January 31, 2011

De Novo Review For Compliance With Illinois Rule Requiring Health Care Report In Medical Malpractice Case

What is the standard of review for a dismissal with prejudice for failure to file a report from a health care professional within 90 days of filing of the complaint? The Second District Illinois Appellate Court requires de novo review.

Although we typically review the dismissal of a complaint with prejudice (as opposed to without prejudice) under an abuse of discretion standard … we determine that a de novo standard of review applies here, because the trial court's decision was based on whether plaintiff complied with section 2-622 [Illinois Code of Civil Procedure], which involves statutory interpretation …

In this case, the appellate court reversed the dismissal of the case and remanded to the trial court to determine whether the deadline should have been extended for another 90 days. Read it all, Knight v. Van Matre Rehabilitation Center, No. 2-09-1127 (9/29/10), by clicking here.

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January 28, 2011

De Novo Standard Of Review For Attorney Fee Award, Abuse Of Discretion For Reasonableness Of Award

Shoreline Towers Condominium Association sued Debra Gassman, claiming she “waged a campaign of harassment and intimidation against Shoreline.” Gassman had sued Shoreline, and had filed complaints with government agencies, asserting the association had engaged in religious discrimination. The dispute arose when Shoreline removed a mezuzah Gassman placed at the doorpost at the entrance of her apartment.

Gassman asked the trial court to dismiss Shoreline’s case because, she argued, it was prohibited by the Illinois Citizen Participation Act. The trial court agreed in large part, and dismissed most of Shoreline’s case. The court ruled that the Participation Act required Shoreline to pay Gassman’s attorney fees incurred in asking for the dismissal.

The dispute is backdrop for the appellate court’s rulings on the standard of review for an award of attorney fees, which Shoreline appealed. The First District Illinois Appellate Court distinguished between review of the order awarding the fees and of the amount of the award.

There are two orders at issue here. The first … determined that an award of attorney fees was proper [under the Act] … Our review of this order is de novo …Our review of the second order at issue, the final fee order which determined the dollar amount of the award, is abuse of discretion … Accordingly, we will reverse the amount of attorney fees only if no reasonable person would make the same decision as the trial court.
In the end, the appellate court agreed that certain of Shoreline’s claims were properly dismissed, and that the award of attorney fees was proper. Read the whole case, Shoreline Towers Condominium Association v. Gassman, Nos. 1-08-2438, 1-09-2180 (9/30/10), by clicking here.

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January 27, 2011

Victory On Petition Before Labor Board Dooms Union’s Appeal Of Board’s Rationale

A police labor union wanted to be the exclusive representative of “all aviation security sergeants employed by the City of Chicago.” Chicago objected, so the union filed a petition in the Illinois Labor Relations Board. The Board granted the union’s petition. But the union was not completely satisfied because the Board ruled that the sergeants were not “peace officers,” a legal designation under the Illinois Labor Relations Act that affects the sergeants’ bargaining status.

Both Chicago and the union appealed ― Chicago to get the “exclusive representation” ruling reversed; the union to get the sergeants-are-not-peace-officers ruling reversed.

The First District Illinois Appellate Court affirmed the “exclusive representation” ruling, but dismissed the union’s “peace officer” appeal. The appellate court ruled that the union could not appeal because it won the right to be the exclusive representative, which is what it asked for in its petition. The union’s disagreement with some of the Board’s peripheral rulings was not a basis to appeal. Here is how the appellate court explained it:

Only “any person aggrieved” by a final order of the Board may petition for review of a Board decision … A party who has obtained all that has been asked for in the underlying proceeding has no standing to appeal … Although ICOP [union] may not agree with the Board’s “peace officer” finding, ICOP did receive the relief it requested from the Bard: certification of a stand-alone bargaining unit for the sergeants. We have affirmed this decision. Accordingly, ICOP’s “win” before the Board stands. Because ICOP received the relief it requested, its appeal must be dismissed … We note that, although we may generally affirm on any basis in the record, a defendant need not file a cross-appeal to urge an alternative reason for affirming … And, because we do affirm the Board, we need not review the alternate basis for relief ICOP resented to the Board.

