April 30, 2007

Pending Motion For Rule Renders Divorce Judgment Non-Appealable

The Carillos had a particularly difficult divorce case. Nine days before a judgment was entered, Carlos filed a motion for a rule to show cause why Anna should not be held in contempt of court. The judgment resolved all issues concerning custody and distribution of marital assets.

The motion for a rule was not resolved until five months later, when the court denied it. Carlos appealed within 30 days of the order on the rule, asking for review of the judgment. Anna moved to dismiss the appeal of the judgment. She argued that the pending motion for a rule did not change Carlos’s obligation to appeal the judgment within 30 days of the time it was entered. Because Carlos waited for the court to rule on the pending motion for a rule, Anna maintained, the appellate court did not have jurisdiction to rule on the appeal of the judgment.

The First District Appellate Court ruled that it did have jurisdiction to consider the judgment. “Because the order of January 18 [the judgment] lacked language making it immediately appealable, it did not become appealable until the court entered its July 11 order denying the motion for a rule to show cause.”

The case, IRMO Carrillo, No. 1-06-2274 (4/13/07), is available by clicking here.

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April 26, 2007

Class Certification Denied For Late Arrivers To NSYNC Concert

Pierre Petrich had tickets to an NSYNC concert. She arrived quite late because, she said, automobile traffic at and near the concert venue was poorly handled. Angry about missing part of the concert, Petrich filed a class action lawsuit against, it seems, almost everyone who had anything to do with the production of the concert. The gist of her complaint was that defendants “breached their contractual duty to ensure her timely arrival to the Route 66 Raceway concert venue.”

After the trial court denied a class certification motion, Petrich appealed. Affirming the order denying class certification, the court stated the difficult standard of review: “Class certification is entirely within the province of the trial court and its determination will not be disturbed absent a clear abuse of discretion or the application of ‘impermissible legal criteria.’”

The whole case, Petrich v. MCY Music World, No. 1-05-1903 (2/8/07), is available by clicking here.

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April 23, 2007

First District Illinois Appellate Rules De Novo Standard Of Review In Intervention Matter

The City of Chicago and the Chicago Board of Education were denied leave to intervene in a valuation dispute. Reversing the trial court, the First District Appellate Court deviated from the usual standard of review on intervention matters. Here’s the court’s reasoning:

An order denying leave to intervene as of right is generally reviewed for a clear abuse of discretion as to timeliness, inadequacy of representation, and sufficiency of interest . . . In the instant case, however, the trial court did not base its decision upon, nor even address, any of these factors. Rather, the trial court denied the petitions to intervene based upon its decision that the Property Tax Code . . . was a complete and comprehensive statute that enumerates all of the parties who are involved and all of their rights. The trial court concluded that the legislature did not intend to permit taxing bodies to intervene in specific tax objection cases, i.e., cases involving challenges to property assessments (as opposed to rate challenges), because the Property Tax Code does not expressly provide for a right of intervention by taxing bodies in specific tax objection cases. In order to determine whether the trial court applied the correct legal criteria in the exercise of its discretion, we must construe the pertinent statutes. Thus, the issue on appeal involves a question of law and our standard of review is de novo . . .

The case was remanded for a hearing on whether the intervenors met the usual standards. For the whole case, Madison Two Associates v. Pappas, No. 1-04-0911 (2/9/07), click here.

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April 20, 2007

Chief Judge’s Libel Action Ill Advised

In Illinois, judges are elected officials. They campaign for office, just like every other politician. Once elected, their actions are subject to political analysis and opinion, including conjecture and speculation, just like every other politician. No politician likes that, but two governing principles allow it: the First Amendment to the United States Constitution and the common law rule of tough. If you’re stepping in the ring, you better be able to take a shot to the kazoo.

In 2003, the Kane County Chronicle, a smallish newspaper with a circulation then of about 12-13,000, ran a series of opinion pieces that suggested Supreme Court Justice Robert Thomas traded his vote in an attorney disciplinary matter for political favor.

This grew out of the Anne Gorecki fiasco. Gorecki, formerly the Kane County State’s Attorney, reportedly put the arm on a job-seeker for a political contribution. She was brought before the Illinois Attorney Registration and Disciplinary Commission for her faux pas. The matter eventually worked its way to the Illinois Supreme Court, which inspired the Chronicle’s series.

Justice Thomas was unhappy about the statement of vote trading, so he sued the author and the newspaper for libel. A jury returned a verdict in favor of Justice Thomas − $1 million for personal embarrassment, mental suffering, and humiliation; $1 million for future economic loss; $5 million for damage to reputation. That’s a lot of humiliation and reputation considering the diminutive circulation of the Chronicle.

