October 31, 2008

Illinois Supreme Court Considers Limitations Defense Raised For First Time On Appeal

Travelers Casualty & Surety sued the Bowmans for payment on performance bonds. The Bowmans raised statute of limitations defenses, but one of the statutes was not raised in the trial court. Nonetheless, that defense was fully briefed and argued to the appellate court. When the case reached the Illinois Supreme Court, Travelers argued that the Bowmans’ waived the defense of that statute because they hadn’t argued it to the trial court.

The Illinois Supreme Court considered the Bowmans’ defense anyway. The supreme court was persuaded because the argument was fully briefed and argued twice, and the record contained all of the facts necessary for a decision. Here’s what the supreme court said:

We note that defendants did not raise this argument in the trial court. Defendants raised the statute of limitations in section 13-204 for the first time in the appellate court … [A]lthough a defense not raised in the trial court may not be raised for the first time on appeal by an appellant, "the appellee may urge any point in support of the judgment on appeal, even though not directly ruled on by the trial court, so long as the factual basis for such point was before the trial court." Here, defendants were the appellees, urging the appellate court to affirm the circuit court's decision. Defendants argued section 13-204 as an alternate basis for affirming the circuit court's dismissal of plaintiff's cause of action as untimely.

If applicable, section 13-204 would support the circuit court's dismissal of plaintiff's cause of action. While the trial court in this case did not rule on the applicability of section 13-204, the issue was fully briefed, argued, and decided in the appellate court and also briefed and argued before this court. The Bowmans raised a statute of limitations defense and the complaint filing date is in the record. The Bowmans contend that it was not filed within two years of when Travelers' cause of action accrued. Thus, all the facts necessary for a legal determination of whether section 13-204 is the proper statute of limitations applicable to this cause of action are present in the record.

Read the whole case, Travelers Casualty & Surety Company v. Bowman, No. 103759 (7/24/08), by clicking here.

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October 27, 2008

Attorney Fees Allowed For Defending Magnuson-Moss Appeal

Courtney McNiff sued Mazda Motor of America under the Magnuson-Moss Warranty Act. After they settled the dispute, Courtney’s lawyers, who had a contingency fee agreement with Courtney, petitioned the court for an award of attorney fees. Based on the lawyers’ time reports, the trial court awarded fees that were in excess of the contingency fee. Mazda appealed. The appellate court affirmed the award, stating it was within the trial court’s discretion.

Courtney’s lawyers also requested fees for defending Mazda’s appeal. The Fourth District Illinois Appellate Court allowed the appellate fees. “‘Allowing a plaintiff to petition for appellate attorney fees and costs furthers the [Magnuson-Moss] Act's goal of providing consumers with legal assistance to enable them to pursue a remedy for injury or loss.’ … Accordingly, we grant plaintiff's request to file a supplemental petition in the trial court for attorney fees and costs incurred in responding to defendant's direct appeal … The trial court may award any and all fees and costs reasonably incurred in defending this ‘simple’ case on appeal.”

Get the whole opinion, McNiff v. Mazda Motor of America, No. 4-08-0817 (7/18/08), by clicking here.

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October 25, 2008

De Novo Review For Steel Company’s Appeal Of Pollution Control Board Ruling

The Illinois Environmental Agency awarded a pollution discharge license to U.S. Steel Corporation. American Bottom Conservancy filed an objection to the award to the Illinois Pollution Control Board. American Bottom objected because the Agency did not hold a public hearing concerning the issuance of the license.

The Illinois Pollution Control Board agreed with American Bottom, and invalidated the license. U.S. Steel appealed the Board’s decision. The parties argued about the proper standard of review by the appellate court and by the Pollution Control Board. Here’s how the Fifth District Illinois Appellate Court framed the issue: “The issue presented to us for our review is whether the Board applied the correct standard of review in reviewing the Agency's decision not to hold a public hearing on the proposed permit.”

U.S. Steel argued for de novo review, stating that only a question of law was before the court. But the Pollution Board argued for a more deferential manifest-weight-of-the-evidence standard of review. The appellate court agreed with U.S. Steel. “The only issue before us on appeal is whether the Board erred as a matter of law in applying the incorrect standard of review in deciding that the Agency erred in failing to hold a public hearing. This presents a question of law, which we review de novo.”

In the end, the appellate court vacated the Board’s decision to invalidate the license. This opinion contains a good discussion of when the various standards of review should be applied. Read the whole case, United States Steel v. Illinois Pollution Control Board, No. 5-07-0285 (7/22/08), by clicking here.

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October 20, 2008

“Downright Misleading” Constitutional Convention Referendum Ballot Prevails

The Illinois Constitutional Convention Referendum Case has been resolved – for the moment. An Illinois appellate court affirmed the trial court’s remedy for the “downright misleading” and unconstitutional ballot: hand out a flyer to voters telling them to disregard the referendum “Explanation” and “Notice” that are printed right on the ballot. (The two blog entries directly below give the lawsuit background and the legal problem.)

