July 31, 2008

Chicago School Board’s Failure To Comply With Court Monitor’s Rule Limiting Disabled Student Population Not Justiciable

About 16 years ago, a group of disabled students sued the Illinois State Board of Education. Among other things, the students claimed the Chicago Public School System, for which the State Board allegedly was responsible, improperly assigned disabled students to schools and classrooms solely according to their disability classification. That practice, the students argued, violated the Individuals with Disabilities Education Act.

The State Board of Education signed a consent decree with the students. The decree (1) provided for appointment of a Monitor to oversee implementation of the order; (2) extended the Federal District Court’s jurisdiction to oversee the consent order.

The Monitor ruled that no Chicago public school could have more than 20 percent students with disabilities. But when the deadline for the Monitor’s rule arrived, there were 96 schools that did not meet the requirement. The Chicago School Board asked for a waiver of the rule, but supplied no information supporting the request. Nor had the Monitor set criteria for a waiver.

The Monitor reported to the district court the school board’s failure to comply, and suggested that the court extend the time it would oversee the case. The students supported the Monitor’s suggestions. The district court (1) agreed to extend its jurisdiction through the end of the 2009-2010 school year and (2) confirmed the Monitor’s 20 percent rule. The court allowed for the Chicago Board to apply for a waiver of the rule.

The Chicago Board appealed the district court’s order confirming the Monitor’s 20 percent cap. The 7th Circuit Court of Appeals ruled that the issue was not justiciable — i.e., ripe for decision by the court — and thus dismissed the appeal.

The Chicago Board argued the appeal was justiciable because the 20 percent rule left it with unacceptable alternatives: violate the rule in derogation of the consent order or comply by making wholesale transfer of disabled students, which ultimately would violate state and federal law.

The appellate court rejected the board’s argument, explaining:

[T]he Chicago Board completely ignores that it will suffer this injury only if the schools are not granted waivers from the cap − an event that has yet to occur … Even more, we cannot venture to express an opinion as to whether the Chicago Board could successfully seek waivers because … there is nothing in the record explaining the waiver process or criteria. Thus, the most we can say at this point is that the Chicago Board’s asserted injury is squarely grounded on events that “may not occur at all" … namely, the denial of its waiver requests.

Get the whole opinion, Corey H. v. The Board of Education of the City of Chicago, No. 07-2084 (7/17/08), by clicking here.

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July 24, 2008

Illinois Constitutional Convention Debate Broadcasting Live And Available On Podcast

At the November 2008 election, Illinois voters will get a once every 20 years chance to vote on whether they want to have a state constitutional convention. The question will be debated by pundit Bruno Behrend (proponent) and lawyer Al Salvi (opponent) on July 29,2008 at 6:00 p.m. Central Time. The debate will be broadcast live on WKRS 1220-AM. If you’re in the area, and you’d rather be there for it, the debate will be held at Austin’s Saloon & Eatery, 481 Peterson Rd., Libertyville, Illinois. The debate also will stream live at www.wkrs.com, and will be podcast later. Call-ins (847-336-1220) will be welcomed.

A most interesting appellate law blogger’s opinion piece that ran in the Chicago Daily Observer for why Illinois voters should vote in favor of a constitutional convention is available right here. And for historical perspective, listen to our podcast interview of Ann Lousin, a researcher at the 1968 constitutional convention, available here.

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July 24, 2008

Misunderstanding Filing Deadline Rule Not Excusable Neglect

Janet McCarty claimed she suffered from physical and mental problems ever since she was hit by a car. She filed for social security disability benefits, but her claim was denied by the agency, and subsequently by an administrative law judge. The agency Appeals Council denied her request for review.

Janet then filed a complaint in federal district court against the Commissioner of Social Security . After the district court affirmed the denial of benefits, Janet appealed. She filed her notice of appeal 63 days after the district court ruled, but Federal Rule of Appellate Procedure 4(a)(1)(b) required her to file the notice within 60 days of the judgment.

To cure the late filing, Janet asked the district court judge to extend the time to file the notice of appeal by three days. To justify the extension, her lawyer stated that he understood the local administrative policies and procedures manual to give him three extra days to file. The district court granted Janet’s motion for the three days.

