Friday, May 27, 2016

Updated Illinois Appellate Practice Manual published

The 2016 Edition of my book Illinois Appellate Practice Manual has been released by Thomson Reuters and is available for purchase here. The entire publication is also available and searchable on Westlaw. The manual is the comprehensive two-volume treatise covering all aspects of Illinois civil appeals.

Monday, November 2, 2015

The Illinois Supreme Court amends Rule 335 to clarify the legislature’s right to establish the appeal period for administrative review appeals

On October 15, 2015, effective January 1, 2016, the Illinois Supreme Court amended Supreme Court Rule 335(a) to more explicitly recognize both the legislature’s right to enact its own appeal period for administrative review cases and the 35-day period that is commonly set forth in such statutes. Rule 335(a) now reads, in pertinent part: "Unless another time period is provided specifically by the law authorizing review, the petition for review shall be filed in the Appellate Court within 35 days from the date that a copy of the order or decision sought to be reviewed was served upon the party affected by any order or decision of the administrative agency . . ." It appears that the rule change was prompted, at last in part, by the issues raised in People v. Illinois Commerce Commission, 2014 IL 116642, which we covered in a previous post.

Friday, October 30, 2015

Updated Illinois Civil Litigation Guide published

The 2015-2016 Edition of my book Illinois Civil Litigation Guide has been released by Thomson Reuters and is available for purchase here. The entire publication is also available and searchable on Westlaw. This book of more than 1,100 pages contains the state, federal, and local civil practice rules relevant to Illinois civil procedure in a single reference tool, along with author commentary.

Thursday, October 1, 2015

The Illinois Supreme Court sort of clarifies the standard of review for a summary judgment based on judicial estoppel, but not really

The standard of appellate review for a summary judgment is de novo, which affords the circuit court’s decision no deference. The standard of review for the application of judicial estoppel is abuse of discretion, which affords the circuit court’s decision great deference. So when a circuit court grants summary judgment based on judicial estoppel, what standard applies? (Hint: If your answer is to split the difference and use manifest weight of the evidence review, you are incorrect.) Even Illinois appellate decisions arrive at different answers.

The Illinois Supreme Court sort of tried to clarify the issue in 2015. Judicial estoppel is an equitable doctrine invoked by the court at its discretion. The court observed that "it would seem to follow that we review the court’s invocation of the doctrine under the abuse-of-discretion standard." So, the correct standard is abuse of discretion [without those dreadful hyphens], right? Not so fast! "On the other hand," the court said, "defendants raised this issue via a motion for summary judgment, seeking dismissal pursuant to the doctrine. An appeal following a grant of summary judgment, like an appeal from a section 2-619 dismissal, is subject to de novo review." Well, that’s the problem, all right. But what’s the solution?

The court goes on that state that "where a trial court has exercised its discretion in the application of judicial estoppel, we review for abuse of discretion." So it’s abuse of discretion, right? Again, not so fast! "However, where the exercise of that discretion results in the termination of the litigation, and that result is brought about via the procedural mechanism of a motion for summary judgment, it follows, as well, that we review that ruling de novo."

So which is it? Well, in the case under consideration, the court determined that its review "is necessarily truncated by circumstances. When a court is required by law to exercise its discretion, the failure to do so may itself constitute an abuse of discretion, precluding deferential consideration on appeal." So the supreme court concluded that the circuit court failed to exercise its discretion so that "no deferential review would be warranted in any event." The court went on to say that "pursuant to independent consideration" [that’s another way to say "de novo review"] "judicial estoppel was inequitably applied."

In other words, the court reviewed the decision de novo. But it also concluded, through its de novo review, that the circuit court "inequitably applied" judicial estoppel. But if judicial estoppel is an equitable doctrine invoked by the court at its discretion (as the supreme court stated earlier in the opinion), how could the conclusion that the doctrine was "inequitably applied" arise from de novo review? Wouldn’t it be more consistent with the court’s holding to say that equitable estoppel was applied as a result of failure to exercise discretion after abuse of discretion review?

