February 24, 2014

Aldermen’s Appeal Of Victorious Referendum Moot

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

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March 3, 2013

Police Union’s Appeal Mooted By Officer’s Settlement

Melissa Ramskugler had passed Wisconsin’s requirements to qualify as a police officer, but was still in the probationary period required by the Milwaukee Board of Fire & Police Commissioners. Knee injuries prevented her from finishing probation. She was fired because her medical condition prevented her from getting through probation.

Wisconsin statutes have mandatory procedures for terminating police officers. But the Board, taking the position that Ramskugler was not a “member of the force” because she had not completed probation, did not follow the state statutory procedures when it let Ramskugler go. So she and the Milwaukee Police Association sued the Board for depriving her of property without due process.

The Board asked for, and was given summary judgment by the trial court against Ramskugler. She and the Police Association appealed. While the appeal was pending in the Seventh Circuit Court of Appeals, Ramskugler settled her dispute with the Board. The Police Association wanted to continue the appeal despite the settlement. So the settlement allowed the Police Association to continue the appeal in hopes of getting a declaration that the Board did not have authority to ignore the procedures set out in the Wisconsin statutes.

Before reaching the merits of the Police Association’s claims, the appellate court addressed whether the Association had standing in view of Rumskugler’s settlement. That boiled down to a question of whether the settlement mooted the Association’s lawsuit.

The appellate court ruled that the Police Association’s claims were moot because: “If she [Rumskugler] were to file suit today, she would lack standing because she does not have a redressable claim – her Settlement Agreement waived any sort of relief this court could grant her. Without establishing standing in her own right, Ramskugler cannot be used by the MPA [Association] to satisfy the first requirement of associational standing.”

Nor did this case fall into the mootness exception for “challenges to policies with a ‘continuing and brooding presence.’” This is how the court explained it:

To qualify for that mootness exception, the ongoing policy must “by its continuing and brooding presence, cast[] … a substantial adverse effect on the interests of the petitioning parties” … Nothing of that sort exists here. As discussed, the MPA has not proffered any other member who is faced with Ramskugler’s predicament. Further still, the MPA has not referenced someone who was in that position previously, which implies that Ramskugler was merely trapped in a sparsely populated limbo. The MPA has not even pled a single injury-in-fact. As such, the MPA has given us no reason to find the continuing policy of a “brooding presence” over it, much less one with a “substantial adverse effect.”

The appellate court dismissed the Association’s appeal as being moot. The opinion contains instructive discussion about the relationship between standing and mootness, and about ripeness and mootness. Read the whole opinion, Milwaukee Police Association v. Board of Fire & Police Commissioners, No. 11-2314 (7th Cir. 2/26/13), by clicking here.

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September 15, 2012

Death Of Fireman’s Widow Does Not Moot Her Appeal Of Retroactive Annuity Benefits

Michael Hooker suffered a debilitating injury while working for the Chicago Fire Department. After he died two years later, his widow, Elaine, applied to the Retirement Board of the Firemen's Annuity and Benefit Fund for widow’s benefits. She was awarded a minimum annuity, but she felt the Board did not include all of the money she was entitled to when calculating the amount of the annuity.

The original case went to the appellate court and then back to the trial court. Elaine filed an amended complaint that asked for recalculation of the annuity based upon an Illinois statute that became law after she filed the first complaint. She argued she was entitled to certain retroactive benefits.

The trial court gave summary judgment to the Board on its method of calculating the annuity. Elaine appealed. She died after the appeal was filed, but her estate carried on the appeal.

The First District Illinois Appellate Court assessed whether it had jurisdiction over the appeal in light of Elaine’s death – i.e., whether Elaine’s death abated the right to retroactive benefits. The Board argued against appellate jurisdiction because the question hadn’t been put to the trial court. But the court disagreed, and ruled that appellate jurisdiction existed because the court could “render effective relief.” This is how the appellate court explained it:

This court lacks jurisdiction to decide an appeal if the parties no longer face an actual controversy, as when events make it impossible for this court to render effective relief to the appealing party … This court has jurisdiction to consider whether Elaine's death makes her appeal moot. However, neither party has suggested that her death moots the appeal, and we see no reason to believe that her death would make her appeal moot. We will not extend our review of our jurisdiction to review an issue that the trial court never addressed, where the issue does not appear to moot the appeal, and where neither party argues that the issue moots the appeal. If the Board fails to pay Elaine's estate the benefits it withheld from Elaine while she lived, the statutory process for challenging the Board's refusal to pay benefits it owes should suffice.

