Illinois Appellate Lawyer Blog

December 26, 2006

Appealability of Immunity Order. Seventh Circuit Invites Re-Evaluation Of Jurisdictional Precedent.

The Seventh Circuit Court of Appeals dismissed an appeal by defendant prison guards for lack of jurisdiction. The guards first moved to dismiss the complaint based on official immunity. That motion was denied. Despite being interlocutory in character, denial of an immunity claim is appealable. But instead of appealing, defendants took discovery and then moved for summary judgment, also based on official immunity.

Defendants did appeal the denial of their summary judgment motion. But that appeal was dismissed because “public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint.”

The court discussed the propriety of Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 1986), disallowing appeal from a summary judgment motion based on immunity that mimicked a prior motion “because the maneuver is nothing but an effort to get around the time limit” to appeal the order denying the earlier motion. The court’s majority questioned the wisdom of Garvin, but declined to decide whether it should be overruled.

December 22, 2006

Exasperated Illinois Supreme Court Instructs Lower Courts On Constitutional Analyses.

by Steven R. Merican

The Illinois Supreme Court flashed frustration in an opinion that instructs appellate and circuit court judges to stop deciding cases on constitutional grounds when other issues first offer a resolution. The case involved an adjudication of wardship of a minor accused of improper sexual conduct with other minors in her care. On rehearing, the Illinois Appellate Court ruled that Section 115–10 of the Code of Criminal Procedure, which allows certain out-of-court statements of non-testifying minors, was unconstitutional.

An exasperated Supreme Court stated that the constitutional analysis was unnecessary. Practitioners and judges must listen to the supreme court’s chafing.

We have repeatedly stated that cases should be decided on

December 21, 2006

Unringing The Bell. Illinois Second District Appellate Admonishes Counsel For Argument In The Facts.

by Steven R. Merican

Argument should be saved for the Argument section of your brief. In Illinois, Supreme Court Rule 341 prohibits argument in the Fact section. When Commonwealth Edison filed a brief that stepped into foul grounds, the Second District Appellate Court “admonish[ed] counsel for ComEd to comply with the supreme court rules in the future.” The court read Com Ed’s facts, but disregarded the statements that violated Rule 341.

The whole case, Village of Roselle v. Commonwealth Edison Co., No. 2-06-0294 (2006), is right here.

December 21, 2006

Chicago Appellate Events. For A Good Time . . . .

by Steven R. Merican

The Illinois Appellate Lawyers Association holds its Annual Reception on January 25, 2007. The justices of the First District Illinois Appellate Court will be feted. The late Seymour F. Simon, Retired Illinois Supreme Court Justice, will be honored.

The event is scheduled for 5:00 to 7:00 p.m. at the Walnut Room of the Hotel Allegro, 171 W. Randolph, in the Chicago Loop. Cost is $20.00 (cash bar). RSVP 312-554-2090.

Also scheduled: The Seventh Circuit Court of Appeals Roundtable, sponsored by the Federal Bar Association. (Info here.) The panel will be Judges William Bauer, Ilana Diamond Rovner, and Diane P. Wood; Clerk of the Court Gino J. Agnello; and Chief Deputy Clerk of the Court Andrew J. Kohn.

December 20, 2006

Illinois Second District Appellate Court: (1) No Objection, No Matter, No Waiver. (2) Appellate Court Not Restricted By Record In Frye Assessment. (3) Standard Of Review Manifest Weight In Release of Sexually Violent Person.

by Steven R. Merican

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.

• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider “sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions.”

December 19, 2006

Illinois Supreme Court Does It The Other Guy’s Way. Argument Not Raised In Trial Court Is Waived In Supreme Court.

by Steven R. Merican

A third party drove a car through a wall at a Burger King and killed a customer. The customer’s estate sued Burger King. Burger King won a motion to dismiss in the trial court because, the court ruled, there was no legal duty to the customer. The customer’s estate appealed, and won a reversal in the court of appeals.

Burger King appealed the appellate court’s ruling. In the Illinois Supreme Court, Burger King argued the complaint failed to sufficiently allege proximate cause between its conduct and the customer’s death. That was the first time Burger King raised the insufficiency of proximate cause.

The Illinois Supreme Court ruled that Burger King waived the proximate cause argument. “…[D]efendants moved to dismiss plaintiff’s complaint in the circuit court solely on the basis that they owed no duty of care to the decedent. They did not argue proximate cause in their motion to dismiss, and the trial court’s ruling was limited to the issue of whether plaintiff adequately pleaded the existence of a duty. Therefore, the issue of proximate cause is not properly presented by the record in this case.”

December 19, 2006

De Novo Review For Illinois Claim That Punitive Damages Are Unconstitutional

by Steven R. Merican

Eighteen years of litigation culminated in a dispute over punitive damages in the Illinois Supreme Court. An excavating company was picketed by the union. The excavating company claimed the picketers spread false information about the company. So the company sued for libel, tortious interference with contract, and the like. At a bench trial, the company won a modest compensatory award, but rang the bell on punitives.

At a bench trial, the company won $4,680 in compensatory damages and $525,000 in punitive damages. The appellate court lowered the punitives to $325,000.

In the Supreme Court, the question was the propriety of the punitive damage award. The first question was the proper standard of review. The company argued for abuse of discretion; the union argued for de novo review.

December 18, 2006

Illinois Supreme Court Eases Rule 23 Restrictions

by Steven R. Merican

The Illinois Supreme Court lightened restrictions on Appellate Court opinions today. Appellate opinions no longer will be limited to 20 pages. And the number of published opinions from each of the five appellate districts has been lifted.

The Administrative Order under Supreme Court Rule 23 placed limits on appellate courts in 1994. Many practitioners grumbled about the restrictions, claiming they forced appellate courts to issue non-publishable orders instead of published opinions. Many lawyers consider non-published orders often to be less thoughtful rulings. Unpublished orders are not precedential and generally may not be cited.

This stands to be a positive turn of events – if the appellate courts use the relaxed Order to issue more published opinions that are not page restricted. We’ll see now whether the courts have become conditioned to issuing so many non-publishable orders, most of which do not work their way into the public literature. If the courts continue to issue lots of non-publishable orders — which apparently is still within their discretion — then we will not get the benefits of a softer SC Rule 23.

December 18, 2006

It Was Just Criminal

by Steven R. Merican

Dismissal of a complaint without prejudice is not appealable. It’s a common nonfinal interlocutory order. “However, the State may appeal an order dismissing an indictment for prosecutorial misconduct … even if the dismissal is without prejudice.” People v. Mattis, 854 N.E.2d 1149, No. 2-05-0586 (2006).

December 17, 2006

Illinois Second District Appellate: No Waiver Where Court Is The Culprit

by Steven R. Merican

In another grandparent visitation case, the Illinois Second District ruled that a due process argument was not waived even though it had not been raised in the trial court. The trial court ordered the parents not to talk to their daughter about the case. The parents argued that the order violated their due process rights to raise and care for their daughter as they see fit.

The appellate court ruled the argument was not waived. “… [D]efendants failed to make any argument before the trial court that the order prohibiting them from telling their daughter the outcome of the case violated their fourteenth amendment rights. However, the application of the forfeiture rule is less rigid where the basis of the objection is the trial court’s own conduct.”

Take a look at Felzak v. Hruby, 855 N.E.2d 202, 2-05-0848 (2006).