What We Learned About the Illinois Supreme Court in 2013

[The following post was originally published on Law360.com on February 19, 2014.]

With the publication of "The Behavior of Federal Judges," by Lee Epstein, William M. Landes and Judge Richard A. Posner, rigorous statistical analysis of the appellate courts is beginning to move from academic publications to mainstream bar journals. Although academic analysts have focused largely on the federal appellate courts — the United States Supreme Court in particular — my focus for the past several years has been on the civil docket of the Illinois Supreme Court.

For 2013, the court decided 34 civil cases (not including attorney discipline and juvenile matters). More than 80 percent of the civil docket consists of appeals taken from final judgments and orders. The court decided four civil cases, each where the primary issue was civil procedure, domestic relations and constitutional law, as well as three cases each in insurance, wills and estates, and workers compensation. In addition, the court decided two cases each in the areas of taxation, labor law, tort and public pensions.

Not surprisingly, a dissent at the Appellate Court helps in getting the court’s attention — 29.4 percent of the civil cases involved dissents below, right in line with the court's trend in recent years. The court rarely allows petitions for leave to appeal from unpublished decisions (known in Illinois as Rule 23 orders) — only 8.8 percent of the civil docket in 2013.

The court decided 58.8 percent of its civil cases unanimously. This is similar to the court’s experience in 2012, when the unanimity rate was 52.6 percent, but significantly below the court's unanimity rate for most of the past decade. From 2003 to 2005 and 2007 to 2011, the court's unanimity rate in civil decisions fell along a narrow range, from a low of 69.8 percent in 2003 to a high of 82.1 percent in 2009. The only exception was in 2006, when the cCourt dipped to 56.5 percent.

As always, the court produced decisions much more quickly in 2013 when there was no dissent. Unanimous decisions came down an average of 103.7 days after oral argument, while cases with dissenters took much longer — 185.8 days after argument. The court's average lag time on nonunanimous decisions has been relatively static since 2011, but the average lag time on unanimous decisions has been cut by more than three weeks in that time.

The court reversed in 55.9 percent of its civil decisions in 2013. With the exception of 2012 (78.4 percent) and 2009 (75.7 percent), the court’s reversal rate has narrowly fluctuated around the 50 percent mark since 2003. Since 2003, the court has reversed in 57.99 percent of its civil cases.

Every year at the end of the United States Supreme Court’s term, the legal press reports on the rise and fall of reversal rates for the federal circuit courts. The problem with overemphasizing this statistic is that in any single year, an intermediate court’s reversal rate is based on a small number of cases. This is particularly true for my work on the state Supreme Court’s civil docket, so rather than focusing on year-to-year ups and downs, I look for sustained deviations from the norm over time.

The single biggest part of the court’s civil docket comes from Chicago’s First District, which comprises between 30 and 40 percent of the case load each year. Reversal rates in four of the six divisions of the First District (the Second, Third, Fifth and Sixth) were down in 2013 from 2012. Since 2003, four of the six divisions’ reversal rates are clustered between 50 and 60 percent. The Third Division is a bit higher (61.8 percent), and the Fourth a little lower (44.4 percent).

Both the Second and Third Districts saw lower reversal rates in 2013 — 60 percent for the Second, 50 percent for the Third, but in both cases, the courts were reverting to form. Since 2003, 61 percent of the Second District’s civil decisions reviewed by the court have been reversed, while 52.5 percent of the Third District’s decisions have been.

Last year, I noted that Springfield’s Fourth District had shown the lowest reversal rate in the state — only 25 percent. This was part of a three-year swing in the numbers, with only 30 percent of the court’s decisions reversed between 2010 and the end of 2012. But in 2013, the Fourth reverted to its long-term pattern as the Supreme Court reversed in six of 10 civil cases. Since 2003, the reversal rate for the Fourth District is 53.1 percent.

Many observers consider the Fifth Appellate District to be the most pro-plaintiff appellate court in the state. The Supreme Court’s response has been relatively consistent: In seven of the 11 years since 2003, the Fifth’s reversal rate has been 67 percent or more, and 2013 was no exception. The Fifth District leads the state for the entire period with a 75.9 percent reversal rate.

Justices Anne B. Burke and Lloyd A. Karmeier wrote for the court’s majority most often this past year, with seven majority opinions apiece in civil cases. Justice Robert R. Thomas added six, Chief Justice Rita B. Garman wrote five and Justice Mary Jane Theis four.

Collectively, written dissents were down 20 percent in 2013 over 2012. Justices Thomas L. Kilbride and Charles E. Freeman, who wrote the fewest majority opinions in civil cases, wrote the most dissents — five and three, respectively. Justices Burke and Thomas filed two dissents apiece, with the other justices dissenting only once each in civil cases.

In order to study individual justices’ voting patterns, I next considered how often each justice votes when the court is divided. Chief Justice Garman and Justice Mary Jane Theis each voted with the majority in 92.9 percent of the court's nonunanimous civil decisions last year. Justice Thomas voted with the majority in 84.6 percent of such cases in 2013, almost identical to his percentage in 2012 (83.3 percent). Justice Karmeier voted with the majority in 78.6 percent of the court’s nonunanimous civil decisions, only slightly down from 2012 number. Only Justice Freeman’s percentage was slightly increased, voting with the majority in divided cases 78.6 percent of the time in 2013, up from 63 percent a year earlier. Justice Kilbride voted with the majority in 46.2 percent of nonunanimous cases.

The court’s center is even more sharply defined when we limit the database to two and three-dissenter decisions. In such decisions, the chief justice was in the majority every time. Justice Theis joined the majority decision in 85.7 percent of such cases, with Justices Thomas and Karmeier voting with the majority 71.4 percent of the time. Most often in the minority were Justice Freeman, voting with the majority in 57.1 percent of closely divided cases; Justice Kilbride, with the majority half the time; and finally, Justice Burke, who voted with the majority in 42.9 percent of closely divided cases.

I turned next to agreement rates between pairs of justices. For 2013, Chief Justice Garman and Justice Theis voted together in 85.7 percent of nonunanimous civil cases. The chief voted with Justice Thomas in 84.6 percent of such cases, and with Justice Karmeier 71.4 percent of the time. Similarly, Justice Theis voted with Justice Thomas in 76.9 percent of such cases and with Justice Karmeier 71.4 percent of the time. Justices Thomas and Karmeier voted together in 76.9 percent of nonunanimous civil cases.

On the other hand, Justice Burke voted with Chief Justice Garman and Justices Karmeier and Theis in 57.1 percent of such cases. Justice Burke voted with Justice Thomas 46.2 percent of the time. Similarly, Justice Kilbride voted with the chief justice in 38.5 percent of nonunanimous civil cases, with Justice Thomas in 58.3 percent, and with Justice Theis in 53.8 percent of such cases. Because Justice Freeman voted with the majority in each of the court’s seven one-dissenter cases, his agreement rates are a bit higher — 85.7 percent with Justice Burke, 71.4 percent with Chief Justice Garman, 61.5 percent with Justice Thomas, 57.1 percent with Justice Karmeier and 71.4 percent with Justice Theis.