In the end, Elaine’s method of calculating the anniuity prevailed too. Read the whole opinion, Hooker v. Retirement Board of the Firemen’s Annuity Benefit Fund of Chicago, 2012 IL App (1st) 111625 (7/18/12).

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March 11, 2012

City’s Appeal Of Nixed Land Deal With Religious School Untimely And Moot

A group of citizens sued the City of South Bend, Indiana to prevent the city from giving land to a Catholic high school. The citizens claimed that giving the high school land was a gift of property to a religious institution, and violated the U.S. Constitution’s First Amendment’s establishment clause. The federal trial court ordered a preliminary injunction against transferring the property.

Rather than appeal, the City asked the trial court to modify the injunction to allow the City to sell the property to the school at an appraised value. The trial court denied the City’s request, ruling that the property should be sold to the highest bidder.

The City did not appeal that ruling either. Instead, it asked for another modification to open up bidding on the property. The court allowed that request. The school ended up purchasing the property as high bidder, and the trial court dissolved the injunction.

Then the City appealed, but not from the final judgment that dissolved the injunction. The City appealed only from the interlocutory orders that disallowed the original gift and the sale at the appraised value.

The Seventh Circuit Appellate Court dismissed the appeal for two reasons: (1) it was untimely, and (2) it was moot.

The appeal was untimely because an appeal from the final judgment did not extend the time the City had to appeal from the injunction order or the denial of the request to modify. Here’s how the court explained it:

Although the City is thus challenging two appealable orders—the initial injunction and the denial of the first modification that it sought (the modification that if granted would have permitted sale to the high school at the appraised value of the land)—the challenge is untimely. Had the City challenged the district court’s final order, the order dissolving the injunction, it could also have challenged any interim rulings that had not become moot … But the final order—the dissolution of the injunction—was sought by the City. A party cannot appeal a judgment that it won, unless it seeks a modification of the judgment … which the City does not. The only orders the City could have appealed from it failed to appeal from in time.

The appellate court also ruled that the appeal was moot. The court rejected the City’s argument that the issue in the case was capable of repetition but evaded review. The City argued that the trial court’s ruling could affect other similar land deals. But the court ruled “to allow this as a ground for permitting moot cases to be appealed would bring an unmanageable host of such cases into the appellate courts. A court would have to wrestle in every
case with uncertain questions about whether an injunction that had not been appealed had had or would have a future impact that should justify allowing an appeal even though it had become moot.”

Read the whole case, Wirtz v. City of South Bend, No. 11-3811 (7th Cir. 2/7/12), by clicking here.

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December 27, 2011

Appellate Court Considers Alderman-Candidate’s Moot Appeal

Joe Rivera tried to run for an elected position as alderman in Chicago. But the Chicago Electoral Board upheld an objection to Rivera’s petition, preventing him from appearing on the election ballot.

Rivera then filed a petition in the trial court for review of the Board’s decision. Rather than serving the petition on the individual Board members or the Objectors, Rivera served their lawyers. The Objectors and the Board asked the trial court to dismiss Rivera’s petition because, they argued, the Illinois Election Code required Rivera to serve them personally, not through their attorneys.

The trial court agreed, and dismissed Rivera’s petition. Rivera appealed, but the election had passed by the time the appellate court considered the case. So the first question was whether the appeal was moot because it was impossible for the appellate court to reinstate Rivera to the election ballot.

The First District Illinois Appellate Court agreed that Rivera’s appeal was moot. But the court ruled it would consider the appeal anyway because it fell into the public-interest exception to the mootness rule. This is how the court explained its ruling.