So, to return to our initial question, when a circuit court grants summary judgment based on judicial estoppel, what standard of review applies? Anyone? Bueller . . . Bueller?

Seymour v. Collins, 2015 IL 118432

Sunday, July 26, 2015

Dismissal of federal indictment without prejudice (while not final) is an appealable order after all

A Seventh Circuit panel ruled in United States v. Davis, 766 F.3d 722 (7th Cir. 2014), that dismissal of an indictment without prejudice is not a final order that the government may appeal pursuant to 18 U.S.C. §3731. The key consideration is not whether the indictment is dismissed "with prejudice" or "without prejudice," according to the panel, but whether the dismissal is "genuinely final."

On rehearing en banc, the full court disagreed. Judge Easterbrook, writing for the court en banc, observed that "all of §3731 is an exception to the final-decision rule." The full court held that "§3731 authorizes an appeal when a district court dismisses an indictment, or a count of an indictment, or a part of a count of an indictment, without prejudice to the possibility of a successive indictment containing the same charge." Judge Rovner, who authored the panel decision, dissented.

United States v. Davis, 793 F.3d 712 (7th Cir. 2015)

Friday, December 19, 2014

Orders under Illinois Supreme Court Rule 204(b) are immediately appealable and must be appealed within 30 days

Illinois Supreme Court Rule 204 (b) provides:
Any officer or person authorized by the laws of another State, territory, or country to take any deposition in this State, with or without a commission, in any action pending in a court of that State, territory, or country may petition the circuit court in the county in which the deponent resides or is employed or transacts business in person or is found for a subpoena to compel the appearance of the deponent or for an order to compel the giving of testimony by the deponent. The court may hear and act upon the petition with or without notice as the court directs.
When a circuit court enters an order granting the relief requested in a Rule 204(b) petition, the order is immediately appealable. Indeed, such an order must be appealed within 30 days or the opportunity to appeal will be lost.

Daewoo Int’l v. Monteiro, 2014 IL App (1st) 140573

Thursday, December 11, 2014

Another pro se appellant bites the jurisdictional dust

Jones v. Pfister is yet another case among many in which the appellate court was deprived of jurisdiction when an appellant (usually a pro se) fails to comply with the proof of service requirements set forth in Illinois Supreme Court Rule 12(b)(3).

The key facts are simple. The appellant’s complaint was dismissed on July 30, 2013. His motion for reconsideration was denied on August 23, 2013. His last day to file a notice of appeal was Monday, September 23, 2013 (because the 30-day appeal period ended on a Sunday). The circuit court clerk received the appellant’s notice of appeal in the mail on September 26, 2013.

Under Rule 373, if the notice of appeal was mailed on or before September 23, it was timely even though the clerk received it after that date. The appellant was incarcerated at the time of the appeal. An incarcerated litigant’s documents are considered mailed on the date he places them in the prison mail system. Accordingly, to have a timely appeal, the appellant needed to establish that he placed his notice of appeal in the prison mail system on or before September 23.

The notice of appeal was accompanied by a "Proof/ Certificate of Service," which stated that the notice was placed in the prison mail system on September 17, 2013. But the document was not notarized, a requirement for a proper proof of service by a non-attorney under Rule 12(b)(3). Without the required notarization, the "proof" was ineffective to prove the date of service. Because the notice was received after the appeal deadline, it was untimely, and a timely notice of appeal is a jurisdictional requirement.

The court noted that the appellant might have been able to satisfy the less stringent requirements of Rule 12(b)(4), which allows service to be proved "in case of service by mail by a pro se petitioner from a correctional institution, by affidavit, or by certification as provided in section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)) of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered[.]" But that provision, as the court pointed out, did not become effective until September 19, 2014. It came too late to help the appellant, as did his notice of appeal. Appeal dismissed for lack of jurisdiction.

Jones v. Pfister, 2014 IL App (4th) 130838-U