The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

Our preview of newly petitions for leave to appeal allowed by the Illinois Supreme Court in the closing days of the just-ended May term continues with Schultz v. Performance Lighting, Inc., a decision from the Second District.

The plaintiff in Schultz obtained a divorce in 2009. She was awarded $600 every two weeks in child support from her ex-husband. At the time, the ex-husband was working for the defendant in Schultz.

In Illinois, the Income Withholding for Support Act was enacted in order to provide custodial parents with a method to more easily collect court-ordered support payments from their former spouses. The plaintiff served a notice to withhold income for support on the defendant, personally serving the ex-husband’s attorney at the same time. Section 35 of the Act places a duty on a payor, once served with a notice, to pay over the ordered portion of the obligor’s income to the State Disbursement Unit. According to the Act:

The income withholding notice shall:

* * *

(9) include the Social Security number of the obligor; and

(10) include the date that withholding for current support terminates, which shall be the date of termination of the current support obligation set forth in the order for support; and

(11) contain the signature of the obligor or the printed name and telephone number of the authorized representative of the public office, except that the failure to contain the signature of the obligor or the [identifying information for the public office] shall not affect the validity of the income withholding notice. 750 ILCS 28/20(c)

The plaintiff’s notice contained neither the ex-husband’s Social Security number, nor the termination date for the support obligation. So: does the statute require strict compliance, such that the notice’s shortcomings should be fatal, or is substantial compliance enough?

The defendant made no payments to the State Disbursement Unit on the ex-husband’s account. Subsequently, the defendant sued her ex-husband’s employer, alleging that the defendant had breached a statutory duty to pay, triggering a statutory $100 per day penalty. The trial court held that strict compliance was required by the statute and dismissed the plaintiff’s complaint.

The Second District affirmed. Two reasons compelled a finding that strict compliance was required by the statute, according to the Court. First, the Court relied upon a line of authority holding that when a statute uses the word “shall,” and imposes a penalty or consequence for non-compliance, the duty imposed is mandatory and strict compliance is required. Although there was no penalty for failure to include the missing information in the notice, the Court noted that knowing non-compliance with a valid notice to withhold triggered an automatic penalty. Second, the Court invoked expressio unius est exclusio alterius, the ancient legal maxim teaching that an enumerated list is presumptively exclusive. Here, the statute’s statement that non-compliance with the signature requirement doesn’t invalidate the notice implies that non-compliance with the other requirements does invalidate the notice.

Schultz will likely be decided in the first half of 2014.

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In the final days of the Illinois Supreme Court's recently concluded May term, the Court allowed petitions for leave to appeal in five new civil cases. Today, we begin our detailed previews of those cases, discussing the underlying facts and lower court holdings.

First up is Rogers v. Imeri from the Fifth District. The plaintiffs' son was killed in a drunk driving accident. The plaintiffs sued the bar which allegedly served the drunk driver, alleging claims under the Dramshop Act, 235 ILCS 5/6-21. The plaintiffs received $26,550 from the driver's liability insurance policy and an additional $80,000 from their own policy.

While the matter was pending, the defendant's dramshop liability insurer was declared insolvent and liquidated; as a result, the Illinois Insurance Guaranty Fund took over the defense of the litigation.

The defendant filed a motion for summary adjudication of liability arguing the following theory: maximum liability under the Dramshop Act was $130,338.51. The plaintiffs had already received $106,550. Therefore, since the Insurance Guaranty Fund was entitled to a setoff for insurance payments from other sources, the plaintiffs' maximum possible recovery was the difference between those two sums.

The Circuit Court denied the motion, but agreed to certify a question: in a case involving the Insurance Guaranty Fund, if the jury returns a verdict in excess of the statutory maximum, is the setoff for other recoveries made from the verdict, or from the statutory maximum recovery under the Dramshop Act?

The answer depends on construing two different statutes simultaneously. The Dramshop Act provides that a jury should determine damages without worrying about the statutory limit.

On the other hand, under the Insurance Guaranty Fund Act, a claimant must "exhaust all coverage provided by any other insurance policy . . . if the claim under such policy arises from the same facts, injury, or loss that gave rise to the covered claim against the Fund." 215 ILCS 5/546(a). "[T]he Fund's obligation" is reduced by the amount recovered.

As the Fifth District observed, the answer to the certified question was likely to make a significant difference when the case was ultimately tried. Given that the deceased son of the plaintiffs was only eighteen when he was killed, it seemed likely that a verdict would be in excess of the statutory cap.

The defendant's problem, according to the Fifth Defendant, was that nothing in the Insurance Guaranty Fund Act altered the way that damages are calculated in the routine case where the Fund is not involved. Therefore, the Court held, the reduction for "other insurance" recoveries in the Insurance Guaranty Fund Act should be applied to the jury's verdict, and then reduced to the statutory maximum.

Rogers will likely be decided sometime in the first half of 2014.

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An update on last week’s post on Performance Marketing Association, Inc. v. Hamer: with the posting of the Court’s docket book for the May term, we learned that the oral argument in Performance Marketing has been continued from May 16 to the 9:00 a.m. sitting on Wednesday, May 22^nd.

Although it is virtually certain to go unmentioned, the oral argument in Performance Marketing will take place against the backdrop of U.S. Senate approval of the Marketplace Fairness Act of 2013, which would grant states the authority to require online and catalog retailers to collect sales taxes on sales to in-state buyers, so long as the states have simplified their sales tax laws in one of several ways, and the online merchant has gross annual receipts from nationwide online sales in excess of $1 million. According to news reports, the prospects for passage of the MFA in the House are uncertain.

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Our preview of the oral arguments at the Illinois Supreme Court during the May term concludes with Performance Marketing Association, Inc. v. Hamer. PMA will be heard by the Court during the 9:00 a.m. session on Thursday, May 16.

PMA arises from an amendment to the Illinois Use Tax Act known as the “Click-Through” Act or the “Amazon tax.” Here’s how it works: everyone has seen third-party advertisements on high-traffic websites, inviting visitors to click on the ad to get more information about a product or special deal. Typically, the third-party advertiser pays the owner of the website based on the number of people who “click through” and buy something. And that’s the nexus that the “Click-Through” Act is based on – any website that has one or more contracts with such advertisers who are “located in Illinois” is defined as a “retailer maintaining a place a business in this State.” And that means that as long as the website realizes $10,000 a year in gross receipts from “click-through” commissions, the site has to charge users for state sales taxes.

The Performance Marketing Association is a nonprofit trade association incorporated in Delaware. It’s the largest trade association in the country representing the “performance marketing” industry – businesses who use marketing methods similar to the internet “click-through” ad. Performance marketing has become relatively commonplace; according to the complaint, there are over 200,000 online publishers nationwide, and over 5,000 advertisers using or supporting performance marketing arrangements.

After the Illinois statute was passed, the PMA filed suit in Cook County Circuit Court.  In the complaint, PMA alleges that many internet-based businesses have responded to the Act by simply cancelling all contracts with Illinois publishers. As a result, the plaintiff alleges that Illinois-based publishers have lost millions, and many will go out of business. According to PMA, the “Click-Through” Act violates the dormant Commerce Clause by burdening interstate commerce and attempting to regulate non-Illinois commerce, as well as violating the federal Internet Tax Freedom Act, which bans all state taxes which target electronic commerce for special burdens. The complaint sought a declaratory judgment enjoining enforcement of the Act, as well as an award of costs and fees.

On May 7, 2012, the Circuit Court granted PMA’s motion for summary judgment, finding that (1) the Act failed the “substantial nexus” requirement for permissible regulations of interstate commerce, and therefore violated the Commerce Clause; and (2) because the Act burdened electronic commerce, it was preempted by the Internet Tax Freedom Act. Because the order struck down a statute on constitutional grounds, the State’s appeal bypassed the Appellate Court and went directly to the Supreme Court.

Not surprisingly, PMA has attracted considerable notice, including an amicus brief from the Multistate Tax Commission, the administrative agency for the Multistate Tax Compact. According to the Commission’s brief, the Act cannot be facially unconstitutional because it does not, by its terms, discriminate against interstate commerce. Nor does the Act violate the Internet Tax Freedom Act, according to the Commission, since the Act’s expanded definition of retailers subject to sales tax includes vendors who use any type of in-state representatives soliciting business on a commission basis, rather than singling out electronic publishing for special burdens.

We expect PMA to be decided in the fall.

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On Tuesday, the Illinois Supreme Court announced its oral argument calendar for the May term, and it includes arguments in five civil cases. The cases, with the questions presented in each, are:

Wednesday, May 15:

• Relf v. Shatayeva, No. 114925 - Where a plaintiff files suit, unaware that defendant had died more than six months earlier, may the plaintiff substitute the defendant's personal representative, or is the action barred? Our detailed summary of the facts and Appellate Court opinion in Relf is here.

Thursday, May 16:

• Evanston Insurance Co. v. Riseborough, No. 114271 - Does the statute of repose for actions against attorneys “arising out of an act or omission in the performance of professional services” apply only to actions for professional negligence brought by a former client of the attorney? Our detailed summary of the facts and Appellate Court opinion in Evanston Insurance is here.

Wednesday, May 22:

• The Board of Education of Peoria School Dist. No. 150 v. The Peoria Federation of Support Staff, Security/Policemen’s Benevolent and Protective Association Unit No. 114, No. 114853 -- (1) Are the 2010 amendments to the Public Labor Relations Act unconstitutional special legislation? (2) Are plaintiff's negotiations with its security officers governed by the Education Labor Relations Act or the Public Labor Relations Act? Our detailed summary of the facts and Appellate Court opinion in The Board of Education is here.
   