When appellate specialists get together, we frequently debate whether or not an experienced appellate attorney should be able to predict the outcome of a case or even the vote at the conclusion of an oral argument. To study whether this question can be approached objectively, I added data on questioning patterns to my study.

The court asked 848 questions during arguments of civil cases decided during 2013: 417 to appellants during their opening remarks, 316 to appellees and 115 to appellants during rebuttal. Justice Thomas asked 222 questions. Justice Theis was second with 171. Justice Burke was third with 126 questions. After Justice Burke came Chief Justice Garman with 109 questions, Justice Karmeier with 101, Justice Freeman with 61 and Justice Kilbride with 58 questions. Appellants were asked an average of 15.4 questions per argument, appellees 9.3.

There are a lot of theories among appellate lawyers about questions from the court. Some lawyers insist the justices sometimes ask questions to play devil's advocate, or to attempt to persuade another justice. There is no evidence to support either of these theories in the court's 2013 civil arguments. Rather, the court's questions tend to indicate that the inquiring justice may be having difficulty with that side's argument. Losing appellants average 17.7 questions per argument to 13.6 for winners. Similarly, losing appellees average 10.6 questions per argument, while winners average 7.9 per argument.

In nonunanimous affirmances, appellants averaged 20.0 questions to 15.6 for appellants in unanimous cases. Appellees received an average of 8.9 questions in nonunanimous decisions to 7.0 in unanimous decisions. But in nonunanimous reversals, the difference was far smaller: Appellants received 14.4 questions in nonunanimous cases, compared to 13.2 in unanimous decisions. Appellees received an average of 9.3 questions in nonunanimous cases, but more in unanimous decisions: an average of 11.1 questions.

In order to account for the effect of complex cases on the data, I next asked whether the difference between total questions asked each side in a particular case might suggest a probable winner.

The answer is yes, at least in 2013. Appellees received more questions than their opponents in eight civil cases; they lost seven of eight. Appellants received more questions in 24 cases, winning 11 (the sides received an equal number of questions in two cases). The more an appellant's total questions exceeded the appellee's, the more likely the court would ultimately affirm. Losing appellants averaged 9.8 questions more than their opponents, while winning appellants averaged only 3.06 questions more than their adversaries.

Each of the seven justices averages more questions to appellants than appellees. For some justices, such as Chief Justice Garman (1.8/1.4), Justice Kilbride (1.0/0.8) and Justice Karmeier (1.7/1.4), the difference was small, but Justices Burke (2.5/1.5), Freeman (1.4/0.5), Thomas (4.2/2.7) and Theis (3.5/1.3) tended to ask appellants significantly more questions on average.

Dividing the data into unanimous and nonunanimous decisions does not make a consistent difference in the justices' patterns. Justices Burke (1.8/3.1), Kilbride (0.7/1.5), Thomas (3.7/4.8) and Karmeier (1.1/2.4) averaged more questions to appellants when the court wound up divided, but Justices Freeman (1.6/1.1) and Theis (4.3/3.1) averaged fewer. Chief Justice Garman (0.3/4.8), Freeman (0.4/0.6) and Karmeier (1.0/1.8) averaged more questions to appellees in cases decided unanimously, but Justices Burke (2.1/0.9), Kilbride (0.9/0.5) and Thomas (3.0/2.5) averaged fewer.

However, several Justices’ questioning patterns might be suggestive of how they will ultimately vote. Five of the seven justices — Burke (2.4/2.2), Kilbride (1.3/0.8), Thomas (6.4/2.4), Karmeier (2.4/1.0) and Theis (4.4/3.0) — asked more questions of appellants they ultimately voted against than of appellants they voted for. Three justices — Chief Justice Garman and Justices Kilbride and Thomas — asked more questions of appellees they voted against than of appellees they voted for.

This past year suggests three lessons for counsel appearing before the Illinois Supreme Court: (1) for most issues, the court has a centrist voting bloc of Chief Justice Garman and Justices Thomas, Karmeier and Theis; (2) the court does not grant review predominantly to reverse, like some appellate courts with discretionary dockets; and (3) answer every question carefully — there’s a good chance those are the justices you must persuade to prevail.

Image courtesy of Flickr by anneh632.

 

What's Pending on the Illinois Supreme Court's Advisement Docket?

As we near the opening of the March docket, it's time to take a look at the civil cases that are argued and pending for decision before the Illinois Supreme Court. The Court is quite up-to-date on its docket at the moment, with only seven civil cases pending - five from the January argument docket, and the two giants of the docket, Spanish Court and Kanerva, which were argued in 2013. In 2013, unanimous decisions came down an average of 103.7 days after oral argument, while cases with dissenters took much longer - 185.8 days after argument. The pending cases are:

  • Spanish Court Two Condominium Association v. Carlson, No. 115342 -- May a condominium owner refuse to pay monthly and/or special assessments, in whole or in part, on the grounds that the condominium board failed to maintain and repair the common elements of the condominium property? Our detailed summary of the facts and underlying court decisions in Spanish Court is here. Our report on the oral argument is hereSpanish Court has been pending for 165 days.
     
  • Kanerva v. Weems, No. 115811 -- Do the 2012 amendments to the State Employee Insurance Act, 5 ILCS 375/1, violate (1) the Pension Protection Clause, Ill. Const. Art. XIII, Section 5; (2) the Contracts Impairment Clause, Ill. Const. Art. I, Section 16; (3) separation of powers; or (4) the State Lawsuit Immunity Act, 745 ILCS 5/1? Our detailed summary of the facts and underlying court decisions in Kanerva is here. Our report on the oral argument is hereKanerva has been pending for 164 days.
     
  • Home Star Bank & Financial Services v. Emergency Care & Health Organization, Ltd., No. 115526 -- Does a physician paid by his physician group to provide emergency care in a hospital qualify for immunity under the Good Samaritan Act when he responds to a Code Blue in another part of the hospital? Our detailed summary of the facts and underlying court decisions in Home Star Bank is here. Our report on the oral argument is hereHome Star has been pending for 38 days.  
     
  • People ex rel. Madigan v. Burge, Nos. 115635 & 115645 -- May the Attorney General challenge the actions of the Police Pension Board through a separate lawsuit in the Circuit Court, or are the Board's actions subject to review only by routine administrative review? Our detailed summary of the facts and underlying court decisions in Burge is here. Our report on the oral argument is hereBurge has been pending for 38 days.
     
  • Nelson v. County of Kendall, No. 116303 -- Is the office of the State's Attorney a "public body" subject to the state Freedom of Information Act? Our detailed summary of the facts and underlying court decisions in Nelson is here. Our report on the oral argument is hereNelson has been pending for 37 days.
     
  • BAC Home Loans Servicing, LP v. Mitchell, No. 116311 -- Does waiver of a personal jurisdiction objection operate retrospectively, validating everything that has gone before, or only prospectively? Our detailed summary of the facts and underlying court decisions in BAC Home Loans is here. Our report on the oral argument is hereBAC Home Loans has been pending for 37 days.
     
