Illinois Appellate Lawyer Blog

April 26, 2009

Illinois Supreme Court: Clear Error Standard For Election Board’s Justifiable Grounds Decision

We pick up today with the second part of the Illinois Supreme Court’s opinion in Republican Party v. Illinois State Board of Elections. (The entry directly below explains the important facts and the court’s ruling that it has power to review tie votes rendered by the Board.)

The supreme court also ruled on the correct standard of review of the Board’s decision: “clearly erroneious.”

Arguments over the standard of review ran to both ends of scale − the Republicans arguing the Board should get no discretion, the Board arguing that its decision should be reviewed for “abuse of discretion.” Here is how the court described the parties’ positions: “The Party argues that the dismissals should be reviewed de novo because the Board did not make a decision that may be granted deference. Conversely, the Board argues that the dismissals should be reviewed for abuse of discretion. According to the Board, the “justifiable grounds” standard grants it discretion to dismiss complaints after preliminary investigations.”

April 21, 2009

Illinois Election Board Tie Vote Dismissal Of Republican Party Complaints Reviewable By Appellate Court

by Steven R. Merican

The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members. The Board tied on each of the complaints, four to four, meaning there was not a majority vote on the question of whether the complaints were filed on justifiable grounds. Each complaint therefore was dismissed.

The Republicans filed a direct appeal to the Illinois Appellate Court, which is allowed by the Illinois Election Code. Because the Board did not state factual findings, the appellate court ruled that it did not have authority to review the question of whether the Republicans’ complaints had justifiable grounds to proceed.

Instead, the appellate court stated that its jurisdiction was limited to the question of whether the Board acted “contrary to law.” In this case, that meant assuring the actual vote count was accurate. The appellate court thus affirmed the Board’s dismissals.

April 16, 2009

No Appellate Standing For Knox County Employees Being Investigated; Appellate Court Lacks Supervisory Authority To Order A Special Prosecutor On Remand

by Steven R. Merican

This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.

Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.

The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.

April 15, 2009

Administrative Code Okay In Appendix; Dictionary Excerpt Stricken

by Steven R. Merican

Taxpayers sued to prevent the local school district from transferring cash that was raised by a sale of bonds to the district’s operations and maintenance fund. The taxpayers argued that the money rightfully belonged in the district’s educational fund.

Cross motions for summary judgment were filed by the taxpayers and the school district. The trial court denied the taxpayers’ motion and granted summary judgment to the school district. The taxpayers appealed.

Although they were not included in the record on appeal, the taxpayers put into their appendix copies of two sections of the Illinois Administrative Code and a “printout of an internet thesaurus website containing the synonyms and antonyms for the word ‘abolish.’” The school district asked the appellate court to strike those parts of the taxpayers’ appendix and the parts of their brief that referred to those items.

April 13, 2009

Ford Motor Preserves Risk-Utility Jury Instruction Argument For Appeal

by Steven R. Merican

In this product liability case, Ford Motor Co. was sued by the estate of a driver who died in a rear-end auto accident. After trial, a jury reached a verdict for the estate.

At trial, the parties fought about the correct way to instruct the jury to determine whether Ford was liable under a product liability theory. The estate argued that the jury should be instructed to use the “consumer expectation test.” Ford argued for a “risk-utility test.” The trial court gave the jury only the “consumer expectation test.”

The issue for the Illinois Supreme Court was whether Ford preserved this argument for the appeal. The supreme court stated the general rule to preserve an argument that the trial court improperly refused a jury instruction. “A party forfeits the right to challenge a jury instruction that was given at trial unless it makes a timely and specific objection to the instruction and tenders an alternative, remedial instruction to the trial court … These requirements ensure that the trial court has the opportunity to correct a defective instruction and to prevent the challenging party from gaining an unfair advantage by failing to act when the trial court could remedy the faulty instruction and then obtaining a reversal on appeal.”

March 29, 2009

Stay Of Insurance Declaratory Judgment Action Is Like An Injunction And Invokes Interlocutory Appellate Jurisdiction

by Steven R. Merican

WW Westwood Center sued Canel & Associates for legal malpractice. Canel tendered the defense of the lawsuit to it malpractice insurer, TIG Insurance Company. The tender inspired cross-claims by TIG and Canel for a declaratory judgment – TIG asked for a ruling that it did not have to defend or indemnify Canel; Canel asserted just the opposite.