… [A] reviewing court may address an otherwise moot issue pursuant to one of several exceptions: the public-interest exception, the capable-of-repetition exception, or the collateral-consequences exception … Regarding the public-interest exception, which is particularly applicable to election cases, mootness will be excused if there is a substantially public nature to the question involved, there is a need for an authoritative determination that will help guide our public officers, and there is a likelihood that the question will recur.
We find that the instant cause meets the public-interest exception to the mootness rules. Clearly, it involves questions of election law, "which inherently is a matter of public concern." … And, the issue is likely to recur in future municipal elections. The sections of the [Illinois Election] Code in question--particularly, section 10-10.1--involve the most basic tenets of the specific legal procedure that must be followed to obtain review from the Board: the time allowed in which to file a petition for judicial review and the steps required to effectuate service. Therefore, an authoritative determination on these issues is desirable to guide public officers. Accordingly, we decline to dismiss the instant appeal as moot.

Rivera ultimately lost the argument over service. He was required to serve the individual Board members and the Objectors, not their attorneys. Read the whole opinion, Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 11028), by clicking here.

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May 9, 2011

State’s Compliance With Mental Health Code A Public-Interest Exception To Mootness Doctrine

Nicholas L. had been living at the Elmhurst Memorial Hospital for about a month when the State of Illinois filed a petition to administer electroconvulsive therapy and psychotropic medication. The trial court heard testimony on the State’s petition, then ruled in favor of the State.

Nicholas appealed, arguing that the State did not comply with the Mental Health and Disabilities Code because it did not give Nicholas written notification of alternative treatments. The State first argued the appeal was moot because the trial court’s order allowing the State’s petition already had expired. Nicholas argued the appellate court should consider the case anyway because the public-interest exception to the mootness doctrine applied. Because the question in the case involved the State’s compliance with the Mental Health Code, the Second District Illinois Appellate Court agreed with Nicholas and heard the appeal. Here is the appellate court’s rationale.

[T]he question presented by respondent [Nicholas] involves the issue of statutory compliance and thus qualifies as a matter of a public nature. Moreover, the vast number of cases addressing the issue of compliance with section 2-102(a-5) [requiring the State to give the patient information about alternative treatments] … indicates both a need for an authoritative determination for the future guidance of public officers and the likelihood of future recurrence … We also confirm respondent's assertion that no published opinion in our state has addressed the specific issue of failure to provide written notification solely of alternative treatment options. Accordingly, the public-interest exception is applicable to respondent's contention regarding statutory compliance.

The appellate court ultimately reversed the trial court because “psychotropic medication is invasive and includes possibly significant side effects, and because involuntary administration implicates important liberty interests, courts must exercise caution in entering such orders and require "firm proof" of the necessary statutory elements.”

Read the whole case, In re Nicholas L., No. 2-09-1181 (2/16/11), by clicking here.

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March 23, 2011

Illinois Supreme Court Moots Commitment Appeal Because No “Conflict Or Disarray” In Law

A trial court ruled Benjamin Hernandez was a sexually violent person. Before he could be released from prison, the Illinois Sexually Violent Commitment Act required an outpatient facility to write a conditional release plan. The court ordered the plan to be written, but two years later, it still had not been prepared.

The trial court then ordered that Hernandez “is to be placed on conditional release.” The court also ordered a conditional release plan to be filed within three months.

The State appealed, but filed its notice of appeal before the conditional release plan was filed and before the trial court made a written order of releasing Hernandez. The plan later was accepted by the trial court and Hernandez was released from custody.

But about 20 months later, before the case was considered by the Illinois Supreme Court, Hernandez was returned to the State’s custody for violation of the conditional release plan. He actually was back in custody when the appellate court considered the case, but no one informed the court in briefs or oral argument. So the first question in the supreme court was whether the State’s appeal was moot.

Both parties agreed the appeal was moot because the State had gotten what it wanted: Hernandez’s return to custody. The legal question was whether the public interest exception to the mootness doctrine applied. The supreme court ruled that the exception did not apply in this case because there was no “conflict or disarray” in the law that governs when an appeal from a conditional release under the Sexually violent Commitment Act may be taken.

The supreme court gave two reasons for why there was no “conflict or disarray.”

1. Because the appellate court ruled after Hernandez was back in the State’s custody, the appellate court’s ruling also was moot. And because it was moot, the supreme court vacated the appellate court’s ruling. There was no “conflict or disarray” because there really was no appellate court ruling at all.

2. In addition, the supreme court ruled that the question of the correct time to appeal a ruling under the Act was a question of first impression. A question of first impression, the supreme court said, could not be the basis for “conflict or disarray.”