On appeal, the Commissioner argued that the district court improperly granted Janet the three additional days to file the notice of appeal, and that the appeal was untimely, depriving the appellate court of jurisdiction. The Seventh Circuit Court of Appeals agreed with the Commissioner and dismissed Janet’s appeal for lack of jurisdiction.

The analysis turned on whether Janet’s lawyer’s misunderstanding of the filing deadline was excusable neglect, the standard for allowing an extension of time to file a notice of appeal. The court ruled that “A simple case of miscalculating a deadline is not a sufficient reason to extend time, and judges do not have “carte blanche” authority to allow untimely appeals.”

Get the whole opinion, McCarty v. Astrue, No. 07-2104 (6/16/08), by clicking here.

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July 23, 2008

Reconsideration Motion That Presented New Evidence Reviewed For Abuse Of Discretion

Ricky Compton’s insurer, Country Mutual, had a lien on settlement proceeds Ricky received from the negligent party in an automobile accident. The lien was filed with Founders Insurance, the negligent party’s insurer. Ricky filed a class action complaint against Country Mutual, arguing that the lien filed on Founders was a breach of contract and a violation of the Illinois Consumer Fraud Act.

After the trial court dismissed his complaint, Ricky asked the court to vacate the dismissal or for reconsideration. The trial court denied that request, so Ricky appealed. He claimed that the correct standard of review was “de novo,” and that the appellate court should give his arguments a fresh look. But the First District Illinois Court of Appeals found that Ricky’s reconsideration request was based on evidence that had not been given to the trial court before. The appellate court ruled that the correct standard of review therefore was “abuse of discretion,” not “de novo.” Here’s what the appellate court stated:

The plaintiff [Ricky] asserts that the standard of review applicable to the denial of the motion to vacate or reconsider is de novo … However, where the denial of a motion to reconsider is based on new matters, such as additional facts or new arguments or legal theories that were not presented during the course of the proceedings leading to the issuance of the order being challenged, the abuse of discretion standard applies … In his motion to reconsider, the plaintiff alleged that he could plead facts establishing that the Founders' settlement check exceeded the amount of Country Mutual's lien. Since the motion for reconsideration rested on new factual allegations, the applicable standard of review is abuse of discretion.

Read the whole case, Compton v. Country Mutual Insurance Co., No. 1-06-24 (4/29/08), by clicking here.

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July 14, 2008

Appeal Of Involuntary Admission To Mental Health Facility Dismissed As Moot

In re Alfred H.H. involved a patient who was involuntarily admitted to the McFarland Mental Health Center in Illinois. Alfred appealed the trial court’s ruling that subjected him to the involuntary admission.

The trial court’s judgment was limited to a 90-day involuntary admission. That time had passed before the case reached the appellate court. So Alfred never got a hearing on appeal because the Fourth District Illinois Court of Appeals dismissed the appeal as moot.

The court ruled that Alfred’s appeal did not raise any of the exceptions to the mootness doctrine:

1. No public interest exception: “In this case, respondent challenges only (1) the sufficiency of the evidence presented to warrant his involuntary admission and (2) whether his hospitalization was the least-restrictive treatment alternative. The answer to either challenge in this particular case does not constitute a question of public importance. Nor would either answer provide an authoritative determination to guide public officers in the performance of their duties in mental-health cases. That is because orders involving involuntary admissions of other respondents undoubtedly will be entered and challenged based on the particular facts presented in such cases. In other words, resolving routine sufficiency-of-the-evidence arguments will rarely have precedential value. Accordingly, we conclude that respondent has failed to clearly establish the criteria necessary to satisfy the public-interest exception to the mootness doctrine.”

2. No capable-of-repetition exception: “Although respondent has a history of mental illness and his psychiatrist had previously treated him on several occasions during hospitalizations, nothing in the record shows that his prior hospitalizations were as a result of petitions for involuntary admission. More importantly, even if another petition for involuntary admission were filed as to respondent, he would not be subject to the exact same action. Instead, any future involuntary-admission petition would involve the same party but a different action under different circumstances. In particular, the evidence presented in support of a future petition would be different than the evidence presented in support of the petition in this case. Accordingly, we conclude that respondent has failed to clearly establish the second criterion necessary to satisfy the capable-of-repetition exception to the mootness doctrine.”

