of the maintenance ruling, or wait for a ruling on the support matter? If a ruling on support takes more than 30 days from the time of the maintenance ruling, will you lose the right to appeal maintenance?

The answer is “perhaps.” It depends on which district you’re in. The 2nd and 4th Districts say wait. But if you’re in the 1st, you better get your Notice of Appeal on file pronto.

IRMO Gaudio out of the 4th District recently broke the tie. Gaudio ruled that “Even if the order dismissing respondent’s petition [for modification of maintenance] constituted a final order, it was not immediately appealable without the required Rule 304(a) finding.”

Click here for IRMO Gaudio, No. 4-05-0908 (4th Dist. 2006), which contains good summaries of the two prior competing cases. Click here for IRMO Carr, 323 Ill. App. 3d 481, No. 1-00-0997 (Ist Dist. 2001), and here for IRMO Alyassir, 335 Ill. App. 3d 998, No.2-01-1096 (2nd Dist. 2003).

One more thing about IRMO Gaudio. Susan Gaudio also appealed from the order on child support. She then moved to consolidate the earlier maintenance appeal with the child support appeal. The court denied the motion to consolidate, and continued to deny jurisdiction over the maintenance appeal. Apparently Susan did not include the maintenance order in the later Notice of Appeal.

So if all of this leaves you uneasy — and you’re not human, or a lawyer, anyway, if it doesn’t — then you need to figure out how to protect your client and yourself. Here’s what I suggest: Include the earlier order in the second Notice of Appeal. Then you can move alternatively to consolidate or dismiss the first appeal, and explain to the court that you’ve done it that way because the case law is inconsistent. The worst that could happen is that your motion is denied, and then your opponent moves to dismiss. But at least you’re left with an argument that one of the two Notices of Appeal confers appellate jurisdiction, and they both were filed timely.

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December 11, 2006

Fusspots and Nitpickers

Judge Posner wonders whether the 7th Circuit is these for requiring complete jurisdictional statements in a diversity case. He doesn’t think so, because:

. . . the fact that limits on subject matter jurisdiction are not waivable or forfeitable — that federal courts are required to police their jurisdiction — imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.

So don’t short FRAP 28 if you don’t want to be called on the carpet, and maybe ordered to take a class on federal jurisdiction.

Judge Evans thought the problems with the jurisdictional statements were “low misdemeanors,” not the felonies the majority saw.

See the whole opinion in Smoot v. Mazda Motors of America And here is Howard Bashman’s (How Appealing blogger) opinion piece in Law.Com suggesting that Judges Posner and Easterbrook may well be fussing and nitpicking.

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December 10, 2006

It’s a Minefield Out There

Somebody told me that once, referring to appeals. I had raised what I thought and hoped would be an easy question of appellate jurisdiction, and got a long lecture with lots of “but ifs.” And with typical lawyer weaseliness, the conclusion was “perhaps.”

Welcome to We’ll rassle with the issues that Illinois appellate practitioners care about – standards of review, mootness, waiver, the new rules, the old rules, the brief-writing process, and the biggest bug-a-boo of them all, appellate jurisdiction.

We’ll focus on what the Illinois courts and the 7th Circuit are doing, or not doing. (Did you see what the 7th Circuit said recently about “the carelessness of a number of the lawyers practicing before the court of this circuit with regard to the required contents of jurisdictional statement in diversity cases”? Take a peek at Smoot v. Mazda Motors of America.

Let’s discuss the law and the state of appellate practice, so we’ll avoid the minefield – perhaps.

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