The State also argued that dismissing its appeal would leave the State not knowing the right time to appeal from a conditional release order under the Act – when the trial court states it will release the offender, or only after a conditional release plan is accepted by the trial court. The supreme court rejected that argument because the State had the option of filing more than one notice of appeal. “… [A]ny time a party is genuinely confused about which of a court’s orders is the final order, it may always protect itself by filing multiple notices of appeal.”

The Illinois Supreme Court dismissed the appeal and vacated the appellate court’s ruling. Read the whole case, In re Commitment of Hernandez, No. 108824 (11/18/10), by clicking here.

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February 26, 2011

Condo President’s SLAPP Defense Against Developer Not Moot

John Walsh was the president of his condominium association. Certain members of the association felt the developer committed fraud in connection with the conversion of the apartment building to a condominium. So the association sued the developer.

Two companies and two individuals were involved in the condo conversion – Sixty Thirty LLC; Wright Management LLC; W. Andrew Wright; and James Wright. Andrew and James were members of Sixty Thirty and Wright Management, and another related company, Wright Development Group LLC. The condo association did not sue Wright Development.

About two months after the association filed its fraud lawsuit, the local alderman held a meeting to give the residents “a public forum to communicate the problems they had experienced with developers and contractors building and renovating condominium buildings in the ward.” Walsh attended the meeting, and spoke about problems at the condo and the fraud lawsuit.

During a “mingling” session after the meeting, Walsh was interviewed by a newspaper reporter about the problems at Walsh’s condo . Walsh referred to the developer as Wright Development Group” or “The Wright Group,” “Because that’s what it is. It’s the Wright Group. It’s the Wrights … [W]henever I think of the developer, I think of the Wrights because to me that’s the developer … I think of Andrew and Jamie.”

After Walsh’s interview was published in a local newspaper, Wright Development sued Walsh for defamation, alleging he knew the real identity of the developer was Sixty Thirty LLC, not Wright Development. Walsh asked the trial court to dismiss Wright’s complaint under the Illinois Code of Civil Procedure. Before the trial court ruled on that request, Walsh also asked the court to dismiss the case under the Illinois Citizen Participation Act. That Act prohibits SLAPP lawsuits (Strategic Lawsuits Against Public Participation) – cases against citizens who are sued for their actions in exercising their political rights. Walsh claimed his statements to the reporter were an exercise of his political rights.

The trial court denied Walsh’s request to dismiss under the Citizen Participation Act, but later granted Walsh’s request to dismiss under the Code of Civil Procedure. Walsh appealed the denial of his request under the Act. Even though the case had been dismissed, Walsh complained he was denied statutory immunity and mandatory attorney fees under the Act.

The appellate court ruled Walsh’s appeal was moot, and dismissed it. The appeal was moot, the appellate court stated, because Walsh got his dismissal, “albeit on a different basis” than the Act, so “any action by this [appellate] court would constitute an advisory opinion.”

Walsh then appealed the mootness ruling to the Illinois Supreme Court. The supreme court ruled the appeal was not moot because the Act gave Walsh rights that were not considered by the appellate court. This is how the supreme court explained it:

The instant appellate court’s failure to undertake the question of whether the plaintiff’s [Wright Development] lawsuit could be identified as a SLAPP directly contradicts the legislature’s explicit expression of public policy regarding the efficient process to identify and adjudicate SLAPPs … The mootness finding also contradicted the legislature’s express finding of public policy in favor of an award of attorney fees and costs to prevailing movants [who successfully defend a case under the Act].

Further, there was, in fact, a potential injury to Walsh. Walsh was denied the relief requested in his Act motion to identify Wright Development’s lawsuit as a SLAPP and for a statutory award of attorney fees and costs – an entitlement not available with the mere [Code of Civil Procedure]section 2-615 dismissal.

Ultimately the supreme court ruled Walsh had immunity from Wright’s defamation lawsuit under the Citizen Participation Act, and the case was sent back to the trial court for an award of Walsh’s attorney fees. Read the whole case, Wright Development Group v. Walsh, No, 109463 (10/21/10), 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 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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February 12, 2010

Doctor’s Appeal Not Moot Despite Assignment And Forbearance Agreement

Marsha Dienstag sued her doctor, Lawrence Margolies, for medical malpractice. She claimed that Margolies did not timely diagnose her cancer. A jury agreed, and gave her a verdict for more than$5.9 million.