• Prazen v. Shoop, No. 115035 – Did the Board of Trustees of the Illinois Municipal Retirement Fund exceed its powers by ordering the plaintiff's age enhancement and creditable services pension enhancements forfeited when the company he owned entered into a services contract with his former employer? Our detailed summary of the facts and Appellate Court opinion in Prazen is here.

The final case on the Court’s civil docket for this term is Performance Marketing Association, Inc. v. Hamer, No. 114496, a direct appeal from the Cook County Circuit Court of that Court’s order granting summary judgment and striking down the state internet “click-through” tax law as a violation of the Commerce Clause. We’ll have much more to say about Performance Marketing in our preview of the argument tomorrow.

Each of the Court’s sessions will begin at 9:00 a.m.

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Earlier this month, the Illinois Supreme Court accepted a rare direct appeal, agreeing to wade into the politically charged battle over state employee pension rights. The Court ordered the consolidated appeals in Kanerva v. Weems transferred from the Appellate Court directly to the Supreme Court.

Kanerva is a consolidated case arising from four putative class actions originally filed in Sangamon, Madison and Randolph counties. All four class complaints challenge 2012 amendments to the State Employee Group Insurance Act, which instruct the Director of the Department of Central Management Services to allocate the cost of health insurance premiums between the State and its employee-retirees. The Director of CMS is directed to make that determination based on the actual cost of medical services adjusted for age, sex and geographic and demographic characteristics. 5 ILCS 375/10(a). The 2012 amendments to the Act were passed in response to Illinois' ongoing budget crisis.

The putative class representatives bring various challenges to the 2012 amendments. All argue that the amendments violate the Pension Protection Clause of the Illinois constitution, which provides that "Membership in any pension or retirement system of the State, and unit of local government or school district, or any agency thereof, shall be an enforceable contract relationship, the benefits of which shall not be diminished or impaired." Illinois Constitution, Article XIII, Section 5. Two plaintiffs argue that the law violates Article I, Section 16 of the state Constitution: "No . . . law impairing the obligations of contracts . . . shall be passed." One alleges that the statute is an unconstitutional delegation of legislative authority to the Director of CMS. One seeks an award of money damages, and three of the four seek to enjoin enforcement of the 2012 amendments.

The Sangamon County Circuit Court allowed defendants' motions to dismiss all four complaints. With respect to the Pension Protection Clause, the court held that since health benefits are not actuarially predictable (in contrast to pension benefits, which are akin to an annuity), they are not analogous to pension benefits, and not covered by the clause. The Court rejected the challenges under the Contracts Impairment Clause, holding that since it was foreseeable that the terms and conditions of the group insurance plans would change yearly, no enforceable contractual rights were vested in retirees.

The court rejected the separation of powers challenge, holding that the statute had a clear legislative purpose, identified the persons covered, provided the means for the agency to meet the purpose of the statute, and appropriately limited the agency's discretion. Finally, the Court dismissed the claims of one class plaintiff who sought damages, holding that such claims must be brought first in the state Court of Claims.

The Supreme Court seems likely to hear arguments in Kanerva before the end of 2013. A decision should be handed down three to six months after the oral argument.

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In the final days of the March term of the Illinois Supreme Court, the Court allowed a petition for leave to appeal in The Board of Education of Roxana Community Unit School District No. 1. v. The Pollution Control Board, et al. Board of Education poses the question: can the challenger to a petition for certification of a system as a pollution control facility appeal directly to the Appellate Court after losing at the Illinois Pollution Control Board?

In October 2010, the respondent submitted 28 separate applications to the Illinois Environmental Protection Agency, seeking certification of various systems, methods, devices and facilities as "pollution control facilities" as defined by the Property Tax Code. If the applications were granted, the Department of Revenue would supplant Madison County as the taxing authority. In August 2011, the Illinois Environmental Protection Agency recommended approval of two of the requests. The following month, the Pollution Control Board accepted the recommendations and certified the two systems. The petitioner School Board moved for reconsideration, and a few weeks later, the Agency recommended approval of the remaining requests for certification. The Pollution Control Board denied the motion for reconsideration, and denied the petitioner's motions to intervene in the remaining 26 requests for certification. The petitioner appealed the Pollution Control Board's decisions directly to the Appellate Court.

On appeal, the petitioner contended that the Appellate Court had jurisdiction over the appeal pursuant to the Environmental Protection Act, 415 ILCS 5/41(a).   The Board contended that appellate review was possible only under the Property Tax Code, 35 ILCS 200/11-60, which limited appeal rights to applicants, not challengers.

The Appellate Court dismissed the appeal for lack of jurisdiction. Reaffirming Citizen Against the Randolph Landfill (CARL) v. The Pollution Control Board, the Court held that review must begin at the Circuit Court, rather than reaching the Appellate Court in the first instance. Allowing a party adversely affected by a final order of the Board to directly appeal the matter to the Appellate Court would render Section 11-60 of the Property Tax Code - providing only limited appeal rights -- meaningless, the Court held.

Justice Thomas R. Appleton dissented, arguing that the Environmental Protection Act, 415 ILCS 5/41(a) gave the right to appeal to anyone "who filed a complaint on which a hearing was denied." The Appellate Court should "avoid attributing to the legislature an intent to deny judicial review to a local governmental entity when the Board's allegedly unjustified certification of a facility as a pollution-control facility deprives the local governmental entity of a substantial portion of its tax base," Justice Appleton argued.

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This afternoon, the Illinois Supreme Court announced that it will file two opinions in civil cases on 9:00 a.m. on Thursday morning. The upcoming opinions are:

• Ferguson v. Patton, Case No. 112488 - (1) Does Section 2-56-040 of the Chicago Municipal Code authorize the Inspector General of the City of Chicago to hire private counsel to enforce subpoenas? (2) May the Inspector General sue the Corporation Counsel of Chicago to enforce subpoenas? Our detailed preview of the facts and lower court opinions in Ferguson is here. Our report on the oral argument is here.
   
• DeHart v. DeHart, Case No. 114137 - (1) Did plaintiff adequately allege lack of testamentary capacity based on decedent's statement in his probated will that he had no children? (2) Did plaintiff sufficiently allege undue influence on the part of defendant, who held decedent's power of attorney? (3) Could plaintiff state a viable claim for fraudulent inducement while his will contest was still pending? (4) Did plaintiff adequately allege an oral contract to adopt? (5) Shall Illinois recognize the theory of equitable adoption, and if so, did plaintiff adequately allege such a theory? Our detailed preview of the facts and lower court opinions in DeHart is here. Our report on the oral argument is here.

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Tomorrow will be a busy day for the Illinois Supreme Court's civil docket, with five cases being argued, beginning at 9:00 a.m. They are:

• Wilkins v. Williams, Case No. 114310 - (1) Does the immunity conferred by the Emergency Medical Services Act, 210 ILCS 50/3.150(a), extend to the non-emergency transport of patients? (2) Does the statute bar suits in connection with injuries sustained by third parties not directly treated by the EMS workers? Our detailed preview of the facts and lower court opinions in Wilkins is here.
   
• Standard Mutual Insurance Co. v. Lay, Case No. 114617 - Is the Federal statutory penalty imposed pursuant to the Federal Telephone Consumer Protection Act for sending unsolicited advertisements to a fax machine in the nature of punitive damages, and therefore uninsurable as a matter of Illinois law? Our detailed preview of the facts and lower court opinions in Standard Mutual Insurance is here.
   
• Mayfield v. Mayfield, Case No. 114655 - (1) Is a lump-sum workers’ compensation settlement “net income” within the meaning of Section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage Act; and (2) If so, is the 20% rule-of-thumb set forth in Section 505(a) of the Act for calculating the per-child support obligation applicable to the entire settlement? Our detailed preview of the facts and lower court opinions in Mayfield is here.
   
• Earlywine v. Earlywine, Case No. 114779 - Is an advance payment retainer to a spouse's retained attorney in divorce proceedings the attorney's property at the moment of payment, and therefore not subject to disgorgement for an award of interim attorney's fees pursuant to 750 ILCS 5/501(c-1), the Illinois Marriage and Dissolution of Marriage Act? Our detailed preview of the facts and lower court opinions in Earlywine is here.
   
• Crittenden v. Cook County Commission on Human Rights, Case No. 114876 - May the Cook County Commission on Human Rights award punitive damages? Our detailed preview of the facts and lower court opinions in Crittenden is here.

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May a condominium owner refuse to pay monthly and/or special assessments, in whole or in part, on the grounds that the condominium board had failed to maintain and repair the common elements of the condominium property? In the vast majority of jurisdictions around the country, the answer is simple: No. Last summer, in what the Chicago Tribune called a “ground-breaking decision” that “has stunned the condominium community nationwide,” the Appellate Court for the Second District answered the question “sometimes.” Yesterday, the Illinois Supreme Court agreed to review the decision, granting leave to appeal in Spanish Court Two Condominium Association v. Carlson [pdf].

The plaintiff in Spanish Court Two sued the defendant in early 2010 under the Forcible Entry Act. Plaintiff alleged that the defendant had stopped paying monthly assessments in August 2009. Plaintiff allegedly hadn’t paid special assessments either. The plaintiff sought possession of the defendant’s unit and a monetary award.

The defendant filed a combined answer, affirmative defenses and counterclaim. She admitted that she had stopped paying the assessments, but denied that they were owed; according to the defendant, the plaintiff’s failure to repair damage to the roof and certain brickwork directly above her unit had led to water damage to the unit itself. The defendant also alleged that the plaintiff had failed to make certain repairs inside the unit. Based on these factual allegations, defendant pled two affirmative defenses: (1) that the plaintiff was estopped from seeking the assessments because of its breach of the duty to maintain and repair; and (2) that the cost of repairing the damage to her unit should be deducted from any award of the past-due assessments. Defendant’s counterclaim was based on the same allegations.