The appellate court rejected a standard exception to the mootness doctrine for all cases involving involuntary mental-health admission and involuntary mental-health treatment. The court favored an analysis under the standard rules.

The court also rejected a “collateral consequences” exception to the mootness doctrine. That exception refers to the possibility that “an adjudication could return to plague a respondent in some future proceedings and could affect other aspects of the respondent's life.” The appellate court stated: “We now believe that the collateral-legal-consequences exception to the mootness doctrine has no place in determining whether an issue is moot in a mental-health case. Regardless of whether a previous involuntary-admission order as to a particular respondent is upheld or reversed on appeal, that respondent's history of mental illness and involuntary treatment will continue to exist, and will be a factor that treating medical personnel may consider. It is that history that will possibly follow the respondent, not the fact of an adjudication.”

Compare this case to In re Leslie H., No. 2-05-0648 (1/5/07) (Our post of 1/11/07) and In re Kevin S., No. 5-06-0677 (4/2/08) (Our post of 6/24/08), both ruling that the mootness doctrine did not preclude appeals of involuntary admissions to mental health facilities.

This whole case, In re Alfred H.H., No. 4-07-0491 (4/28/08), is available by clicking here.

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July 13, 2008

Candidate Who Owed Village Money Booted From Ballot; Illinois Supreme Court Defines “Mixed Question Of Law And Fact”

John Cinkus intended to run for village trustee in the Village of Stickney, Illinois in April 2007. But in April 2006, he was cited under the Stickney Municipal Code for disorderly conduct. After a contested hearing, Cinkus was found guilty and ordered to pay a $100 fine. When Cinkus did not appear for a continued hearing, a judgment was entered for the $100 fine. Cinkus was given notice of the judgment in November 2006.

Cinkus tried to pay the fine in February 2007, a few days before he filed his nomination petition. But by then, under the Illinois Municipal Code, the Village could not accept the payment without a hearing.

Cinkus filed his nomination petition to appear on the election ballot. The petition was met with an objection. The objection was based in the Illinois Municipal Code, which states that a person who is in arrears on a debt owed to the municipality is not eligible for elected municipal office. The local election board ruled that Cinkus owed the $100 at the time he filed his nomination petition, and was ineligible for municipal office.

Cinkus appealed the board’s decision to the circuit (trial) court. The circuit court reversed the board. The election board then appealed to the appellate court, which reversed the circuit court and agreed that Cinckus should not appear on the election ballot.

Cinkus then appealed to the Illinois Supreme Court, which affirmed in favor of the election board. The supreme court’s opinion defined the different issues and standards of review that may arise from an election board’s decision, then more broadly analyzed the “mixed question of fact and law” standard of review. This quote from the court is lengthy, but worthwhile if you’re struggling with an appeal from an agency or election board decision, or if you think you’re grappling with a mixed question of law and fact.

[T]his court identified three types of questions that a court may encounter on administrative review of an agency decision: questions of fact, questions of law, and mixed questions of fact and law. As a result, "[t]he applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law." … An administrative agency's findings and conclusions on questions of fact are deemed prima facie true and correct. In examining an administrative agency's factual findings, a reviewing court does not weigh the evidence or substitute its judgment for that of the agency. Instead, a reviewing court is limited to ascertaining whether such findings of fact are against the manifest weight of the evidence. An administrative agency's factual determinations are against the manifest weight of the evidence if the opposite conclusion is clearly evident … In contrast, an agency's decision on a question of law is not binding on a reviewing court. For example, an agency's interpretation of the meaning of the language of a statute constitutes a pure question of law. Thus, the court's review is independent and not deferential … Mixed questions of fact and law "are 'questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.' … [T]his court held … that an examination of the legal effect of a given state of facts involves a mixed question of fact and law with a standard of review of "clearly erroneous." … [T]his court [has] explained that an administrative agency's decision is deemed "clearly erroneous" when the reviewing court is left with the "definite and firm conviction that a mistake has been committed.'’