TIG brought Westwood into the lawsuit, and proceeded to serve discovery on Westwood. Westwood responded by asking the trial court to stay the declaratory judgment lawsuits pending a determination of its malpractice case against Canel.

Canel opposed Westwood’s request for a stay. Because TIG was not paying Canel’s defense costs in the malpractice case, Canel wanted the trial court to rule quickly (and in Canel’s favor) in the declaratory judgment case.

March 22, 2009

Non-Intervening Account Holders May Appeal Receiver’s Plan To Distribute Assets

by Steven R. Merican

In response to a complaint by the Securities and Exchange Commission, the federal district court froze the assets of Enterprise Trust. The SEC claimed that Enterprise deliberately mishandled and lost millions of dollars that it held for investors. The district court appointed a receiver for Enterprise, who devised a plan to distribute the remaining assets to the account holders. The plan called for custodial account holders to receive a bigger percentage of their accounts than managed account holders.

Although they were not named parties in the lawsuit, and had not intervened, three of the managed account holders appealed to the Seventh Circuit Court of Appeals. They wanted a ruling that distributions to all Enterprise account holders should be treated equally. The appeal raised the propriety of appellate jurisdiction because, in a previous case, the court ruled that “investors affected by a receiver’s plan of distribution can’t appeal without intervening and becoming formal parties to the litigation …”

But this time the court ruled that appellate jurisdiction existed. The appellate court overruled its earlier decision, and concluded that a party whose rights were foreclosed by the receiver’s actions may appeal, even if the party has not officially intervened in the lawsuit. Here’s what the Seventh Circuit said:

March 21, 2009

Seventh Circuit Has Jurisdiction Over Goldblatt’s Bankruptcy Remand

by Steven R. Merican

LaSalle Bank, the principal creditor in the Goldblatt’s Bargain Stores bankruptcy, claimed Great American Group committed fraud when it purchased inventory from Goldblatt’s stores that were closing. LaSalle had a security interest in the inventory, and was obliged to reimburse Great American for overpayment of the estimated inventory value. The bankruptcy judge agreed that Great American committed fraud, but ruled that LaSalle had not been damaged by the fraud. The bankruptcy court ruled that LaSalle had to reimburse Great American more than $1 million for the inventory.

LaSalle appealed to the district court. The district court reversed the bankruptcy court because “fraud vitiated the contract and thus excused LaSalle Bank from any obligation to perform.” The district court also remanded the case back to the bankruptcy court “for further proceedings consistent with” its order.

Great American then appealed to the Seventh Circuit Court of Appeals. The first issue was whether the appellate court had jurisdiction to hear the appeal. The sticking point was the district court’s remand to the bankruptcy court, which usually would render the district court’s ruling non-appealable. But the Seventh Circuit Appellate Court took Great American’s appeal because the remand was perfunctory and there was nothing left for the bankruptcy court to do.

March 17, 2009

Due Process Violation In Contempt Proceeding Not Moot

by Steven R. Merican

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.

March 10, 2009

Post-Trial Motion Necessary To Preserve Appeal Issue In Directed Verdict Case

by Steven R. Merican

Karen Gillespie, as administrator of Kenyudra Gillespie’s estate, sued the University of Chicago Hospitals and a number of doctors for medical malpractice. Karen settled with or dismissed all of the defendants except Dr. Glynis Vashi. The case went to trial, and after Karen put in her evidence, the trial court granted a directed verdict for Dr. Vashi.

Karen appealed. She claimed she was deprived of a fair trial because the trial court refused to admit certain evidence, including “an affidavit by Dr. Vashi, the hospital’s rules and regulations, plaintiff’s expert’s testimony that Dr. Vashi was Kenyudra’s ‘attending physician,’ and plaintiff’s expert’s testimony regarding the Joint Commission on Accreditation of Hospitals’ rules and regulations.”

Dr. Vashi claimed that Karen waived the argument for appeal because she did not file a post-trial motion contesting the trial court’s evidentiary rulings. Karen argued that she didn’t have to because the case was resolved on Vashi’s motion for a directed verdict, so it never went to a jury.