Section 9-106 of the Forcible Entry Act, 735 ILCS 5/9-106, provides that matters which are “not germane to the distinctive purpose of the proceedings” may not be raised by a defendant. The plaintiff moved to strike the defendant’s defenses and counterclaim, citing Section 9-106, the Circuit Court granted the motion, and the defendant appealed.

The Appellate Court reversed, holding that the defendant’s defenses were potentially viable. The Court reached this conclusion by analogizing the duty to pay assessments to the obligation to pay rent: Illinois law permitted renters to defend a claim for unpaid rent by alleging that the landlord had breached the duty to maintain and repair, and by analogy, condominium owners should be permitted to raise the same defense with respect to non-payment of assessments. Plaintiff sharply challenged this conclusion, arguing that under the Condominium Act, the right of the board to collect assessments is absolute. 735 ILCS 605/18.4(d). However, the Court disagreed. Rather, the Court concluded that the Condominium Declaration and Bylaws should be seen as contracts where the parties exchanged promises: a promise to pay assessments in return for a promise to maintain and repair.  The Court cautioned that relatively minor problems, such as “overgrown bushes and unrepaired sidewalk cracks” might “rarely” constitute material breaches, but otherwise seemed to suggest no limitations to the defense. Continuing its analogy between renters and condominium owners, the Court then affirmed the severance of the defendant’s counterclaim from the Forcible Entry Act action, noting that only counterclaims for overpaid rent were considered germane in such actions involving renters.

In its petition for rehearing, the plaintiff predicted significant adverse effects from the Court’s decision, a concern echoed in the Chicago Tribune’s article on the case. Plaintiff argued that establishing a right to withhold assessments – a condominium board’s only source of income – would make it even less likely that common areas would be repaired, but the Court observed that the same concern could be applied to multiunit rentals, where the defense was established. In response to plaintiff’s prediction of “a crippling of condominium associations” as a result of the Court’s decision, the Court observed: “we question how well a condominium association is currently functioning if one of its unit owners suffers such neglect as defendant has alleged.”

Spanish Court Two is certain to be a spirited battle at the Supreme Court, with multiple amicus applications from entities within Illinois and perhaps outside the state as well. The Supreme Court will likely decide the case in late 2013. 

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Yesterday, the Illinois Supreme Court granted leave to appeal in four new civil cases. We begin our previews of these newest additions to the court’s docket with Bartlow v. Costigan [pdf], which raises a variety of constitutional challenges to the powers of the Illinois Department of Labor under the Employee Classification Act, 820 ILCS 185/1 et seq.

The state legislature enacted the Act because it suspected that construction contractors were evading various protections extended to workers under the state labor laws by improperly classifying their employees as independent contractors. An investigation begins under the Act when an interested party files a complaint (or the Department may file a complaint itself). If the Department finds cause for an investigation, it has discretion to use any method or combination of methods it chooses. Possible methods include sending a written notice to the contractor explaining the charges and giving an opportunity to present any information in writing bearing on the issues.  Before making a final decision, the Department may – but it not required to – convene a fact-finding conference, either in person or by telephone.

If the Department finds a violation, it has various options open to it: (1) issuing a cease and desist order; (2) attempting to collect wages, salary and/or benefits lost to employees by reason of the violation; or (3) assess civil penalties. The contractor may seek an “informal conference” with the Director of the Department and/or his or her chief legal counsel, but if the contractor fails to pay penalties or comply with the remedies specified in a notice of violation within 30 calendar days, the Department may turn the matter over to the Attorney General for enforcement. Even more severe penalties are possible for a second violation within five years of the first.

The plaintiffs in Bartlow received a notice of investigation and request for documents from the Department in the fall of 2008. The plaintiffs produced the materials, and a conciliator working for the Department interviewed various individuals; finally, in early 2010, the Department sent the plaintiffs notice of having preliminarily found multiple violations of the Act. A fine was set at $1.683 million. When the plaintiffs received a second notice of investigation two weeks later, they filed suit, arguing that the Act and the supporting regulations were unconstitutional on a variety of grounds: due process, special legislation, equal prohibition and bills of attainder. On cross-motions for summary judgment, the Circuit Court rejected each of the plaintiffs’ constitutional challenges.

The Fifth District of the Appellate Court affirmed. First, the plaintiffs argued that the Department was essentially exercising adjudicatory powers without being required to grant a hearing. The Department, on the other hand, claimed that its powers are purely investigatory: it has no authority to enforce any finding of violation itself, and any circuit court proceeding is de novo, with the Department having the burden of proving a violation. The Department characterized its “fines” as amounting to an offer to settle outside of court: the contractor was free to ignore the “fine” without consequence, unless and until the Department went to Court and established the violation anew. Although the Appellate Court expressed its skepticism about the Department’s argument, the Fifth Circuit held that it was compelled by the canon that statutes are held constitutional wherever reasonably possible to adopt the Department’s interpretation of its powers and reject the due process challenge.

The Appellate Court had considerably less difficulty rejecting the plaintiffs’ other constitutional challenges. The Court held that the statute gave sufficient guidance as to who could legitimately qualify as an independent contractor to allow parties to conform their conduct, and accordingly, the statute was not void for vagueness, and/or an unconstitutional delegation of legislative power. The Court rejected the plaintiffs’ equal protection and special legislation claims, applying rational basis review to find that the state had a legitimate interest in revenue lost for various employee-protection programs through misclassification, and that the legislature could have reasonably concluded that workers in the construction industry were most urgently in need of immediate protection through the statute.

The Supreme Court will likely decide Bartlow in late 2013.

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The Illinois Supreme Court has announced its anticipated filing dates for January and February. Opinions are expected on Friday, January 25; Thursday, February 7; and Friday, February 22. Decisions on petitions for rehearing are expected on Monday, January 28^th and decisions on petitions for leave to appeal are expected on Wednesday, January 30.

The Court made substantial progress in December with handing down decisions on cases heard during its September term. The remaining cases awaiting decisions from that term are:

Call of the Docket for September 19

• In re Estate of Boyar, No. 113655 – (1) Is the doctrine of election recognized with respect to trusts? (2) If so, should the doctrine be applied when the property accepted was allegedly nominal in value? For our preview of the case, see here. For our report on the oral argument, see here. 

Call of the Docket for September 20

• Ferguson v. Patton, No. 112488 -- (1) Does Section 2-56-040 of the Chicago Municipal Code authorize the Inspector General of the City of Chicago to hire private counsel to enforce subpoenas? (2) May the Inspector General sue the Corporation Counsel of Chicago to enforce subpoenas? For our preview of the case, see here. For our report on the oral argument, see here.
   
• The Hope Clinic for Women v. Adams, No. 112673 et seq. -- Did the trial court properly dismiss an action challenging the constitutionality of the Illinois Parental Notice of Abortion Act, brought solely under state law, on the grounds that the plaintiffs' equal protection and due process claims were barred by collateral estoppel, and the plaintiffs' privacy claim was barred because Federal privacy law would require dismissal, and state privacy protections were interpreted in lockstep with Federal law? For our preview of the case, see here. For our report on the oral argument, see here.

Turning to the November term, the Court has five civil cases which might be decided in either January or February. They are:

Call of the Docket for November 15

• Griggsville-Perry Community Unit School District No. 4 v. Illinois Educational Labor Relations Board, No. 113721 et seq. – May an arbitrator apply “industrial common law” to find to find that a terminated employee had a right to a statement of specific acts or omissions allegedly justifying termination where the union contract at issue barred the arbitrator from modifying, nullifying, ignoring or adding to the terms of the contract? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.

Call of the Docket for November 20

• State Bank of Cherry v. CGB Enterprises, Inc., No. 113836 -- (1) Does the Federal Food Security Act of 1985, 7 U.S.C. § 1631(e), preempt the state UCC for purposes of security interests on crops? (2) If so, does the Act require strict or substantial compliance in order to effectively attach a security interest when crops are sold? Our pre-argument preview is here. Our report on the oral argument is here.
   
• Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, No. 113873 -- Was a self-insuring employer's claim for reimbursement for workers compensation benefits paid a claim for workers compensation exempt from the Fund's $300,000 liability cap under 215 ILCS 5/537.2? (2) Was a self-insuring employer an "insurer" under the Act, meaning that it was obligated to continue paying benefits until it became insolvent, rather than seeking reimbursement from the Fund? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
   
• Poris v. Lake Holiday Property Owners Association, No. 113907 – (1) May a property association authorize private security officers to stop and detain persons on its property for speeding on association-owned roads? (2) May such an association place oscillating amber lights on vehicles used by its security department? (3) Where plaintiff was ordered by a security officer to remain in his vehicle while a citation for speeding on association-owned roads was prepared, did the plaintiff adequately plead the elements of false imprisonment? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.
   
• Bjork v. O’Meara, No. 114044 – Does the six-month statute of limitations in the Probate Code, 755 ILCS 5/8-1, apply to a separate tort action for interference with testamentary expectancy which -- if successful -- would have the practical effect of invalidating the will? Our in-depth review of the facts and lower court rulings is here. Our pre-argument preview is here. Our report on the oral argument is here.

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We continue our previews of the civil cases scheduled for oral argument during the Illinois Supreme Court's January term with VC&M, Ltd. v. Andrews.

