Articles Posted in Constitutional Analysis

Witte Brothers is an intersate trucking company. After an audit, under protest, Witte paid Illinois for “pass-through” miles [distance driven in Illinois without picking up or delivering goods].

Witte sued Illinois for reimbursement of the taxes. The trial court ruled that the Illinois Income Tax Act did not allow the State to tax truckers pass-through miles. So Illinois appealed.

Among other things, Witte argued in the appellate court that taxing pass-through miles violated the Commerce Clause of the U.S. Constitution. But Witte did not raise this argument in the trial court, nor allege it as a separate count in its complaint. So the First District Illinois Appellate Court refused to consider the argument.

No need to worry if you’re concerned the State got beat out of tax revenue. The appellate court reversed, and ruled that pass-through miles are taxable. [“pass-through miles establish a physical and economic presence in Illinois which must be taxed …”]

This is the sort of ruling that annoys The appellate court would review the Commerce Clause argument de novo [no deference to the trial court]. If what the trial court says is inconsequential anyway, then the appellate court should not be allowed to avoid the issue because it was not raised in the trial court. So now we have precedent that blesses a tax that may violate the United States Constitution.

Read the whole case, Witte Brothers Exchange v. Department of Revenue, 2013 IL App (1st) 120850.

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

The Illinois Supreme Court took Price’s appeal. While the case was pending, the supreme court ruled that the statute containing the 90-day restriction was unconstitutional. The ruling of unconstitutionality had nothing to do with 90-day requirement.

When an amended statute is declared unconstitutional, “The effect … is to revert to the statute as it existed before the amendment.” In this case, because the pertinent statute had been voided as unconstitutional, the Illinois Supreme Court ruled that “the reasons upon which this court relied in granting leave to appeal no longer exist.” So the supreme court “decline[d] to address the merits of the substantive issue raised … and dismiss[ed] this appeal.”

The supreme court sent the case back to the trial court to “determine whether plaintiff’s [Cookson] pleadings meet the current requirements of [the statute].” Read the whole case, Cookson v. Price, No. 109321 (12/23/10), by clicking here.

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.

Louis Mund sued the Browns and the Furkins for abuse of process, malicious prosecution, and intentional infliction of emotional distress. The Browns and the Furkins asked the trial court to dismiss the case. They argued that the Illinois Citizen Participation Act (statute that “aims to protect defendants from ‘Strategic Lawsuits Against Public Participation’ (SLAPPs), which harass citizens for exercising constitutional rights, such as the right to petition the government.”) The trial court denied the request to dismiss the case, so the Browns and the Furkins appealed.

The Browns and the Furkins argued that the Citizen Participation Act expressly allowed an appeal “from a trial court order denying” a motion to dismiss. But the Fifth District Illinois Appellate Court refused to recognize that part of the statute, and dismissed the appeal for lack of appellate jurisdiction. The appellate court ruled that the legislative attempt to make the order immediately appealable conflicted with the Illinois Constitution in two respects:

• First, the constitution allows only final orders to be appealed, and permits only the Illinois Supreme Court to make rules for appeal of interlocutory orders.
• Second, the legislature violated the separation-of-powers clause of the constitution by attempting to exercise a power reserved to the supreme court.

Here is the court’s explanation:

If … we were to interpret the language of the [Citizen Participation] Act as the defendants request … we would encounter a constitutional conflict. The Illinois Constitution … grants the right to appeal from a final judgment only … However, it gives the right to make rules governing interlocutory appeals exclusively to the supreme court … Thus, a statute that claims to give a 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 in article II, section 1, of the constitution … [No branch of the government may exercise powers reserved to another branch.]

Read the whole case, Mund v. Brown, No. 5-08-0178 (8/21/09), by clicking here.

Flying J Inc. bought 50 acres of land in New Haven, Indiana intending to develop a travel plaza, hotel, and restaurant complex. But New Haven didn’t want the development and twice denied zoning variances. Flying J sued in Indiana state court, lost in the trial court, then won in the appellate court.

Undeterred, New Haven amended its zoning ordinance to limit developments like Flying J’s travel plaza to two acres. Flying J sued again, this time in federal district court. Flying J charged that its rights to equal protection and due process had been violated by New Haven’s actions in amending the zoning ordinance.