The lesson is: If the issue is important enough to appeal, make sure to include it in your request for relief in the lower court or agency. Read the whole opinion, Illinois Council of Police v. Illinois Labor Relations Board, Nos. 1-09-1859, 1860 (9/30/10), by clicking here.

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January 22, 2011

Law-Of-The-Case Doctrine And Appellate Mandate Direct Trial Court’s Actions On Remand

The Drapers owned and lived on a property in a historic area north of Chicago. The property was subject to a conservation easement. The Drapers were allowed three amendments to the easement to alter the property and the home.

Their neighbors, the Bjorks, took offense to the amendments and the alterations, so they sued the Drapers. The Bjorks asked for declaratory judgment that the conservation easement could not be amended. The trial court ruled that two of the amendments were valid.

The Bjorks appealed, and the appellate court ruled (1) the conservation easement could be amended, (2) the two amendments the trial court said were valid in fact were not because they directly conflicted with the easement, and (3) the Drapers’ violations of the easement were not intentional or culpably negligent. The appellate court directed the trial court “to equitably consider all of the alterations that had been made to the property and, in its discretion, determine ‘which alterations, if any, must be removed and which if any, may be retained.’”

After another hearing, the trial court ruled that one of the three alterations could be retained. The Bjorks appealed again. The Bjorks arguments included: (1) the trial court should not have balanced the equities to decide which property alterations could remain; (2) the appellate court’s mandate from the first appeal did not require the trial court to accept the appellate ruling that the Drapers were not culpably negligent.

The Second District Illinois Appellate Court rejected both arguments.

Relying on the law-of-the-case doctrine, the appellate court ruled the trial court was obligated to balance the equities. The court stated: “… [T]he law-of-the-case doctrine bars relitigation of an issue previously decided in the same case … Questions of law that are decided on a previous appeal are binding on the trial court on remand as well as on the appellate court in subsequent appeals … The two recognized exceptions to the law-of-the-case doctrine are: (1) when a higher reviewing court makes a contrary ruling on the same issue subsequent to the lower court’s decision, and (2) when a reviewing court finds that its prior decision was palpably erroneous.”

In this case, there was no ruling from a higher court and the appellate court “declined plaintiffs’ [Bjorks’s] invitation” to find its earlier ruling to be erroneous. So the law-of-the-case doctrine required the trial court to apply a balancing test to the Drapers’s property alterations.

The appellate court also ruled that its mandate required the trial court to accept the appellate ruling that the Drapers were not culpably negligent. Here is how the appellate court explained it:

When a judgment of a trial court is reversed and the cause is remanded by this court with specific directions as to the action to be taken, it is the duty of the trial court to follow those directions … Generally, the correctness of a trial court’s action on remand is to be determined from our mandate, as opposed to our opinion … This proposition, however, is based upon the assumption that the direction contained in our mandate is precise and unambiguous.

The appellate court ruled the trial court “did not have discretion to reassess whether the defendants’ [Drapers] actions were intentional or culpably negligent” because the appellate court’s earlier mandate already disposed of the question.

In the end, the appellate court affirmed the trial court. Read the whole opinion, Bjork v. Draper, No. 2-09-1345 (9/22/10), by clicking here.

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January 13, 2011

Collateral Consequences Not A Bar To Mootness Doctrine Where Patient Has History Of Illness

This case involved another dispute about whether an involuntary commitment to a hospital and administration of psychotropic drugs was proper. James H. was diagnosed as schizophrenic. The State’s psychiatrist considered James to be a threat to himself and to the public.

James was admitted to a hospital against his wishes for 90 days. He disputed the commitment, but by the time his case was heard in the appellate court, it was moot because the 90-day commitment period lapsed. So the first question for the appellate court, as it is with so many involuntary commitment cases, was whether the mootness doctrine prohibited the court from considering the dispute.

