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As I’ve written elsewhere, the Illinois Supreme Court tends to be what appellate attorneys call a “hot bench,” with questions potentially coming from any or all of the Justices in any given argument. With the May term having begun this morning with the argument in Relf v. Shatayeva, let’s take an early look at the question patterns for the first two terms of 2013.

In January and March, the Court heard argument in a total of eleven civil cases (only nine appellees made appearances however, slightly skewing the numbers). Not surprisingly, the level of questioning from the Justices varies widely from case to case – from a high of 34 questions in Mayfield v. Mayfield and 27 in VC&M v. Andrews, to lows of 8 each in DeHart v. DeHart and Russell v. SNFA. The same is true of individual Justices: each Justice has been active in some cases and less so in others. With only two of the eleven cases decided so far, it’s too early to attempt to draw even tentative conclusions about question patterns and decisions, but – again not surprisingly – the two cases already handed down are the ones that drew the fewest questions from the Court: DeHart and Russell.

Before presenting the data, one caution: as most appellate court watchers around the country know, counting questions in an oral argument is a somewhat subjective process. For example, when a Justice begins a question, counsel interposes a few words, and the Justice then continues or clarifies the point, is that one question or two? For that reason, another analyst’s numbers might vary slightly from those below, but the patterns should be the same. The chart below lists total questions to each party from each Justice in civil cases in the January and March terms. The numbers in parentheses show the number of times each Justice asked the first question of counsel.

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Earlier this month, on the final day of arguments for the March term, the Illinois Supreme Court heard oral argument in Standard Mutual Insurance Co. v. Lay. Lay presents the question of whether the penalty imposed by Federal law for sending unsolicited junk faxes is uninsurable as a matter of Illinois public policy. Our detailed preview of the facts and lower court opinions in Lay is here. The video and audio of the argument is available here.

The Federal Telephone Consumer Protection Act provides that it is unlawful to send unsolicited advertisements to a fax machine. The TCPA creates a strict liability private right of action, with damages equal to actual monetary loss to the plaintiff or $500 per fax, whichever is greater. The penalty is trebled if the violation is willful or knowing. In Lay, the defendant real estate agency hired a "fax broadcaster," allegedly based on its assurances that only persons who had agreed to receive advertisements would get its blast fax. This proved to be false, and the resulting class complaint sought trebled penalties of $1,500 for each of 3,478 faxes purportedly sent. The defendant real estate agency ultimately settled the class action for more than $1.7 million.

Meanwhile, the insurer had filed a declaratory judgment action, seeking a declaration of no coverage. Following the settlement of the underlying action, the class representative became actively involved in the dec action. The insurer and the class representative filed cross motions for summary judgment, and the Circuit Court held that the insurer had no duty to defend or indemnify. The Appellate Court affirmed, holding that TCPA penalties could not be insured as a matter of public policy in Illinois, since they were in the nature of punitive damages.

Counsel for the appellant, the class representative in the underlying action, began his presentation by arguing that the Appellate Court had framed the issue incorrectly, and had therefore never reached the heart of the issue. A proper reading of Beaver v. Country Mutual Insurance Co., counsel argued, is not that the existence of coverage depends on the nature of damages or penalties. Rather, the question of coverage turns, counsel argued, on the nature of the insured's alleged conduct. Thus, the statement that punitive damages are not insurable actually derives from the proposition that the kind of conduct for which punitive damages are imposed is not insurable. Justice Thomas pointed out that in the same section of the TCPA which provides for the penalty, Congress provided for treble damages for willful and wanton conduct. He asked whether that impacted the question of whether the TCPA penalty was punitive. Counsel responded that willful and wanton conduct was an example of the sort of bad conduct which could not be insured. Because the appropriate question, according to counsel, was the nature of the conduct rather than the nature of the penalty, analysis should turn to Illinois law of punitive damages and the TCPA to see when punitive damages and penalties are applied. The insured's conduct didn't come close to the kind of conduct which triggers a finding of no coverage under the Beaver rule, counsel insisted. Justice Thomas asked counsel to comment on the appellee's allegations of collusion between defendants and plaintiffs' class action attorneys, and its concern that allowing coverage would mean that insurers are often left "holding the bag." Counsel responded that there was no indication of such a thing in the record, and the appellee's concerns were mere argument. Justice Garman asked counsel whether he was urging a point by point, "conduct by conduct" analysis to determine whether conduct is insurable as a matter of public policy, and counsel agreed that he was. Justice Freeman asked counsel whether he relied on Valley Forge Insurance Co. v. Swiderski Electronics, and if so, for what proposition? Counsel responded that Swiderski decided that TCPA damages are potentially covered under an advertising injury policy, which according to counsel is what was involved in the case at hand. Justice Freeman asked whether Swiderski was a duty to defend, not a duty to indemnify case like Lay, and counsel agree that it was. Counsel concluded by asking the Court to reverse the Court of Appeal, and invited the Justices to consider defining the nature of conduct which triggers the rule of non-insurability.

As counsel for the insurer began his presentation, Justice Thomas asked whether, if the Court agreed that the penalties were potentially insurable, there were any issues left for the Appellate Court on remand? Counsel responded that the Court could either decide the additional issues itself, or remand to the Appellate Court. Counsel argued that there was a pending question of possible breaches by the insured of the policy. The insurer defended under a reservation of rights letter. Approximately four months after the case was filed, the attorney retained by the insurer had been fired by the insured, and a month or two after that, the insured had agreed to a $1.739 million settlement with a covenant not to execute against any of the insured's assets.   Calling the settlement a "roll-over," in a case the insurer was still defending, counsel suggested that there were questions of a breach of the cooperation clause and a voluntary payment undertaken.  Justice Thomas repeated the question asked of appellant's counsel earlier, asking what impact the reference in the statute to treble damages for willful and wanton conduct had on the analysis. Counsel responded that the first half of the statute provided for either actual damages or $500, "whichever is more," but in practice, $500 would always be far more than actual damages from a single junk fax. Justice Burke asked counsel how that damages clause could be simultaneously remedial and punitive? Counsel responded that penal punishments are intended to deter both the defendant and others from similar conduct, and that was the purpose of the TCPA penalties. Chief Justice Kilbride asked whether the insurer knew about and objected to the insured's settlement. Counsel responded that the insurer had not been aware of the settlement. Justice Burke asked whether, if there is a duty to defend a TCPA claim under Swiderski, that necessarily means there is a potential duty to indemnify - and that the Appellate Court decision therefore conflicts with Swiderski. Counsel responded that Swiderski had dealt with the duty to defend, whereas only the duty to indemnify was at issue here. Justice Garman asked what difference it makes for the analysis whether the conduct at issue is that of an agent - here, the "fax broadcaster." Counsel responded that the fax broadcaster was not the agent of the insured, and even if it was, the statute places liability on the insured as the "sender."

In rebuttal, counsel for the class representative argued that the liability involved in the case below was certainly vicarious, flowing through an agent, and that as such, it should be insurable. Counsel claimed that the insured had the right to settle under the circumstances, and insisted that the insurer had known about the settlement.

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Last week, the Illinois Supreme Court heard oral argument in Wilkins v. Williams. Wilkins is a sequel of sorts to Harris v. Thompson, in which the Court considered the statutory immunity of a publicly owned ambulance involved in an accident. Wilkins poses the flip-side question: what if the ambulance is owned by a private, for-profit company? Our detailed preview of the facts and lower court opinions in Wilkins is here. The video and audio of the argument is available here.

In Wilkins, a privately owned ambulance transporting a patient on a non-emergency run struck another vehicle, injuring the driver. According to the Emergency Medical Services (EMS) Act, no “person, agency or governmental body certified, licensed or authorized pursuant to this Act” who “provides emergency or non-emergency medical services” can be “civilly liable as a result of their acts or omissions in providing such services unless such acts or omissions . . . constitute willful and wanton misconduct.” 210 ILCS 50/3.150(a). So does the EMS Act extend to non-emergency transport of patients? The Court held in Abruzzo v. City of Park Ridge only a few years ago that the statute impliedly covered transportation of patients. But even if it does apply to transportation of patients, does the immunity extend to injured third parties, as opposed to patients being treated by EMS workers?

Counsel for the defendants began by arguing that the initial question faced by the Court is whether EMS immunity applies; defendants' position is that it does. Justice Freeman asked whether the immunity provision distinguishes between patients and injured third parties. Counsel agreed that it does not. Justice Freeman asked whether the language is ambiguous, and counsel responded that it was not. Justice Thomas asked what the Court should do with the willful and wanton exception to the statute - should the plaintiffs be allowed to replead their complaint? Counsel responded that the facts would not support a willful and wanton allegation. Justice Thomas pointed out that the case had been resolved by summary judgment at the trial court level, and asked whether plaintiffs would have reason to ask for leave to replead. Counsel responded that the court had addressed the nature of the allegations and concluded that summary judgment was justified. Justice Thomas repeated that the trial court dismissed the action on immunity, and wondered again whether the plaintiff could have sought leave to replead a willful and wanton theory. Counsel responded that plaintiff had not done so. Justice Burke asked whether the Court would have to read a limitation into the immunity statute to hold that it doesn't apply; counsel answered that the Court would have to rewrite the statute to find no immunity. Counsel closed by arguing that restricting liability to willful and wanton conduct would not essentially abrogate the Motor Vehicle Code, as plaintiff claimed.

Counsel for the plaintiff began by emphasizing the requirement of the Motor Vehicle Code that all drivers drive with ordinary care. Justice Thomas asked counsel where in the EMS Act the Court should find a distinction between ambulances with and without flashing lights (i.e., on emergency or non-emergency runs). Counsel responded that the distinction was found in the cases rather than the statute. Justice Thomas commented that based on the statute, it's somewhat of an artificial distinction. Counsel responded that the applicable rule is that an ambulance must operate according to the rules of the road when not on an emergency run. Justice Burke asked why the ambulance would be on the road without a patient, and counsel answered that there was a variety of reasons, including commuting or carrying an organ donation. Justice Garman asked what the statute means when it says "in the normal course of their duties." Counsel responded that the duty at issue is the one owned to the patient; the EMS Act applies only to professional liability claims by patients. Justice Garman asked whether, if a patient is injured during transport, the patient has a cause of action. Counsel responded that the patient had no claim against the ambulance driver, but might have a claim against the other driver. Justice Garman asked whether that meant that the immunity wasn't in fact limited to professional negligence. Counsel answered that in certain scenarios, transporting a patient is life-saving, and "services" can include driving. Justice Thomas asked whether a willful and wanton exception was a consistent interpretation of the Act - it didn't leave the roads in chaos, but merely raised the burden of proof. Counsel repeated that the legislature had limited professional liability claims against EMS workers to willful and wanton conduct, but extending that rule to motor vehicle accidents was inconsistent with a variety of statutes, including the Financial Responsibility law requiring privately owned ambulances to carry insurance. Justice Thomas asked where the case rested since plaintiff didn't seek to replead. Counsel responded that there were sufficient facts to go back and replead.

In rebuttal, counsel for the defendant stated that to accept the plaintiff's position, the Court must overrule Abruzzo. No case or statute limits the immunity to professional negligence, counsel argued, and many cases have applied immunity outside the realm of professional negligence.

The Court will likely decide Wilkins in the next three to six months.

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Last week, the Illinois Supreme Court heard oral argument in Mayfield v. Mayfield, which presents several issues regarding the proper handling of lump sum workers' compensation payments for purposes of calculating a party's child support obligation. Given that most of the Justices seemed skeptical of the appellant's position, it seems likely that the Court will not significantly alter current law on these issues. Our detailed preview of the facts and lower court opinions in Mayfield is here. The video and audio of the argument is available here.

