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.

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)

Wednesday, November 26, 2014

The Illinois Supreme Court provides a tutorial on proof of timely mailing a notice of appeal, but declines to address the most interesting issue

The issue in this case before the Illinois Supreme Court is whether the notice of appeal, which was received by the circuit court clerk after the deadline for appeal, was timely filed. The trial court’s final judgment dismissing plaintiff’s petition was entered on March 6, 2013. The notice of appeal was due 30 days thereafter, no later than April 5, 2013. The circuit court clerk received the notice of appeal in the mail on April 9, 2013. The Fourth District Appellate Court held that the notice was too late and dismissed the appeal for lack of jurisdiction in Huber v. American Accounting Association, 2014 IL App (4th) 130278-U. The plaintiff was granted leave to appeal to the supreme court.

The supreme court noted that the timeliness of a notice of appeal is governed by the supreme court rules and whether the appellate court properly applied those rules is reviewed de novo.

Under Rule 373, the "time of mailing" a document to the court clerk "shall be deemed the time of filing." Accordingly, if the plaintiff mailed his notice of appeal on or before April 5, 2013, it would be timely regardless of when the clerk received it. Rule 373 further states that "proof of mailing . . . shall be as provided in Rule 12(b)(3).

Rule 12(b)(3) provides that service is proved "by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail . . . stating the time and place of mailing . . . the complete address which appeared on the envelope or package, and the fact that proper postage . . . was prepaid[.]"

The pro se plaintiff did not provide either an attorney certificate or non-attorney affidavit. The plaintiff argued, instead, that the date of service was proven by a postmark appearing on the envelope. The supreme court explained that Rule 373, as adopted in 1967, provided that the time of mailing "may be evidenced by a post mark affixed in and by a United States Post Office." However, because of problems with illegible postmarks, and delays in affixing postmarks in some cases, the court amended Rule 373 in 1981 to eliminate reference to that method of proof.

The plaintiff argued that the affidavit requirement of Rule 373 was not intended to supplant other objective, competent proof of mailing, and that a legible postmark must be accepted as proof of mailing. Unfortunately for the plaintiff (and for us, for reasons to be explained shortly), his envelope didn’t have a postmark, either. He had, instead, a postage label from an Automated Postal Center (APC). That, the supreme court said, is not the same as a postmark.

The supreme court affirmed the appellate court’s dismissal for lack of jurisdiction. That’s why the decision is unfortunate for the plaintiff. The reason it is unfortunate for us, dear reader, is because the absence of an actual postmark allowed the court to avoid ruling on the potentially more interesting issue: Whether a proper, legible, and timely postmark would, in fact, constitute sufficient proof of mailing. Maybe next time . . .

Huber v. American Accounting Association, 2014 IL 117293

Tuesday, November 25, 2014

Appellate attorney conflict

An interesting discussion touching on appellate attorney conflicts in a criminal case – arising from the withdrawal of attorney Beau Brindley because he was then the subject of a federal criminal investigation and wanted to avoid a possible conflict of interest in the matter – may be found in the Seventh Circuit’s per curiam opinion in United States v. Smith.

NOTE: According to public records, Mr. Brindley was later charged with coaching witnesses to perjure themselves and was ACQUITTED of all charges.

United States v. Smith, 771 F.3d 1045 (7th Cir. 2014)

Friday, November 21, 2014

The Seventh Circuit kicks Judge Shadur off the case on remand

The case that is the subject of today’s post is interesting for our purposes because the Seventh Circuit panel that decided the case, in an opinion written by Judge Posner, ruled that Judge Milton Shadur, who heard and dismissed the case in the district court, should not be reassigned to the case on remand.

The plaintiff filed a gender discrimination suit against a union. The union included a statute of limitations defense in its answer. A month later, Judge Shadur sua sponte ordered the plaintiff to respond to the statute of limitations defense. The judge didn’t like the response. He really didn’t like the response, dismissing the suit with prejudice even though the union had not moved for dismissal with or without prejudice.

The Seventh Circuit reversed the dismissal, but of much greater interest is its explanation of why the suit must be heard by a different judge on remand:
"Because of the abruptness and irregularity of the district judge’s handling of this case (we can’t understand his deciding to dismiss the complaint with prejudice, thereby preventing the plaintiff from amending the complaint, or his instructing his law clerk to request the plaintiff’s EEOC charge from the plaintiff’s lawyer, without telling the defendant, even though the charge was not part of the record), and the unmistakable (and to us incomprehensible) tone of derision that pervades his opinion, we have decided that further proceedings in the district court should be before a different district judge."
Now this decision is interesting for at least three reasons, in my opinion. First, it is rare that a court of appeals remands a case to be assigned to a district judge other than the one who originally heard the case. Second, the observation that an "unmistakable . . . tone of derision" "pervades" the opinion could apply to a great many decisions written by Judge Shadur. Why single out this one all of a sudden? Third, this is Judge Posner – of all people – criticizing a judicial opinion that includes a "tone of derision."

Canon 3(A)(3) of the Code of Conduct for United States Judges states, in part: "A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity." (Emphasis added) A "tone of derision" is not consistent with the requirements of respect and courtesy and has no place in any judicial opinion at any level of any court system.

Stuart v. Local 727, International Brotherhood of Teamsters, 771 F.3d 1014 (7th Cir. 2014)