  • In re Marriage of Tiballi, No. 116319 -- When a parent voluntarily dismisses a petition to change custody, can he or she be hit with the fees of a court-appointed child psychologist as costs? Our detailed summary of the facts and underlying court decisions in Tiballi is here. Our report on the oral argument is hereTiballi has been pending for 37 days.

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What We Can Learn From Illinois' Kilbride Court

Note: The following post was originally posted on Law360.com on October 31, 2013.

On Friday, Oct. 25, Chief Justice Thomas L. Kilbride ended a three-year term as chief justice of the Illinois Supreme Court, resuming his seat as an associate justice. The following Monday marked the installation of new Chief Justice Rita B. Garman, the 119th chief justice in the state's history and the second woman to hold the post.

Chief Justice Kilbride amassed a record of important achievements outside the courtroom during his tenure. Early in his term, the court announced the end of printed official reporters in Illinois, eliminating an enormous expense for bound volumes and substituting a public domain citation system.

In early 2012, the chief justice spearheaded a pilot program for electronic filing of documents in the Illinois Supreme Court. Later that year, the chief announced new statewide standards for e-filing in civil cases in the state's trial courts. When fully phased in, electronic filing promises to save Illinois taxpayers millions — Cook County spent nearly $16 million on storage of paper documents in 2011 alone.

When the chief justice took office, Illinois was one of only 14 states where cameras in courtrooms were either barred outright or allowed under such restrictive terms that they were hardly used. In January 2012, Chief Justice Kilbride announced a pilot program allowing circuit courts to apply for permission to allow news cameras and electronic news recording.

The court also pioneered additional steps to help the disadvantaged navigate the justice system, amending the Code of Judicial Conduct to permit judges to assist self-represented litigants in being fairly heard and creating a model-language access plan for courts across the state designed to allow litigants and witnesses with limited English proficiency to be fully engaged in the judicial process.

The Kilbride court began in October 2010, when Chief Justice Kilbride succeeded Chief Justice Thomas R. Fitzgerald, and Justice Mary Jane Theis joined the court, taking the retiring chief justice’s seat. The court decided 104 civil cases (disregarding attorney discipline, juvenile and commitment matters). Eighty-five of these cases were appeals from final judgments and orders fully resolving an entire suit or a discrete claim within a larger suit.

The court decided 26 tort cases, 15 cases predominantly involving civil-procedure issues, nine in domestic relations, eight in employment law, seven in constitutional law and six each in government and tax law. Interestingly, given the amount of attention arbitration has gotten in recent years in state supreme courts around the country implementing the United States Supreme Court’s AT&T Mobility v. Concepcion decision, the Illinois Supreme Court has decided only two arbitration cases since October 2010.

Not surprisingly, a dissent before the appellate court helps in getting review; 30.6 percent of the court’s cases during the Kilbride era had a dissenter at the appellate court. A divided appellate court will often mean a divided supreme court — 40.5 percent of the Kilbride court’s nonunanimous decisions had drawn a dissent at the appellate court.

This court has been somewhat more contentious than other recent Illinois Supreme Courts, particularly over the past two years. After deciding 76.3 percent of its cases unanimously in 2011, the court has decided just over half that way in 2012 (53.8 percent) and 2013 (54.2 percent). During its three-year term, the Kilbride court decided 62.5 percent of its civil cases unanimously. It would be easy to write off the year-to-year changes as being explained by accidents of the court’s docket, but that explanation only goes so far; after all, unlike the appellate courts, the Supreme Court chooses its own cases.

Unanimity rates have typically been higher earlier in the past decade than they were under the Kilbride court. With the exception of 2006 under Chief Justice Robert R. Thomas, the court has decided more than 70 percent of its civil cases unanimously in most years. Overall, 75.3 percent of civil cases were decided unanimously under Chief Justice Fitzgerald (2008-2010), 72.3 percent under Chief Justice Thomas (2005-2008) and 72.1 percent under Chief Justice McMorrow (2002-2005).

To give a bit of context, only 37.5 percent of the 7,183 cases resolved by the United States Supreme Court between 1946 and 2009 were decided unanimously. Just over 22 percent of civil cases drew either two or three dissenters during the Kilbride era — comparable to the Fitzgerald court (19.4 percent) but somewhat more than the Thomas (13.4 percent) or McMorrow courts (14.7 percent).

Reversal rates are perhaps the most frequently cited statistic for appellate courts of last resort. During the past decade, the reversal rate at the United States Supreme Court for decisions of the Ninth Circuit has become something of a political football. So how have the appellate courts fared before the Kilbride court?

The Kilbride court reversed 61.8 percent of the civil judgments it reviewed — slightly lower than the Fitzgerald Court (67.5 percent) but more than either the Thomas (50.7 percent) or the McMorrow Courts (56.5 percent). Nearly half of the Kilbride court’s civil docket — 48.1 percent — came from Chicago’s First District Appellate Court. Four of the six divisions of the First District were reversed more than 60 percent of the time.

Reversal rates elsewhere in the state are, for the most part, similar. Sixty-three percent of civil cases from the Second District, the northernmost district in the state, have been reversed. Moving southwards, 60 percent of the Third District’s decisions have been reversed. Eighty percent of civil decisions from the Fifth District — the southernmost district in the state and considered by some to be inclined to pro-plaintiff decisions — have been reversed.

The one exception to this trend is the Fourth District, which is centered in the state capital Springfield and produces many cases involving the government. Only 41.7 percent of the Fourth District’s decisions have been reversed.

To better understand each district’s standing with the court, let’s take a look at the average number of votes to affirm the decisions of each district. Five of the six divisions of the First District have fared relatively poorly; decisions from Divisions Four, Five and Six have earned an average of fewer than three votes before the Supreme Court, and decisions from Divisions One and Two have averaged fewer than two. Other districts have done better; decisions from the Third District receive an average of 3.1 votes and those from the Fourth District 3.67.

Second only to reversal rates in most analysis of appellate courts comes speculation about voting blocs and “swing votes.” Given the number of unanimous opinions, merely calculating the percentage of cases in which each justice votes with the majority tells us relatively little; six of the seven justices have voted with the court in 90 percent or more of civil cases (Chief Justice Kilbride is the lone exception, voting with the majority in “only” 78.8 percent of civil cases).

But when we limit our sample to nonunanimous decisions, interesting patterns begin to emerge. New Chief Justice Garman and Justices Burke, Thomas and Theis have each voted with the majority in at least 80 percent of nonunanimous cases. Excluding cases involving only one dissenter reveals that Chief Justice Garman and Justice Theis have been in the majority in at least three-quarters of the 23 cases in which either two or three justices have dissented (78.3 percent and 77.3 percent, respectively).

Most often in the minority of closely divided courts are Justice Charles E. Freeman, who votes with the majority in such cases 65.2 percent of the time, and Chief Justice Kilbride, who does so in exactly half of all two- and three-dissenter civil cases. Not surprisingly, these two justices are also the court’s most frequent dissenters in civil cases, with Justice Freeman filing 10 complete or partial dissents and Chief Justice Kilbride filing 14.