The parties in Mayfield were divorced in 2003, and the husband was ordered to pay child support. In the years that followed, as the children’s living arrangements changed, the child support obligation was adjusted multiple times. Finally in 2011, the wife petitioned to modify child support. At the hearing on the wife’s petition, the husband disclosed that he had received a $300,000 lump-sum workers’ compensation settlement the year before. Following In re Marriage of Dodds, which held that workers’ compensation payments are income for purposes of child support, the Circuit Court ordered the husband to pay 20% of the settlement to his ex-wife, and to continue paying child support. The Appellate Court affirmed, holding that such a settlement payment was certainly "income" within the meaning of the Illinois Marriage and Dissolution of Marriage Act, and that the 20% base multiplier should be applied to the entire amount of the workers compensation award.

Counsel for the husband began by arguing that husband didn't contest that the settlement was income, but rather believed that the lower courts had erred in their application of the 20% base multiplier. Counsel argued that it was important to make it clear to lower courts that they had discretion in this area, which should be applied with attention to the factors relevant to making a fair division. Among these factors, counsel argued, were the nature and extent of the parent's injury, and its impact on the injured worker, as well as the relevant economic positions of the parties. Justice Thomas pointed out that far from living on the settlement, the husband had in fact made various other expenditures, including remodeling his house and buying a motorcycle. Counsel responded that while such issues were perhaps relevant, the husband was facing returning to work because he had been unable to establish disability. Justice Garman asked whether the husband had had his child support obligation lowered because of his injury, and counsel agreed he had. Should that be taken into account in the allocation, the Justice asked? Counsel responded that the entirety of the circumstances were relevant. Justice Freeman asked whether the husband's settlement would have been bigger if paid in monthly installments, and if so, should the 20% base multiplier be applied to that figure, rather than the lump sum. Counsel responded that he had suggested that the 20% multiplier should be applied to that monthly amount at trial. Justice Theis clarified that counsel was now agreeing that the settlement amount was income, and merely challenging the allocation, and then asked whether the allocation had been challenged at the trial court. Counsel responded that he had, and that 20% of the monthly sum would be significantly less. Justice Theis asked counsel what he wanted the Court to do: provide a checklist of factors for the exercise of discretion? Counsel suggested again that the nature and extent of the injury, whether the party was likely to work again and the age of the child were all relevant issues. Justice Theis asked counsel what the error in the Appellate Court decision was. Counsel responded that the lower courts had believed they had no discretion to vary from the 20% base multiplier.

Counsel for the former wife began by arguing that neither the statute nor Dodds made the 20% multiplier mandatory. Rather, the court must merely explain why if it chooses to deviate. Counsel argued that the husband had never argued for a deviation below, and that nothing in the trial court's opinion suggested that the judge believed he had no discretion to deviate from the multiplier. Justice Garman asked whether it factored into the issue that the settlement was for the rest of the husband's life. Counsel responded that in fact, it was for the rest of the husband's working life; it had been set up that way to allow him to seek Social Security disability. Justice Garman asked counsel whether the issue of deviating from the multiplier had been raised in the trial court. Counsel responded that the husband had merely admitted that he received the award, and disclosed how much was left, never mentioning deviation.

On rebuttal, counsel for the husband argued that he had sought deviations from the multiplier at least twice. Justice Theis asked whether the matter had been raised at the Appellate Court, and counsel responded yes. Justice Theis asked where in the trial court's order the court had said he lacked discretion, and counsel responded that the court had felt compelled to follow Dodds. Justice Theis pointed out that neither the trial court order nor the Appellate Court opinion had actually said that. Justice Thomas asked counsel whether he wanted a ruling that there must be an exercise of discretion, reviewing all the factors, even when the Appellate Court apparently believed that the trial court had acted properly. Counsel argued that the Court should remand to the trial court with instructions that the trial court should exercise its discretion to find a proper allocation.

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Earlier this week, the Illinois Supreme Court heard oral arguments in Earlywine v. Earlywine. In a fascinating, albeit one-sided argument (there was no appearance for the appellee), the Justices actively debated a wide variety of issues, including the "leveling the playing field" policy in the disgorgement provisions of the Illinois Marriage and Dissolution of Marriage Act ("IDMA"), advance payment attorney retainers, and a host of United States Supreme Court decisions which may (or may not) impact whether or not disgorgement orders are constitutionally permissible under such circumstances. Although I won't hazard a prediction since there was no opportunity to see the Court's reaction to an argument for appellee, the Court was highly engaged in the proceedings, asking (by my count) nineteen questions of counsel in only seventeen minutes. Our detailed preview of the facts and lower court opinions in Earlywine is here. The video and audio of the argument is available here.

Earlywine began when the husband agreed to pay his attorney an advance payment retainer financed by his mother, her fiancé, his father and his father's wife. The wife's attorney petitioned for an award of $5,000 in interim attorney's fees pursuant to 750 ILCS 5/501(c-1), the Illinois Marriage and Dissolution of Marriage Act. The wife's attorney asked the court, if necessary, to order the husband's attorney to disgorge amounts already paid to him. The Circuit Court granted the motion. The husband's attorney moved to reconsider, arguing that as an advance payment retainer, the funds had become his property at the moment of payment. The Circuit Court denied reconsideration. The Appellate Court affirmed the order of disgorgement, holding that counsel's advance payment retainer would frustrate the "leveling the playing field" policy of IDMA.

At oral argument before the Supreme Court, counsel for the appellant characterized the case as a conflict between IDMA and Dowling v. Chicago Options Associates, Inc., in which the Supreme Court recognized advance payment retainers. Justice Burke asked counsel whether the result would be different if the husband had paid the retainer himself. Counsel responded that the Dowling rule that advance payment retainers are not subject to turnover orders would still apply; if a spouse paid fees from marital funds, the opposing spouse might have a claim for dissipation. Justice Burke asked whether the advance payment retainer was for the advantage of the client or the attorney. Counsel responded that it was intended to protect the attorney-client relationship, which is both a personal and property right, for the benefit of the client. Justice Garman asked counsel whether IDMA reflected a policy of parity between the parties. Counsel agreed it was, but argued that there was another policy at issue. Parties had a right of constitutional import to retain counsel to petition government.   Counsel argued that under Arizona Free Enterprise Club v. Bennett, leveling contending parties' playing field is not a legitimate interest under strict scrutiny review.  Justice Thomas returned to Justice Burke's question, pointing out that when a third party pays a retainer which is not subject to disgorgement, that gives one party the ability to retain an attorney when they might otherwise not be able to. Counsel responded that the issues in Arizona Free Enterprise were similar - payments from third parties to a political candidate triggered equalizing payments to his or her opponent.

Justice Thomas asked counsel what would happen when the advance payment retainer was taken from marital funds - under appellant's rule, one side would have an attorney, but the other spouse wouldn't. Counsel responded that under Arizona Free Enterprise, NAACP v. Button, United Mine Workers of America v. Illinois State Bar Association and Arizona v. Davis, the state was not permitted to burden the right to retain counsel for purposes of speech. Justice Thomas again pointed out the statutory purpose of IDMA - creating parity between the parties, and counsel responded that that was the exact conflict at issue in Arizona Free Enterprise. Chief Justice Kilbride pointed out that under Rule 1.15(c) of the Rules of Professional Conduct, an advance payment retainer must have a stated special purpose, whereas the retainer agreement at issue seemed to be intended solely to defeat the leveling the playing field rule. Counsel responded that the agreement was not about defeating the leveling the playing field rule, but rather about obtaining representation, since no counsel would take a case where the fee was certain to be clawed back pursuant to a disgorgement order. Justice Garman asked whether counsel was arguing that an advance payment retainer immune from disgorgement was constitutionally required. Counsel responded that the simple use of an advance payment retainer under Rule 1.15(c) avoided the constitutional problem.

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On Tuesday morning, the Illinois Supreme Court gave little concrete indication of how it will likely rule during oral argument on Crittenden v. Cook County Commission on Human Rights[pdf]. Counsel for the Commission and the plaintiff both appeared and argued, but there was no appearance for the appellees. Our detailed summary of the facts and the Commission and lower court rulings is here. The video of the Supreme Court argument is here.

Crittenden arises out of a sexual harassment claim brought by a former bartender at a Cook County bar. The bartender filed a complaint with the Cook County Commission on Human Rights with respect to her supervisor. The hearing officer recommended an award of lost wages, compensatory and punitive damages, and the Cook County Commission on Human Right adopted the hearing officer’s recommended order. The Circuit Court denied the defendants’ petition for a writ of certiorari to review the administrative decision, effectively affirming the decision. The Appellate Court (First District, Sixth Division) affirmed with respect to a variety of evidentiary challenges, but reversed the Commission’s award of punitive damages, holding that the Cook County Human Rights Ordinance didn’t authorize such an award. The Court declined to follow an earlier decision of Division One of the First District, Page v. City of Chicago, where the Court had held that the Chicago Human Rights Ordinance does permit an award of punitive damages for acts of sexual harassment and discrimination.

Counsel for the Commission began the arguments. Counsel observed that the Appellate Court’s holding was a surprise for two reasons: the earlier decision in Page, and because the facts in the record warranted punitive damages. Counsel argued that three reasons supported a finding that the ordinance authorized punitive damages: (1) the list of enforcement remedies in the ordinance is expressly made non-exclusive; (2) the language of the ordinance is otherwise very broad; and (3) the ordinance gives the Commission the authority to file with the Department of Professional Regulation whenever a licensed real estate broker violates the ordinance, suggesting an intent to facilitate punitive measures. Justice Freeman asked whether the issue was could the ordinance permissibly authorize the Commission to award punitive damages; or was the issue whether the ordinance did in fact authorize an award? Counsel responded that the question was whether the ordinance did authorize an award, and that the power to authorize such an award was clear, given the home rule statutes. Justice Thomas asked whether the ordinance could simply be changed if the Supreme Court found that it did not, as currently written, authorize punitive damages; counsel agreed that it could, but argued that it was important to vindicate the Commission’s implied powers. Counsel also pointed out that the ordinance had not been changed following Page, suggesting an intent to acquiesce in the result. Justice Karmeier noted that the ordinance speaks of fines and asked counsel why it would not have expressly authorized punitive damages. Counsel argued that the list was not exclusive. Justice Theis asked whether the language in the ordinance authorizing the hearing officer to recommend such relief “as is appropriate to make the complainant whole” didn’t suggest that only compensatory damages were permitted. Counsel argued that in fact it was a grant of discretion to the Commission. Justice Garman asked whether the fact that punitive damages are not favored in the law should make the Court reluctant to read implied authority to award them. Counsel responded that the Court had previously found some torts were sufficiently serious to warrant such awards. Justice Freeman asked whether, if the ordinance authorized an award, the case should be remanded for a determination of whether the defendants’ conduct was willful and wanton. Counsel conceded that although the hearing officer had not used those precise words, the officer had found a wanton disregard for the complainant’s rights, which was sufficient.

Counsel for the complainant briefly concluded the argument. He argued that the facts at issue – which included both verbal degradation and physical accosting – met several of the prerequisites for punitive damages. Justice Theis asked whether punitive damages were requested from the hearing officer, and counsel stated that they were. Justice Freeman asked whether the conduct of the employer and the bar patron allegedly involved in the conduct should be separated for determining whether the conduct was willful and wanton, and counsel responded that the challenged conduct of the two individuals could not be disentangled on the record.  Counsel concluded by stressing that despite the alleged outrageousness of the defendants’ conduct, the punitive damages award was modest.

We expect the Court to decide Crittenden within four months.

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In J. McIntyre Machinery, Ltd. v. Nicastro, a plurality of the United States Supreme Court held that merely placing a product into the stream of commerce with the expectation that it would wind up in the forum state was not enough to justify the exercise of personal jurisdiction over the manufacturer. Russell v. SNFA is the Illinois Supreme Court's first opportunity to apply Nicastro. Our preview of Russell is here. Watch the video of the oral argument here.

Russell arose from a 2003 helicopter crash in Illinois. The decedent's estate sued, alleging that one of the helicopter's tail rotor drive-shaft bearings had failed, fracturing the drive shaft, making the tail rotor inoperable, and leading to the crash.