Margolies had an “assignment and forbearance” contract with Dienstag. Dienstag agreed not to seek payment of the judgment in excess of Margolies’s malpractice policy limits directly from Margolies. In return, Margolies assigned his claim against his malpractice insurer for “bad faith refusal to settle” within Margolies’s policy limits to Dienstag.

Margolies appealed the judgment. Dienstag pointed to the “forbearance and assignment” agreement and asked the court to dismiss the appeal. She argued that the agreement “renders the instant appeal moot because there is no longer a ‘live controversy’ between the parties.”

The First District Illinois Appellate Court disagreed with Dienstag. The court ruled that Margolies still could be liable to his insurer for an amount in excess of his policy limits, so his appeal was not moot. Here is what the court said:


… [I]t is in Dr. Margolies' interest to seek reversal or reduction of the judgment. Although the terms of the assignment and forbearance agreement would preclude the Dienstags from seeking payment of the excess judgment from Dr. Margolies, he could face financial liability from his insurance carrier if it is required to pay the entire judgment. Moreover, there is nothing contained in the assignment and forbearance agreement that requires Dr. Margolies to drop this appeal. Therefore, we conclude that the present appeal is not moot.

The appellate court ultimately affirmed Dienstag’s judgment. The whole case, Dienstag v. Margolies, No. 1-06-1558 (9/30/09), is available by clicking here.

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November 3, 2009

Conditional Order Renders Appeal In Attorney Fee Dispute Moot

Clyde Engle was locked in a battle over payment of attorney fees to Foley and Lardner. Foley represented Engle in federal court litigation involving an insurance liquidation. Engle’s unpaid bill was for more than $1.8 million.

Engle agreed to pay Foley over time, and pledged his interest in bank stock as security. Foley thus took possession of some of the stock. Then Engle sued Foley and asked for a preliminary injunction preventing Foley from selling the stock. The trial court first denied Engle’s request. About two weeks later, the trial court issued a temporary restraining order prohibiting Foley from selling the stock for seven days. The court stated it would issue a preliminary injunction to that end if Engle would post a bond for the amount he owed as surety. That same day, Engle appealed the original denial of a preliminary injunction.

But Engle did not post the bond. Foley argued, and the First District Illinois Appellate Court agreed, that Engle’s appeal was moot because the trial court gave him the opportunity to get what he asked for − an injunction preventing Foley from selling the bank stock. “Having secured what they [Engle and his wife] basically sought, their appeal must be dismissed.”

Engle argued that the trial court lost jurisdiction before entering the second order because he filed his notice of appeal first. But the appellate court rejected that argument because the order was not time-stamped, and Engle could not prove he filed before the trial court ruled. “It is quite conceivable that the court entered this order before Engle and Siobhan [wife] filed their notices of appeal. Engle never cited to anything in the record, such as a transcript or other material that would prove up his claim; thus, without more, we cannot accept it.”

Read the whole opinion, Engle v. Foley and Lardner, Nos. 1-08-2761, 1-08-2762 (7/10/09), by clicking here.

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September 5, 2009

Involuntary Commitment To Mental Health Center Moot; Illinois Supreme Court Reviews Mootness Exceptions

A trial court committed Alfred H.H. to the McFarland Mental Health Center in Illinois. Alfred appealed the commitment order. But he was discharged from McFarland while the appeal was pending, so the Illinois Appellate Court dismissed the appeal because it was moot.

Alfred appealed the dismissal to the Illinois Supreme Court. The supreme court rejected all five of Alfred’s arguments, and agreed the appeal was moot and was properly dismissed. Here is how the Illinois Supreme Court assessed the mootness arguments.

1. Alfred argued that the Illinois Mental Health Code gave him a right to appeal. But the court ruled that the Code only gave Alfred the right to appeal the commitment order “in the same manner as in other civil cases.” Alfred’s appeal, just like any other, was subject to the rules of mootness. “…[M]ootness is a factor that the courts will consider in determining whether it is appropriate to decide a given case.” The supreme court also ruled that there was not a case law exception to the mootness doctrine for commitment cases.

