The 7th Circuit Court of Appeals recently stated the rules regarding civil contempt orders are appealable interlocutory orders. The court ruled:
• “An order holding a litigant in contempt of court is not appealable while the litigation continues.”
• Resolution [of the contempt order] must await the final decision in the litigation. When the disobeyed order would be independently appealable under an exception to the final-decision rule, then the contempt citation also may be appealable.”
Abraham Flagg was convicted of distributing cocaine and cocaine base, and of conspiracy to distribute. After a plea deal, he received concurrent sentences of 180 months of imprisonment and 60 months of supervised release.
As soon as he began serving it, Flagg violated the terms of his supervised release. He was sentenced to 30 months additional prison time for the violation.
Flagg appealed the additional sentence. He claimed that the standard of review was whether the sentence was “plainly unreasonable.” The issue was whether the U.S. Supreme Court opinion in U.S. v. Booker required a change in the standard of review merely to “reasonableness.” The opinion noted a split among the federal circuits on this question. But the 7th Circuit left the question unanswered, ruling that Flagg’s additional sentence was correct under either standard of review.
Bobby Lee Harrison was awaiting trial on charges of aggravated criminal sexual assault. He was unhappy with the trial judge, so he moved for substitution, claiming the judge was biased against him. The motion was denied, and Harrison appealed.
The First District Appellate Court granted the State’s motion to dismiss. The court ruled that the order denying the substitution motion was not final and appealable. “The denial of a motion for substitution of judge is not a final order . . . Rather, it has been described as ‘a step in the procedural progression leading to’ judgment.”
The whole opinion, People v. Harrison, 1-07-0732 (3/21/07), is available by clicking here.
Just for fun, I’m going to keep track of the won-lost record for motions for rehearing in the Illinois Supreme Court. I’ll start with the rulings issued on March 26, 2007. So far, Denials 5, Grants nothing.
A property owner, Burtley, moved to vacate an order of foreclosure that was entered without an evidentiary hearing. He appealed the trial court’s denial of the motion. The parties disputed the appellate standard of review.
Burtley asserted review should be de novo “or what he labels an ‘ends of justice’ standard.” He argued that a motion to vacate should be reviewed by the same de novo standard as a motion to dismiss.
The bank argued that the standard of review was ”whether the trial court abused its discretion by failing to promote substantial justice between the parties . . .”
The Illinois Appellate Lawyers Association will present “The 10 Habits of Highly Effective Appellate Lawyers That Make Clerks Smile.” Speakers will be Steven Ravid, Robert Mangan, Gist Fleshman, and Louis Costa, respectively the Clerks of the Court for the First, Second, Third, and Fifth Districts in Illinois.
The luncheon event will be held on April 20, 2007 at the Union League Club, 65 W. Jackson Blvd., Chicago. Cocktails at noon; lunch at 12:30 p.m. Cost: $25 for members; $30 for non-members. CLE credit available. Phone 312-554-2090 for a reservation.
Mead Corporation’s tax dispute with the Illinois Department of Revenue led to this appeal in the Illinois First District. Although there was substantial testimonial and documentary evidence, the chief facts were not disputed. The issue in this appeal concerned an application of those facts to the Illinois Income Tax Act, resulting in an intermediate standard of review.
. . . [W]here the fact finder examines the legal effect of a given set of facts, it decides a mixed question of law and fact which is subject to an intermediate standard of review . . . Under such circumstances, the decision is based on fact-finding that is inseparable from the application of law to fact and is reviewed under a clearly erroneous standard . . .. This standard is largely deferential to the decision maker.
Under the clearly erroneous standard, a finding of the lower court may be reversed only if, after careful review of the entire record in light of the applicable rule of law, the reviewing court is left with the ” ‘definite and firm conviction’ ” that the finding is in error.
If you’re filing electronically, and it’s after 4:30 p.m., what is the official date of the filing? Is it the actual date, albeit after the clerk’s office is closed, or is it the next day? The answer can make a big difference. Either you’re late or you’re on time. Either you invoke jurisdiction or you don’t. Maybe the court reads your filing or it doesn’t.
The Chicago Daily Law Bulletin (subscription required) yesterday reported that the Illinois Supreme Court has been asked to review this question in City of Chicago v. Illinois Commerce Commission, et al., No. 104361. The question in that case was whether an electronic filing for rehearing of the the ICC’s decision preserved jurisdiction.
In the Northern District of Illinois, the federal court allows electronic filings till midnight to count on the day filed. In the Circuit Court of DuPage County, Illinois, where e-filing still is voluntary, an after-hours filing is considered filed the following day. The idea there is that parties who do not have access to e-filing should not be placed at a disadvantage.
A senatorial candidate sued a columnist and a newspaper for libel. The trial court dismissed the case, and the candidate appealed. After the appeal was filed, the candidate voluntarily dismissed the columnist, but maintained the appeal against the newspaper. A mandate was issued with respect to the dismissal of the columnist.
Two years passed after the briefs were filed, but there still was no decision from the appellate court. In response to the candidate’s motion to set the case for oral argument, the newspaper asserted that the issuance of the mandate deprived the appellate court of jurisdiction. The appellate court would have none of it, and ruled that the mandate as to the columnist did not deny the court of jurisdiction to consider the appeal against the newspaper.
Pointing to the two-year period after briefing was completed, the newspaper also argued that laches and estoppel, and the candidate’s lack of diligence, prevented the court from considering the appeal. The appellate court rejected that argument. The court admitted that the case improperly had been removed from the active docket, resulting in the delay. “The plaintiff is not to blame for the delay in the disposition of this appeal. We will not avoid consideration of the merits of this appeal predicated upon delay caused by this court.”
This case presents a messy insurance dispute over who would pay a judgment arising from an auto accident. The judgment, and thus the amount in dispute, was for $8,400. Plaintiff insurance company brought a garnishment action against the defendant insurance company. Plaintiff’s summary judgment motion was denied, and defendant was discharged from the garnishment proceeding.
Plaintiff insurer appealed. But the defendant did not file a response brief. That didn’t stop the appellate court, which decided to rule without benefit of the brief.
Although a reviewing court is not compelled to serve as an advocate for an appellee, it may sustain the judgment of the trial court based on its review of the record as justice may require . . . In other cases, if the appellant’s brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed . . . Where the record is simple and the claimed error is such that the court can easily decide it without the aid of an appellee’s brief, a reviewing court will decide the merits of the appeal . . . Here, because the record is simple, we will decide the merits of the appeal without the benefit of the appellees’ briefs.