The helicopter was built in Italy by Agusta, an Italian company that wasn't related to SNFA. It passed to a German company, then to Metro Aviation, a Louisiana-based company, and finally to Air Angels, the decedent's employer, which was based in Cook County. The Louisiana company had replaced several of the bearings with replacements manufactured by SNFA. The replacements were custom-made in France, sold to Agusta in Italy, sold again to Agusta Aerospace Corporation in America, and then to Metro Aviation in Louisiana. SNFA had three American customers for its aerospace bearings, but none for its helicopter bearings.

Confused yet? Well, that's the point. The trial court tossed the case for lack of jurisdiction on the grounds that SNFA's only contact with Illinois had been a single visit to an entirely different customer. The Appellate Court reversed, relying on Asahi Metal Industry Co. v. Superior Court; the defendant knew that Agusta sold its helicopter throughout the United States, and that it had an American subsidiary - since SNFA's ball bearings were custom-made, Agusta's distributors essentially were SNFA's American distribution arm.

The Supreme Court initially bounced the case back to the Appellate Court, directing the court to reconsider its decision in light of Nicastro. A few days before Christmas 2011, the Appellate Court reaffirmed its decision, holding that Nicastro made the panel even more certain that it was right.

The Appellate Court found jurisdiction under both subsection (a) -- "the commission of a tortious act within this State" and subsection (c) -- a catchall provision -- of 735 ILCS 5/2-209, the long arm statute. SNFA knew that Agusta helicopters were sold throughout the US, the Court noted. Essentially imputing Agusta's conduct to SNFA, the Court held that Agusta's five helicopters sold in Illinois during the relevant period were enough to subject SNFA to minimum contacts:

By custom-making parts for a helicopter manufacturer, defendant made itself dependent on the marketing and distribution network of the manufacturer.

Counsel for the defendant opened his argument by emphasizing his client's complete lack of a corporate, virtual or physical presence in Illinois. SNFA has no, and never has had any, U.S. customers for its helicopter bearings, counsel argued. Justice Theis pointed out that Nicastro was a plurality decision, with a four-Justice decision announcing the judgment. She asked counsel where Federal law stood in the wake of Justice Breyer's concurrence. Counsel responded that the majority of the Court had certainly rejected the New Jersey Supreme Court's standard that placing products into the stream of commerce subjected the manufacturer to jurisdiction everywhere the product might go. Instead, a majority of the Court had held that "something more" was necessary - a state-specific design or advertising, etc. Justice Burke asked whether there was some suggestion in the record of Illinois contacts between SNFA and Hamilton Sunstrand. Counsel pointed out that Hamilton Sunstrand involved sales in San Diego of aerospace bearings, not helicopter bearings. Counsel detailed the distinction for the Court between general and specific jurisdiction. Justice Freeman asked why the Court shouldn't follow Rockwell International Corp. v. Costruzioni Aeronautiche Giovanni Agusta, S.p.A., the case heavily relied upon by the lower court and cited with approval by the Supreme Court in Asahi. Counsel responded that Rockwell was not on point; it was a thirty year old decision which time has passed by. In fact, when Rockwell was decided, even Asahi was five years in the future. Justice Freeman followed up, asking whether the facts of international commerce had changed to a degree that the law should change. Counsel responded that the law had already changed in ways not supportive of a finding of personal jurisdiction.  The law had changed not only to reflect differences in international commerce, but also to reflect a requirement of some knowledge of a particular jurisdiction. The constant lodestar of the law in this area, counsel argued, was the requirement of purposeful availment. Ultimately, Rockwell didn't govern because both Asahi and Nicastro required knowledge of the specific jurisdiction.

Counsel for the plaintiff began his argument by arguing that Nicastro lacked a majority for either its judgment or reasoning, and thus, the law still stood at World Wide Volkswagen. Justice Garman asked what the defendant had done to satisfy the "something more" of Justice Breyer's concurrence in Nicastro. Counsel responded that he was not persuaded that Justice Breyer objected to the stream of commerce theory found in World Wide Volkswagen. Justice Breyer was troubled by the Nicastro facts - one product, simply one machine, being the basis of jurisdiction in New Jersey. Justice Freeman asked what the so-called "substantial" connection between SNFA and Illinois was. Counsel responded that many of defendant's facts were inconsistent with the record; for example Hamilton Sunstrand was not in fact a California corporation. SNFA had signed two purchase agreements with Hamilton Sunstrand in Rockford, Illinois, and two contracts which specifically said that Illinois law applied. Justice Garman asked whether the products sold by SNFA to Illinois entities were the same ones that failed here. Counsel responded that the distinction was irrelevant -- SNFA sold ball bearings all over the United States and in Illinois. SNFA is a worldwide operation, counsel insisted, which has heavily penetrated the market in the United States, and worked hard in Illinois to cultivate their contacts. Counsel once again suggested that Nicastro really hadn't produced much of a rule at all. Chief Justice Kilbride asked how many entities made what counsel had described as "high end ball bearings," and counsel answered that SNFA had fewer than ten competitors worldwide.

In rebuttal, counsel for the defendant suggested that plaintiff had melded general and special jurisdiction in a way that the Supreme Court's Goodyear decision specifically barred. In fact, the concepts are distinct. Counsel read several passages to the Court from Justice Breyer's concurrence in Nicastro, arguing that Justice Breyer required an interrelationship between contacts and cause which was absent on this record. Ultimately, Justice Breyer couldn't reconcile the rule of the New Jersey Supreme Court with the standard of minimum contacts and purposeful availment. Counsel pointed out that the plaintiff's argument that SNFA knew that its product was being sold throughout the United States necessarily required imputing the Agusta distribution network to SNFA. Neither a national distribution network nor "permeating the U.S. market" was enough to justify jurisdiction. From there, counsel moved to analyzing Justice Ginsburg's dissent in Nicastro; arguing that in fact, the Nicastro Court might well have been unanimous in finding no jurisdiction in SNFA -- at minimum, that Court would have had six votes for "no jurisdiction."

SNFA should be decided in the next three to five months.

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If a state elected official is sued for his or her official actions, may the Attorney General refuse to defend the official based solely on the allegations of the complaint? That's the question the Supreme Court debated earlier this month during the oral argument in McFatridge v. Madigan. Our detailed preview of McFatridge, discussing the facts and lower court rulings in detail, is here.  Watch the video of the oral argument here.

The plaintiff was the elected State's Attorney of Edgar County. Years after he successfully prosecuted two defendants for murder, the Federal district court granted both defendants' habeas petitions. The defendants sued a number of different government officials, including police officers and the defendant, alleging that they had hidden exculpatory evidence.

Plaintiff asked the Attorney General for representation repeatedly, but the Attorney General refused plaintiff's requests in 2005, 2009 and again in 2010. The plaintiff filed a petition for writ of mandamus, but the petition was denied.

McFatridge is governed by the State Employee Indemnification Act. The parties argue about how to reconcile three different provisions. According to 5 ILCS 350/2(a), if "any civil proceeding is commenced against any State employee" arising out of any act or omission within the scope of the defendant's employment, the Attorney General "shall" defend the action. The first paragraph of 5 ILCS 350/2(b) provides that the Attorney General may decline to defend the action where it "involves an actual or potential conflict of interest" or the act or omission at issue was either not within the scope of the defendant's employment, or "was intentional, willful or wanton misconduct." According to the second subparagraph of subsection (b), the state "shall pay" elected officials' court costs, litigation expenses and attorneys' fees, to the extent approved by the Attorney General as reasonable.

The Appellate Court reversed the Circuit Court, holding that the "shall pay" language of the second paragraph of subsection 2(b) denied the Attorney General any discretion about whether or not to pay any elected official's legal fees.

Justice Freeman asked counsel for the Attorney General whether the arguments raised in his briefs were different from those raised in his petition for leave to appeal - weren't such arguments forfeited? Counsel responded that the State's arguments had been the same from start to finish; the issue of the Attorney General's discretion to make the decision as to whether or not to cover the official's expenses ran throughout the case. Counsel argued that the plain language of the statute should end the inquiry. Counsel stated that his anecdotal understanding was that the Attorney General had seldom denied funding for a defense before. He argued that the plaintiff's reading of the Indemnification Act would necessarily eliminate the bar to paying for conduct outside the scope of employment, surely taking the statute outside the credible scope of the legislature's intent. Justice Freeman asked whether Tully v. Edgar controlled, but counsel for the Attorney General suggested that nothing about Tully was applicable to the case at hand. Counsel argued that the Attorney General was arguing for a facial construction of the statute which avoided reading the Act in a way which ran afoul of constitutional prohibitions on spending state money on private interests. Justice Garman asked whether the various subsections' use of the phrase "in the event that" suggested that the subsections were meant to be alternatives. Counsel responded that it did not; nothing in the successive subsections suggested that what went before was being overridden. Justice Garman asked whether the Attorney General treated allegations alone as being sufficient to forbid taking over a defense; counsel responded that the statutory term was that the Attorney General should "determine" the issue, meaning that the Attorney General had unfettered discretion.

Counsel for the plaintiff began by arguing that the Attorney General's claims of a statutory screening process were an after-the-fact cobbled-together justification. Every civil rights claim alleges constitutional violations, counsel pointed out, and the Attorney General had nevertheless denied a defense based on mere allegations. Justice Thomas asked whether any deficiency in the screening process was excused by the promise of post-trial reimbursement; counsel responded that given the financial strain to state officials of having to finance a multi-year defense themselves, after-the-fact reimbursement in no way cured the problem. Justice Karmeier asked whether it was within the purview of the Court to decide whether the Attorney General's screening was adequate on the facts. Counsel responded that the Court could consider the lack of criterion for any such screening in the statute; if screening had actually been intended by the legislature, the process would have been set out in detail.

Counsel challenged the State's claim that the Attorney General couldn't use public funds to defend willful and wanton misconduct, pointing out that the Attorney General had defended police officers who were accused of actively covering up exculpatory information. The Attorney General later settled the case on behalf of the police, using more public funds. Justice Thomas asked whether counsel was saying that the State was estopped from denying a defense. Counsel answered that the matter should be resolved based on the plain language of the statute, but in the alternative, estoppel applied. Justice Theis asked what effect the language of subsection (b), allowing the Attorney General to approve counsel and fees, had; counsel responded that the State's failure to fund a defense had been a serious problem for the plaintiff. The plaintiff had been entirely without financing for more than two years. Chief Justice Kilbride asked what the basis had been for insurers to negate coverage in declaratory judgment actions, and counsel responded that it had been the definition of the insured, rather than a strict coverage decision. Justice Karmeier suggested that subparagraph (b) of the statute appeared to cross-reference subparagraph (a), but counsel argued that the statute treated elected officials differently as a result of concerns about the effect of partisan politics, authorizing refusal to defend for non-elected, but not elected officials. Counsel argued that if the legislature had intended that the Attorney General be able to refuse coverage based on mere allegations, it could have easily said so in the second paragraph of subsection 2(b) - the only language which expressly and exclusively dealt with elected officials.

In rebuttal, counsel for the state argued that the allegations against the plaintiff were in several respects more serious than those against the police officers. Counsel argued that the speculation that a concern over partisan politics animated the statute was contrary to the Court's settled precedent, which provided that courts could not presume the bad faith of elected officials. And if the statute was constructed to insulate the decision about whether to take over an elected official's defense from partisan politics, why was the Attorney General expressly authorized to approve the official's attorney and fees?

McFatridge should be decided within three to six months.

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The mailbox rule applies to filing an appeal from an arbitrator to the Workers Compensation Commission. Norris v. Industrial Commission. And it applies to filing an appeal from the Circuit Court's order on administrative review to the Appellate Court. Harrisburg-Raleigh Airport Authority v. Dept. of Revenue. So does it apply to the intermediate step - initiating an administrative review proceeding of the Commission's decision at the Circuit Court? Based on the oral argument last week before the Illinois Supreme Court in Gruszeczka v. The Illinois Workers' Compensation Commission, it appears that the Court will likely extend the mailbox rule to cover this intermediate step. Our preview of Gruszeczka is here. Watch the video of the oral argument here.

The claimant in Gruszeczka filed an application for adjustment of claim with the Commission, seeking workers' comp benefits in connection with an injury he allegedly sustained on the job in 2004. The arbitrator denied the claim, and the Commission affirmed.