The other justices dissent much less often, with Justice Thomas filing six, Chief Justice Garman five, Justice Burke four and Justices Karmeier and Theis three apiece. Justices Thomas and Burke spoke for the court most frequently during the Kilbride era, with Justice Thomas filing 18 majority opinions and Justice Burke 17.

To further study the Kilbride court’s dynamics, we turn to the justice-by-justice agreement rates: In what percentage of civil cases did each possible pair of justices vote the same way? The data reveals a central group consisting of Chief Justice Garman and Justices Thomas and Karmeier — not coincidentally, the three Republicans on the court — with Justices Burke and Theis serving as swing votes.

Across the entire database of civil decisions, Chief Justice Garman agreed with Justice Thomas in 94.1 percent of all cases and Justice Karmeier in 88.2 percent. Justices Thomas and Karmeier agreed in 91.9 percent of all civil cases.

Turning to our proposed swing voters, Justice Burke agreed with Chief Justice Garman, Justice Thomas and Justice Karmeier 86.4 percent, 86.0 percent and 87.1 percent of the time, respectively. Justice Theis agreed with the three justices in 90.9 percent (Chief Justice Garman), 88.5 percent (Justice Thomas) and 87.6 percent (Justice Karmeier) of all civil cases.

We turn next to agreement rates in nonunanimous decisions. The new chief justice voted with Justice Thomas in 83.8 percent of all nonunanimous cases and with Justice Karmeier 70 percent of the time. Justices Thomas and Karmeier vote together in 78.4 percent of all nonunanimous civil cases.

Justice Burke voted with Chief Justice Garman in 65 percent of all nonunanimous civil cases, with Justice Thomas in 62.2 percent and with Justice Karmeier in 67.5 percent of nonunanimous civil cases. As for Justice Theis, she voted with Chief Justice Garman in 74.4 percent of nonunanimous civil cases, with Justice Thomas in 68.6 percent and with Justice Karmeier in 68.4 percent.

The court’s more liberal wing is somewhat less cohesive. Justice Burke agrees with Justice Freeman in 85 percent of all nonunanimous cases, but has voted with outgoing Chief Justice Kilbride in only 28.2 percent of such cases. Justice Freeman and Chief Justice Kilbride agreed in only 30.8 percent of all nonunanimous civil cases. Although other pairings score closer to the more conservative members — Justices Burke and Theis agreed in 65.8 percent of all civil nonunanimous decisions, and Justices Freeman and Theis agreed at exactly the same rate, 65.8 percent — in a court divided 4-3 between a moderate and a more liberal wing, a switch of even one vote from one wing to the other can change the result.

The Kilbride court’s 26 six tort cases — the single biggest block of cases on its civil docket — tend to confirm our conclusions. The reversal rate for these cases is almost the same as for the docket as a whole — 61.5 percent.

However, when one divides the data into plaintiff- and defense-oriented appellate court decisions, we learn that the court reversed 72.2 percent of all plaintiff-oriented tort decisions and only 28.6 percent of all defense-oriented ones. The unanimity rate was somewhat less for the tort docket than for the remainder of the court’s caseload — 53.8 percent of the Kilbride court’s tort cases were decided unanimously.

Agreement rates in tort cases are consistent with our results for the rest of the court’s docket. Although the sample of nonunanimous tort decisions is quite small — 12 cases in three years — Chief Justice Garman and Justice Thomas agreed 81.8 percent of the time. The new Chief Justice voted with Justice Karmeier 83.3 percent of the time. Justices Thomas and Karmeier voted together 90.9 percent of the time. Justice Burke agreed with Chief Justice Garman in 75 percent of the nonunanimous tort cases, with Justice Thomas in 100 percent and with Justice Karmeier 83.3 percent of the time. Justice Theis’ agreement rates with Chief Justice Garman, Justice Thomas and Justice Karmeier were similar (75 percent, 81.8 percent and 91.7 percent, respectively).

On the other hand, Justice Burke agreed with Chief Justice Kilbride in only 25 percent of nonunanimous tort cases. Justice Freeman and Chief Justice Kilbride agreed in only 16.7 percent of such cases. Justices Freeman and Theis agreed 50 percent of the time.

With a working moderate majority and no change in the court's personnel, it seems unlikely that the installation of Chief Justice Garman will have a significant impact on the ideological leanings of the court's decisions. For now, the lesson remains the same: In difficult cases, defense counsel wishing to assemble a majority should begin with the chief justice and Justices Thomas and Karmeier, with either Justice Burke or Justice Theis as a deciding fourth vote.

Three New Civil Decisions Coming From Illinois Supreme Court Tomorrow Morning

The Illinois Supreme Court has announced that it expects to file opinions tomorrow morning at 10:00 a.m. Central time in three civil cases. They are:

Hooker v. Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago, No. 114811 – Do survivors' pensions under the state Pension Act increase when the salary for decedent's position increases, regardless of whether the decedent ever actually received that salary? Our detailed summary of the facts and underlying opinions in Hooker is here. Our report on the oral argument is here.

American Access Casualty Co. v. Reyes, No. 115601 – Is a clause of an automobile insurance policy excluding all liability coverage for the sole named insured and titleholder on the insured vehicle void as against public policy? See also here.

The Venture-Newberg Perini Stone and Webster v. Illinois Workers’ Compensation Commission, No. 115728 – When is a union pipefitter who accepts a short-term job too far from home to commute a “traveling employee” entitled to workers’ compensation benefits for injuries received while traveling to work? Our detailed summary of the facts and underlying opinions in Venture-Newberg is here. Our report on the oral argument is here.

The marquee case on tomorrow’s list is Hooker. As the first government pension case to be handed down since the Illinois General Assembly enacted pension reform, court watchers will be reading the opinion closely for any hints about the Court’s views on that future battle.

Tomorrow will be 99 days since the oral argument in Hooker, and 92 since the arguments in American Access Casualty and Venture-Newberg. This year to date, the mean time between argument and decision in cases decided unanimously is 119.62 days. The mean time between argument and decision for non-unanimous cases is 210.73 days.

Illinois Supreme Court to File Opinion in Earlywine on Thursday Morning

Yesterday afternoon, the Illinois Supreme Court posted notice that it expects to issue opinions in three cases on Thursday morning at 10:00 a.m., including one civil case, In re Marriage of Earlywine. Earlywine presents an interesting issue at the intersection between the law of attorneys’ fees and domestic relations:

  • In re Marriage of Earlywine, 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 summary of the facts and lower court opinions in Earlywine is here. Our report on the oral argument is here.

It's Official: Justice Rita B. Garman is Next Chief Justice

As expected, the Illinois Supreme Court has just announced that Justice Rita B. Garman will become Chief Justice on October 26, 2013. The incoming Chief Justice’s term will run until October 25, 2016. Justice Garman was appointed to the Supreme Court on February 1, 2001, and elected to the Court on November 5, 2002. Her official Court biography is here.

