November 28, 2010

No Jurisdiction For Interlocutory Appeal In SLAPP Lawsuit

Robert Stein and Clinton Krislov both are attorneys. Stein sued Krislov and his lawfirm for libel. The alleged libelous statements were made in a letter Krislov wrote to a federal judge who was presiding over a class action case. Krislov’s letter stated that Stein misrepresented to the court his experience as class counsel.

Krislov asked the trial court to dismiss Stein’s libel case. Among other things, Krislov asserted immunity from Stein’s lawsuit based on the Citizen Partcipation Act. The Act gives immunity to a person who was sued as a result of exercising his rights to free speech and to participation in government.

The trial court denied Krislov’s request to dismiss. Krislov appealed under Illinois Supreme Court Rule 307(a)(1) (appeal as of right from an interlocutory injunction) and the Act. The First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Krislov’s appeal. The appellate court stated (1) the denial of Krislov’s request to dismiss did not qualify for appeal under Rule 307; (2) the Act could not provide appellate jurisdiction where the Illinois Supreme Court had not.

This is how the appellate court explained it:

Defendants {Krislov] contend this court has jurisdiction to review this appeal as an interlocutory appeal based on Rule 307(a)(1) and the language of section 20(a) of the Act.

When determining whether a trial court’s action constitutes an appealable injunctive order, the substance of the action, not the form, is relevant.

We recognize that the meaning of “injunction” should be construed broadly … however, the motion to dismiss in this case does not constitute an injunction. Defendants were not required to do anything or forced to refrain from anything as a result of the trial court’s order denying their motion to dismiss. Defendants were not restrained in their speech where the trial court issued no directive regarding defendants’ ability to speak about the case. In its order, the trial court simply concluded that the Act did not apply to the case at bar because of the newly created immunity could not be applied retroactively. Defendants retain the ability to defend Krislov’s actions in the underlying lawsuit where they can assert the same arguments in defense of Krislov’s letter despite the lack of immunity from the Act.”


The appellate court also rejected Krislov’s argument that the Act itself provided appellate jurisdiction.

We previously determined that the denial of the motion to dismiss in this case was not a final judgment and not injunctive in nature. Though we recognize that statutes are presumed constitutional, if the legislature was attempting to provide appellate jurisdiction from a nonfinal order not falling within the dictates of Rule 307, a constitutional conflict would exist … “If a supreme court rule does not grant the right to appeal from a nonfinal judgment, then there is no right to an interlocutory appeal and the appellate court does not have jurisdiction to hear the appeal … Thus, a statute that claims to give the right to an interlocutory appeal not covered by supreme court rules or to give the appellate court jurisdiction over that appeal would violate article VI, section 6, of the constitution. Such a statute also would violate the separation-of-powers clause of the article II, section 1, of the constitution … Appellate jurisdiction is, therefore, not conferred by section 20(a) of the Act.”

Read the whole case, Stein v. Krislov, 1-09-3478 (11/8/10), by clicking here.

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November 23, 2010

Premature Appeal Invokes Appellate Jurisdiction After Ruling On Insurer’s Sanctions Request

Maggie and Keith Yunker were in a car accident in August 2006. Unfortunately for them, their business automobile insurance policy expired two months earlier because they did not pay the premium. The insurer, Pekin Insurance, refused to pay medical expenses Maggie sustained in the accident. The Yunkers felt they were entitled to coverage under the insurance policy, so they sued Pekin.

The trial court agreed with Pekin, and gave the insurer summary judgment, Four days later, the Yunkers appealed the trial court’s ruling.

About two and one-half weeks after that, Pekin filed a request for sanctions against the Yunkers in the trial court. The trial court denied Pekin’s sanctions request a few weeks later. Pekin appealed that ruling. Pekin also asked the appellate court to dismiss the Yunker’s appeal. Pekin argued that its request for sanctions rendered the Yunker’s appeal of the summary judgment premature, resulting in no jurisdiction for the appellate court over the Yunker’s appeal.