Judicial review of a Commission decision is begun in Illinois by filing a request for issuance of summons and an attorney's affidavit of payment for the record with the Circuit Court clerk. The proceeding must be "commenced" within 20 days of receipt of notice of the decision. 820 ILCS 305/19(f)(1). The claimant's request and affidavit were mailed fourteen days after counsel received the decision, but file stamped by the clerk twenty-four days after receipt. So the filing was timely if the mailbox rule applied, and not if it didn't. The Circuit Court denied a motion to dismiss, but affirmed the Commission on the merits; the Workers' Compensation Commission Division of the Appellate Court reversed in part, finding that the filing was untimely and the Circuit Court therefore lacked jurisdiction.

Counsel for the claimant began by pointing out that the statute neither defines "commenced" nor says that documents have to be in the hands of the clerk on the twentieth day. Counsel argued that the courts had already applied the mailbox rule to the first step in the process - the appeal from arbitrator to Commission - and the last - from Circuit Court to Appellate Court, and it made no sense for the intermediate step to be handled differently. Justice Thomas noted that the Circuit Court action was technically a new case, but asked whether counsel argued it was akin to an appeal. Counsel responded that he didn't think it was a new case; the statute calls it a petition for review, and the standard of review is manifest weight of the evidence. Justice Thomas pointed out that the Circuit Court proceeding had a separate case number, and asked once again whether counsel's argument hinged on that not being a new action. Counsel responded that the new number was inconsequential: the case had already had five numbers in its progress to the Supreme Court. Counsel then argued that a reversal would be a matter of limited impact, not opening the floodgates to further loosening of filing standards, but Justice Karmeier wondered whether a reversal might necessarily impact other administrative review actions. Counsel conceded that it might. When Justice Karmeier asked whether the result might be different if review were initiated by a "complaint," rather than a request for issuance of summons. Counsel answered that the proceeding was an appeal regardless of what the pleading was called. Counsel insisted that having a "doughnut hole" with no mailbox rule in the middle of the progression from arbitrator to Appellate Court was irrational. Justice Karmeier asked counsel whether it was important how the Court characterized the Circuit Court decision in its opinion; counsel responded that calling the proceeding a "new action" was semantics. Justice Burke asked whether the Court should overrule Norris if it affirmed; counsel responded that an affirmance would necessarily call the previous cases into question. Only by reversing and applying the same rule to every step does everything make sense. Counsel concluded by arguing that both sides would benefit by applying the mailbox rule and giving counsel the full twenty days to prepare an appeal, given the number of steps which must be taken in a short time to initiate Circuit Court review.

Chief Justice Kilbride asked counsel for the employer to comment on opposing counsel's argument that reversal might benefit employers in future cases. Counsel agreed that a decision one way or the other would benefit both sides, but counsel said it was clear to him that the initiating documents must be in the Circuit clerk's hands in 20 days. Justice Garman asked why the legislature would be so strict in this limited instance when the mailbox rule applies in other instances. Counsel answered that there was nothing in the legislative history one way or the other, and speculated that perhaps the legislature wanted to discourage review filings at the Circuit Court. Justice Burke asked counsel whether the Circuit Court proceeding wasn't in substance an appeal from the Commission. Counsel responded that although in common parlance it might be so characterized, it was not technically an appeal. Counsel argued that an affirmance would not have to call earlier caselaw into question, and insisted that refusing to apply the mailbox rule gave parties certainty: that way, counsel could check with the clerk on the twenty-first day and know whether the case was over. Justice Thomas pointed out that the same argument could be made against application of the mailbox rule in every case. Counsel agreed that was so, but repeated his claim that refusing to apply the mailbox rule was simple and had the virtue of certainty.

In rebuttal, counsel for the employee asked again why the legislature would want to make the intermediate step in the process the hardest of all. Only one possible resolution, counsel insisted, would make sense and give workers' compensation practice predictability: reversal of the Appellate Court's decision and application of the mailbox rule to initiating the administrative review proceeding.

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Our reports on the civil oral arguments of the Illinois Supreme Court's November term conclude with Poris v. Lake Holiday Property Owners Association.  Our pre-argument preview of Poris is here.  You can watch the oral argument here.

The plaintiff owns property in the Lake Holiday Development, and is a member of the defendant Association. The defendant Board of Directors has adopted various rules and regulations for the governance of its property, including speed limits. The Board has hired private security officers to enforce the speed limits, bought vehicles and equipped the vehicles with oscillating and flashing lights, radar units and audio and video recording equipment. The Board's security officers were empowered to issue citations to homeowners for violations of the rules.

The plaintiff was stopped by a security officer for speeding on Association property. He sued the Association, every member of its Board, the chief of security and the officer who stopped him, seeking a declaration that the practices of the Association's security department -- including its recording of officers' stops and its use of radar guns -- were illegal. The plaintiff also pled claims for false imprisonment, willful and wanton conduct, breach of fiduciary duty, nuisance and an accounting. The Circuit Court granted summary judgment on all counts; but the Appellate Court reversed in part, reinstating the plaintiff's challenges to the security officers' stop-and-detain and to the security department's use of oscillating lights on its vehicles, as well as plaintiff's false imprisonment claim.

Before the Supreme Court, counsel for the homeowners' association argued that the subject roads were private, and the fundamental issue at bar was one of self-governance of a private association. Justice Thomas asked whether LaSalle County police officers patrolled the private roads. Counsel responded that they did, but the enabling ordinance didn't prohibit the Lake Holiday security officers from doing so too. In response to a follow-up question from Justice Thomas, counsel explained that LaSalle officers could issue speeding citations in the development, but this was unusual, since the officers were aware of the development's security.  Justice Thomas asked whether Lake Holiday Security could issue citations to non-members, and counsel responded that if the non-members were guests of members, the member would be responsible for the citation. Justice Thomas asked whether the general public used the development's private roads, and counsel responded that very few members of the public did. Justice Garman asked whether the Association's power to enact rules was unlimited. Counsel responded that the Association could not enact rules that were violative of due process, fraudulent or arbitrary. Justice Burke asked whether Lake Holiday Security could conduct field sobriety tests and issue citations for driving while intoxicated. Counsel said no, since driving under the influence is a violation of the state code, not the Lake Holiday rules. Justice Thomas asked whether the homeowners' association security was analogous to private university police or mall security. Counsel answered that it was; in the wake of the Appellate Court's decision, private organizations around the state didn't know what they could and could not do to enforce their rules. Justice Freeman asked whether DUIs or accidents involving fatalities on Lake Holiday property were reported to the Secretary of State so that licenses could be suspended or revoked. Counsel answered that the LaSalle County sheriff would police such situations. In response to a question from Justice Theis, counsel confirmed that Association citations didn't affect driving privileges; they were issued to enforce members' private contract rights. Justice Freeman asked whether there were any consequences for members who sped repeatedly on the property, given that citations were not reported to the Secretary of State. Counsel responded that Lake Holiday Security could speak to the LaSalle County Sheriff.

Plaintiff responded that in fact, drivers from outside the development regularly passed through the "private" streets. Justice Thomas asked plaintiff how plaintiff was detained, and he responded that he had been pulled over, and his license taken. Justice Theis asked whether plaintiff had a right to be heard on the citation. Plaintiff responded that the Citation Committee had sent him to the Board of Directors - the entity which heard his appeal, which he was suing. Justice Garman asked plaintiff whether the security officer had pulled a gun on him during the stop; plaintiff responded that he had been ordered back into his vehicle and had decided to remain there, defusing the situation. Justice Thomas asked plaintiff whether he was cross-appealing the dismissal of his claims for unlawful use of radar and recording equipment. Plaintiff responded that the claims were illustrative of the Security Department's attempts to act like a police department. Justice Thomas asked plaintiff whether the citation amounted to little more than a warning, since it didn't go to the Secretary of State - don't residents want some sort of constraint on people driving through the area at high speed? Plaintiff responded that the Board had a variety of options, including the LaSalle County Sheriff, speed bumps and speed cameras.

On rebuttal, Justice Thomas asked counsel for the homeowners' association what happened when an officer stopped someone who was neither a resident nor a guest of a resident. Counsel responded that officers warned the driver that he was in violation of Association rules and trespassing. When counsel  analogized the plaintiff's false imprisonment claim to alleging false imprisonment where a development requested drivers' licenses at the access gate, Justice Freeman responded that drivers had a choice of whether to enter under such circumstances -- plaintiff had no such choice. Counsel argued that the plaintiff had agreed to the rules of the association. Justice Freeman pointed out that the relevant rules had been adopted after the plaintiff acquired his property, but counsel for the homeowners' association argued that the plaintiff could have fought the rule, run for the association board, or left. Justice Burke asked whether the association's officers were licensed to carry weapons. Counsel responded that officers could carry weapons for which they had certification, but were specifically barred from carrying guns.

We expect a decision in Poris in two to four months.

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Our reports on the civil oral arguments of the Illinois Supreme Court's November term continue with Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund. Our pre-argument preview of Skokie Castings is here. Watch the oral argument here.

Skokie Castings begins with a worker's on-the-job injury. The worker's employer was self-insured with respect to workers' compensation insurance, but held an excess policy. The employer paid the retention on the worker's award, at which point the excess insurer started paying.

But then the excess insurer went into receivership. The Illinois Insurance Guaranty Fund took over when the excess insurer stopped, paying until its total outlays reached $300,000. At that point, the Fund stopped paying, arguing that its payments on the file were subject to the $300K payment ceiling under 215 ILCS 5/537.2. The plaintiff, the successor-in-interest to the worker's employer, sued the Fund, seeking a declaratory judgment that the Fund was not entitled to stop paying, and owed the employer for all obligations over $300,000.

Based on the Supreme Court's questions, it seems fairly likely that the Court will affirm the Appellate Court's holding that the Fund is liable without limit. Counsel for the Fund began by arguing that the case turned on what were "workers compensation claims" under the Insurance Guaranty Fund Act. Certainly the injured employee's claim was a workers' comp claim; but the case turned on what the employer's claim for reimbursement was. Justice Thomas asked whether counsel's position was that the New Mexico Supreme Court erred in In re Delinquency Proceedings Against Mission Insurance Co., the case principally relied upon by the Appellate Court -- or was Mission Insurance distinguishable? Counsel responded that the case was distinguishable. In Mission Insurance, the issue was whether reinsurance was covered at all, a point not in controversy in Skokie Castings. Chief Justice Kilbride asked whether the worker's employer or the worker herself received the Fund's payments. Counsel answered that the record was silent on the matter, but the Fund's understanding was that its payments had ultimately gone to the worker. Justice Burke asked why it was fair to impose the remaining liability on a self-insuring employer; counsel responded that the Self-Insurers Advisory Board took over liability once a self-insuring employer was no longer able to respond. Justice Burke asked whether the Board responded only for self-insurers without an excess policy, but counsel answered that he believed that a bankrupt excess insurer would trigger the Board's liability. Justice Thomas asked whether the fact that the Fund had stopped paying, and the employer had then paid the employee for a time, suggested that the underlying claim was for workers comp. Counsel responded that the employer was certainly paying a workers comp claim, but reimbursement by the Fund to the employer was not such a claim. Justice Karmeier asked whether, if the employer had neither primary nor excess insurance, it could have a claim for reimbursement against the Fund, and counsel responded that under such circumstances, the employer's sole remedy was the Self-Insurers Advisory Board. Chief Justice Kilbride asked why the employer's claim wasn't a "covered claim" under the statute. Counsel responded that the issue wasn't whether it was a "covered claim" -- it was. The question was whether or not it was a workers comp claim within the meaning of the statute.