After all that, the supreme court did not state what standard of review it used in this decision. The court stated that “we are left with the sole question” of the correct interpretation of the Illinois Municipal Code. So presumably, this case presented a pure question of law, requiring an independent (de novo) standard of review. The rule of law here was disputed — i.e., the correct interpretation of the statute — so the issue was not a mixed question of law and fact.

The whole case, Cinkus v. Village of Stickney Municipal Officers Electoral Board, No. 104471 (4/23/08), is available by clicking here.

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July 9, 2008

Partial Summary Judgment Not Final, So Post-Trial Motion To Vacate Was Timely

Aureen Berry, a model, sued Chade Fashions for breach of contract and violation of the Illinois Right to Privacy Act. She claimed that Chade impermissibly used her photograph to promote Chade products. The trial court granted her summary judgment on liability under the Privacy Act, but ruled there were questions of fact as to breach of contract and damages. The trial court did not make a finding under Illinois Supreme Court Rule 304(a) (no reason to delay enforcement or appeal of the order).

After Berry put in her case at trial, Chade moved for a directed verdict and to vacate the summary judgment ruling. The trial court granted Chade’s motions. Then Berry asked for reconsideration of the ruling that vacated her summary judgment, arguing that Chade’s motion was too late, having come more than 30 days after the judgment was entered. The trial court granted Berry’s reconsideration motion, reinstated the summary judgment, and awarded Berry $1,000, the minimum award under the Act.

Both parties appealed. Chade argued that its motion to vacate was timely because the partial summary judgment was not a final and appealable order. The First District Illinois Appellate Court agreed, and stated there was nothing in the summary judgment ruling to indicate it was final and appealable (no Rule 304(a) language or the like), so it was no more than a typical non-final interlocutory order.

As the trial court noted, allowing the partial summary judgment to remain in place even after the plaintiff failed to provide evidence to support her underlying claims yielded an inconsistent and irreconcilable result. If the defendant did not breach the contract or violate the Act, then clearly it could not be liable for damages. Yet, allowing the partial summary judgment to remain in place resulted in the trial court awarding statutory damages of $1,000, although no damages were due.

The appellate court clearly was frustrated with this case. The court found the trial court’s result “flies in the face of established legal principles.” Read the whole opinion, Berry v. Chade Fashions, No. 1-07-0639 (6/30/08), by clicking here.

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July 8, 2008

7th Circuit Court of Appeals Dismisses Petition For Panel Rehearing That Only Argued New Issue

After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U.S. Supreme Court; or (2) that the appeal involves a question of “exceptional importance.”

Ms. Easley’s petition did neither, so the court considered it as a petition for rehearing by the original panel. But the motion only raised an issue that was not argued in the original appellate proceeding. Nor did it otherwise comply with Federal Rule of Appellate Procedure 40, which governs panel rehearings. FRAP 40 requires a petition for rehearing to “state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.”

The appellate court denied the petition for panel rehearing because: “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it. Panel rehearing is not a vehicle for presenting new arguments, and, absent extraordinary
circumstances, we shall not entertain arguments raised for the first time in a petition for rehearing.”

All brief writers should read this opinion because it explicitly states the 7th Circuit’s expectations for rehearing petitions. Get the whole case, Easley v. Reuss, No. 06-1646 (7/3/08), by clicking here.

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July 2, 2008

De Novo Review Of Jury Instruction Favors Insurer

This case is another dispute between an insured and his homeowner’s insurer. After his house burned down, Rodney Barth filed a claim with State Farm. State Farm denied the claim because, it argued, Rodney made material misrepresentations during State Farm’s investigation of the fire. A jury found in favor of State Farm, and Rodney appealed.

Rodney argued that the trial court should have instructed the jury that State Farm was required to prove that it reasonably relied to its prejudice on Rodney’s misrepresentation. Instead, the trial court instructed the jury only that Rodney’s misrepresentation had to be “material.”

The Illinois Supreme Court stated the rule for review of jury instruction challenges: “Although jury instructions are generally reviewed for an abuse of discretion, our standard of review is de novo when the question is whether the applicable law was accurately conveyed.”

In this case, the Illinois Supreme Court agreed that the jury only needed to be instructed as to “materiality,” and not on the elements reasonable reliance and prejudice.

Read the whole case, Barth v. State Farm Fire & Casualty, No. 104378 (3/20/08, by ckicking here..

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