New Haven asked the federal district court to dismiss the case because, the city argued, (1) it was not ripe for decision, so the court did not have jurisdiction to hear it, and (2) the complaint did not state a cause of action. The ripeness argument was based on a U.S. Supreme Court case that ruled an aggrieved landowner must seek remedies in appropriate local agencies and courts before suing in federal court. In this case, because Flying J did not ask the New Haven Plan Commission for a zoning variance, New Haven argued, Flying J’s federal lawsuit was not ripe. The district court disagreed, and ruled that Flying J’s claim was ripe, so jurisdiction was proper. But the court then dismissed Flying J’s complaint for failure to state a cause of action.

Flying J appealed to the Seventh Circuit Court of Appeals. In its reply brief on appeal, New Haven again asserted the same ripeness argument that it made, and lost, in the district court. Flying J countered that New Haven was not permitted to raise the argument on appeal because the city had not filed a cross-appeal.

The Seventh Circuit rejected Flying J’s argument because the court must consider subject-matter jurisdiction at any point in the litigation. Here is the court’s rationale:

Flying J responds that the district court determined that the ripeness requirements … did not apply and that because New Haven did not cross-appeal the issue they are precluded from bringing it up here. This last assertion is incorrect, however, because ripeness “when it implicates the possibility of this Court issuing an advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement.” … New Haven’s argument thus concerns this court’s subject matter jurisdiction over the appeal. We are obliged to consider that at any point in the litigation.

In the end, the appellate court ruled it had jurisdiction but that Flying J did not state a cause of action. Read the whole case, Flying J Inc. v. City of New Haven, 549 F. 3d 538, No. 08-2319 (12/5/08), by clicking here.

Ahmad Khorrami claimed he was wrongfully detained and mistreated by the federal government in an investigation stemming from the 9/11 terrorist attack. Khorrami sued Michael Rolince, an FBI agent on whose affidavit Khorrami allegedly was detained, and the government. The lawsuit alleged multiple causes of action, including one against Rolince — Khorrami claimed Rolince’s affidavit was false — for violation of Fifth Amendment due process rights.

The government moved to dismiss the complaint (1) for failure to state a claim and (2) arguing that Rolince had qualified immunity for his affidavit. The trial court granted all aspects of the motion, except that it declined to rule on the government’s claim for qualified immunity. The government brought an interlocutory appeal, arguing there was qualified immunity and that the whole case should have been dismissed.

The Seventh Circuit Court of Appeals dismissed the appeal. Because the immunity defense was postponed for later ruling by trial court, and not specifically ruled upon, there was not an order rejecting the immunity defense, which was a requirement for appeal. In addition, this was not a de facto denial of the immunity defense caused by a delay in ruling. The order setting aside the immunity ruling did not have a direct or irreparable impact on the merits of the case.

Get the whole case, Khorrami v. Rolince, No. 07-2755 (8/27/08), by clicking here.

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, 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.

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

Without applying the amendment to this case, Darrell’s Notice of Appeal would have been premature and insufficient to establish appellate jurisdiction. The Concurrence stated: “Because the parties had a vested right in the final judgment the amendment to Rule 303 cannot operate retroactively to bestow us with jurisdiction to interfere with that right.”

The Concurrence also argued that Tamara’s petition for increased child support was a separate action, not just a separate claim within the same action, from Darrell’s request for a change in visitation. The Concurrence is immersed in lengthy case law analysis that is difficult to write about concisely in this space. Suffice it to say that the Concurrence reached an opinion 180 degrees different from the majority based on the very same case law.

To read the Concurrence, and the rest of the opinion in IRMO Duggan, No. 2-06-0061 (10/16/07), click here.

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

In December 2005, the trial court ruled on Darrell’s motion to vacate, refusing to vacate the percentage award. The trial court did not make a Rule 304(a) finding. (No just reason to delay enforcement or appeal of the order.) Unhappy with the ruling, Darrell filed a Notice of Appeal within 30 days. When the Notice of Appeal was filed, the trial court still had not ruled on Darrell’s petition to set specific visitation times. That petition was resolved by a court order in May 2006.

The parties initially did not dispute appellate jurisdiction. But the court questioned whether it had the power to consider Darrell’s appeal of the percentage award. The first question was whether Darrell’s second petition −to set visitation times − was a claim within the same cause of action, or a whole new cause of action.

If it was a claim within the same action, then the order on the motion to vacate would require a Rule 304(a) finding in order to be appealable. Because there was not a Rule 304(a) finding, the appellate court would not have jurisdiction of Darrell’s appeal. If the petition to set visitation times constituted a new action, as Darrell argued, then Rule 304(a) language would not be necessary and the appellate court would have jurisdiction.