The plaintiff employer opened by arguing that the mechanism of payment - direct payment to the employee or reimbursement - wasn't relevant since the legislature hadn't made it relevant. Justice Theis asked counsel to respond to the Fund's claim that the employer's only remedy was the Self-Insured Advisory Board. Counsel responded that the Board was a merely theoretical possibility if the employer had gone bankrupt - which it hadn't here. Justice Burke wondered whether reversing might encourage Illinois employers not to carry excess insurance, if making that choice could subject the employer to unlimited liability. Counsel responded that excess insurance was still probably the best risk management tool available to an employer. Justice Thomas asked whether the employer's declaratory judgment action, seeking a declaration that the Fund was liable for the employee's claim, was analogous to an insurer's dec action challenging its duty to pay for a tort claim -- surely no one would ever call that a personal injury claim? Counsel responded that there was no coverage issue here, as in a personal injury dec action. Justice Thomas pressed his question: wasn't a personal injury dec action about who was going to pay, just like this case? Counsel responded that the Fund shouldn't benefit by cutting off owed benefits. Justice Karmeier asked whether, rather than being self-insured, an employer could buy primary insurance with a high deductible? Counsel responded that there was likely no distinction in effect between primary insurance with a high deductible and an excess policy.

On rebuttal, Justice Thomas asked counsel for the Fund whether the plaintiff had a public policy argument -- equal to the Fund's argument that it was a source of funds of last resort -- that workers comp awards should be paid without limit? Counsel agreed that this was public policy, but argued that the issue was who should bear the financial burden of the award. Following up on earlier questions, counsel argued that the employer could have bought a primary policy, but premiums would have been higher, and it chose not to take that option. Justice Burke pointed out that the argument necessarily meant that if the excess insurer hadn't gone bankrupt, the employer would be paying forever, despite opting for the lower-cost policy. Counsel repeated that if the employer had paid for a primary policy, the case wouldn't be before the Court. Justice Karmeier asked what the difference was for the Fund's purposes between a primary insurer with a high deductible and an excess carrier; counsel responded that since insurers pay in proportion to premiums, both categories pay into the Fund, but primary carriers pay more.

Skokie Castings should be decided in the next two to four months.

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Our reports on the civil oral arguments of the Illinois Supreme Court's November term continue with Bjork v. O'Meara. Our pre-argument preview of Bjork is here. Watch the oral argument here.

Before his death, decedent begins taking steps to transfer a bank account to the plaintiff. He dies before the process is completed. The plaintiff intervenes in the will contest, but discovery shows that the bank account was never transferred, and the plaintiff loses her challenge. Later the plaintiff files a suit against the executor for tortious interference with testamentary capacity. Is the suit barred by the six-month statute of limitations on will contests?

That's the question in Bjork. Before the Circuit Court, the plaintiff insisted that she was stating a tort claim against the executor, not challenging the will. The Circuit Court dismissed anyway. The Appellate Court affirmed, holding that although the plaintiff couldn't have received complete relief in a will contest, she could have filed her claim in Probate Court in conjunction with the will proceeding.

Based upon the oral argument, the Supreme Court may reverse. The plaintiff began by making it clear that before the decedent's death, he had begun the process of transferring the bank account. Justice Garman asked whether the plaintiff had tried to prove interference with testamentary capacity in the Probate Court, or just that the account was not in the estate. Counsel responded that at the time of filing her petition to return property, plaintiff had believed that the transfer of the bank account was complete, only discovering otherwise in discovery. Justice Freeman asked whether plaintiff's allegations of fraud or undue influence would invalidate the will. Counsel responded that such allegations could invalidate the will in other cases, but the plaintiff's claim had nothing to do with the will. Justice Burke asked whether plaintiff had standing in the Probate Court after her petition was denied, and counsel responded that she did not, listing a variety of distinctions between a will contest and a suit at law for tortious interference. Justice Theis confirmed that the Probate Court had granted the executor's motion to dismiss the plaintiff, and asked whether at that point, there was nowhere for plaintiff to go but appeal. Counsel agreed that his client's only remaining choices at that point were appeal or filing the separate lawsuit. Justice Burke asked whether the plaintiff was merely seeking a personal judgment against the executor, and counsel confirmed this: plaintiff was seeking nothing from the estate. Counsel argued that affirmance of the Appellate Court's opinion would essentially allow a fiduciary to wash fraud through the Probate Act.

Counsel for the defendant faced a hotter bench than had the plaintiff. Justice Burke asked how a will contest could have worked for the plaintiff, since she had no standing. Counsel responded that plaintiff did, in fact, had standing as an interested party under the will -- plaintiff's petition for return of property from the estate was clearly an attack on the will. Justice Thomas pointed to the conflict we discussed in our pre-argument preview between Robinson v. First State Bank of Monticello and In re Estate of Ellis, asking counsel about the Ellis court's comment that Robinson was limited to situations where the plaintiff had deliberately chosen not to prosecute an available challenge in Probate Court. Counsel argued that the plaintiff had, in fact, appeared in Probate Court, so the Ellis situation didn't apply. Justice Thomas followed up, asking whether the plaintiff had had the opportunity to contest the will but had chosen not to do so.  Counsel responded that the defendant believed that the Probate Court's holding that the plaintiff lacked standing to proceed was wrong. Justice Theis asked what relief plaintiff could have gotten in Probate Court. Counsel responded that plaintiff could have filed her tortious interference claim in that Court. Justice Burke pointed out that a tortious interference claim was brought against an individual, not the estate, and wondered why such a claim didn't fall outside the Probate Act. Counsel responded that the claim was still within the jurisdiction of the Probate Court. Justice Theis sought to clarify the series of events at the Probate Court -- when did the Probate Court find that it lacked jurisdiction? Counsel responded that the court had so held on the plaintiff's motion for reconsideration after her petition was denied. Chief Justice Kilbride asked counsel whether a claim for tortious interference was directed against the estate. Counsel responded that once the Probate Court acquired jurisdiction, it had jurisdiction over all related claims, whether they were, strictly speaking, directly against the estate or not. Justice Thomas asked counsel whether he could cite authority for the proposition that plaintiff had to pursue an appeal after being dismissed at the Probate Court, and counsel cited Robinson and Ellis. Justice Garman asked whether the plaintiff could have filed a complaint in the Law Department while probate was still pending. Counsel responded that no, plaintiff was required to pursue the action in Probate Court, including through an appeal.

When the plaintiff returned to the lectern for rebuttal, the Chief Justice asked counsel what he had filed in probate. Counsel responded that he had filed a petition to return property, and later a citation to discover information. When discovery showed that the transfer of the bank account had not been completed, counsel tried to depose a bank employee; but the Probate Court had denied permission, and the tort claim followed.

Bjork should be decided in the next three to six months.

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Our reports on the November term oral arguments at the Illinois Supreme Court begin with Griggsville Perry Community Unit School District No. 4 v. Illinois Educational Labor Relations Board. Our preview of Griggsville is here.

Griggsville-Perry arose from the firing of a noncertified paraprofessional who worked in an elementary school library. After a number of complaints about her performance, the superintendant of the school district notified the employee that she would be fired at an upcoming meeting. The employee and her union representative appeared before the board and the employee testified, but the board fired her. The union filed a grievance, and the arbitrator ordered the employee reinstated, finding that she was entitled to a statement of the specific acts and omissions that the board alleged justified her discharge. The Appellate Court reversed, noting that the collective bargaining agreement said nothing about limiting discharge to just, good or proper cause. The Court found that the arbitrator's decision was without support in either past practice of the parties or the interpretation of similar contract language in other cases.

Judging from the active questioning of both sides, the Justices of Supreme Court seem conflicted about Griggsville. Counsel for the Educational Labor Relations Board began by emphasizing the deferential standard of review - the Board reviews the decision of the arbitrator, and the Court then reviews the Board's decision for clear error. Justice Burke asked counsel whether the parties' agreement to arbitrate necessarily implies dismissal only for just cause. Counsel responded that the agreement implies a lesser standard of arbitrary and capricious. Justice Theis asked counsel how the court should define just cause, arbitrary and capricious, and exactly what the difference was. Counsel responded that "just cause" requires a "fit" between the alleged act and the penalty of dismissal. An "arbitrary and capricious" standard, on the other hand, required mere reasoned support for the penalty, rather than a close fit. Justice Theis followed up, asking whether there was a standard in between the two. Counsel responded that the intermediate standard was progressive discipline.

Counsel for the Board argued that the Board's decision could not be reversed based on a finding that the arbitrator had misinterpreted the collective bargaining agreement; if the decision was derived from the essence of the contract, the decision had to be affirmed. Justice Garman asked whether the "essence of the contract" included elements merely implied in the contract, and counsel responded that there was a "common law of the shop" which the parties knew would be used to fill in gaps in the contract. Justice Theis asked counsel to point out where the arbitrary and capricious standard was to be found in the agreement. Counsel argued that the standard was inherent in the contractual grievance procedure. Justice Theis pressed counsel, challenging the basis for his claim; counsel responded that industrial common law supported his view, but pointed out that whether or not the arbitrator correctly interpreted industrial common law was not a matter subject to judicial review. Justice Garman asked counsel whether it made a difference that the Board and the Union could not reach an agreement on a just cause standard. Counsel responded that the arbitrator could not apply at will or "just cause," because the parties couldn't reach agreement on either standard. Therefore, the applicable standard must be arbitrary and capricious. Justice Theis commented that the arbitrator had looked at both at will and just cause, and settled somewhere in the middle -- but it wasn't entirely clear what "the middle" standard meant. Counsel argued that arbitrary and capricious was not an intermediate standard, but was in fact a low bar.

Counsel for the school board attempted to refocus the discussion, arguing that the case was not about contract interpretation. Justice Thomas suggested that there was "nothing earth-shattering" about the arbitrator's award, but counsel disagreed. The arbitrator's award was contrary to what the parties had negotiated, counsel insisted; requiring a reasoned evidentiary hearing whenever employees are given a mere opportunity to be heard would represent a significant change in the law, particularly since it wasn't clear what the arbitrator's view of just cause would be in any particular case. Counsel reviewed the parties' contract negotiations in detail: first, the union had proposed progressive discipline. The board had responded with a proposal for "manifest weight of the evidence," with a right to notice and hearing. Ultimately, the parties had agreed to waive their competing proposals: leaving matters at "employment at will." Counsel argued that the union had squarely rejected an "arbitrary and capricious" standard, barring the arbitrator from imposing one. Justice Thomas asked counsel what was wrong with the Board's view that the arbitrator had merely found that the contract contained an implicit requirement that notice and hearing be meaningful. Counsel responded that the arbitrator's decision was merely just cause by another name, giving the union what it had rejected in negotiations. Justice Burke noted that a line of Federal cases holds that an agreement to arbitrate employment disputes necessarily implies just case, and asked counsel what an arbitrator was to do if employment was at will and there was no standard of review. Counsel responded that the arbitrator should confirm that an employee had received notice and union representation, and no more. Justice Theis asked whether the arbitrator's decision didn't amount to saying that there must be some kind of standard for an employee's meeting not to be meaningless? Counsel responded that the problem was that the arbitrator had failed to take into account the fact that the standard at issue had been rejected at the collective bargaining table. Justice Karmeier pointed out that the relevant provision of the collective bargaining agreement actually referred to a right to a "meeting," not a "hearing," and asked counsel whether the distinction made a difference. Counsel agreed that the agreement did not use the word "hearing" to describe the employee's rights.

In rebuttal, counsel argued that the case was not ultimately about the employee's rights under section 2.6 of the collective bargaining. Rather, according to counsel, the dispute revolved around the employee's right under section 2.1 to review materials in his or her personnel file and attach dissenting or explanatory material. According to counsel, the arbitrator had reversed the board's decision because the employee was terminated based on notes about her job performance which the employee had not seen, which the board reviewed in executive session. Justice Theis asked whether counsel's argument was ultimately procedural rather than substantive, and counsel answered that the arbitrator had never in fact reached the issue of whether just cause had been proven.

The Court should file its opinion in Griggsville within three to six months.

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Our reports on the oral arguments of the Illinois Supreme Court's September term conclude with Hope Clinic for Women v. Adams. In Hope Clinic, the Court confronts the question of whether the Illinois constitution offers greater protection to privacy and gender equality interests than the Federal constitution. To watch the video of the argument, click here.