The bottom line is that citizens will vote on a ballot that a court has ruled is unconstitutional. This is a disaster for the Illinois referendum process. It is shameful testimony that the process for amending and formulating the core document that gives life to the government is not safe in the hands of politicians and their bureaucratic apparatus. It was folly ever to think otherwise.

Here’s what happened in the appellate courts last week.

On Thursday October 9, the voter group of plaintiffs, later joined by the Chicago Bar Association and Lt. Governor Patrick Quinn, asked for a direct appeal to the Supreme Court of Illinois – that is, without going to the intermediate court of appeals. On Tuesday October 14 the supreme court denied the request in a 6-1 vote.

That killed any chance of reaching the supreme court in time for it to make a meaningful ruling before the November 4 election. The supreme court did not issue an opinion or otherwise state a reason for its decision not to take the case. Unless one of the justices talks about it publicly, we’ll probably never know why the court refused the case.

Minutes after being informed by the supreme court clerk that the motion for a direct appeal had been denied, I got a fax from the Illinois First District Court of Appeals. The appellate court ordered all parties to file memoranda the following morning justifying appellate jurisdiction. If the appellate court were to rule that it did not have jurisdiction, it would not rule on the propriety of the “flyer remedy.” This raised the possibility that neither the supreme court nor the appellate would rule at all.

The previously scheduled hearing in the Illinois First District Court of Appeals went forward on Wednesday the 15th. The court had scheduled the hearing for argument on the Bar Association’s motion to expedite briefing and ruling, and to prevent absentee, military, and early voting on the unconstitutional ballots while the appeal was pending. Instead, there were about two and one-half hours of argument on the appellate court’s jurisdiction and the substantive merits of the case.

First thing on Thursday October 16 the appellate court faxed its ruling. The request to prevent voting the unconstitutional ballot was denied. The trial court’s “flyer remedy” was affirmed.

The result was about as bad as could be for voters. Coming on the heels of the supreme court refusing to take the case, the voters are left with a ruling that allows voting on an unconstitutional ballot. That’s a tailor-made lawsuit that could question the fairness and legality of the referendum.

The government-engineered ballot brings more disgrace to a state government that has overabundant corruption. And for now, the government’s ballot, that improperly steers voters away from a constitutional convention, has prevailed in court.

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October 13, 2008

Constitutional Convention Vote Case Looking For A Decision In Illinois Appellate And Supreme Courts

The Illinois constitutional convention referendum is at a legal and electoral crossroad this week. The integrity of the referendum process, which is mandated by the Illinois Constitution, is at stake. Voters need speedy decisions if their constitutional right to a referendum free from underhanded politics is to be respected. The Illinois government apparatus is opposing the voters. The government essentially says that it’s too late to fix a constitutional problem it caused in the first place. The entry directly below describes the dispute. Here’s what’s happening in the appellate courts now.

The government defendants have until Tuesday October 14 to respond to the motion to expedite a hearing and asking to stay distribution of the illegal ballots. That motion was filed last week by plaintiffs, but there still is no ruling by the appellate court. The First District Illinois Appellate Court will hear argument on the motion on October 15. There’s no guarantee the court will rule at that time.

The voter group of plaintiffs’ motion for a direct appeal to the Illinois Supreme Court still is pending in that court. The Illinois Lieutenant Governor and the Chicago Bar Association, the other plaintiffs in this case, have joined the motion. The defendants also have until October 14 to respond. We’ve heard no word yet about whether the government will fight or support the motion for a hearing in the supreme court.

This motion could be even more important. The Illinois Supreme Court accepts only about 4.5 percent of discretionary cases, and very few of those are direct appeals from the trial court. Plaintiffs are asking the supreme court to take the case, even though it hasn’t been through the court of appeals, because of the importance of the issues and the decreasing time to formulate and implement a meaningful remedy. (The Chicago Tribune agrees that the supreme court should take the case. Click here to get the Tribune’s lead editorial in today’s edition.)

As absentee and military ballots continue to be distributed, each with the unconstitutional and “downright misleading” language, and people vote them, the cloud over the referendum increases. Voters need a decision on the merits, preferably from the Supreme Court of Illinois, as soon as possible.

Until that decision is made, the only way to stop compounding the problem of voters receiving and voting on constitutionally infirm ballots, is to stop distributing them. The government defendants won’t do that unless they are ordered to by an appellate court.

We’ll keep you informed how your appellate and supreme courts rule in the next few days, if at all.

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October 9, 2008

Trial Court Rules Illinois Constitutional Convention Referendum Allowed To Proceed With An Unconstitutional Ballot. Case Moves To Appellate Courts

Voters in Illinois will have a referendum at the November 2008 election on whether to hold a constitutional convention. The referendum, which comes up automatically every 20 years, is required by the Illinois Constitution.

Several days ago, the Illinois Secretary of State published a copy of the referendum ballot that will be presented to voters. Three groups realized there was inaccurate and inappropriate information on the ballot, making it unconstitutional. They sued in the Circuit Court of Cook County, Illinois to have the unconstitutional language removed.