VC&M arises from a real estate dispute. The defendants were in the process of getting a divorce. They signed a contract with the plaintiff to list their residence. Plaintiff found a buyer, who put in a bid for less than the asking price. Defendants rejected the offer and declined to make a counter offer. Not long after, the wife allegedly informed one of the realtors that the defendants weren’t selling the home after all; the wife would buy out the husband’s interest and continue living there.   A few months after the listing agreement expired, the Circuit Court entered a judgment of divorce with respect to the defendants which incorporated a property settlement. The settlement agreement valued the marital home at $5 more than the rejected offer from the prospective buyer. 

The plaintiff then sued the defendants for breach of contract and account stated. The defendants moved to dismiss the complaint for failure to state a claim, and the Court dismissed.

But VC&M isn’t about real estate or contract law. Rather, it’s about a major issue facing Illinois courts, like cash-strapped judiciary systems around the country: e-filing of pleadings. Courts are turning to e-filing in part in order to eliminate the enormous costs of storing paper pleadings. For example, according to Chief Justice Thomas L. Kilbride, Cook County spent nearly $16 million in 2011 just for storage of Circuit Court documents. The Supreme Court announced statewide e-filing standards for trial courts in October 2012, and five counties have been approved to operate pilot projects.

One of those five counties is DuPage, where VC&M arose. Thirty days after the complaint was dismissed, the plaintiff e-filed a motion for reconsideration. The motion was denied the following month, and thirty days after the denial, the plaintiff e-filed a notice of appeal.

The case was technically eligible to be designated as an e-filing case, but the plaintiff hadn’t taken any of the steps necessary to designate it as an e-filing case before e-filing the all-important motion for reconsideration and notice of appeal. Neither the complaint, amended complaint or answer had been e-filed, and the parties hadn’t stipulated to e-filing. And the Local Rules appeared to bar e-filing appellate documents outright.

The Second District of the Appellate Court dismissed plaintiffs’ appeal for lack of jurisdiction, holding that plaintiffs’ failure to comply with the Local Rules regulating e-filing was fatal. First, since the case had not been appropriately designated an e-filing case, the e-filed motion for reconsideration – although technically timely – was ineffective. Since there was no timely filed motion for reconsideration, the Notice of Appeal was untimely. And since the Notice of Appeal couldn’t properly be e-filed at all, it would have been ineffective even if it had been technically timely.

VC&M will be an interesting opportunity for the Supreme Court, if it chooses, to give further guidance to the bar and the lower courts about the rules governing e-filing of pleadings. The Supreme Court will hear argument during the 9:00 a.m. session on Thursday, January 24.

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The Illinois Supreme Court has posted its docket for the impending January term, and the Court will hear argument in five civil cases.

The civil portion of the Court’s docket begins during the 9:00 a.m. session on Wednesday, January 16 with McFatridge v. Madigan. McFatridge, which we previewed here,involves a dispute between a former State’s Attorney and the State over liability for the plaintiff’s attorneys fees incurred when he was sued for malicious prosecution. The question turns on the interpretation of the Illinois State Employee Indemnification Act. 5 ILCS 350/2(b)

Russell v. SNFA, which will be argued during the 9:00 a.m. session on Wednesday, January 23, raises questions of general and specific jurisdiction over a French-based manufacturer of custom-made aerospace bearings and helicopter tail-rotor bearings. Our preview of Russell is here. Russell presents the Supreme Court with its first opportunity to squarely apply J. McIntyre Machinery, Ltd. v. Nicastro, the United States Supreme Court’s landmark 2011 decision on the limits to jurisdiction over foreign-based manufacturers.

DeHart v. DeHart, which we previewed here, presents interesting issues of both wills & estates law and adoption law. The plaintiff’s challenge to the testamentary capacity is based upon the decedent’s statement in his will that he had no children. Was that sufficient grounds to take the challenge before a jury? The case also involves issues of when a jury may permissibly infer the existence of an enforceable contract to adopt, and whether Illinois should recognize the theory of adoption by equitable estoppel.

We’ll post our previews of the Court’s remaining two civil cases, VC&M, Ltd. v. Andrews and Gruszeczka v. Illinois Workers’ Compensation Commission, both of which will be argued during the 9:00 a.m. session on Thursday, January 24^th, shortly.

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Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term conclude with Crittenden v. Cook County Commission on Human Rights [pdf]. Crittenden involves a question of administrative law which, depending on the breadth of the Court’s ultimate decision, could have broad implications: when can an administrative board award punitive damages?

Crittenden arises out of a sexual harassment claim. A bartender working at a Cook County bar filed a police report against her supervisor, resulting in a criminal trial at which he was acquitted. Shortly thereafter, the alleged victim filed a complaint with the Cook County Commission on Human Rights, alleging that her supervisor’s alleged conduct violated the Cook County Human Rights Ordinance. After a contentious hearing on the complaint, a hearing officer recommended that the employee receive an award of lost wages, compensatory and punitive damages. The Commission adopted the hearing officer’s recommended order.   The supervisor and the bar filed a petition for writ of certiorari with the Circuit Court, seeking administrative review of the Commission’s decision. The Court denied the writ, affirming the Commission’s decision on liability and compensatory and punitive damages.

The Appellate Court (First District, Sixth Division) affirmed the Commission in most respects. The appellants – the supervisor and the bar – argued that the Commission’s determination that the complainant was more credible that the appellants’ witnesses was against the manifest weight of the evidence. The Appellate Court rejected the argument, concluding that the appellants were essentially asking the Court to reweigh the evidence and substitute its assessment of credibility on a cold record for that of the hearing officer and Commission. The Appellate Court also found no reason to disturb the decision of the hearing officer, confirmed by the Commission, to allow the complainant to contradict her complaint with respect to the date of the principal events at issue.

The appellants also claimed that the hearing officer and Commission had erred by considering hearsay – testimony that the employee’s son had accompanied her to the bar the day after the principal events and damaged the bar in a fit of anger. The Appellate Court disagreed, pointing out that the rules of evidence didn’t apply to Commission proceedings, and any error in considering the expressive acts of the son was harmless anyway. The Court also concluded that there was sufficient evidence in the record to support the award of compensatory damages, and that the appellants hadn’t proven that the plaintiff failed to mitigate her damages.

The Court reversed the Commission’s award of punitive damages, however. According to the Court, in an action based on a statutory violation, punitive damages may be awarded either because the statute authorizes them, or the facts of the case support common law punitive damages. The Court concluded that the Cook County Human Rights Ordinance doesn’t authorize punitive damages awards, either expressly or by fair implication. Although the Ordinance states that the enumerated penalties are not an exhaustive list, the Court observed that each of the enumerated penalties is compensatory in nature, rather than a windfall like punitive damages. The Court also thought it was significant that the power to award punitive damages was expressly given in other ordinances, suggesting that if such a power had been intended, the Ordinance would say so.

The Appellate Court acknowledged that Division One of the First District had come to the opposite conclusion in Page v. City of Chicago, holding that the Chicago Human Rights Ordinance does permit an award of punitive damages for acts of sexual harassment and discrimination, but the Court declined to follow Page, noting among other things that the Page Court had failed to adequately address the limited powers of administrative agencies.

Finally, the Court refused to permit a common law award of punitive damages. As an administrative agency, the Commission had no common law authority, the Court held. Moreover, even if the Commission did have such authority, the Court pointed out that the Commission had made no findings that the supervisor’s alleged actions were committed with malice, or any of the other grounds which justify a common law award of punitive damages.

We expect the Supreme Court to decide Crittenden within four to six months.

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Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with The Board of Education of Peoria School District No. 150 v. The Peoria Federation of Support Staff, Security/Policemen’s Benevolent and Protective Association No. 114 [pdf]. Board of Education poses two questions: the constitutionality of a recent amendment to the Illinois Public Labor Relations Act relating to certain public employees’ right to strike, and the identity of the proper state administrative board to take jurisdiction over an unfair labor practice claim.

According to the complaint, the plaintiff is the only school district in Illinois which employs its own security officers (as opposed to securing its schools by coordinating with local police departments). The plaintiff’s officers have been represented by various iterations of a union since 1989. When the latest union contract expired in mid-2010, two disputes arose: one fight over the timing of the negotiations, and another over what state law governed the parties’ discussions.

The Public Labor Relations Act regulates labor relations between most public-sector employees and their employers. School districts and their employees are specifically excluded from the coverage of the Act – they fall, as a general matter, under the Educational Labor Relations Act. But by virtue of a 2010 amendment to the Public Labor Relations Act, “a school district in the employment of peace officers in its own police department in existence on the effective date of this amendatory Act of the 96^th General Assembly” is brought back within the coverage of the Act.

Note two things about the language of this “exception to the exception” : first, it only affects the plaintiff in Board of Education – the only school district in the state which employs its own security officers. And second, as written it can never affect anyone else – the class is closed on the effective date of the 2010 amendment. This potentially matters a great deal, since public employees who are subject to the Public Labor Relations Act and are employed as security personnel, peace officers, or firefighters are prohibited from striking – they are required to accept interest arbitration instead.   Employees subject to the Educational Labor Relations Act are, as a general matter, allowed to strike.

The plaintiff filed a two-count complaint, seeking (1) a declaration that the 2010 amendment to the Public Labor Relations Act was unconstitutional special legislation; and (2) that its negotiations with its security officers were governed by the Education Labor Relations Act, rather than the Public Labor Relations Act. The Circuit Court dismissed the complaint for failure to state a claim, but the Appellate Court reversed.

The Illinois Constitution prohibits “special legislation” – meaning statutes which discriminate in favor of a select group on an arbitrary basis. The distinction made by the Public Labor Relations Act between security officers employed by schools and those employed by others wasn’t the problem, the Appellate Court held. The problem was the language of the statute closing the class as of the effective date of the statute. Absent that clause, the distinction might have a rational basis: for example, ensuring that police officers, no matter who employed them, could not strike. But a statutory provision which applied to only one school district and could never apply to anyone else had no apparent rational basis, in the Court’s view. Therefore, the plaintiff’s constitutional challenge to the Public Labor Relations Act was sufficiently viable to go forward.