For those unfamiliar with Illinois practice, in contrast to (for example) the United States Supreme Court, our constitution provides that the Justices themselves elect one of their number to serve a single three-year term as Chief. Thus, although his tenure as Chief Justice will soon conclude, Chief Justice Thomas L. Kilbride will continue his service on the Court. Chief Justice Kilbride’s official Court biography is here.

The Kilbride Court After Two Years: A Pragmatic and Collegial Team

(Note: The following post was originally published on Law360.com on January 24, 2013.)

Reviewing the videotape of every civil oral argument at the Illinois Supreme Court, as I do for my firm's blog The Appellate Strategist, you can't help but be impressed by the collegiality of the Illinois Supreme Court. At many courts of last resort, counsel is never entirely sure whether some of the more pointed questions are intended for counsel him- or herself, or instead directed at one of the other justices, either as an attempt to persuade or to challenge. None of that is evident watching the Illinois Supreme Court's arguments.

To be sure, the Court is nearly always a "hot bench," as appellate lawyers say; questions can come from any, and sometimes from all directions. But the Court's questions always show a deep grasp of the record and a concern not merely for the implications of the legal rule at issue for future cases, but for doing justice in the case before the Court. And in the Court's opinions, the occasional sharply worded dissent stands out all the more for how unusual it is in the Court's jurisprudence.

The Kilbride Court began in Illinois a little more than two years ago, when Chief Justice Thomas L. Kilbride succeeded Chief Justice Thomas R. Fitzgerald, and Justice Mary Jane Theis joined the Court, taking the retiring Chief Justice's seat. In the twenty-six months since, the Court has decided eighty civil cases (disregarding attorney disciplinary and juvenile matters).

In reviewing those cases, one statistic leaps out, confirming the impression of a highly unified court: 67.5% of the Court's civil decisions have been unanimous. Significant dissent is rare: 12.5% of the Court's decisions have had one dissenter, 12.5% have had two, and only 7.5% have involved a 4-3 split. But this overall measurement masks trends in the Court's terms; for 2012, only 56.4% of the Court's decisions have been unanimous. Before the Court decided nine of its last twelve civil cases of 2012 unanimously, the Court had decided only 48.1% of its 2012 civil cases without dissent. During that same uncharacteristically contentious period, 37.0% of the Court's decisions featured two or three dissenters.

Perhaps the most frequently cited statistic among U.S. Supreme Court watchers is the reversal rates for the Federal Circuits. Indeed, those statistics have become something of a political football, with some Senators arguing that the Ninth Circuit's reversal rate suggests an ideological conflict between the Ninth Circuit and the Supreme Court. So what are the reversal rates in Illinois?

The overall numbers are not surprising. Most appellate lawyers know that appellate courts of last resort typically do not review lower courts' decisions in order to affirm. The Illinois Supreme Court is no different; over the past two years, the Court has reversed in 66.2% of its civil cases.

But trends emerge when we consider the individual districts. Nearly half of the Kilbride Court's civil docket -- 43.8% -- has come from Chicago's First District. The First hasn't fared well; five of the six Divisions have a reversal rate of 60% or more, topping out with an 85.7% reversal rate in the Division Two. The First District has had a particularly rough 2012, with a 76.5% reversal rate. The Fifth District, which includes Madison and St. Clair Counties, both sharply criticized as pro-plaintiff environments for tort cases in recent years by the American Tort Reform Foundation, has seen 80% of its civil decisions reversed by the Supreme Court. Two other Districts are similar: two thirds of the decisions reviewed from the Second and Third Districts have been reversed.

But the anomaly comes from the Fourth District, which centers on the state capital of Springfield. The Court has heard eight civil cases from the Fourth District, four involving government parties. In six of those eight cases (including three government wins) the Supreme Court has affirmed: an impressive 75% affirmance rate.

To learn more about the Justices' inclinations, we calculate the average votes gained by each Appellate Court's opinions before the Supreme Court. The First and Second Divisions of the First Districts have fared badly, with their opinions gathering an average of only 1.4 votes - including seven unanimous reversals (usually regarded as the ultimate indignity except at the Kilbride court, which has reversed unanimously in 43.8% of its civil cases). The Fifth and Sixth Divisions of the First District have done significantly better, with their opinions gaining an average of 3.5 and 2.1 votes, respectively, although the Fifth Division’s figure is skewed – its four cases have seen two unanimous affirmances and two unanimous reversals. The Fourth District, with its 75% affirmance rate, gets an average of 3.4 votes per decision.

Discerning swing votes in a Court so often in complete agreement is difficult, but interesting patterns do emerge. Justice Robert R. Thomas, for example, has voted with the majority in 94.8% of all the Kilbride Court's civil cases. Justices Rita B. Garman and Anne M. Burke are on the winning side nearly as often, voting with the majority 93.8% of the time. Justices Lloyd A. Karmeier and Mary Jane Theis are right behind, voting with the majority 93.6% and 93.3% of the time. Only Chief Justice Kilbride lags behind, voting with the majority "just" 80.0% of the time.

When we limit the sample to non-unanimous cases, our conclusions are further confirmed. Justice Thomas has voted with the majority in 83.3% of all non-unanimous civil decisions. Justices Garman, Burke and Karmeier have voted with the majority in an identical 80.8% of all cases. Close behind is Justice Theis, with 79.2% agreement with the majority. Most often finding themselves in the minority of divided Courts are Justice Charles E. Freeman, who votes with the majority in only 63.0% of all non-unanimous civil cases, and Chief Justice Kilbride, who does so only 42.3% of the time.

Justice Thomas' influence shows up again when we analyze the composition of the Court's occasional closely divided decisions. To date, the Kilbride Court has handed down sixteen decisions with two or three Justices dissenting. Justice Karmeier has voted with the majority in 12 of those 16 decisions – 75%. Justices Thomas, Garman, Burke have voted with the majority 68.8% of the time, and Justice Theis in 62.5% of the cases. On the other hand, Chief Justice Kilbride and Justice Freeman have joined the majority in only 50% of those closely divided decisions. This data suggests the outline of a voting block on the Court, with a solid core of Justices Thomas, Garman and Karmeier, with Justice Burke and Justice Theis serving as the swing votes in close cases.

Join me below the jump for more data on the Court's voting patterns. 

In reviewing these sixteen cases, a few substantive patterns emerge. Chief Justice Kilbride took a more plaintiff-friendly position in four closely divided tort cases (Simpkins v. CSX Transportation, Doe-3 v. McLean Co., Kaufman v. Schroeder and Moore v. Chicago Park District), and Justice Garman did so in three, while Justices Burke, Thomas, Karmeier and Theis took the more plaintiff-friendly position in only one of the four cases. Chief Justice Kilbride and Justice Theis both adopted more employee-friendly positions in Chicago Teachers Union v. Board of Education and Speed District 802 v. Warning, and both found standing for opposition groups’ challenge to an environmental delisting petition in Sierra Club v. Illinois Pollution Control BoardThe Court took a moderately relaxed attitude in two civil procedure “substance over form” cases in 2012, with Justices Burke, Freeman and Theis expressing willingness to forgive certain procedural defects under defined circumstances in both Downtown Disposal Services v. The City of Chicago and Santiago v. E.W. Bliss Co.