The plaintiffs in the case are: The Chicago Bar Association, Illinois Lt. Governor Patrick Quinn, and a group of Illinois voters. [Full disclosure here: I am one of the lawyers representing the voters in the appellate court proceedings.] The defendants are: Illinois Secretary of State Jesse White; the Illinois State Board of Elections; David Orr, as the Clerk of Cook County, Illinois; and the Chicago Board of Election Commissioners.

The plaintiffs filed their lawsuits last week. After a motion by the plaintiffs for a preliminary injunction the trial court agreed that parts of the ballot were “inaccurate” and “downright misleading.” On October 1, 2008, the trial court ordered a stay that stopped election boards throughout the entire state from mailing absentee and military ballots.

The court then heard legal argument and factual evidence about how the problem feasibly could be fixed. The plaintiffs argued that the unconstitutional statements should be eliminated from the ballots. They asserted that the optical scan and touchscreen ballots should be rewritten to comply with constitutional standards. The government defendants in essence argued that short of delaying the election, it was too late to do anything about it.

The trial court formulated a compromise remedy on October 6, 2008. A single-page flyer was devised that tells voters: “You will vote a ballot that includes a referendum asking whether Illinois should hold a state Constitutional Convention. The ballot contains a “Notice” and an “Explanation of Proposed Call” that a court has ruled is inaccurate and incorrect and should be ignored.” So the ballot that several million voters will see in the voting booth and on the absentee and military ballots still will contain the “downright misleading” and unconstitutional statements. In addition, the trial court lifted the stay, so more than 100 election boards throughout Illinois have begun mailing the absentee and military ballots.

All of the plaintiffs appealed immediately. Plaintiffs recognize that the passage of time works to the voters’ detriment − the closer we get to the election without an adequate remedy, the more inevitable the inadequate remedy and an unconstitutional referendum becomes. But the government attorneys would not agree to a sufficiently fast-moving briefing schedule. A day after filing the appeal, the plaintiffs filed an emergency motion in the Illinois Court of Appeals for expedited briefing and hearing, and to reinstate the stay against distributing the unconstitutional ballots. Yesterday the appellate court ruled that (1) the government defendants must respond to the emergency motion by October 14, 2008, and (2) oral argument on the motion will be taken on October 15, 2008.

The order is extraordinary. Letting a week pass before even considering a briefing schedule and the stay, the order endangers plaintiffs request to revise the referendum ballot. As of the moment, the government defendants do not have a date by which they must file a brief.

It appears the appellate court will not rule on the merits of plaintiffs’ appeal for at least another week to 10 days. Assuming the losing party then appeals to the Illinois Supreme Court, and that the court accepts the case, we really do get too close to the election for a timely fix to be put in place.

So today the voter group of defendants filed a motion to the Supreme Court of Illinois [Full disclosure here: I drafted the motion.] asking the court to take the case without benefit of an appellate court’s review. The general rule in Illinois requires most cases to go to the court of appeals before an appeal to the supreme court is allowed. But there is an exception for “cases in which the public interest requires expeditious determination.” The plaintiffs’ motion argues that the integrity of the Illinois Constitution and the referendum process are at stake, and that time the time for resolving the problem is dangerously short.

Plaintiffs hope the supreme court will accept direct review of the case. I’ll keep you posted on how the court rules and what happens as this case works through the appellate courts. I’ll link to the motion for direct review by the supreme court with a forthcoming post.

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October 5, 2008

Post Trial Motion Not Necessary To Preserve Issue Of Expert Testimony For Appeal In Jury Case

Stephen Wartalski, a pipefitter, was injured while doing construction work at a Panera restaurant. He claimed that a glass shield over a temporary lighting fixture broke, exposing him to ultraviolet radiation. The radiation, he said, caused facial contractions and traumatic dystonia.

Wartalski sued the construction contractors for negligence, and a jury awarded him $975,700. The contractors appealed. They argued that Wartalski’s expert witnesses should not have been allowed to testify at the trial because their opinions were not generally accepted.

Wartalski countered that the contractors waived their argument because they did not first raise it in a post trial motion. He pointed to Section 2-1202(b) of the Illinois Code of Civil Procedure, which requires a party to make a motion to the trial court for relief following a jury verdict.

The First District Illinois Appellate Court rejected Wartalski’s argument. The ruling that allowed the expert testimony was made by the judge, not a jury, so the post trial motion was not necessary to preserve the question for appeal or to establish appellate jurisdiction. “Wartalski's reliance on section 2-1202 is in error; section 2-1202 does not apply to nonjury matters such as Frye [expert evidence] rulings, nor does section 2-1202 establish or limit the appellate court's jurisdiction. No postjudgment motion is required to preserve matters determined without a jury for review.”

In the end, the appellate court ruled that the expert evidence was neither new nor novel, so the experts could testify. Wartalski’s judgment was affirmed. Read the whole case, Wartalski v. JSB Construction and Consulting, Nos. 1-07-0954, 1-07-0955 (7/10/08), by clicking here.

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