With respect to the plaintiff’s second claim, seeking a declaration as to whether its dispute fell under the jurisdiction of the state board administering the Education Labor Relations Act or the separate board administering the Public Labor Relations Act, the state boards argued that the plaintiff’s claim failed for failure to exhaust administrative remedies. The Appellate Court rejected the argument, concluding that the plaintiff’s claim was analogous to a challenge to the board’s jurisdiction, and thus exempt from the exhaustion requirement.

We expect the Supreme Court to decide Board of Education within four to six months.

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Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with Hooker v. Retirement Fund of the Firemen's Annuity and Benefit Fund of Chicago, [pdf]. Hooker poses the question of whether the pensions for firefighter's survivors should be set for all time pursuant to the salary the firefighter was receiving at the time of his or her death.

Decedent #1 suffered a stroke while responding to a fire in 1985, and was awarded a duty disability benefit. After he died in 1998, his widow was awarded the widow's minimum annuity pursuant to the Pension Code. 40 ILCS 5/6-141.1. Decedent #2 was injured in 1988 while working for the fire department. He died in 2000, and his widow was awarded the widow's minimum annuity as well. Both women filed complaints for administrative review and won judgments requiring awards of line of duty benefits.

In 2004, the General Assembly amended the Pension Act to require an award of Duty Availability Pay (DAP) in salaries for some pension and annuity calculations. The widows amended their administrative complaints, arguing that (1) they should have been awarded line-of-duty benefits retroactively to the date of the decedents' deaths; and (2) they should have been awarded DAP in their pension calculations. Plaintiffs sought leave to bring the DAP claim as a class action, presenting a list of 100 widows who they alleged had the right to such benefits.

The Circuit Court permitted the plaintiffs' amendment, but stayed the class claims until the line-of-duty benefits claims were resolved. The Court reversed the Board, ordering an award of line-of-duty benefits retroactive to the date of death; the Appellate Court affirmed. On remand, the Board again refused to include DAP in its benefit calculation. The Circuit Court denied the motion to certify a class and granted the Board's motion for summary judgment.

The Appellate Court reversed. The Court held that under Section 6-140 of the Pension Code, 40 ILCS 5/6-140(a), the amount of a widow's annuity depended on the current annual salary attached to the decedent's position, whether or not the firefighter ever actually received that salary. Thus, the widow's annuity increased whenever the decedent's pay grade was increased. Accordingly, the Appellate Court held that the Board was required to include DAP in the salary calculation governing the plaintiffs' pensions.

The Appellate Court reversed the Circuit Court's denial of the motion to certify a class as well, holding that all of the factors governing certification were satisfied. Despite the limited powers of the Board, the Court held that a class complaint was a "rule[ ], regulation[ ], standard[ ], or statement[ ] of policy" within the meaning of the Appellate Court's decision in Board of Education of the City of Chicago v. Board of Trustees of the Public Schools Teachers' Pension & Retirement Fund, rather than a "decision, order or determination of any agency rendered in a particular case," and therefore, a class complaint was not outside the Board's powers pursuant to the Administrative Review Law.

The Court should decide Hooker within four to six months.

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Our previews of the new civil cases granted review at the end of the Illinois Supreme Court’s November term continue with Prazen v. Shoop [pdf], a dispute about the politically charged issue of public employee pensions.

Prazen relates to an Early Retirement Incentive (ERI) plan adopted by a city pursuant to section 7-141.1 of the Pension Code. At the end of 1998, the plaintiff retired from his position as superintendant of the city electric department, purchasing five years “age-enhancement credit” pursuant to the ERI to do so. Less than two weeks before his retirement became effective, the plaintiff incorporated a business which he had run as an unincorporated entity for some time – Electrical Consultants, Ltd.

Three days after it was incorporated, ECL and the city entered into a management and supervision agreement for the operation of the city’s electric department, effective one day after plaintiff’s retirement. Pursuant to the agreement, ECL agreed to provide a full time person to perform its duties with the electric department. The agreement was extended a number of times, until ECL finally terminated it in early 2009. ECL was voluntarily dissolved several months later. Throughout the life of the company, ECL employed no more than three people: plaintiff, his wife and their daughter.

The potential problem here is Section 7-141.1(g) of the Pension Code:

An annuitant who has received any age enhancement or creditable service under this Section and thereafter accepts employment with or enters into a personal services contract with an employer under this Article thereby forfeits that age enhancement and creditable service . . .

In the years immediately following his 1998 retirement, the plaintiff sought assurances on three occasions from the Illinois Municipal Retirement Fund that his contract with the city didn’t imperil his pension. In 1998, an IMRF representative allegedly told the plaintiff’s lawyer that a former employee could contract with an IMRF employer as an independent contractor (which is what the contract between the City and the plaintiff’s ECL corporation was). In early 2002, IMRF representatives confirmed that everything said in 1998 still applied. In late 2002, an IMRF representative confirmed that an “early out” employee could work for a corporation – even one he owned – doing work for his former employer, so long as the corporation wasn’t merely a guise to evade the statute.

Nevertheless, in 2010, IMRF staff informed the plaintiff that his continued relationship with the city had run afoul of Section 7-141.1(g) of the Pension Code after all. The plaintiff appealed the decision to the IMRF benefit review committee. Concluding that the IMRF had the power to “make administrative decisions concerning participation and coverage and to carry out the intent of the Fund,” the committee determined that the plaintiff’s corporation was a “guise” to evade the return-to-work provisions of the statute and ordered the plaintiff to repay the portion of his pension annuity attributable to his early retirement incentive. The IMRF Board of Trustees later affirmed the staff determination and adopted the committee’s conclusions as its own. The Circuit Court affirmed.

The Appellate Court (Fourth District) reversed. The Court held the Board of Trustees had the power to order return of benefits in only two circumstances: when an employee had accepted “employment with” or entered into a “personal services contract with” his former employer. The Board made neither determination here. If the Board were permitted to expand its general power to make “administrative decisions on participation and coverage” into authority to order return of benefits under additional circumstances not specified by the statute, then Section 7.141.1(g) would be rendered superfluous, the Court found. The Board’s finding that the plaintiff’s corporation was a “guise” for evading the statute amounted to an equitable determination to pierce the corporate veil, according to the Appellate Court. If the legislature wanted to grant such power to the Board, it would have said so, in the Court’s view.

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In the closing days of the Illinois Supreme Court's November term, the Court allowed petitions for leave to appeal in six civil cases. Our previews of the new grants begin with In re Marriage of Earlywine [pdf]. Although Earlywine arises from a divorce, it presents an interesting intersection of domestic relations law and attorney retainers.

In conjunction with divorce proceedings, the husband entered into an attorney-client agreement with his attorney, agreeing to pay an advance payment retainer. An affidavit from the husband's mother explained that she, her fiancé, the husband's father and the husband's father's wife financed the retainer. During the dissolution proceedings, the evidence showed that the husband was working only sporadically and the wife was unemployed.

The wife's attorney filed a petition 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 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, finding that the wife was unable to pay her attorney's fees, and an interim award was appropriate. The husband's attorney moved to reconsider, attaching a copy of the attorney-client agreement and arguing that, as an advance payment retainer, the funds had become his property at the moment of payment, and therefore were not subject to disgorgement.

The Circuit Court denied reconsideration, holding that the public policy in favor of placing the parties to a divorce in substantial parity overrode any considerations about the nature of the retainer. Counsel refused to pay, asking that he be held in friendly contempt to facilitate an appeal.

The Second District of the Appellate Court affirmed. The Court began by distinguishing a true, classic or general retainer -- which is intended to ensure the attorney's availability for a specific matter, or during a specific period -- from a security retainer. A true retainer becomes the attorney's property immediately, while a security retainer continues to be the client's property until it is earned.

Ultimately, however, the Court held that the distinction didn't make a difference. Advance payment retainers -- a form of true retainer -- are to be used sparingly, and only to accomplish a specific purpose that some other form of retainer would frustrate. Permitting an advance payment retainer to defeat a claim for interim fees would frustrate the primary purpose of section 501(c-1), which is to ensure that the parties are in substantial financial parity during the divorce proceedings, the Court held.

Besides, the Appellate Court found, Section 501(c-1) specifically listed "retainers . . . previously paid" as a source for disgorgement. Given that the Legislature didn't choose to distinguish between the types of retainers, the terms of the statute should be given their broadest possible construction. The Court acknowledged in closing that the husband had borrowed the money to finance the retainer from his own family, but held that this fact should not change the result.

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Today, the Illinois Supreme Court adopted Rule 502 of the Illinois Rules of Evidence, governing the circumstances in which disclosure of protected materials in a legal proceeding, or before a state or federal office or agency, affects a more general waiver of the attorney-client or work product privilege.

The new state Rule 502 tracks Federal Rule 502 almost word for word: (1) when disclosure happens in a state proceeding, or before a state office or agency, the scope of waiver is decided case-by-case; (2) when disclosure is inadvertent, a general waiver may be avoided by quick and reasonable mitigating steps; and (3) disclosure in a Federal proceeding, another state's proceeding, or before a Federal or other state's proceeding is waiver only if it would not qualify as waiver under either Illinois law or the law of the jurisdiction where the disclosure happened.

But here's the interesting part. The new Rule 502 became an issue in Center Partners, Ltd. v. Growth Head GP, LLC, which will settle the breadth of waiver in a non-litigation case where business partners shared their attorneys' advice with each other while negotiating a business deal. Center Partners will be released tomorrow morning. Perhaps the adoption of Rule 502 today suggests how the Court will rule in Center Partners tomorrow.