The Court clearly makes an effort to distribute its work evenly. To date, Justice Thomas has written fourteen opinions for the Kilbride Court, Justice Freeman 13, Justices Burke, Garman and Theis 12 each, and Justice Karmeier 11. Not surprisingly, Chief Justice Kilbride and Justice Freeman write most frequently in dissent, with the Chief Justice producing eight civil dissents and Justice Freeman seven.   The other Justices write in dissent much less often, with Justice Garman penning four, Justices Karmeier and Theis three each, Justice Burke two and Justice Thomas only one.

When we turn to non-unanimous decisions, the outline of our proposed voting block once again emerges. Justice Burke, one of our swing voters, has written the majority decision in 6 of the non-unanimous civil decisions. Justices Garman and Karmeier have written five and four apiece, respectively. Justice Burke's decisions in non-unanimous cases garner fewer average votes -- 4.8 for Justice Burke to 6.4 for Justice Garman and 5.3 for Justice Karmeier – the result of Justice Burke having written the majority opinion is half of the Court’s 4-3 cases (Justices Garman and Karmeier, on the other hand, have written for the Court in six of the ten two-dissenter cases).

To further study the Kilbride Court's dynamics, we turn to the Justice-by-Justice agreement rates: in what percentage of civil cases where both Justices participated did they vote the same way? Over the past two years, Justice Thomas and Garman have agreed in 96.1% of all civil cases. Justices Thomas and Karmeier have agreed 93.3% of the time, and Justices Garman and Karmeier have voted together 91.0% of the time.

Justice Burke has agreed with Justice Thomas in 89.6% of the Court's civil decisions. She has voted with Justice Garman 87.5% of the time, and with Justice Karmeier 89.7%. Justice Theis, our other proposed "swing" voter for close civil cases, is just behind Justice Burke: 88.9% agreement with Justice Thomas, 89.3% agreement with Justice Garman and 89.0% agreement with Justice Karmeier. Justices Theis and Burke agree 86.7% of the time.

Not surprisingly given the data we considered above, Chief Justice Kilbride's agreement statistics are somewhat lower. The Chief agrees with Justices Burke, Garman, Freeman, Thomas and Karmeier around three quarters of the time (73.3%, 78.7%, 72.6%, 80.8% and 75.7%, to be precise), and with Justice Theis only slightly more often - an 84.3% agreement rate.

The Court's divisions stand out more clearly when we limit our sample to non-unanimous civil decisions. Once again, the core Justices are relatively tightly bunched. Justice Thomas agrees with Justice Garman in 87.5% of such cases, and with Justice Karmeier in 79.2%. Justices Garman and Karmeier agree in 73.1% of the Court's non-unanimous civil cases.

The agreement rates for Justice Burke and Justice Theis seem to reflect the path to a winning majority in close cases. Justice Burke agrees with Justice Thomas 66.7% of the time, and with Justice Karmeier 69.2% of the time in non-unanimous cases. Justice Theis' agreement rates with our core voters in closer cases are almost identical: Justice Thomas, 63.6%; Justice Garman 66.7%, and Justice Karmeier 66.7%. However, Justices Burke and Theis themselves often diverge, showing an agreement rate of only 58.3% in non-unanimous cases.

Once again, agreement rates for Chief Justice Kilbride and Justice Freeman are much lower. The Chief agrees with Justices Garman and Thomas in only two of every five non-unanimous cases (38.5% and 41.7%, respectively), and with three of the remaining Justices significantly less often. The lone exception is Justice Theis, who has agreed with the Chief Justice in 54.2% of non-unanimous cases. Although Justice Freeman seldom votes with the Chief Justice in such cases -- 23.1% agreement - he votes with Justices Garman, Thomas, Karmeier and Theis between forty and fifty-four percent of the time.

Our analysis of the dynamics of the Kilbride Court just past its second anniversary suggests several tentative lessons for counsel: (1) if you prevailed at the Appellate Court, the odds your decision will be reversed are roughly two in three (unless you're coming from the Fourth District); (2) the Court's ultimate decision is quite likely to be unanimous; and (3) if the decision is not unanimous, the Justices most likely to be in the majority are Justices Thomas, Garman, Karmeier and either Burke or Theis.

Illinois Supreme Court to Decide Condominium Dispute on Thursday

The Illinois Supreme Court just announced that on Thursday morning, it will file its opinion in Palm v. 2800 Lake Shore Drive Condominium Association, a dispute over an owner’s right to compel the production of documents by his condominium association. Read the opinion of the Appellate Court for the First Appellate District (Division Five) here. Our summary of the Appellate Court opinion is here. The question presented in Palm is:

  • Are the provisions of the Chicago Condominium Ordinance giving the right to compel production of documents, and authorizing interim awards of attorneys' fees, preempted by purportedly conflicting state law?

Illinois Supreme Court Will File Two Civil Opinions Friday Morning

This afternoon, the Illinois Supreme Court announced that it expects to file opinions in two civil cases at 9:00 a.m. on Friday, February 22. They are:

  • 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.
  • 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

With Griggsville-Perry and State Bank of Cherry both coming from the Court’s November term, the Court’s announcement leaves three cases still pending from the September Call of the Docket: In re Estate of Boyar, which poses the question of whether the doctrine of election should be recognized with respect to trusts (for our preview, see here, and for our report on the oral argument, see here); Ferguson v. Patton, which involves the powers of the Inspector General of the City of Chicago (preview here, and  report on the oral argument here); and The Hope Clinic for Women v. Adams, which involves a constitutional challenge to the Illinois Parental Notice of Abortion Act (preview here, and report on the oral argument here).

Four New Civil Opinions Coming From the Illinois Supreme Court Thursday

The Illinois Supreme Court has announced that on Thursday morning, it will file opinions in four civil cases heard during its September term. They are:

  • 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.
     
  • 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
  • Toftoy v. Rosenwinkel, No. 113569 – Does the Farm Nuisance Act, 740 ILCS 70/1, bar a nuisance suit where defendants started a cattle operation on property across from an unoccupied farmhouse, and several years later, plaintiffs demolished the farmhouse and constructed a new family home? For our preview of the case, see here. For our report on the oral argument, see here.
     
  • Rodriquez v. The Department of Financial and Professional Regulation, No. 113706 – Where an action for attorneys fees under 5 ILCS 100/10-55(c) is not brought simultaneously with a challenge to an administrative rule, is a subsequent action for fees barred as res judicata? For our preview of the case, see here. For our report on the oral argument, see here.

Illinois Supreme Court in the News: 7/1-15

Coverage of the Court in the news and blogs is light with the Court on its summer hiatus between terms. Bethany Krajelis of The Madison St. Clair Record reported on Republican leaders' petition for reconsideration of the Court's order dismissing their constitutional challenge to the redistricting maps drawn by the Legislature. By Court rule, such challenges must be heard in the first instance by the Supreme Court.