But the analysis was complicated by an amendment to an Illinois Supreme Court Rule that took effect while the appellate court was deliberating. Rule 303(a) was amended so “when a timely postjudgment motion has been filed, a notice of appeal filed before ‘the final disposition of any separate claim does not become effective until the order disposing of the separate claim is entered.’” This was exactly the situation in the Duggans’ case. So the first question was whether “amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application) or only to those appeals filed after the effective date (prospective application).”

The appellate court concluded that the amendment to Rule 303(a) should apply retroactively. The keys to this decision were: (1) the amendment was procedural, not substantive, and (2) imposition of the amendment did not impair any rights that Tamara had.

The amendment was considered “procedural” because it “relate[d] solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard.” That entails “the method of enforcing rights or obtaining redress.” That is generally what Supreme Court Rules do − prescribe the method for advancing pending litigation.

Nor was retroactive application of amended Rule 303(a) unfair to Tamara − i.e, it did not impair a right she possessed. The court rejected the Concurrence’s position in this regard.

The special concurrence suggests that our ability to hear this appeal under the new Rule 303 (a) impairs Tamaara’s “right” to a dismissal of the appeal for lack of jurisdiction. If this is a “right” at all, however, it is not a right that Tamara ”possessed when she acted,” as she has taken to action in reliance on our initial lack of jurisdiction. Indeed, she did not even raise the issue of our jurisdiction until we required her to do so via supplemental briefing. This fact is not simply an accident of the parties” skill in recognizing jurisdictional defects; it highlights the nature of jurisdiction − it is not a right possessed by the parties, but a prerogative of the court that we assert and determine.

I appreciate the conclusion that Tamara did not have a “right” to dismissal of Darrell’s appeal for lack of appellate jurisdiction. But I do take exception to the conclusion that jurisdiction “is not a right possessed by the parties.” In fact, litigants are granted access to the courts, and thus the courts are given jurisdiction, by the Illinois Constitution. While the court gets to determine the contours of jurisdiction, it is not merely a “prerogative of the court.”

In any event, the court concluded that retroactive application of the Amended Rule 303(a) was appropriate. So Darrell won the first prong of the argument.

We’ll look at other aspects of the case in forthcoming entries. But you can get the whole opinion, IRMO Duggan, No. 2-06-0061 (10/16/07), by clicking here.

Alex T. was involuntarily admitted for mental health treatment. However, at the time the circuit court granted the State’s petition to have Alex admitted, a felony charge was pending against him. Alex argued that the order admitting him for mental health treatment was void. He based his argument on the Illinois Mental Health and Developmental Disabilities Code, which grants circuit court jurisdiction “over persons not charged with a felony.”

The Second District Illinois Appellate Court ruled, by virtue of the legislative limit, that the circuit court did not have jurisdiction over Alex T. In addition to its substantive position, the State also argued that (1) the appeal was moot because the term of admission had expired by the time the appellate court reviewed the case, and (2) the appellate court should not have taken judicial notice of the felony complaint against Alex because it was not submitted to the trial court and thus was not part of the record on appeal. The appellate court rejected both arguments.

As to mootness, the court stated that “… Illinois courts have generally held that review of an involuntary admission order is appropriate despite its expiration, because ‘the collateral consequences related to the stigma of an involuntary admission may confront [the] respondent in the future.’ … This policy is a recognition that the reversal or vacation of an involuntary admission order is, in the real world, often an effective form of relief.”

The appellate court also ruled that it could take judicial notice of evidence that was not in the record. The court concluded that “the caution against allowing new evidence on appeal via judicial notice is simply a part of the doctrine of waiver,” which is not a limitation on the court’s jurisdiction. The court ruled that “Relaxing the doctrine of waiver here is appropriate because the State did not object to the consideration of the charge and, indeed, incorporated the charge in its own arguments. Further, an ‘argument that an order or judgment is void is not subject to waiver.’”

This opinion also contains good discussion about the legislature’s power to limit trial court jurisdiction in light of Article VI Section 9 of the Illinois Constitution (“Circuit Courts shall have original jurisdiction of all justiciable matters except when the [Illinois] Supreme Court has original and exclusive jurisdiction.”)

You can read the whole opinion, In re Alex T., No. 2-06-0049 (8/15/07), by clicking here.