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This morning, the Illinois Supreme Court announced that it has allowed petitions for leave to appeal in six new civil cases. They are:

• Earlywine v. Earlywine, No. 114779 -- a case on the construction of the Marriage and Dissolution of Marriage Act arising from the Second District.
   
• Hooker v. Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, No. 114811 – a case on the proper calculation of annuities under the Pension Act for firefighters’ widows arising from the First District, Division Three.
   
• The Board of Education of Peoria School District No. 150 v. The Peoria Federation of Support Staff, Security/Policemen’s Benevolent and Protective Association Unit No. 114, No. 114853 – a case involving the constitutionality of an amendment to the Illinois Public Labor Relations Act arising from the Fourth District.
   
• Crittenden v. Cook County Commission on Human Rights, Nos. 114876 and 114911 – an administrative appeal from the decision of the Cook County Commission on Human Rights with respect to a claim for sexual harassment in violation of the Cook County Human Rights Ordinance, arising from the Sixth Division of the First District.
   
• Relf v. Shatayeva, No. 114925 – a case involving the dismissal of a personal injury action under Section 2-619 of the Code of Civil Procedure where, unbeknownst to the plaintiff, the defendant had died before the original complaint was filed. Relf arises from the First District, Second Division.
   
• Prazen v. Shoop, No. 115035 – a case involving the return-to-work restrictions of the Illinois Pension Code and their impact on early retirement incentives for municipal employees. Prazen arises from the Fourth District.

As we noted yesterday, the Court has announced that it expects to file four new civil opinions tomorrow morning. Once we’ve completed our analysis of those opinions, we’ll begin our detailed previews of the Court’s six new civil grants.

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With the November term in full swing and the holidays rapidly approaching, the Illinois Supreme Court has announced that the Court expects to file opinions on three remaining days in 2012: November 29, December 13 and December 28.

The Court’s civil docket is largely up to date, accounting for the usual time between argument and opinion. Every civil case on the January and March argument dockets has been decided. One remains from the May term, and we will likely see that opinion soon: 

• Wilson v. Edward Hospital, No. 112898 – Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting set forth by the Supreme Court in Hudson v. City of Chicago, 228 Ill.2d 462 (2008) and Rein v. David A. Noyes & Co., 172 Ill.2d 325 (1996), so that summary judgment entered on the actual agency claims in plaintiffs’ initial suit bars plaintiffs’ apparent agency claims in a refiled suit, even in the face of a ruling that there is a question of fact as to the apparent agency claims?

As readers of The Appellate Strategist will recall, the Court’s September term was especially heavy in civil arguments, with thirteen cases being argued, presenting a number of challenging issues. Based on the Court’s experience in recent years, we would expect between three and six cases from the September term to be handed down in December.  The cases are:

Call of the Docket for September 13:

• Hernandez v. Bernstein, No. 113054 -- (1) Is an action for legal malpractice based on one factual theory one claim for purposes of res judicata, or two? (2) Does a plaintiff's voluntary dismissal of the remainder of his claim render the trial court's order dismissing one of plaintiff's factual theories final for purposes of res judicata? For our preview of the case, see here. For our report on the oral argument, see here.

Call of the Docket for September 18:

• Center Partners, Ltd. v. Growth Head GP, LLC, No. 113107 et seq. – (1) Does the doctrine of subject matter waiver for the attorney-client privilege extend from litigation to business negotiations? (2) Can documents shared among partners in a business negotiation be protected by the work product privilege? For our preview of the case, see here. For our report on the oral argument, see here.
   
• Cooney v. Rossiter, No. 113227 – (1) Was the plaintiffs' action barred pursuant to res judicata by the earlier Federal action, even though the earlier Federal action was a class, rather than an individual claim? (2) Did a court-appointed psychological evaluator in a custody hearing have absolute immunity from suit for alleged misconduct in connection with his opinions? For our preview of the case, see here. For our report on the oral argument, see here.
   
• Carr v. Koch, No. 113414 – Do plaintiffs have standing to challenge the Illinois education funding system as a violation of the equal protection clause of the Illinois constitution? For our preview of the case, see here. For our report on the oral argument, see here.
   
• EMC Mortgage Corp. v. Kemp, No. 113419 – (1) Is a judgment of foreclosure final and appealable, or must an appeal await a final order approving the sale and distributing the proceeds? (2) Is an order of foreclosure immediately appealable when standing is challenged on the grounds that the order is void? For our preview of the case, see here. For our report on the oral argument, see here.
   
• Mathis v. Mathis, No. 113496 – In a bifurcated dissolution proceeding, when a grounds judgment has been entered, and when there is a lengthy delay between the date of entry of the grounds judgment and the hearing on ancillary issues, is the appropriate date for valuation of marital property the date of dissolution or a date as close as practicable to the date of trial of the ancillary issues? For our preview of the case, see here. For our report on the oral argument, see here.

Join us after the jump for the remaining cases.

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In the final days of its September term, the Illinois Supreme Court allowed a petition for review in Standard Mutual Insurance Co. v. Lay. [pdf] In Lay, the Court will decide whether the Federal statutory penalty for sending junk faxes is in the nature of punitive damages, and thus uninsurable under Illinois law.

The defendant in Lay is a small real estate agency. According to the complaint, the defendant hired a “fax broadcaster” in connection with advertising a particular property listing. “Fax broadcasters” offer a “blast fax” service, sending advertisements to thousands of fax machines cheaply.

According to the Federal Telephone Consumer Protection Act, it is unlawful to send unsolicited advertisements to a fax machine, whether by use of a fax machine, computer or any other device. 47 USC 227(b)(1)(C).  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.

The fax broadcaster in Lay allegedly represented to the defendant that only persons who had agreed to receive advertisements would get its blast fax. Allegedly this was not so. So not long after the defendant’s blast fax was sent, the underlying action was filed, seeking a trebled penalty of $1,500 for each of the 3,478 faxes purportedly sent.

The defendant tendered its defense to its insurer, which accepted under a reservation of rights. Ultimately, the defendant agreed to settle the underlying action, with the plaintiff class representative agreeing not to execute against the defendant’s assets, with the exception of its insurance policy.

Meanwhile, the insurer had filed a declaratory judgment action, seeking a declaration that the insured’s liability was not covered under the policy. Following the settlement of the underlying action, the class representative became actively involved in the dec action, and the insurer and the class representative filed cross motions for summary judgment. The Circuit Court granted the insurer’s motion, finding no duty to defend or indemnify.

The Appellate Court affirmed. After clearing away a preliminary issue, finding that the insurer’s reservation of rights letter had adequately disclosed the nature of its conflicts with the insured, the Court turned to the TCPA. The class representative argued that the damages from the TCPA action were covered under both the advertising injury and property damage provisions of the policies. The Appellate Court disagreed.

The purpose of the TCPA, according to the Court, is to deter sending of unwanted fax transmissions. The $500-per-fax penalty, the Court pointed out, is far in excess of any damages suffered by the recipient, which are limited to paper, toner and annoyance. If construed as compensatory damages, the penalty is clearly a windfall.

Illinois courts have written that the purposes of punitive damages are (1) retribution against a defendant; (2) deterrence of future wrongs by the defendant; and (3) general deterrence of others. The final two purposes apply equally to the TCPA penalty, the Court found. The Court conceded that at least some other jurisdictions have held that the TCPA is remedial rather than penal in nature, but declined to follow those decisions, pointing out that allowing defendants to get insurance coverage for the penalty would frustrate the purpose of deterring violations. The Court held that TCPA statutory damages are in the nature of punitive damages, and therefore uninsurable as a matter of law in Illinois.

The Supreme Court will likely decide Lay sometime in the first half of next year.

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During its May term, the Illinois Supreme Court decided Harris v. Thompson, which posed the question of whether a public entity or employee could be held liable for negligent operation of an ambulance. At the close of its September term, the Court allowed a petition for review in Wilkins v. Williams. Wilkins poses the inevitable follow-up question to Harris: but what if the ambulance is operated by a private company’s employee?

Since Harris may give us clues to the Court’s initial thoughts on Wilkins, let’s start there. (For our preview of Harris, click here, and for our report on the opinion, here.)  Harris reached the Court as a perceived conflict between two statutes. On the one hand, the Local Governmental and Governmental Employees Tort Immunity Act provided that public entities and employees could not be “liable for an injury caused by the negligent operation of a motor vehicle or firefighting or rescue equipment, when responding to an emergency call, including transportation of a person to a medical facility.” On the other hand, the Vehicle Code says that although the driver of an emergency vehicle has certain privileges, he or she still has “the duty of driving with due regard for the safety of all persons.” The Appellate Court had held that the Vehicle Code trumped the Tort Immunity Act, making the driver and employer potentially liable.

But the Supreme Court held that there was no conflict. According to the six-Justice majority, the Vehicle Code extended certain privileges and imposed certain duties. The Tort Immunity Act addressed a different question: whether or not there was a duty involved, was the suit barred? The Court held that it was. Chief Justice Thomas L. Kilbride dissented, arguing that there was an “obvious and undeniable conflict” between the statutes, and the Vehicle Code should have prevailed.

Wilkins involves virtually identical facts: an ambulance transporting a patient on a non-emergency run strikes another vehicle, injuring the driver. Is the driver of the ambulance and her employer liable?  But in Wilkins, the ambulance was privately owned. So rather than the Tort Immunity Act, we have the Emergency Medical Services (EMS) Act to deal with.

Nonetheless, the two statutes seem similar in scope. According to the 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, two questions: (1) Does the EMS Act extend to non-emergency transport of patients? (2) Does the statute extend to injuries sustained by third parties not directly treated by EMS workers?