Our in-depth summary of the facts and lower court rulings appears here. According to the Illinois Parental Notice of Abortion Act, a physician must disclose to a parent, grandparent, step-parent living in the household or legal guardian that his or her minor or incompetent child is seeking an abortion. Plaintiffs brought a litany of challenges under the state Constitution, including due process, equal protection, privacy and gender equality.   The Circuit Court dismissed on the grounds that all four of these state guarantees are interpreted in lockstep with Federal constitutional law, and because the plaintiffs' claim would fail under Federal law, it must necessarily fail under state law. The Appellate Court reversed, finding that Illinois' privacy and gender equality rights were not interpreted identically to Federal constitutional law.

The Court was surprisingly quiet during the Hope Clinic argument, giving few clues as to what it might decide. The argument began with the cross-appeal relating to whether the State's Attorneys of Tazewell and Effingham County should have been allowed to intervene. Neither counsel for the State's Attorneys nor the State's counsel received any questions. Chief Justice Kilbride asked counsel for Hope Clinic what came next if the intervenors prevailed -- would the case return to the trial court for further hearings? Counsel responded that the case would return for the development of an additional factual record.

Even in the principal appeal, counsel for the state received no questions. Counsel argued that the essential first step of the plaintiff's action was that the state Constitution granted rights more broad than those included in the Federal constitution. However, nothing in state law supported such a conclusion, according to counsel. Counsel argued that the statute easily satisfied rational basis review for equal protection purposes. The state gender equality provision was limited to discrimination between genders, counsel claimed, which would not apply in the case at bar.

The plaintiff responded that the Supreme Court had never evaluated a parental notification statute pursuant to the Equal Protection Clause, so the issue of whether the state constitution was construed in lockstep with Federal law was not determinative. Justice Thomas asked whether the plaintiff was asking the Court to sit as a super legislature and assess the new studies released since the most recent relevant cases. Counsel responded that the Court should remand the matter in order to give the plaintiff an opportunity to put on its evidence, permitting the Circuit Court to determine whether the burden imposed by the statute was justified. Justice Garman asked whether plaintiff's evidence had been presented to the legislature. Counsel responded that it had not. Justice Thomas questioned counsel's challenge to Family Life League v. Department of Public Aid, 112 Ill.2d 449, asking whether plaintiff's position was that the case had been decided without any consideration of the purpose and legislative history of the privacy clause of the state constitution. Counsel responded that at the time the privacy clause was enacted, the drafters made it clear that their intent was to provide greater protection than the Federal constitution. Justice Thomas noted that at the time the Illinois Constitution was approved, abortion was illegal, and pointed out that Elmer Gertz, the chair of the Convention's committee on the Bill of Rights, had publicly stated that the privacy clause had nothing to do with abortion. Counsel responded that in fact, the legality of abortion had been unclear at the time, and it was clear that the delegates wanted a constitution which evolved over time. Justice Thomas pressed further, repeating his question about Delegate Gertz' views; counsel once again responded that the Convention had intended to allow for further development of their constitution. Justice Thomas asked whether, assuming arguendo that the Supreme Court had recognized a state right to abortion, that right was coextensive with the Federal right. Counsel responded that the state constitutional right to privacy was not interpreted in lockstep with the Federal right. In his rebuttal argument, counsel for the state insisted that the state Supreme Court had made it clear in its earlier cases that any protected right involved was no greater in scope than the Federal right. Counsel concluded by arguing that any remand to the Circuit Court for fact finding was incompatible with rational basis review.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Ferguson v. Patton. Ferguson involves a potentially important issue for the growing field of government ethics law: can the ethics officer sue another official of the same government entity to enforce his or her subpoenas? To watch the video of the argument, click here.

Our in-depth summary of the facts and lower court rulings appears here. In Ferguson, the Inspector General of the City of Chicago opened an investigation of how a former City employee had been awarded a sole-source contract, in apparent violation of city rules. He sent a document request to the Corporation Counsel, but the law department claimed attorney-client and work product privileges as to several. So the IG sent the Corporation Counsel a subpoena. The Corporation Counsel objected, the IG responded, and the Corporation Counsel refused to comply.

So the IG sued the Corporation Counsel. The Circuit Court dismissed, but the Appellate Court reversed.

The case presents two questions: (1) can the IG hire a private lawyer when City ordinances provide that the Corporation Counsel is the sole lawyer for the city? and (2) can the Corporation Counsel assert privilege against the IG?

Before the Supreme Court, the City made the interesting decision to take a hard-line view; the Court seemed highly skeptical. Counsel argued that the City was a single entity; an appointed official of the City could not bypass the elected senior executive officer -- the Mayor -- to sue another appointed official. The dispute at bar, counsel insisted, was internal to the municipal corporation. Justice Theis referred counsel to the IG's ordinance, providing that the IG "shall take no action" to enforce his or her subpoena for seven days. The ordinance seemed to recognize some relationship between the IG and the Corporation Counsel, according to Justice Theis. Counsel answered that the ordinance required that the IG spend seven days trying to work out disputes, but said nothing about what happened next. Justice Theis asked what would happen after seven days. What would happen if the IG subpoenaed an officer of the Water Department, and he or she refused to cooperate? Counsel answered that no court would have jurisdiction over a lawsuit to enforce the subpoena, but the IG would have other options, such as seeking disciplinary action against an uncooperative target. In any case, even the Corporation Counsel could not sue another officer of the City, even to enforce an IG subpoena. Justice Thomas wondered whether it was problematic to ask the IG to go to the mayor if he or she was investigating the mayor's awarding of a contract. Counsel responded that the complaint didn't allege any involvement by the mayor. Nevertheless, the IG had options available short of suing. Justice Thomas followed up, pressing counsel to admit that there was something problematic about asking the mayor to enforce a subpoena in an investigation of the mayor's conduct. Counsel answered that the IG had options available if the mayor refused to cooperate, including sharing the investigation with outside law enforcement.

Counsel for the IG led off by arguing that a municipality could confer independent power to sue on whoever it wants, and in fact, in the IG ordinance, the City has conferred such power. Counsel found significance in the City's admission that the IG could acquire power to sue by referendum, since that must mean that there is nothing inherently disqualifying about suing another officer of the same municipal entity. After all, if the IG is forbidden from moving to enforce his or her subpoena for seven days, it must necessarily follow that the IG may enforce after that time; otherwise, why is the time limit necessary? Counsel also pointed out that according to a settled rule of construction, a specific provision -- here, the IG ordinance -- prevailed over general ordinances such as the Corporation Counsel's general authority. Counsel concluded by dealing with the cross-appeal on privilege, arguing that the duty to cooperate and disclose material to the IG eliminates any expectation of confidentiality necessary for the existence of the privilege. The Court had no questions at all for the IG (never a good sign for counsel for the appellant).

The City began its rebuttal by pointing out that the IG cited not a single case of one officer of a municipal entity suing another. Justice Karmeier asked whether the City could authorize capacity to sue by ordinance. Once again, the City took a hard-line view, arguing that a voter referendum would be necessary to bestow separate corporate status on the IG, thus authorizing a separate suit.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Mashal v. City of Chicago. Mashal presents an issue of potentially enormous importance to class action practice in the Illinois state courts: when does the Circuit Court lose the power to decertify the class under Section 2-802 of the Code of Civil Procedure? To watch the video of the argument, click here.

For a detailed discussion of the facts and rulings below in Mashal, click here. The case arises from the City of Chicago's practice of issuing "fly-by" traffic citations to taxi drivers -- citations which were received by mail, rather than being personally served or placed on the vehicle. The City conceded that it issued such citations occasionally, principally when drivers either fled or became aggressive; the plaintiffs alleged that the practice was far more widespread than that. A class was certified in 2002. In 2005, partial summary judgment was entered, finding that the practice was illegal. The following year, the City obtained its own partial summary judgment, eliminating claims before 1995 on statute of limitations grounds.

According to Section 2-802, a court may amend a class certification order at any time "before a decision on the merits." The statute doesn't define what "decision on the merits" means. In 2007, the City decided to find out, moving to decertify the Mashal class on the grounds that the partial summary judgment on the legality of the practice eliminated the only common issue. The Circuit Court granted the motion to decertify, and the case rose to the Appellate Court on various certified questions. The Appellate Court held that "decision on the merits" meant something similar to the types of judgments and orders given res judicata effect -- a complete resolution of the liability claim.

Counsel for the plaintiffs argued that the need for individualized determinations didn't mean that a "decision on the merits" hadn't yet occurred, since every class action involves such determinations. Justice Thomas asked counsel to address the City's argument that the partial summary judgments were a decision on the merits. Counsel responded that if a decision resolving nothing more than the legality of the practice involved in the case became a vehicle for decertification, that exception would swallow the class action statute. Such a rule was antithetical to the underlying reason for class actions: that litigating the claims one by one was impractical. Justice Theis asked whether the Circuit Court's decision rejecting the City's affirmative defenses was a decision on the merits, and counsel responded that that order could have been appealed if Rule 304(a) language had been granted.   Justice Theis then suggested that "decision on the merits" and "final judgment" arguably sounded like the same thing, and asked counsel to explain his distinction. Counsel responded that a final judgment was a complete resolution of a claim, granting relief. A decision on the merits didn't need to be final; the order concluding that issuance of fly-by tickets violates the law was enough. Justice Thomas asked counsel whether counsel was saying that every order resolving affirmative defenses was a "decision on the merits," or only the defenses resolved in the particular order at issue. Counsel responded that the particular defenses involved in the court's order made the decision one on the merits.

Counsel for the defendant responded that the reason for setting the cutoff for decertification at the decision on the merits was to keep the option open until all possibly common issues have been decided. Justice Garman asked whether some determination of liability to a class member or members was required. Counsel responded "yes", and in the case at bar, such a determination was impossible given the need to determine whether each class member had received a "fly-by" citation. Justice Burke pointed out that the City had admitted to issuing such citations; counsel responded that the City had admitted the practice as a general matter, but the taxi driver class members had not linked themselves to the limited group who received such citations. Justice Thomas asked counsel to address plaintiffs' argument that there was no rebuttal to the proposition that the class members had received fly-by citations. Counsel answered that such affidavits were not admissible, and in fact there were many reasons to question the class members' credibility. Counsel argued that deposition testimony was needed to determine the credibility of all class members. Justice Garman wondered why issues like credibility and individual liability weren't part of ancillary proceedings. Counsel responded that under the circumstances presented, liability would have to be determined class member by class member, and this was the time to conclude, once and for all, whether class prerequisites were met.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Fennell v. Illinois Central Railroad Co. Fennell presents the issue of whether a case with no apparent connection to Illinois, filed here after an initial lawsuit was thrown out of plaintiff's first choice forum (and home state), could remain in Illinois. To watch the video of the argument, click here.

The facts and holding of the decision in Fennell are summarized here. Plaintiff alleges exposure to asbestos, diesel exhaust, sand, environmental tobacco smoke and toxic dusts, fumes and gases during his thirty-seven year employment with the defendant railroad. Plaintiff filed a putative class action in Mississippi in 2002, but the action was dismissed without prejudice on the motion of the defendant in 2006. So plaintiff sued in St. Clair, Illinois.

The defendant moved to dismiss under forum non conveniens: the plaintiff was a lifelong resident of Mississippi; he wasn't injured in Illinois; and perhaps thirteen potential witnesses, including plaintiff's family, co-workers and treating physicians, lived in Mississippi. The defendant cited the need to call its risk mitigation manager for occupational disease claims as well. He lived in Memphis, and testified that he would find it easier to come to Copiah Co., Mississippi (the alternative forum) than to St. Clair County. The plaintiff responded that defendant was represented by regional counsel in St. Clair County, evidence was located in St. Clair, and he wanted to call two defense representatives, one in Illinois and one in Memphis. The Circuit Court denied the motion to dismiss, and the Appellate Court affirmed.