James argued the collateral-consequences exception to the mootness doctrine allowed the appellate court to review his case. “This exception applies where the respondent [James] could be plagued by the adjudication at issue … Respondent argues if faced with civil commitment again, having once been judged mentally ill and in need of commitment, he would now have a history of mental illness which would work against him.” The record showed that James previously had been hospitalized because of mental problems, but it was unclear whether that hospitalization was involuntary.

In this case, because some of James’s delusions were directed toward President Obama, the United States Secret Service had been informed of James’s condition. The Fourth District Illinois Appellate Court concluded the collateral-consequences exception did not apply because James’s history before this case showed collateral consequences already existed. Here is the court’s reasoning.

… [T]he fact the Secret Service was notified and interviewed respondent prior to the beginning of these commitment proceedings means collateral consequences have already attached. The Secret Service will likely continue to monitor respondent’s whereabouts.

In fact, in the comprehensive psychiatric report admitted into evidence, it is noted the Secret Service asked to be notified when respondent is discharged. Even if the commitment order is reversed, respondent will remain of interest to the Secret Service. The descriptions of his behavior in this case, his earlier hospitalization, and the scrutiny of the Secret Service are now part of respondent’s history.

Contrast this case with In re Joseph P., in which the same appellate court ruled, just a day before the ruling in James’s case, the collateral-consequences exception did apply to a first involuntary commitment. A summary of Joseph’s case, with a link to the opinion, appears two entries below, January 6, 2011. You can read In re James H., 4-10-0260 (12/23/10), by clicking here.

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January 10, 2011

Proposal For New Law School Model Would Improve Students’ Employment Prospects, Reduce Student Debt, And Make For Better Equipped Lawyers

Yesterday’s New York Times ran an article questioning the enormous loans many students need to get through law school, and how law schools game the school ratings. That’s news? Here is a letter to the editor I wrote today, suggesting a radical fix:

To the Editor:

“Is Law School a Losing Game?” begs the question: what do we do about the foolish amount of debt students must absorb to get through law school? The answer is: change the structure of law school and the requirements one must meet to practice law.

Law schools are ignoring the demands of lawyers’ clients ― lower the cost of your service. Most law firms have been busy trying to do that. Lawyers are struggling to deal with their labor costs, mostly because lawyers who just got their licenses have to figure out how to pay off student loans and law firms have to pay the new lawyers a sufficient amount to do so.

A dean of a Chicago law school recently told an alumni group that graduating students at that law school have an average $100,000 in school loans. That’s a lot less than the students you featured in your article, but still way too much for a novice who doesn’t add much value to the service lawyers give their clients. And clients have the final say.

Right now law firms are squeezed on both ends of the financial equation. Clients are unwilling to pay for new lawyers to learn how to practice law, and new lawyers require and demand more than law firms are willing to pay. The result is lots of new lawyers unable to meet the obligations of their school loans. Many are unemployable at the salaries they need to service student debt.

There is a way to fix the problem, but it will take courageous action by law schools, accrediting organizations, bar associations, law firms, and new lawyers. First we admit that for most lawyers grinding out three years of law school, supposedly to learn how to think like a lawyer (read: indoctrination), does no one any good. Students graduate still not knowing how to practice law; law firm-employers are frustrated by having to absorb more and more of new lawyers’ salaries; and clients are angry about paying what amounts to training costs and student debt for new lawyers.

Law school for students who want to practice law should be one calendar year. During that year, curriculum should focus on legal research and communication, and a fundamental core of study ― contract law, torts, property law, criminal law, procedure. Students can be given an option for an elective or two.

A mandatory apprenticeship at a law firm should follow graduation. That’s where new lawyers will learn how to practice anyway, not sitting in a classroom discussing cases that were decided decades ago in an obscure jurisdiction. Law firms should be allowed to pay their apprentices as much or as little as they want ― whatever the market will bear.

That approach will take the pressure off of students who have no way to get through three years of law school without mortgage-sized student loans, and they’ll get a more useful education. It will take a lot of pressure off of law firms that are absorbing a big chunk of new lawyer salaries into overhead. And it will go a long way toward relieving law firm clients of the financial burden of carrying new law firm lawyers.