On April 11, 2007, the Chicago Daily Law Bulletin reported that a defense motion for judgment notwithstanding the verdict for future loss of income was granted. The trial court found future damages to be too speculative. The Law Bulletin also reported that a $2 million remittitur was entered on the verdict for damage to reputation because $5 million shocked the judicial conscience. (The Kane County Chronicle reported that Justice Thomas would not appeal.)

Justice Thomas certainly had the legal right to sue if he had sufficient evidence of libel, which the jury told us he did. He’s a citizen who sought redress and compensation for being wronged.

The more important question, the public issue, is whether he should have sued. Was it the right thing to do? Should a chief justice of the state supreme court use the system over which he presides as a vehicle to vindicate a charge of political wrongdoing? Should a chief justice use the courts to seek compensation for a libel by a newspaper columnist who wrote about a political situation?

Justice Thomas should have looked the other way. Our court system is weaker for this lawsuit. Our courts differentiate us from other societies in which the people do not have a true institution to redress wrongs and resolve disputes. For the courts to function and fulfill their role in a relatively free society, citizens must hold a modicum of respect for the courthouse. The people have to believe that the courthouse is open to everyone, and that what takes place inside does not depend on political power. If citizens do not accept the court as legitimate, if they view it skeptically and cynically, then the institution fails in its role as a place to resolve citizens’ disputes.

The public perception of the court as a bedrock institution is diminished when the judge in charge of the highest and most prestigious court uses the system for his personal advantage. There were no physical personal injuries, no damage to real or personal property, resulting in the kind of losses that might justify a lawsuit by the Chief Justice. The kind of damage in Justice Thomas’s case arose out of his position as a politician. That’s better left to be resolved by the court of public opinion, not the court to which the people elected him and that he now administers.

I’m not criticizing the verdict. More often than not, juries get it right when they’re given true and sufficient evidence. So let’s assume Justice Thomas had a legitimate beef. He still should have taken a pass on the lawsuit. He should have looked past the “embarrassment and humiliation” he says he suffered and treated the newspaper columns the same as any negative political criticism from a writer in a small-circulation newspaper. The public would have been better served, and our court system would have avoided the perception of erosion.

You could argue that Justice Thomas’s lawsuit has a positive effect on the public’s perception of the courts. That is, by exposing the political columns as lies, the public is assured that the office of Chief Justice is clean.

But this lawsuit didn’t accomplish that. As a matter of law, all the lawsuit did was show that the Chronicle’s articles were published with malice − that the paper and the columnist knew or should have known the statement accusing Justice Thomas of trading his vote for a political favor was untrue. There has been no groundswell of support for the verdict or of condemnation of the newspaper.

The problem is that the verdict is a product of the system over which the Chief Justice rules. It leaves the same feeling you would have if the governor won the lottery. Rather than vindicate the office, the lawsuit and the verdict give the Illinois public, already fatigued and cynical from incessant charges of political wrongdoing, something else to sneer about.

This is a lawsuit that never should have happened.

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April 18, 2007

A Moot Point

I judged one of the early final rounds of the American Bar Association Law Student Division National Appellate Advocacy Competition a couple of weeks ago. I was told that this is the most prominent moot court competition in the country.

I judged two arguments. Each team split the argument between two teammates. All eight of the contestants I judged did a fine job. Insofar as performance was concerned, the difference among these teams was on the margin. All of the presentations were polished, and one of the defense teams offered an especially good and professionally structured argument.

The teams’ briefs were independently assessed and scored for the competition. The scoring system places heavier emphasis on the oral presentation than the written product. I guess that’s the way all moot court competitions are. That’s a problem that needs to be fixed.

In the real world of appellate practice, the written brief usually is far more important than oral argument. An overwhelming number of cases are decided on the briefs. And most judges I’ve heard on the subject say that oral argument rarely persuades them one way or another. The anecdotal evidence I get from colleagues around the country supports the notion that appellate courts are allowing oral argument in fewer cases than ever. I wrote about this in a recent article, “How To Write An Appellate Brief That Judges Want To Read And Answers Their Questions.”

So to the extent moot court is an educational experience meant to prepare students for real appellate practice, greater emphasis should be placed on the teams’ written product. Oral argument can be important in some cases, but its decreasing influence should be acknowledged in moot court competition.

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April 13, 2007

Order Naming “Special Administrator” Of A Trust Immediately Appealable

Scott and Debra, co-trustees of their late mother’s trust, could not get along. After motions by each to have the other removed, Debra requested that a “special administrator” (more accurately, a “trustee”) be appointed. Her motion was granted on March 10, 2006. The court named Kathleen Ryding the trustee, “until further order of court.”

Unhappy that Kathleen was named trustee, Scott appealed. But he didn’t file a notice of appeal until May 31, 2006, well more than 30 days after Kathleen was appointed. The Second District Illinois Appellate Court dismissed the appeal, ruling that it did not have jurisdiction over the untimely filed notice of appeal.