Counsel for the defendant argued that documents are less important than they would otherwise be, under the circumstances, because of the ease of moving documents from one place to another. As for witnesses, counsel argued that only two witnesses lived in Illinois, while thirteen were in Mississippi, beyond the reach of the court in the event that trial occurred in Illinois. Depositions are not a substitute for live testimony, counsel argued; without the ability to call live witnesses, the defendant would be unable to quickly adapt to unexpected trial testimony. Justice Burke asked whether the defendants had business operations in Illinois, and whether that fact should have any bearing on the ultimate result. Counsel responded that the mere fact that a corporation did business in a state could never be sufficient without more to defeat a forum non conveniens motion.

Counsel for the appellee emphasized that a defendant must show exceptional circumstances in order to justify overruling the plaintiff's choice of forum. The suit had been filed in Illinois for several reasons, according to the plaintiff-- the plaintiff needed access to fragile documents located in Illinois, and the documents were located in the defendant's counsel's office, down the street from the St. Clair County courthouse. Justice Garman asked whether any part of plaintiff's alleged exposure had happened in St. Clair County, and counsel answered no. Plaintiffs' counsel argued that defendants had substantially changed their story in hopes of winning their forum non conveniens motion. Justice Garman suggested that it was hardly surprising that defendant would be uncertain of which witnesses would be called early in the case, when a forum non conveniens motion was filed. Counsel responded that the case had been in Mississippi for four years, discovery had been done and depositions taken, and defendant had substantially delayed filing its motion after re-filing in Illinois Counsel argued that the initial filing in Mississippi was not relevant, and the defendants needed, at most, two witnesses from Mississippi -- the plaintiff's treating physicians. According to counsel, the defendant had failed to meet the burden of justifying dismissal, and if the Court reversed, the Court was saying that defendants didn't have to. Chief Justice Kilbride asked whether the dismissal in Mississippi had been instigated by the defendant, and whether anything in the order of dismissal had contemplated re-filing in Illinois. Counsel responded that although the order didn't mention Illinois, it certainly contemplated re-filing somewhere.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Rodriquez v. Department of Financial and Professional Regulation. To watch the video, click here.

The facts and holding below are set forth in detail in our preview of the argument. Here's the question - when you get an administrative rule struck down, do you have to bring your claim for attorneys fees under Section 10-55(c) of the Illinois Administrative Procedure Act, 5 ILCS 100/10-55(c), in the same action as your challenge to the rule, or can it wait? In Rodriquez, the trial court held that the plaintiff was required to bring the fees claim as part of his challenge to the administrative rule; but the Appellate Court reversed, holding that the legislature had not imposed a time limit on the Section 10-55(c) action for fees.

Counsel for the State argued that the plain language of the statute makes it clear that the legislature was talking about a fees request brought as part of a single action. According to counsel, no one had ever tried to extend the statute to multiple actions. Justice Garman asked whether, if the Appellate Court strikes down a rule, the Appellate Court awards attorneys fees. Counsel responded that the court striking the rule should hear the motion for fees. The challenger should plead the claim for fees in the complaint, or he (or she) can plead the claim for thirty days after the final order striking the administrative rule. Counsel for the State pointed out that if the plaintiff's position prevailed, the State would be looking at long-tail liability for fees, given the plaintiff's apparent position that a fees request remained viable forever. Justice Burke asked whether that wasn't what the Appellate Court had found -- that the legislature had not intended to impose a time limit? Counsel responded that the language of the statute should be limited to a single action -- the case in which the administrative order was struck down. Justice Garman asked whether the State's argument was that the fees claim was a separate cause of action or a separate claim. Counsel responded that it was a separate claim, but not a separate cause of action. Chief Justice Kilbride asked whether, if the case had wound up in a final administrative action, the individual could couple a claim for fees with a complaint seeking judicial review of the final administrative action. Counsel for the State answered that that was a plausible scenario, and he thought that was what the legislature intended to happen, as opposed to declaratory judgment actions brought before the administrative rule fell. Justice Theis asked counsel to respond to the Appellate Court's reliance on Town of Libertyville v. Bank of Waukegan. Counsel for the State responded that in Libertyville, the Court retained jurisdiction to consider an award of fees in a single action. He concluded by summarizing his position: (1) the statute controls; and (2) res judicata bars the plaintiff's action.

When the plaintiff began, Justice Garman asked whether counsel could name any other examples of a cause of action with no statute of limitations. Counsel responded that the claim for fees might have a statute of limitations -- the five-year catch-all statute that might apply. Justice Theis asked whether plaintiff argued that the fees request was a claim or a cause of action. Counsel responded that the request was a cause of action. Then why shouldn't it be handled pursuant to our usual rule, Justice Theis asked -- all claims must be brought before final judgment, and if they're not, there's a res judicata bar? Counsel responded that the claim did not accrue until the rule was invalidated. Justice Theis followed up by asking when the claim accrued; counsel responded that the claim had accrued twice, once when the trial court invalidated the order, and again when the Appellate Court reinstated the court's original order and struck down the rule. Justice Thomas asked whether there was an opportunity in the second Rodriquez action to bring the attorneys fees claim. Counsel responded that there was not, since the action was not ripe until the rule had been struck down.

Counsel for the State concluded, arguing that the statute plainly intended for the fees claim to be part of a claim, not a separate cause of action. Counsel emphasized once again the various terms in the statute which appeared to refer to a single, unitary lawsuit.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with In re Estate of Boyar.

Can you accept money from your parents' will and then challenge it in court? No; that's settled in nearly every state.

But, as counsel for the trustee in Boyar told the Court, living trusts have become a commonplace substitute for wills; that way, the decedent's "estate" can be distributed without probate. Does the doctrine of election apply to trusts?

Our preview of the argument, summarizing the facts and holding below, is here. Years before his death, the decedent set up a trust. Through several trust amendments, one provision was unchanged: the beneficiaries could remove the trustee by majority vote. Then, just before his death, the decedent amended the Trust one final time -- the Sixth Amendment -- revoking the power to remove and appointing a new trustee. The petitioner challenged the Sixth Amendment, arguing that decedent lacked the mental capacity to execute it. When the petitioner acknowledged that he had received personal property belonging to the trust as a partial distribution of his interest, the trustee moved to dismiss the challenge, citing the doctrine of election: a party may not accept benefits under an instrument and then challenge it. The Circuit Court dismissed and the Appellate Court affirmed.

Justice Garman noted that the petitioner's case presented two questions: (1) does the doctrine of election apply to trusts; and (2) if it does, did the trial court abuse its discretion in applying the doctrine here. Counsel responded that the issue was whether the doctrine of election should be applied to an entirely severable codicil to the trust. Justice Karmeier asked whether, if the petitioner were challenging the distribution, he would still argue that the doctrine of election did not apply. Counsel conceded that he was not arguing that the doctrine would never apply to any trust at any time; the question depended on the facts and circumstances. Justice Garman asked whether petitioner knew the facts of the Sixth Amendment when he accepted the distribution, and whether it made a difference. Counsel responded that one of the factors in applying the doctrine of election is whether a party knew the facts; a doctrine based on equity should be applied without hard-line, black-letter rules, with a grasp of the particular facts. Justice Karmeier asked whether it made any difference to petitioner's argument whether the petitioner knew of the terms of the Sixth Amendment when he accepted the property. Counsel answered that petitioner did not and could not have known that the items of personal property he accepted were owned by the Trust, and that the doctrine of election has never been applied to a severable amendment to a trust anyway.

When the counsel for the trustee began, Justice Karmeier asked whether it made a difference if a trust was changeable during the lifetime of the settlor. Counsel responded that a beneficiary could accept gifts during the life of the settlor, but not after. Justice Garman asked whether the petitioner knew of the facts involved in the challenge; counsel alleged that the petitioner had learned of the trustee's identity and the terms of the Sixth Amendment by a direct conversation and two letters. Justice Thomas asked why there was a conflict between accepting benefits from the trust and challenging a provision that had nothing to do with the distribution. Counsel answered that the petitioner had waived his severability claim, and argued that far from being severable, the Sixth Amendment was a critical component of an integrated document. Justice Theis noted the Appellate Court's comment that the petitioner could file a petition to remove the trustee, and wondered why the doctrine of election did not bar that remedy as well. Counsel responded that a removal petition would have to rest upon alleged misconduct in the administration of the trust. Justice Karmeier echoed Justice Thomas' earlier question, wondering what was inconsistent about accepting a distribution and challenging a severable trustee provision; counsel responded that the petitioner should be barred from challenging any provision of the instrument. Justice Karmeier wondered whether the court should look to the underlying reason for the doctrine -- preventing parties from taking inconsistent positions -- but counsel again insisted that the Sixth Amendment was part of a single integrated document.

In rebuttal, counsel for the petitioner conceded that the petitioner was aware of the existence of the trustee before accepting the distribution, but again insisted that the petitioner was unaware of the specifics, or of what property the trust owned. Justice Garman wondered whether it was essential to the petitioner's argument that he was challenging a severable provision; moments later, Justice Karmeier asked whether petitioner's argument would be the same if the separate amendment dealt with distribution. Counsel responded that in his view, each case had to be evaluated on its individual circumstances. Responding to Justice Karmeier's question, counsel agreed that he was not seeking a bright line rule that challenging a separate amendment to the trust could never be subject to the doctrine of election.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Toftoy v. Rosenwinkel.

Toftoy is an interesting case because it presents a textbook example of a clash between two classic forms of legal analysis. Professor Ward Farnsworth discusses the distinction at length in his classic book The Legal Analyst: the conflict between ex post and ex ante reasoning.

As Professor Farnsworth explains, ex post reasoning looks backward, asking what remedy is appropriate in connection with a completed incident. Ex ante reasoning – a form of analysis lawyers have in common with economists – analyzes what effects will result moving forward from any remedy proposed for the incident. The classic conflict between ex post and ex ante -- again, borrowing Professor Farnsworth's examples -- is whether or not to pay ransom to a hostage taker. Ex post reasoning might argue that a hostage taker should be paid ransom to save the victim's life; ex ante reasoning rejects paying ransom because it will encourage future hostage takers.

Which brings us to Toftoy and Illinois' "Right to Farm Law" - the Farm Nuisance Act, 740 ILCS 70/1. Our summary of the facts and holding below is here. The statute provides that no farm can become a private or public nuisance "because of any changed conditions in the surrounding area" so long as the farm has been in operation for a year.

Defendants bought farmland in a rural area. Across the street was a large plot containing a farm house; a tenant lived there when defendants took possession of their plot, but by the time they started a cattle operation a year later, the farm house was empty, and so it remained for years after. In 1997, plaintiffs demolished the old farmhouse; seven years later, the plaintiffs completed a new house on what was by then a small subdivided plot and moved in. Plaintiffs sued the defendants in 2007, alleging that their cattle operation was a nuisance because it was causing massive fly infestations.

Ex post versus ex ante. The plaintiffs tell a compelling story of the disruptions to their lives caused by the flies. Ex post, one might think that some remedy would be appropriate. But the argument ex ante is the same argument which has compelled many states around the country to enact Right to Farm laws in the first place: when new residential areas impinge on farm land, allowing the residents to sue the farmers in nuisance at minimum discourages investment in farming, and can wind up driving farmers out of business entirely.

The defendants moved for summary judgment, arguing that the Farm Nuisance Suit barred the suit. The trial court denied the motion, entered a declaratory judgment for plaintiffs, and the Appellate Court affirmed.

Counsel for the cattle farmers led off the arguments. Justice Thomas asked whether the case hinged on how broadly the Court interpreted the statute. Counsel responded that the broad interpretation was correct, but the defendants should prevail under either interpretation. Justice Karmeier asked whether it made a difference that there was a residence across the street when the cattle ranch began operations -- albeit a vacant one -- but counsel responded that plaintiffs were not using the property as a residence when the cattle operation began. Justice Garman asked whether the changed condition for purposes of the statute was the change in ownership, or the demolishing of the old house, or both. Counsel responded that both events amounted to a changed condition. Justice Burke asked whether the result would have been different if the former farmhouse on the property had been remodeled rather than torn down. Counsel responded that there had been no use of the property for more than a year at the time the defendants began their operation. Counsel asked the Court to remand for application of the Farm Nuisance Act and the assessment of statutory fees and costs.