The Republicans originally filed their challenge back in February, but the petition immediately hit a roadblock when the Court ordered briefing on whether the challenge -- filed eight months after redistricting maps were approved -- was timely. In early June, a 4-3 majority of the Court dismissed the petition in a brief order. According to the leaders' petition for reconsideration, the dismissal order conflicts with Reynolds v. Sims, a landmark United States Supreme Court election law precedent which -- according to the Republican leaders -- holds that courts should be reluctant to toss redistricting challenges because of the possibility of disrupting imminent elections. The Republicans also point to newly discovered evidence as a basis for reconsideration, citing an expert report concluding that the redistricting maps unfairly favor Democratic candidates.

On July 6, the Supreme Court unanimously reversed the Appellate Court in People v. Hackett, wihch arose from a DUI stop in Will County. Mike Moen and Brian Mackey reported on the story for WNIJ Public Radio, and Kerry J. Bryson of the Office of the State Public Defender in analyzed the opinion for Illinois Lawyer Now.

 

Illinois Supreme Court in the News: 6/15-30

Today we begin another new feature in our expanding coverage of the Illinois Supreme Court - a regular summary of the news and blog posts about the Court. We'll run the feature bi-weekly while the Court is in its summer break, and more regularly when the Court resumes its regular terms.

Earlier this month, the Court created the Commission on Access to Justice.  The Commission is charged with promoting, facilitating and enhancing "equal access to justice with an emphasis on access to the Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable."   The Court appointed seven judges and attorneys to the Commission, joining four additional members appointed by the Illinois Bar Foundation, the Chicago Bar Foundation, the Lawyers Trust Fund of Illinois and the Illinois Equal Justice Foundation. Sarah Sutschek reported on the story for The Northwest Herald.

Governor Quinn has signed Public Act 97-688, a bill intended in part to overturn the Court's 2010 decision in Provena Covenant Medical Center v. The Department of Revenue. There, applying then-existing law, the Court had held that the plaintiff hospital did not provide sufficient free care to qualify for a charitable property tax exemption. The new statute provides that to qualify for the exemption, a hospital must provide free care equal to or greater in value that its property tax liability. Melissa Westphal reported the story in the Rockford Register Star.

Today Supreme Court Rule 243 goes into effect. The rule provides that in civil cases, following the conclusion of questioning by counsel, the court may ask the jurors if they have further questions. Out of the presence of the jury, any juror questions are read to counsel, who have the opportunity to object. Once objections are ruled on, the court asks the questions of the witness. Steve Stout of My Web Times, the online version of The Times of Ottawa, reports that more than half of the states and all the Federal Circuits have similar rules. Stout quotes Chief Justice Kilbride as saying that the rule "enhances juror engagement, juror comprehension and attention to the proceeding and gives jurors a better appreciation for our system of justice."

But the big story of the past two weeks for followers of the Illinois Supreme Court was the U.S. Supreme Court's opinion in Williams v. Illinois, a case up on certiorari from the Illinois Supreme CourtAs explained by Jeffrey Fisher at SCOTUSBlog, Williams took place against a backdrop of recent decisions applying the Confrontation Clause to forensic laboratory reports. In two 5-4 decisions, SCOTUS had held that reports certifying test results are testimonial, and placing the lab supervisor on the stand was not sufficient for confrontation purposes. The Illinois Supreme Court held in Williams that testimonial statements in lab reports could nevertheless come in through an expert witness' testimony as matter the witness relied on, since such matters are not introduced for the truth of the matter asserted. A fractured U.S. Supreme Court rejected this theory, but nevertheless held that the report in question was not sufficiently "formal" or "solemn" to be testimonial.

James Vicini for Reuters, Adam Liptak at The New York Times, Robert Barnes of The Washington Post, Nina Totenberg of NPR and Jess Bravin at The Wall Street Journal reported on the case. According to Andrew Cohen, writing for The Atlantic, the decision "displayed virtually all the dysfunction the justices' most vocal and powerful critics ever could realistically contemplate." Professor Douglas Berman of Ohio State called the 98 pages worth of opinions "a bloody mess" at his blog Sentencing Law and Policy. At The Volokh Conspiracy, Professor Eugene Volokh noted the unusual composition of the dissent -- Justices Ginsburg, Sotomayor, Kagan and Scalia. At the ACS Blog, Professor Brandon Garrett argued that Williams "called for a straightforward application of the Court's recent [Confrontation] precedents," and concluded that the majority's refusal to find a Confrontation violation would lead to more wrongful convictions and forensic scandals unless judges strictly ensure access to discovery and exercise their gatekeeping responsibilities over expert evidence.  At The Confrontation Blog, Professor Richard D. Friedman noted indications in the opinions that the result would have been different if the lab report had been certified or the case tried to a jury, and concluded that Williams might ultimately have limited impact on Confrontation Clause law. Kent Scheidegger of the Criminal Justice Legal Foundation, writing for the Crime and Consequences Blog, agreed that because of the three-way split in the Court, Williams had left the state of Confrontation Clause law unclear.

 

Can the Language of a Will Prove Lack of Capacity?

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.

The Illinois Supreme Court's First Nicastro Case

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.

Beware The Sounds of Silence

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.

The Perils of Self-Insurance

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.

Too Late (Part 2): Can Your Fees Request Wait?

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.

Too Late: Suing Over the Will

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.

Four New Civil Opinions Coming From the Illinois Supreme Court

The Illinois Supreme Court has announced that on the morning of Thursday, June 16, it will file opinions in four civil cases [pdf]:

  • Studt v. Sherman Health Systems, No. 108182-- Does the Illinois pattern jury instruction on professional negligence (Civil No. 105.01) correctly state the applicable standards? See Tort Law.
     
  • Sheffler v. Commonwealth Edison Co., No. 110166-- Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.
     
  • Genius v. County of Cook, No. 110239-- Does the Cook County Employee Appeals Board have jurisdiction to decide disciplinary charges against an officer based on abolished rules? See Government Law.
     
  • Snyder v. Heidelberger – No. 111052 -- Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

Thursday Will Be Busy at the Illinois Supreme Court

The Illinois Supreme Court has announced that on the morning of Thursday, March 24th, it will file opinions in five civil cases (pdf):

  • Williams v. Board of Review, No. 109469--Was terminated employee entitled to a good cause extension of the statutory deadline requiring that an eligible worker must enroll in an approved training program within a certain time in order to be eligible for federally funded trade adjustment assistance benefits? See Employment Law.
     
  • Goodman v. Ward, No. 109796 -- Is a candidate for a judgeship in a particular judicial subcircuit required to be a resident of that subcircuit on the date the candidate petitions to have his or her name placed on the primary ballot? See Election Law.
     
  • Barber v. American Airlines, Inc., No. 110092 -- Did airline’s unilateral refund of passenger’s baggage fee, after passenger filed putative class action complaint, constitute an attempted “pick off” which did not moot passenger’s complaint? See Civil Procedure.
     