The first issue may not detain the Supreme Court long. Although the Legislature removed a reference to “transporting a patient” from the EMS Act in an earlier amendment, as the Appellate Court pointed out, the Supreme Court held in Abruzzo v. City of Park Ridge that the statute still impliedly covered transportation of patients. It seems unlikely that the Court will disturb Abruzzo only four years after it was decided.

The second issue is likely to be the focus of the Court’s attention. The Appellate Court concluded that the EMS Act was ambiguous with respect to whether it negated any duty to third party motorists. The Court then turned to Section 11-205 of the Vehicle Code – exactly the same provision that led the Appellate Court astray in Harris – and held that in order to give effect to both provisions, the EMS Act had to be construed as not negating the independent duty to third party motorists imposed on ambulance drivers and every other motorist. The defendants in Wilkins cited the Court to the Tort Immunity Act, but the Court held that the Tort Immunity Act “evidences the legislature clear intent to immunize public entities and employees” – an intent missing in the EMS Act.

Wilkins should be interesting to watch play out at the Supreme Court. Can the plaintiffs persuade at least four members of the Court – necessarily including at least three members of the six-Justice Harris majority -- that there is a meaningful difference between the Tort Immunity Act and the EMS Act? We should find out in between four and eight months.

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We complete our preview of the new civil review grants at the Illinois Supreme Court with DeHart v. DeHart [pdf], a will contest which raises a range of issues from how do you prove lack of testamentary capacity, to undue influence, to whether or not Illinois should adopt the theory of "equitable adoption."

Like many will contests, DeHart has a complex domestic drama wrapped inside. Plaintiff filed a will contest. According to his operative complaint, decedent had held plaintiff out for some sixty years as his son. In addition to telling members of the community for years that plaintiff was his son, decedent gave plaintiff a birth certificate listing his own name as the plaintiff's natural father. There the story remained until 2000, when plaintiff applied for a passport. The government wouldn't accept the copy of plaintiff's birth certificate he had, so for the first time, he requested a certified copy. The certified copy listed an entirely different person as plaintiff's father. When the plaintiff confronted decedent, the decedent said that plaintiff's mother had married the listed father after learning she was pregnant, but that decedent had "secretly" adopted plaintiff two years later. In the years following the 2000 discussion, decedent continued to represent plaintiff as his son; he financed a family vacation for himself, plaintiff and plaintiff's children, and at some point drafted a will leaving bequests to plaintiff and his children.

But then, at approximately eighty-three years of age, decedent married defendant. Only a year later, he signed a new will stating that he had no children and never mentioning plaintiff. When decedent died three months after the will was signed, the widow probated the document.

Plaintiff challenged the will on a litany of grounds: lack of testamentary capacity; defendant's undue influence; a separate tort claim against defendant for fraudulent inducement; and a claim that plaintiff was entitled to share in the estate as his adopted son, either through a contract of adoption or "equitable adoption," a theory which Illinois has neither adopted nor rejected. The Circuit Court dismissed, but the Appellate Court reversed on all counts.

The lack of capacity count is of particular interest. Although plaintiff alleged a host of facts which, on motion to dismiss, sufficiently alleged that plaintiff was a natural object of decedent's bounty, unlike many will contests, the lack of capacity rested on one fact only: decedent's statement in his will that he had no children. The defendant argued that the statement was factually true, but the Court held that that was for the jury to decide -- the statement in the will was sufficient for plaintiff's challenge to the decedent's capacity to proceed.

Reversal of several additional claims was relatively fact-bound: plaintiff alleged undue influence based on the claim that defendant held decedent's power of attorney, and plaintiff's allegations that she had intercepted and destroyed cards and letters from plaintiff. Although the Court noted that plaintiff's tort claim against defendant might ultimately be vulnerable if the will contest succeeded, it declined to affirm dismissal at this point.

The Appellate Court's holdings on adoption, however, may well establish an interesting precedent at the Supreme Court. Relying on Monahan v. Monahan, 14 Ill.2d 449 (1958), the court held that plaintiff had alleged enough circumstantial evidence that a jury could permissibly infer the existence of an enforceable contract to adopt. Presiding Justice Schmidt dissented from this holding, emphasizing the complaint's failure to identify the parties to the purported contract. In the alternative, the Appellate Court became the first court in Illinois to endorse the theory of adoption by equitable estoppel, pursuant to which, when a plaintiff alleges an express or implied contract to adopt, detrimental reliance, and performance of obligations under the de facto relationship, equitable estoppel prevents the alleged parent and those in privity with him from denying the relationship. The Court held that the complaint's allegations of sixty years of conduct by decedent consistent with a parental relationship was sufficient to establish an estoppel applicable against decedent's estate.

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We continue our preview of the new civil review grants from the Illinois Supreme Court with Russell v. SNFA, which raises questions of general and specific jurisdiction over a French-based manufacturer.

Russell [pdf] 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 defendant was a French-based manufacturer of custom-made aerospace bearings and helicopter tail-rotor bearings.

And that's where the trouble started. Turns out the helicopter had been built in Italy by an Italian company. From there, it had found its way into the hands of first a Germany company, then a Louisiana-based company, and finally, to the decedent's employer, which was based in Cook County.   The Louisiana company had replaced several of the bearings with replacements made by defendant. Those were manufactured in France, sold in Italy, sold again to the customer's American subsidiary, and then sold to the Louisiana-based former owner (note that we still haven't tied anything to Illinois other than the accident and the domicile of the decedent). Both the original and the replacement bearings had been custom-made by the defendant for the Italian-based customer.

The trial court dismissed for lack of jurisdiction, noting that the only contact between the defendant and Illinois anytime in the general vicinity of the accident had been a single visit to a completely different customer. The court mentioned a little less than a million dollars in sales into the state, but it's not clear whether these sales came straight from the defendant, as opposed to passing through a distributor. The court held that the plaintiff was dependent on general jurisdiction -- which grants authority over any action based on "doing business" -- rather than specific jurisdiction, and plaintiff's showing fell short.

The Appellate Court reversed. Heavily relying on Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987), the Court held that specific jurisdiction was present over the French defendant. After all, the defendant knew that its Italian customer sold its helicopters throughout the United States, and that the customer had an American subsidiary to facilitate American distribution. So it should expect to be haled into court in Illinois or -- for that matter -- any other state in the country, the Court concluded. Jurisdiction was reasonable since the defendant had designed and manufactured a component that was incorporated into a product that was intended to be, and was in fact sold in the United States, according to the Court.

So why did the Supreme Court take the case? Simple: J. McIntyre Machinery, Ltd. v. Nicastro - decided by the United States Supreme Court three months after Russell came down. Nicastro arose from an accident which occurred in New Jersey. Like the Appellate Court in Russell, the New Jersey Supreme Court affirmed jurisdiction, relying heavily on Asahi. But the Supreme Court reversed.

It was immaterial, the Court held, that the defendant had placed its product into the stream of commerce, and could have expected that it would wind up in New Jersey. It had not "engaged in conduct purposefully directed at New Jersey." The defendant had attended U.S. trade shows, but none in New Jersey; relatively few machines wound up there; the defendant had no office there, paid no taxes, owned no property, and didn't advertise in New Jersey. As Justice Breyer observed in his concurring opinion, a single isolated sale, even if accompanied by a nationwide sales effort, is simply not enough.

Russell should give the Illinois Supreme Court its first opportunity to apply Nicastro. It's bound to be a major opinion, and Appellate Strategist will be following developments closely.

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In a time of budget cuts -- including cuts directed against public employees -- Griggsville Perry Community Unit School District v. Illinois Educational Labor Relations Board [pdf] may wind up offering important guidance to the state and local lawmakers. There, the underlying party worked as a noncertified paraprofessional for the plaintiff school district. After a long series of alleged complaints and counseling sessions, the school board informed the employee that she would be terminated. The employee's board president filed a grievance disputing the allegations of poor job performance, and appeared before the board, but the employee was terminated.

The matter then went to arbitration. First, the arbitrator sustained the grievance and directed that the employee be rehired. The matter went before the Educational Labor Relations Board, which remanded the case, but the arbitrator issued an amended decision and again ordered reinstatement. So the District filed a petition for review with the Appellate Court, which reversed in a sharply worded opinion.

Like most states, the baseline rule in Illinois is at-will employment. The arbitrator acknowledged that nothing in the union contract overrode that principle, but invoked "[the] bargaining history leading up to contractual silence" as grounds for implying a for-cause requirement.

The Appellate Court was decidedly unimpressed. After all, the contract included an integration clause. The bargaining history was irrelevant. And the Court didn't see anything particularly persuasive in the parties' bargaining history anyway: "The arbitrator's decision . . . is not supported by any past practice of the parties." Bottom line: there was nothing in the contract that overrode the at-will principle, so the "due process" the employee was given was more than enough. Justice McCullough dissented, finding that the arbitrator's decision "was drawn from the essence of the parties' collective-bargaining agreement."

So can courts go beyond the plain language of a collective bargaining agreement -- even beyond an integration clause -- to ponder the "sounds of silence"? We should find out within the next year.

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Today we continue our previews of the new civil review grants from the May term of the Illinois Supreme Court.

In Skokie Castings, Inc. v. Illinois Insurance Guaranty Fund, [pdf] the Court will face questions about the operation of the Illinois Insurance Guaranty Fund with respect to self-insurers. A worker was seriously injured on the job. At the time, plaintiff's predecessor company was a self-insurer with respect to workers' compensation insurance, but also held an aggregate excess policy and a specific excess policy.   Following the accident, the employer paid the retention amount, after which the insurer took over, until it went into receivership. The Fund began paying, but ultimately informed plaintiff that it had reached its $300,000 cap on covered claims, and stopped. Plaintiff sued and won its motion for summary judgment.