The Third District Illinois Appellate Court rejected Pekin’s argument and ruled that it had jurisdiction to hear the Yunker’s appeal. Under Illinois Supreme Court Rule 303, an appeal that becomes premature because of a post-judgment motion filed in the trial court becomes effective again after the trial court rules on the post-judgment motion. Here’s how the appellate court explained it:

Under the circumstances at bar, although the Yunkers' May 22, 2009, notice of appeal was premature due to Pekin's June 9, 2007, motion for sanctions, pursuant to [Illinois Supreme Court] Rule 303(a)(2), the notice is deemed effective on June 17, 2009, when the trial court denied the motion. Because the Yunkers were not appealing the results of the June 17 [sanctions] ruling, they were not required to file an amended notice of appeal. Because the Yunkers' notice of appeal was timely, we hold that this court has jurisdiction.

In the end, the appellate court ruled that Pekin was not responsible for Maggie’s medical expenses. Read the whole opinion, Yunker v. Farmers Automobile Management, Nos. 3-09-0417, 3-09-0521 (9/9/10), by clicking here.

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November 15, 2010

Objections Sufficient To Preserve Evidence Issue For Appeal

The opinion in this medical malpractice case addresses a question trial lawyers often ask me about preserving evidence issues for appeal. If you
believe an entire subject should not be allowed into evidence, but the trial court permits it, do you have to object to all the questions to assure you preserve the entire issue for appeal?

Charles Cetera sued one of his doctors, Mary DiFilippo, for failing to diagnose and treat an infection Charles developed after surgery. Charles’s expert witness, Dr. Carl Bakken, testified that Dr. DiFilippo’s diagnosis and treatment did not meet the appropriate standard of care.

About a year before the trial, Dr. Bakken had been reprimanded by the Illinois Department of Professional Responsibility for not making a proper diagnosis of a different patient’s problem. Charles objected when Dr. DiFiloppo advised the court she intended to examine Dr. Bakken about the reprimand. But the trial court overruled the objection. Charles also objected when the examination of Dr. Bakken’s reprimand began at the trial, and he asked for a side conference with the court to raise the objection again. The court did not allow the side conference, but told Charles he could make his record later.

Charles did not raise the matter again until he appealed after the jury decided in favor of Dr. DiFilippo. Charles argued to the appellate court that the examination of Bakken’s reprimand should not have been allowed. Dr. DiFilippo argued that Charles waived the issue for appeal “by failing to object to the question about the reprimand itself and only interposing an objection after the answer was given and the defense asked the witness about the basis for the reprimand.”

The First District Illinois Appellate Court ruled that the argument was not waived. Here’s the court’s explanation.

Generally, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review … On the other hand, to save a question for review, an objection need not be repeated each time similar matters are presented where the court has previously ruled … Once the court has ruled, a party is entitled to assume that the trial judge will continue to make the same ruling and that he need not repeat the objection.

In this case, during recess of Dr. Bakken's direct examination, defendant [DiFilippo] advised the circuit court of her intent to cross-examine Dr. Bakken regarding the reprimand from the Illinois Department of Professional Responsibility. Plaintiffs [Charles Cetera] objected at that time and argued the evidence was irrelevant. The circuit court ruled that defendant would be allowed to ask Dr. Bakken whether he received a reprimand. Then during the cross-examination, the circuit court denied plaintiffs' request for a side bar regarding evidence of the reprimand and the court explained that plaintiffs had "45 minutes on this." The court concluded by telling plaintiffs to "make your record later." While plaintiffs did not make a further record after this exchange, based on this record, plaintiffs were entitled to conclude that the circuit court would continue to make the same ruling and were not required to repeat the objection.

Although there was no waiver, the appellate court ultimately ruled the trial court did not abuse its discretion in allowing the examination of Bakken’s reprimand. DiFilippo’s favorable judgment was affirmed. The whole case, Cetera v. DiFilippo, No. 1-09-0691 (8/4/10), is available here for the clicking.

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November 10, 2010

Term Limits The Lesson Of Attack On Kilbride’s Retention

Illinois Supreme Court Justice Thomas Kilbride won his retention election last week. About 65 percent of voters in his district voted to retain him. Now he has the option of serving another 10-year term. The lesson of this retention campaign is: The office of judge should have a term limit so judges can to use their powers to support individuals' and minorities' liberty.

The Kilbride retention vote caused a lot of hand wringing. Kilbride’s opponents were bashed for politicizing a process the pro-Kilbriders felt should be free from substantive criticism. Kilbride’s supporters said they didn’t like the way Kilbride was criticized for some of his judicial decisions. They shouted that Kilbride’s critics were besmirching “judicial independence” and “rule of law.”