Law schools especially won’t like this idea. They have institutionalized the three-year curriculum. Their income now depends on keeping students in classroom seats for three years. But law firm clients are changing their counsel-hiring models, and law firms are changing their business models to accommodate clients. It’s time for law schools to get the message, and share some of the financial pain the rest of the market has endured, and make some difficult changes, too.

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January 6, 2011

Collateral Consequences Exception To Mootness Doctrine Applies To Involuntary Commitment Dispute

The police took Joseph P. to the hospital because he was acting emotionally unstable. Against Joseph’s wishes, a trial court later allowed the State’s request that Joseph be involuntarily committed to the hospital and that he be given psychotropic drugs. Joseph appealed the order. He claimed a number of statutory requirements were not followed, and that his liberty interests were violated.

The first question was whether the mootness doctrine precluded the appellate court from considering the appeal. Joseph’s appeal was moot: the commitment order was for 90 days, which had passed by the time the case reached the appellate court. But the question was whether the dispute fell under the “collateral consequences” exception to the mootness doctrine.

The “collateral consequences” exception applies if a party could suffer some future adverse repercussion if the trial court’s order were not reviewed. In Joseph’s case, the Fourth District Illinois Appellate Court concluded the exception should apply. Here’s why:

If the commitment and medication orders stand, adverse consequences will attach and can be used against Joseph P. in future proceedings. Even greater adverse consequences may result for a youthful respondent. [Joseph was 18 years old.] Therefore, the collateral-consequences exception to the mootness doctrine applies in this case to all issues on review.
In the end, the appellate court ruled “the totality of procedural irregularities” required reversal of Joseph’s involuntary commitment and submission of treatment. Read the whole case, In re Joseph P., 4-10-0346, 47 (12/22/10), by clicking here.

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January 3, 2011

Citizen Participation Act Defense Can’t Be Raised For The First Time On Appeal.

A.J. Bos got approval from the Department of Agriculture to build a “megadairy” in Nora, Illinois. A few citizens in the area did not want the dairy to be constructed because they felt the location was susceptible to groundwater contamination by seepage of animal waste. They formed an organization, Helping Others Maintain Environmental Standards, referred to as HOMES, to oppose the dairy.

HOMES sued Bos, and asked the trial court for a preliminary injunction to prevent the dairy from being built. The trial court enjoined Bos from operating a livestock management facility at that location. Bos felt the injunction was improperly entered because HOMES greatly overstated its case and withheld evidence favorable to Bos. Bos asked the trial court to dissolve the injunction, and to award him damages for HOMES’s conduct, but the court denied Bos’s requests. So Bos appealed.

After a full hearing, the trial court refused HOMES’s request for a permanent injunction against Bos’s proposed dairy farm. The court ruled that HOMES had not proven its case by a preponderance of the evidence. So HOMES appealed.

HOMES also asked the appellate court to dismiss Bos’s appeal. HOMES argued that the Illinois Citizen Participation Act prohibited Bos’s appeal. The purpose of the Act is to prevent lawsuits and intimidation against citizens and organizations who get involved in public affairs.
But the Second District Illinois Appellate Court refused to dismiss Bos’s appeal because HOMES had not raised the Act in the trial court, and the Act did not authorize a party to bring it up for the first time on appeal. This is the appellate court’s explanation:

Generally, a party who does not raise an issue in the trial court forfeits the issue and may not raise it for the first time on appeal … Moreover, the Act does not contemplate a party bringing the motion for the first time on appeal. The Act refers to discovery and a hearing and decision on the motion within 90 days, as well as to a clear and convincing standard for ruling on the motion … These procedural mechanisms and the evidentiary standard clearly pertain to the trial court rather than the appellate court … Accordingly, we deny plaintiffs' motion to dismiss.” In the end, Bos beat back HOMES’s appeal, but he lost his attempt to get damages for having to defend the preliminary injunction motion.

Read the whole case, Helping Others Maintain Environmental Standards v. Bos, Nos. 2-09-1283, 2-19-0162 (12/22/10), by clicking here.

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