2. The supreme court ruled this case did not fall within the public interest exception to the mootness doctrine. The court agreed that “mental health cases do have the potential to deprive respondents of significant liberties … [but] that does nothing to examine the public nature of the issue presented within this appeal.” Alfred’s case, according to the court, involved the sufficiency of the evidence to commit him, and “[s]ufficiency of the evidence claims are inherently case-specific reviews that do not present the kinds of broad public interest issues” that satisfy this exception to the mootness doctrine.

3. Nor did this case fall within the exception of “capable of repetition yet evading review.” Alfred’s case was fact-specific, not a constitutional or statutory challenge. The court said there was “no clear indication of how a resolution of this [Alfred’s] issue could be of use to respondent [Alfred] in future litigation.”

4. The supreme court also stated that Alfred’s case did not invoke the collateral consequences exception. The court acknowledged that the collateral consequences exception can apply in mental health cases. But in Alfred’s case, the exception did not apply because “there is no collateral consequence that can be identified that could stem solely from the present adjudication. Every collateral consequence that can be identified already existed as a result of respondent’s previous adjudications and felony conviction.”

5. Alfred also argued the court should consider his appeal based on general policy considerations. Alfred claimed a right to appeal “because it is ‘therapeutic to provide procedural justice to mental health respondents.’” The supreme court rejected that argument, stating, “It is not appropriate for this court to create a new exception [to the mootness doctrine] simply because we believe that it may have tangential benefits to respondents in mental health cases.”

The whole opinion, In re Alfred H.H., No. 106616 (5/21/09), is available by clicking here.

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March 17, 2009

Due Process Violation In Contempt Proceeding Not Moot

Taren Coupland neglected to appear for her trial, so in her absence she was found guilty of possession of drug paraphernalia. A few days later, Taren was sentenced to 24 months of court supervision. Taren also was required to have a drug/alcohol assessment within 30 days, and to complete a remedial program within six months.

A status hearing was set for about a month later, but Taren neglected that hearing, too. When she did appear for a hearing some 90 days later, Taren told the court she had not completed the drug/alcohol assessment. The trial court ruled that Taren was in contempt of court and that she was to be jailed until she completed the evaluation. Taren could purge the contempt order by completing the drug/alcohol evaluation.

Taren asked the court to reconsider the contempt ruling. She argued that the contempt hearing, coming without notice, was a violation of her due process rights. But by the time the trial court heard her request for reconsideration, Taren had completed the evaluation and was not in custody. The trial court thus denied her request for reconsideration because, the court said, it was moot.

Taren appealed. The State argued that the appeal was moot for the same reasons the trial court found the reconsideration request to be moot. But the Third District Illinois Appellate Court disagreed. Even though the actual controversy was moot, the court took the case because it fell into the “public interest exception” to the mootness doctrine. Here is what the appellate court stated:

Even though an issue is moot at the time of the appeal, some reviewing courts will exercise their jurisdiction to controversies under the public interest exception to the mootness doctrine. This public interest exception applies when the issue is public in nature, requires authoritative guidance from the reviewing court, and is likely to recur …

"Public nature" questions include issues affecting a large number of the general public or issues of public importance … First, the issue at hand involves the enforcement of a criminal sentencing order of supervision in Warren County. Potentially, the court may be called upon to enforce similar conditions in other court orders affecting offenders in a multitude of cases. Second, contempt proceedings invoke a potential contemnor's due process rights requiring authoritative intervention to guide future proceedings to enforce the circuit court orders in Warren *453 County … Third, the likelihood of recurrence is great and is not limited to the complaining party in this appeal. The public interest exception considers potential recurrences to any person … We conclude the requirements of the public interest exception exist, and accordingly, we shall decide defendant's appeal.

In the end, the appellate court ruled that Taren’s due process rights had been violated. Get the whole case, People v. Coupland, No. 3-07-0338 (12/20/08), by clicking here.

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February 25, 2009

Lawsuit To Prevent Spending For Stem Cell Research Moot On Appeal

Richard Caro wanted to prevent Illinois funds from being spent for stem cell research. The research had been mandated by the governor’s executive orders. Caro sued the Director of the Illinois Department of Health to prevent him from disbursing funds for that purpose. The trial court ruled that the case presented a political question, not a question of law that the court could legitimately decide. So the trial court dismissed the case.