Skokie turns purely on a question of statutory interpretation. Specifically, according to the Insurance Code, 215 ILCS 5/537.2, the Fund's obligations "shall not . . . exceed $300,000, except that this limitation shall not apply to any workers compensation claims." The Fund argued that the plaintiff's claim for reimbursement of amounts paid was not a "workers compensation claim," but -- noting that the Code states a purpose to protect both claimants and policyholders, 215 ILCS 5/532 -- the Court held that the term encompassed claims brought by policyholders of insolvent insurers.

The broader -- and ultimately perhaps more important -- issue in Skokie is whether the self-insuring employer is an "insurer" within the meaning of the statute, and thus liable to pay the claims until it becomes insolvent before the Fund's liability kicks in. Noting that there was no Illinois law on the subject, the Court surveyed decisions from around the country, concluding that the majority view was that a self-insuring employer was not an "insurer" for purposes of such a statute. Following a decision of the New Mexico Supreme Court, In re Delinquency Proceedings Against Mission Insurance Co., 816 P.2d 502 (N.M. 1991), the Court agreed.   The Court noted that the guaranty statute in New Jersey expressly exempted self-insuring employers, and concluded that if the Illinois legislature had wished to do the same, it would have said so.

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Earlier today, we previewed Bjork v. O'Meara, a case about the perils of challenging a will too late. Now we preview a case about timing your claim for attorneys fees: Rodriquez v. Department of Financial and Professional Regulation [pdf].

The defendant Department sued Rodriquez for violating the Medical Practice Act. The parties agreed to stay all proceedings while the defendant argued about the rules of game: he believed that the discovery and evidence rules were unlawful. In the end, he had some success: the courts refused to grant him deposition subpoenas, but struck down section 1110.220 of the Department's rules for administrative proceedings. The Department closed the file, but the plaintiff wasn't finished -- he sued for his legal fees incurred in killing off section 1110.220.

The case turns on Section 55(c) of the Administrative Procedure Act: "In any case in which a party has any administrative rule invalidated by a court for any reason . . . the court shall award the party bringing the action the reasonable expenses of the litigation, including reasonable attorneys' fees."

But when can such a claim be brought, the Attorney General asked -- usually, attorneys' fees claims are coupled with the underlying action. Since the administrative claim was over when the attorneys' fees claim started, had the plaintiff waited too long?

No, the Appellate Court held. The statute said nothing about a time limit, and the claim for fees didn't accrue until the rule was struck down anyway.  The court followed the decision in Town of Libertyville v. Bank of Waukegan, 152 Ill.App.3d 1066, 1073 (1987), holding that a claim for fees was collateral to the underlying action when it was outside the issues in the case and the authorizing statute set no time limit for the claim.

Is a claim for fees lost if it's not coupled with a challenge to administrative rules? One can imagine an efficiency argument for answering the question "yes," despite the lack of limitations in the statute. We should learn the answer late this year or sometime in 2013 from the Illinois Supreme Court.

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Today in our continuing series of previews for the Illinois Supreme Court, we bring you two cases on the perils of waiting too long: Bjork v. O'Meara and Rodriquez v. Department of Financial and Professional Regulation.

In Bjork [pdf], the plaintiff died, and his will was probated. Plaintiff filed an appearance in the probate proceeding, and sought issuance of citations to discover information and recover property to a certain Trust Company, arguing that she, rather than the estate, was the rightful owner of assets contained in a Trust account. She lost on all counts, and the estate was closed.

So plaintiff sued defendant for tortious interference with a testamentary expectancy, alleging that she had expected to be named pay-on-death beneficiary of the Trust bank account. The defendant cited section 8-1 of the probate Act, which requires that actions to contest the validity of a will must be filed within six months of the admission of the will to probate. 755 ILCS 5/8-1. The Circuit Court agreed and dismissed the suit, and the Appellate Court affirmed.

Bjork involves a traditional conflict of authority. On the one hand, we have Robinson v. First State Bank of Monticello, 97 Ill.2d 174 (1983), which held that an action for tortious interference with testamentary expectancy was governed by the six-month statute of limitations, since it would call into question a probated will. On the other hand, there's In re Estate of Ellis, 236 Ill.2d 45 (2009), where the Court held that the statute of limitations was not implicated, since plaintiff could not have known he was a possible beneficiary of the will until the statute had run, and a successful will contest would not have provided full relief.

But what if the plaintiff had no claim under intestacy law, so that he or she couldn't mount a successful will contest? The Appellate Court held it didn't matter.   The plaintiff clearly knew about the will and her claim, so an action was "available," and even though she had no basis for a will contest, she could and should have brought her tort action while the probate action was pending. Any other result, the Court found, would destabilize wills and estates by allowing the practical invalidation of a will after it emerged from probate.

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Our second new grant of the May term at the Illinois Supreme Court is McFatridge v. Madigan [pdf]. McFatridge involves a simple question: if an elected official gets sued for his or her official actions, who pays the lawyer? Turns out, there's conflicting statutory language on that one.

Plaintiff used to be the State's Attorney -- an elective position -- in Edgar County. In 1987, he successfully prosecuted two individuals for murder. But many years later, the Federal district court granted both defendants' habeas petitions. So they both sued the plaintiff -- malicious prosecution, false imprisonment, intentional infliction of emotional distress.

Which brings us to the Illinois State Employee Indemnification Act. According to Section 2(b), although the Attorney General should, as a general matter, defend state employees sued for their acts within the scope of their employment, the Attorney General should opt out when the challenged act or omission "was intentional, willful or wanton misconduct." 5 ILCS 350/2(b).

Plaintiff repeatedly asked the Attorney General for representation. In 2005, the Attorney General said no, noting that the plaintiff had been accused of intentional, willful or wanton misconduct. In 2009, same thing. Finally, in 2010, counsel for the plaintiff demanded payment of plaintiff's attorney's fees. Same result: the complaint alleges intentional, willful or wanton misconduct, so you're out of luck. The plaintiff filed a petition for writ of mandamus, asking the Circuit Court to force the Attorney General's hand, but no luck: complaint dismissed.

The Appellate Court reversed. The Circuit Court's error, the Court held, was not reading the second paragraph of Section 2(b), which provided that the State "shall pay" the litigation expenses and attorney's fees of an "elected official" without limitation. So the Attorney General had no discretion, and the Court could order her to comply in mandamus.

Ultimately, the most substantial claim in McFatridge may prove to be the argument that the action was barred by the five-year statute of limitations. 735 ILCS 5/13-205. The Appellate Court held that the statute was not triggered, since the plaintiff's earlier demands had been for representation in the suit, not payment of attorney's fees -- the first demand for payment of fees had come in 2010, not long before the suit was filed.

Perhaps the Supreme Court took McFatridge in order to adopt the holding statewide. But if the Court wants to pull the teeth of the precedent, it would not be surprising to see a holding that the action is barred by the statute of limitations.

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Today we begin a new feature for Appellate Strategist -- detailed previews of civil cases just granted review in the latest term of the Illinois Supreme Court. This week we will review the late May grants, and the feature will continue shortly after the end of each term of the Court.

Poris v. Lake Holiday Property Owners Association [pdf] brings several questions before the Court about the powers of private security forces. Plaintiff owns property in the Lake Holiday Development, and is a member of the defendant Association. The Association Board of Directors has adopted rules and regulations for the governance of Association property, including speed limits. The Board hired private security officers to enforce the limits, bought vehicles and equipped the vehicles with oscillating and flashing lights, radar units and audio and video recording equipment. Officers were empowered to issue citations to homeowners for violations.

Plaintiff was stopped by a security officer for speeding on Association property. The encounter played out pretty much like any traffic stop with a policeman would: officer takes driver's license, driver waits, officer writes citation.

Plaintiff sued the Association, every member of its Board, the chief of security and the officer . Count I sought a declaratory judgment that the practices of the Association's security department were illegal. Counts II and III alleged breach of fiduciary duty and willful and wanton conduct. Count IV alleged false imprisonment. Counts V through XII alleged breach of fiduciary duty and willful and wanton conduct by each board member, and the Chief of Security. Count XIII alleged nuisance and Count XIV sought an accounting. The Circuit Court wasn't impressed, tossing the whole thing on summary judgment.

But the Appellate Court held that the driver had stated certain claims after all. The Illinois Code of Criminal Procedure, 725 ILCS 5/107-3, gives private citizens -- and a private security officer is nothing more than a private citizen in this state -- the authority to make an arrest when he or she has "reasonable grounds to believe than an offense other than an ordinance violation is being committed." But hold on, the Court said -- the officer wasn't stopping the plaintiff for committing an "offense" -- plaintiff got stopped for violating the Association's speeding-on-Association-property rule. So the Association's stop-and-detain rule may be a problem.

Ever wonder who gets to flash red lights on the highways? Under Illinois law, the answer is "[v]ehicles used by a security company, alarm responder, or control agency." 625 ILCS 5/12-215(b)(13). Well, the parties agreed that the Association wasn't an "alarm responder" or "control agency" -- but the Association claimed it was a "security company." Not so fast, the Appellate Court said, quoting from the Association's articles of incorporation. So back goes that claim too.

The Court then reviewed several less controversial claims -- the Association could use its recording equipment since officers turned it off whenever anyone objected, and it could continue to use the radar gun -- the Court turned to the plaintiff's false imprisonment claim. The result of this one was pretty much a foregone conclusion after the holding on stop-and-detain -- the Association clearly had a problem. And so it did: reverse with instructions to enter judgment against the Association with respect to liability.

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