Counsel for the plaintiffs pointed out that the property across the street had contained a farmhouse for nearly a century, and was still a farmhouse today. Justice Thomas posed a hypothetical: what if the plaintiffs had lived in the property for one year a century ago, and then the property had been left vacant. If the defendants began a cattle operation and the plaintiffs subsequently returned, would that be a changed condition? Counsel responded that a causal connection was necessary between the changed condition and the nuisance; if the property merely progressed from one house to another, that prerequisite was not satisfied. Counsel argued that if occupancy alone was a changed condition, owners would have to worry about losing a tenant. Justice Theis asked whether the change in title or the subdivision of the property factored in; counsel responded that the property had always been a residence. Justice Garman asked whether it would make a difference if the house across the street was vacant, and counsel responded "no." Justice Thomas stated that he was having trouble with the occupancy issue. He pointed out that no one had been in the house when defendants began the cattle operation -- why wasn't the change in condition for purposes of the statute the fact that the house was now occupied? Counsel answered that the standard proposed was a slippery slope, suggesting a hypothetical of a strip mall which became vacant for a couple of years in a recession, and then couldn't be used again because a cattle operation began across from it.

Justice Karmeier asked whether somebody who wants to start a cattle operation was required to research the property across the street to determine whether it had ever been a private residence, or else face the risk of a nuisance suit. Counsel responded that no research was necessary, since there was somebody living in the home when defendants took possession. Justice Garman wondered whether it would make any difference if the house was dilapidated or in good condition. Counsel insisted that his clients the plaintiffs were farmers as well; the property was their family farm, and the residence was a farm house. Justice Thomas suggested that plaintiffs seemed to be arguing that "condition" meant "use" for purposes of the statute; if that was so, since the legislature didn't actually say "use," shouldn't that incline the Court to a broad construction of the statute? Counsel responded that the statute should be interpreted based upon the statutory command that the nuisance occurred "because" of the changed condition.

Counsel for the defendants ended his rebuttal with another appeal to an ex ante result, arguing that an affirmance would commit the farming industry in Illinois to long-term historical uses of the property surrounding their farm properties.

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Our reports on the oral arguments of the Illinois Supreme Court's September term continue with Cooney v. Rossiter, a case about the breadth of immunity for court-appointed psychologists in child custody cases. Based on the questions at argument, the Court appeared to be searching for alternatives short of limiting the scope of such experts' immunity.

The facts and lower court ruling in Cooney are described in detail in our argument preview. In 2001, plaintiff's ex-husband filed for a change of custody. The psychological evaluator appointed to opine on the best interests of the children concluded that plaintiff ex-wife and her parents (the co-plaintiffs) suffered from Munchausen's by Proxy Syndrome, and concluded that their treatment of one child amounted to child abuse. After custody was granted to plaintiff's ex-husband, plaintiffs filed a federal class action against the defendant. The action was dismissed and the dismissal affirmed, so the plaintiffs sued in state court.  The state court dismissed based on absolute immunity and res judicata, and the Appellate Court affirmed.

Counsel for the plaintiffs argued that in order to deter deliberate misconduct by psychological evaluators, the proper rule was qualified immunity for investigation and out-of-court evaluation, and absolute immunity for in-court testimony. Justice Karmeier asked whether it was possible to raise issues such as the evaluator's unfairness and bias prior to his or her appointment. Counsel responded that his client did not know the facts until it was too late. Justice Thomas asked whether plaintiffs' charges were the subject of cross-examination at trial, and counsel responded that the trial judge relied solely on defendant's report. Justice Thomas pressed his question, asking whether requiring parties to address issues of bias and misconduct in the custody litigation would make it possible to preserve absolute immunity. Counsel answered again that defendant had not been present on the day of the hearing, and the plaintiff had received his report only that day.

Counsel argued that court-appointed evaluators would still have adequate protection if qualified immunity was instituted -- a plaintiff would still be required to plead intentional misconduct or fraud, and the trial judge would act as the gatekeeper, screening out frivolous complaints. Justice Burke asked whether plaintiff had her own expert, pointing out that there must have been adequate time between defendant's appointment and his report; counsel responded that there was no reason to anticipate anything negative in defendant's report.

During appellee's argument, Justice Karmeier asked whether it would make any difference to the Court's analysis that defendant's opinion came in via a written report rather than live testimony and cross examination. Counsel answered no; cross examination can be requested, and a party may insist on his or her objection if it is denied. Justice Freeman pointed out that none of that helps if the judge denies cross-examination, but counsel responded that this could be the subject of further litigation, post-trial motions, or an appeal. After Justice Burke noted that the trial judge – like the plaintiff -- had only seen the defendant's report the morning of the hearing, Justice Freeman continued to press, asking counsel whether the trial judge's refusal to allow live testimony in the custody action could rise to the level of an abuse of discretion. Justice Thomas asked counsel to address the plaintiffs' argument that qualified immunity was sufficient protection; counsel responded by pointing out that qualified immunity doesn't bar suits at the outset as absolute immunity does, and may not even prevent a jury trial.

The Court's search for alternative resolutions continued in plaintiffs' rebuttal argument. Justice Karmeier asked whether plaintiffs' concern about bad faith evaluators couldn't be addressed by discouraging trial judges from admitting written reports in preference to live testimony.  Justice Thomas speculated that a professional licensure action might be an available remedy against a bad-faith evaluation.

Join us back here later today for our report on the argument in Carr v. Koch.

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A casual viewer might be forgiven after watching the oral argument last week in Center Partners, Ltd. v. Growth Head GP, LLC for being uncertain exactly what the law of Illinois was regarding the applicability of subject matter waiver to disclosures of attorney-client communications outside litigation. In a nearly hour-long debate, opposing counsel presented diametrically opposed visions. According to plaintiffs, the matter was simple: you either want secrecy or you don’t, and applying subject matter waiver outside litigation was hardly a big deal. Defendants, backed by a number of high-powered amici, argued that plaintiffs were seeking an unprecedented and dangerous extension of waiver which would divorce the doctrine from its rationale. Although predicting what an appellate court is likely to do from its questions is always a dicey business, judging from several Justices’ questions, the Court may be preparing to side with the plaintiffs.

Click here for our preview of the argument in Center Partners. The defendants bought the assets of a company which (through a series of corporate relationships too complex to review here) owned a number of shopping centers. The same day, they entered into a side deal dividing up control of the target’s assets among themselves. Everything was going fine until the plaintiffs – limited partners in the shopping center company – sued them for breach of fiduciary and contractual duties.

The problem was that the three defendants had shared attorney-client communications among themselves during the negotiations for the asset purchase. First, plaintiffs filed a motion to compel production of all of the shared communications: granted. But then, plaintiffs filed a second motion, seeking all communications regarding the same subject as the shared communications, arguing that the disclosures had worked a general subject matter waiver. The second motion was granted too, and following a “friendly contempt” order (to make the dispute appealable), the Appellate Court affirmed.

So: does subject matter waiver apply outside the context of litigation? And if so, how broad is the waiver?

The defendants argued that the Appellate Court had erred in both respects: subject matter waiver shouldn’t have been applied at all, and even if it had, the Appellate Court had applied far too broad a waiver. In response to a question from Justice Burke, counsel stated that no litigation had been ongoing at the time of the disclosures, and none had been anticipated (a view counsel for the plaintiffs disputed later). When counsel argued that waivers are applied in order to prevent the privilege from interfering with a court’s truth-seeking function, Justice Garman wondered whether that rationale might equally support a broad application of the waiver rule.

Justice Thomas asked counsel whether, even if parties are permitted to share attorney-client communications with some people while preserving the privilege, at some point the dissemination of a communication has simply gone too far? Counsel acknowledged that although the common interest privilege had not been claimed, the scope of the waiver should have been limited to the shared communications themselves. Justice Karmeier asked counsel whether it mattered for his position why attorney-client communications had been shared, and counsel responded that it did not.

During plaintiffs’ argument, several Justices continued to wonder whether the basis on which subject matter waiver rested could be logically limited to litigation only. Historically, general waivers have been imposed because otherwise a party can use protected communications as a sword, letting out only what the party wants to, and a shield – hiding additional communications which might give context to, or even contradict, the disclosed material. Justice Theis asked whether there was some suggestion in the record below of similarly misleading partial disclosures. Justice Thomas echoed the point, arguing that absent a subject matter waiver, a party would be free to selectively disclose what it chose in a negotiation, knowing that it would be available for later litigation, while keeping the rest of the story protected. In response to a question from Justice Garman, counsel argued that defendants were relying on attorney advice in the underlying dispute. Justice Burke asked why the waiver had to sweep so broadly, but counsel disputed the assertion of defendants’ counsel that the defendants had not expected litigation at the time of the disclosures.

In rebuttal, counsel for the defendants denied that defendants were relying on attorney advice below. In response to Justice Thomas’ concern that refusing to apply subject matter waiver to business negotiations might lead to an unfair partial waiver, counsel argued that the initial disclosure itself should be excluded on hearsay and relevance grounds, making a general waiver to place the initial disclosure in context unnecessary.

We expect Center Partners to be decided within the next two to four months.

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With this post, we begin our reports on the oral arguments for the Illinois Supreme Court's September term. In Hernandez v. Bernstein, the first civil case of the term, the Court seems likely to hold that plaintiff's two successive complaints were alternative versions of a single claim, meaning that plaintiff's voluntary dismissal without prejudice of the claim did not preclude the subsequent re-filing of the action.

The facts and lower court ruling in Hernandez are set forth in detail in our argument preview. The plaintiffs sued their former attorneys for failing to advise them of a third party products liability claim related to a workers' compensation claim. The products claim was dismissed as time barred, so the plaintiffs amended to allege that the defendants should have advised them to sue their former lawyers. Not long before trial, with a motion for summary judgment pending, the plaintiffs voluntarily dismissed their claim without prejudice. So when the plaintiffs re-filed, was their action barred by res judicata?

Defendants' counsel argued that the "single theory of recovery" analysis applied by the Appellate Court did not fit the circumstances. Rather, the first complaint involved a products liability claim which was wiped out by the trial court, and a new claim for professional negligence was pleaded. Justice Thomas asked counsel what was wrong with the plaintiffs' argument that the case was all a single claim: the law firm's negligence in not informing the plaintiffs of all potential causes of action arising from the injury? Counsel responded that the issue turned on the definition of a claim. The first action involved a set of operative facts that caused injury to the claimant. Later, a different set of operative facts arose -- failure to advise. Justice Thomas followed up by asking what was wrong with the proposition that the initial court order merely adjudicated certain facts in support of the claim -- a claim plaintiffs were given leave to amend? Counsel argued that the initial court order had finally adjudicated a separate products liability claim.

Justices Karmeier, Thomas and Theis each separately pressed counsel on whether the initial order of dismissal without prejudice was final and appealable, even though it expressly stated that dismissal was without prejudice. Counsel responded that the order was final with respect to the products claim, although it only became appealable upon plaintiffs' voluntary dismissal.

Co-counsel for defendants addressed the plaintiffs' alternative argument that res judicata was inapplicable because the plaintiffs had expressly reserved the right to file a new action, arguing that plaintiffs had forfeited the issue by failing to raise it in the trial court. Justice Thomas asked whether, given that plaintiffs were appellees in the Supreme Court, they had a right to affirmance on any theory supported by the record, but counsel pointed out that plaintiffs had been appellants at the Appellate Court.

Plaintiffs' counsel drew few questions. Justice Burke asked how the defendants could have advised plaintiffs of their purported claim for manganese exposure when their relationship with defendants ended before they discovered the claim? Counsel responded that if defendants had sent plaintiff to a physician, the claim might have been discovered earlier. In rebuttal, defendants' counsel again argued that the initial dismissal was a final order which became appealable -- and thus preclusive for res judicata purposes -- when plaintiffs voluntarily dismissed their claims.

Join us back here later today for a recap of the argument in Center Partners, Ltd. v. Growth Head GP, LLC, a case about whether subject matter waiver of attorney-client communications extends beyond litigation to business transactions.

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