But Illinois judges are political animals. The Illinois Constitution makes sure of that. Judges in Illinois are elected to the bench in competitive contests. And judges are required to stand before the people, who get to decide whether the judge should be retained. If a judge is not deciding cases the way the people want him to, the people can fire him. All it takes is a vote of 40-percent-plus-one to deny retention in Illinois.

The Kilbride retention campaign was remarkable. Illinois judges, and even less so supreme court judges, rarely are challenged in retention votes. But this time, Kilbride’s retention campaign brought an angry challenge led by the Illinois Civil Justice League, which advertised heavily against retaining Kildbride.

Many of the League’s advertisements criticized Kilbride for favoring criminals over law enforcement. But everyone knew the real reason the League wanted to deep-six Kilbride’s retention – he voted with the supreme court majority that ruled caps on jury awards in personal injury cases were unconstitutional.

A good deal of the media in Illinois did not like the League’s campaign. The League was scorned for making the vote a referendum on Kilbride’s substantive decision-making. But demanding special interests to stay out of the campaigns of judicial selection and retention is like asking a dog not to bark. The process of elections is political, and an organization that speaks for a group of citizens is well within its rights to participate in that process.

The League was criticized for smearing Kilbride with false advertising about his judicial record. No one likes to see deliberate lies during a campaign, and the point here is not to say whether the League’s ads were factually justifiable. But election campaigns get rough, and judges as politicians have to do more than claim judicial independence exempts their decisions from the rough-and-tumble of campaigns. If that were so, a judge’s decision-making, if anything short of felonious, couldn’t ever be questioned. And after all, the political process got them their robes in the first place. It’s less than earnest to say a judge’s job performance should not be subjected to the same process.

Citizens vote for judges for many of the same reasons they vote for executive and legislative candidates – a belief that the judge-candidate reflects our values. We hope judges will decide cases fairly given those values.

Judges do have an extra role that doesn’t encumber most other elected officials. If our three-branch system of government is to work, judges must assure that individuals’ rights are respected and they must protect against tyranny of the majority.

But even those additional burdens don’t give judges a pass on the politics of a campaign. Just ask the three supreme court judges in Iowa who lost their retention elections last week. The New York Times reported the three judges were targeted for their votes that overturned a law that defined “marriage” as being only between a man and a woman.

The Iowa Supreme Court voted unanimously against the anti-homosexual marriage law. So there was no strength in numbers in this Iowa retention vote. That makes one wonder about one of Kilbride’s arguments against the Illinois Civil Justice League. The pro-Kildbride campaign argued Kilbride should be retained because he voted with the majority of the Illinois court’s judges nearly 90 percent of the time. Somehow that was supposed to convince voters that Kilbride was a mainstream guy. Maybe he is, but it’s hard to see how mainstream thinking champions individual and minority rights.

Certainly judges can be stampeded out of office for making decisions that are unpopular with the will of the majority. Judges should have some protection against voter backlash for protecting individuals and minorities. That’s where the rubber meets the road when judicial independence is at issue. That protection should acknowledge that a judgeship is a political position. It doesn’t matter whether the judge is chosen by voters in a competitive election (Illinois, for example) or selected in a so-called merit selection system (Iowa, for example). Each requires judge-candidates to participate in political machinations.

There are two ways to lessen the political consequences to judges of acting as champions of individual rights. One is the way it is done in the federal court system – give judges lifetime tenure. The advisability of lifetime tenure aside, asking citizens to give up their ability to choose or at least retain judges is unlikely to happen.

The second method is at the other end of the spectrum. Term limits. If they were limited to one 10-year term, it would be a lot easier for judges to make pro-individual or pro-minority decisions. Judges wouldn’t have to worry about how they would retain their robes in the light of a decision that may be unpopular with the majority of voters. The question would be moot because they couldn’t stand for retention.

The office of judge carries enormous power. In our society, in which individual liberty is at the top of the value scale, the highest use of that power is to vindicate those liberty interests. Term limits will free judges to use the power of their offices to insulate themselves from electoral punishment by a majority that might want to stomp on individual rights. That would make for real judicial independence.

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