Caro appealed, but before the appellate court considered the case, the Director awarded more than $9 million in grants for stem cell research. Caro wanted the appeal heard anyway, “to work out the appropriate corrective remedy.” The Director wanted the appeal dismissed. He argued that the case was moot because the money already had been disbursed.

The First District Illinois Appellate Court agreed that the case was moot. The appellate court ruled that it could not give Caro what he wanted. Here’s what the court said:

Here, in our view, it is not possible for this court to grant the plaintiff the relief requested on appeal. We cannot reverse the trial court's dismissal and remand this case for further proceedings on a complaint that sought … to prevent the defendant, Dr. Whitaker [Director], from awarding the research grants. As the defendant states and the plaintiff concedes, the grants were awarded in 2006. Simply put, "[a] court cannot prevent what has already been done."

Caro argued that the case fell under the “public interest” exception to the mootness doctrine. But the appellate court disagreed because "this is not a case where "the magnitude or immediacy of the interests involved warrant[s] action by the court."

Nor was this the kind of case in which “the situation presented … is likely to recur.” The appellate court explained: “There is no indication in this record that the Governor has or intends to use executive orders in the future to create another new agency within the Department for the same purpose as in this case. Therefore, there is little likelihood that the precise circumstances that gave rise to the plaintiff’s instant complaint would recur, requiring us to intervene.”

So the appellate court dismissed Caro’s appeal. Read the whole case, Caro v. Whitaker, No. 1-06-1243 (11/4/08), 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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June 24, 2008

Appeal Of Expired Commitment Order Not Moot

Kevin S. disputed an involuntary commitment order against him that placed him in the Chester Mental Health Center. The commitment order was entered in November 2006, and was good for 180 days. But the case was before the Fifth District Illinois Appellate Court well after the 180 days expired. So appellate jurisdiction the first question the court addressed. Was the case moot because the commitment order had expired, and the appellate court no longer could give Kevin S. the relief he requested? If so, the appellate court would be without jurisdiction to rule on Kevin’s appeal.

The court ruled that the case fell into an exception to the mootness doctrine, and stated that it did have jurisdiction. “Generally, a court will not consider moot questions or render advisory decisions … Questions raised in an appeal that are capable of repetition, yet might evade review because of the short duration of the order, fall under the exception of the mootness doctrine … Given that respondent [Kevin S] has a long history of civil commitment and that it is likely that the circumstances present here may reoccur without the opportunity for a resolution before the case is rendered moot by the expiration of the order, we will address respondent's contentions.”

Read the whole case, In re Kevin S., No. 5-06-0677 (4/2/08), by clicking here.

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April 12, 2008

Possession Order Not Moot Even Though Tenant Vacated And Apartment Re-Rented

This landlord-tenant dispute evoked lots of attention from parties who regularly represent tenants. Beverly Olivier did not pay her rent for her apartment. Circle Management sued her for back rent and possession of the apartment.

Beverly and Circle entered an agreed order that required Beverly to pay monthly use and occupancy charges. When she missed the first payment, Circle moved for immediate possession of the apartment. The trial court granted Circle’s motion as a sanction for violating the agreed order. The court also stayed the case to give Beverly time to pay the use and occupancy charges and thereby purge the possession order.

Beverly appealed the possession order. But she also moved out of the apartment, and Circle rented it to another party. The first issue was whether the appeal was moot. If so, the appellate court would refuse to decide the case. The First District Illinois Court of Appeals acknowledged the general mootness doctrine. “A case becomes moot where it is impossible to render effective relief to the appealing party.”

But the appellate court decided the case even though Beverly vacated the property and the apartment had been re-rented. The appellate court ruled that this case fell under the “public interest” exception to the mootness rule.