Two points in the opinion are important.

First, the court ruled that the appointment of the trustee was a final order, not interlocutory. Kathleen’s appointment was “similar to the administration of an estate and so capable of generating orders appealable under [Illinois Supreme Court] Rule 304(b)(1).”

Scott argued that Kathleen’s appointment “until further order of court” made the order non-final and thus not appealable. The court rejected that argument, and stated that the finality of an order does not depend on “how long the order will be in effect.” Setting a potential limit on the duration of the trustee’s appointment “did not mean that it [the court] would revisit the merits of the appointment.”

As of this date, the opinion, In re Estate of Russell, No. 2-06-0636 (3/28/07), has not been release for publication. It is available on Westlaw at 2007 WL 1041254. I'll link to it as soon as the case is officially published.

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April 12, 2007

7th Circuit Identifies Rules On Appealability Of Contempt Orders

The 7th Circuit Court of Appeals recently stated the rules regarding civil contempt orders are appealable interlocutory orders. The court ruled:

• “An order holding a litigant in contempt of court is not appealable while the litigation continues.”
• Resolution [of the contempt order] must await the final decision in the litigation. When the disobeyed order would be independently appealable under an exception to the final-decision rule, then the contempt citation also may be appealable.”
• “We say ‘may be’ rather than ‘is’ because this is an example of pendent appellate jurisdiction and, as Rimsat [v. Hilliard, 98 F.3d 956 (7th Cir. 1996)] recognized, that doctrine is shaky after Swint v. Chambers County Commission,” 514 U.S. 35 (1995).

In this case, the district court entered a permanent injunction, which resolved the case, while the interlocutory appeal over the contempt order was pending. The premature appeal of the contempt order became effective under Federal Rule of Appellate Procedure 4(a)(2).

Review the entire opinion in S.E.C. v. McNamee, No. 06-2150 (3/8/07), by clicking here.

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April 9, 2007

7th Circuit Declines to Decide Appellate Standard For New Sentence Post-Revocation Of Supervised Release

Abraham Flagg was convicted of distributing cocaine and cocaine base, and of conspiracy to distribute. After a plea deal, he received concurrent sentences of 180 months of imprisonment and 60 months of supervised release.

As soon as he began serving it, Flagg violated the terms of his supervised release. He was sentenced to 30 months additional prison time for the violation.

Flagg appealed the additional sentence. He claimed that the standard of review was whether the sentence was “plainly unreasonable.” The issue was whether the U.S. Supreme Court opinion in U.S. v. Booker required a change in the standard of review merely to “reasonableness.” The opinion noted a split among the federal circuits on this question. But the 7th Circuit left the question unanswered, ruling that Flagg’s additional sentence was correct under either standard of review.

The whole case, U.S. v. Flagg, No. 06-3092 (3/23/07) is available by clicking here.

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April 6, 2007

Denial Of Motion For Substitution Of Judge Not A Final Order

Bobby Lee Harrison was awaiting trial on charges of aggravated criminal sexual assault. He was unhappy with the trial judge, so he moved for substitution, claiming the judge was biased against him. The motion was denied, and Harrison appealed.

The First District Appellate Court granted the State’s motion to dismiss. The court ruled that the order denying the substitution motion was not final and appealable. “The denial of a motion for substitution of judge is not a final order . . . Rather, it has been described as ‘a step in the procedural progression leading to’ judgment.”

The whole opinion, People v. Harrison, 1-07-0732 (3/21/07), is available by clicking here.

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April 2, 2007

Illinois Rehearing Rulings

Just for fun, I’m going to keep track of the won-lost record for motions for rehearing in the Illinois Supreme Court. I’ll start with the rulings issued on March 26, 2007. So far, Denials 5, Grants nothing.

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April 2, 2007

First District Illinois Appellate Rules Abuse Of Discretion Standard On Motion To Vacate Foreclosure

A property owner, Burtley, moved to vacate an order of foreclosure that was entered without an evidentiary hearing. He appealed the trial court’s denial of the motion. The parties disputed the appellate standard of review.

Burtley asserted review should be de novo “or what he labels an ‘ends of justice’ standard.” He argued that a motion to vacate should be reviewed by the same de novo standard as a motion to dismiss.

The bank argued that the standard of review was ”whether the trial court abused its discretion by failing to promote substantial justice between the parties . . .”

The appellate court sided with the bank. “We review a trial court’s decision to deny a motion to vacate for an abuse of discretion . . . [W]e determine whether the trial court’s decision to deny a motion to vacate ‘was a fair and just result, which did not deny [the moving party] justice.” The court also rejected Burtley’s position to establish an “ends of justice” standard.

The whole opinion, Deutsche Bank National v. Burtley, No. 1-04-3470 (2/9/07), is available by clicking here.

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