First, the question of whether a trial court may award a landlord possession under the Act as a sanction for the tenant's inability to comply with a use and occupancy order is one of public importance, affecting the rights of countless landlords and tenants in Illinois. Moreover, there is a need for an authoritative determination on this issue. At oral argument, both parties confirmed the accuracy of the statistics cited in the amici curiae brief submitted in this case, which reveal that this particular practice is "prevalent." In addition, the trial court's instruction to Beverly's trial counsel to "take it up to the courts and get us some guidelines" when he challenged this practice indicates a need for an authoritative determination as to the propriety of this practice. Finally, because this current practice is so prevalent, it is likely to continue to recur absent any authority to the contrary.

In the end, the appellate court ruled that it was reversible error to give Circle possession as a sanction against Beverly. Read the whole case, Circle Management v. Olivier, No. 1-07-0621 (12/28/07), by clicking here.

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December 19, 2007

Daughter Turning 18 Renders Grandparent Visitation Case Moot

I reported on Felzak v. Hruby, a grandparent visitation case out of the Second District Appellate Court, in December 2006. Then, the important point concerned waiver on appeal of a due process argument. Here is the original post on the case.

Now, on appeal to the Illinois Supreme Court, the pertinent issue for appellate practitioners is mootness. Ralph and Sondra were held in contempt for disobeying an order permitting grandparent visitation. They wanted to purge the contempt order. While the appeal was pending, Katie, Ralph and Sondra’s daughter, turned 18 years old.

The Illinois Supreme Court ruled that “Because Ralph and Sondra can no longer compel Katie to visit Geraldine [grandmother], the rationale for the civil contempt order in this case has been lost. When a situation such as this occurs, the appropriate disposition of the case, and the action we take here, is to vacate the judgments of the lower courts and remand the cause with instructions to dismiss … (‘As a requirement of due process, then, a civil contempt order will be vacated once it is evident that the sanction imposed is no longer fulfilling its original, coercive function’). Vacating the contempt judgments below leaves nothing before us with respect to the contempt order to review. Those issues raised in the contempt proceedings are necessarily moot.”

Read the whole case, Felzak v. Hruby, No. 103755 (9/20/07), by clicking here.

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October 18, 2007

No Waiver Of Appellate Argument That Depended On Evidence Not In Appellate Record

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.

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August 16, 2007

Fourth District Illinois Appellate Rules Abuse Of Discretion To Order Interlocutory Appeal

Kenneth Stark and Vesta Stark, both elderly, were married. Vesta suffered from Alzheimers disease. Kenneth died and left substantial money to the Southern Illinois University Foundation and the Shriner’s Hospital for Children. The will left nothing to Vesta, but did contain a statement that “adequate and suitable” provisions were made for Vesta from resources outside of the assets identified in the will. And the facts did show that Vesta was well taken care of.

Vesta gave power of attorney to her son, Mark. On Vesta’s behalf, Mark filed a renunciation of Kenneth’s will. By renouncing the will, Vesta stood to take a one-half share of Kenneth’s estate, more than $2.3 million.

SIU and Shriner’s petitioned to vacate the renunciation. The parties moved for partial summary judgment. SIU and Shriner’s argued that Mark did not act “for the benefit of” Vesta in renouncing the will, as is required by the Illinois Power of Attorney Act. Mark argued the opposite.

Mark’s summary judgment motion was granted “on the assumption that the power of attorney was valid.” The trial court reserved for further proceedings the question of whether Vesta was competent when she gave power of attorney to Mark. The trial court also ruled that there was no just reason to delay enforcement or appeal of the summary judgment rulings, thus allowing for an interlocutory appeal under Illinois Supreme Court Rule 304(a).

The parties did not question appellate jurisdiction, but the appellate court raised the question of the propriety of the interlocutory appeal on its own. The opinion analyzes when there really is “no just reason to delay enforcement or appeal” of an interlocutory order.

In this case, the appellate court stated it was an abuse of discretion for the trial court to allow an interlocutory appeal. The court stated that the will renunciation was conditioned on the existence of a properly executed power of attorney, and the propriety of the power of attorney was conditioned upon Vesta’s competence when she signed. “Were the power of attorney to be held invalid, the question of whether a renunciation would have been for the benefit of Vesta would be moot, making a resolution on the merits of this instant appeal purely advisory.”

You can read the whole opinion, In re Estate of Stark, 4-06-0778 (6/21/07),by clicking here.

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January 11, 2007

No Mootness, No Waiver, No Rehearing In Psychotropic Drug Case

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.

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