  • Howell v. Dunaway – Nos. 110199, 110200 -- Is a hospital’s statutory lien for services, filed pursuant to the Health Care Services Lien Act, 770 ILCS 23/1, subject to a reduction under the common fund doctrine for attorney fees incurred by the injured plaintiff? See Tort Law.
     
  • Vincent v. Alden Park Strathmoor, Inc., No. 110406 -- Does a claim for common law punitive damages pursuant to the Nursing Home Care Act survive the death of the nursing home patient? See Punitive Damages.

Illinois Supreme Court Sets Civil Argument Schedule for March

This afternoon, the Illinois Supreme Court published its Call of the Docket [pdf] for the March term, and the Court will hear oral argument in six civil cases. The cases, with the issue or issues presented in each, are:

March 16:

Sheffler v. Commonwealth Edison Co.,No. 110166 – Does a complaint seeking both injunctive relief and damages in connection with defendant’s alleged failure to timely restore power after storms, and to give priority in restoring power to customers dependent on electric life support system, fall within the exclusive jurisdiction of the Illinois Commerce Commission? See Tort Law.

Italia Foods, Inc. v. Sun Tours, Inc.,No. 110350 – (1) Does the federal Telephone Consumer Protection Act require that the Illinois legislature enact enabling legislation before private claims under the TCPA can be heard in state courts? (2) Are TCPA claims "statutory penalties" within the meaning of state law, and if so, are the claims assignable, and what is the applicable statute of limitations? (3) If the claim is not assignable, were absent class members' claims tolled when, for a twenty-seven month period, no class representative with proper standing was present before the court? See Civil Procedure.

The Board of Education of Auburn Community Unit School Dist. No. 10 v. The Illinois Dept. of Revenue, No. 110395/110422 – Does the Property Tax Extension Limitation Law ("PTELL") apply to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL? See Taxation.

March 22:

ABATE of Illinois, Inc. v. Giannoulias, No. 110611 – Does a state statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violate the Takings Clause of either the federal or state constitutions? See Constitutional Law.

Bell v. Hutsell, No. 110724 – (1) Where defendants did not personally furnish alcoholic beverages, is liability for breach of a voluntary undertaking to monitor and inspect barred by the bar on civil social host liability? (2) Is there a private right of action under the Liquor Control Act for permitting one’s minor child or his or her invitees to possess, distribute or consume alcoholic beverages? See Tort Law.

Snyder v. Heidelberger, No. 111052 – Does a quitclaim deed intended to create a joint tenancy between a husband and wife cause an injury within the meaning of the statute of repose for legal malpractice actions, 735 ILCS 5/13-214.3, when the deed is executed and recorded, when the husband dies and the alleged error can no longer be rectified, or both? See Tort Law.

Illinois Supreme Court Allows Petitions for Leave to Appeal in Eight New Civil Cases

Last week, the Illinois Supreme Court allowed petitions for leave to appeal in eight new civil cases. They are:

  • Sheffler v. Commonwealth Edison Co., 399 Ill.App.3d 51 (1st Dist., 2010), which involves the question of whether a complaint seeking injunctive and damages relief in connection with defendant’s alleged failure to give priority, in restoring power after storms, to customers dependent on electric life support system, fell within the exclusive jurisdiction of the Illinois Commerce Commission;
     
  • Genius v. County of Cook, 398 Ill.App.3d 321 (1st Dist 2010), which involves the question of whether the Cook County Employee Appeals Board had jurisdiction to decide disciplinary charges against officer based upon abolished rules;
     
  • Italia Foods, Inc. v. Sun Tours, 399 Ill.App.3d 1038 (2nd Dist., 2010), which involves the question of whether federal Telephone Consumer Protection Act required that Illinois legislature enact enabling legislation before private claims under the TCPA could be heard in state courts;
     
  • Board of Education of Auburn Community Unit School Dist. No. 10 v. Illinois Department of Revenue, 398 Ill.App.3d 629 (4th Dist. 2010), which involves the question of whether the Property Tax Extension Limitation Law applied to all portions of a community unit school district following annexation of territory in a separate county which had not opted into PTELL;
     
  • Vincent v. Alden-Park Strathmoor, Inc., 399 Ill.App.3d 1102 (2nd Dist. 2010), which involves the question of whether a claim for common law punitive damages pursuant to the Nursing Home Care Act survives the death of the patient;
     
  • Palm v. 2800 Lake Shore Drive Condominium Association, 401 Ill.App.3d 868 (1st Dist. 2010), which involves the question of whether provisions of the Chicago Condominium Ordinance requiring production of documents were preempted by purportedly conflicting Illinois state law;
     
  • A.B.A.T.E. of Illinois, Inc. v. Giannoulias, 401 Ill.App.3d 326 (4th Dist. 2010), which involves the question of whether statute permitting the transfer of funds from the Cycle Rider Safety Training Fund to the General Revenue Fund violated the takings clause of either the federal or state constitutions; and
     
  • Phoenix Insurance Co. v. Rosen, [Rule 23 Order] (1st Dist. 2010), which involves the question of whether the provision permitting trial de novo following arbitration was void and unenforceable pursuant to public policy.

For further details on all of these cases, click the "Illinois Supreme Court Update" to the right of this page.

Illinois Supreme Court Names Justice Thomas L. Kilbride as New Chief Justice

The members of the Illinois Supreme Court have selected Supreme Court Justice Thomas L. Kilbride as the new Chief Justice. Justice Kilbride will begin his term on October 26, 2010, following the retirement of Chief Justice Thomas Fitzgerald.

Justice Kilbride received his law degree from Antioch School of Law in Washington, D.C. in 1981. He practiced law for twenty years in Rock Island, handling matters in a variety of areas, including environmental law, labor law, employment, and appellate law. He was elected to the Supreme Court in 2000, and is a candidate for another ten year term on the Court in the November 2010 election.

Illinois Chief Justice Thomas Fitzgerald Announces His Retirement

The beginning of the Illinois Supreme Court's September docket was overshadowed this week by a surprise announcement from Chief Justice Thomas R. Fitzgerald. Chief Justice Fitzgerald told his colleagues that he had been diagnosed with Parkinson's Disease, and would retire from the Court effective October 25, 2010, rather than running for a full ten-year term.

Chief Justice Fitzgerald's retirement caps a distinguished thirty-four year career in the Illinois judiciary. Chief Justice Fitzgerald was elected as a Circuit Judge in Cook County in 1976 -- at the time, the youngest elected Judge in the county. After eleven years as a trial judge in the Criminal Court, the Chief Justice was assigned as Supervising Judge of Traffic Court. He was assigned as Supervising Judge of Traffic Court in 1989. Chief Justice Fitzgerald was elected to the Supreme Court in 2000.

Acting upon Chief Justice Fitzgerald's recommendation, the Court appointed Justice Mary Jane Theis of the Appellate Court, First Appellate District, to serve the remainder of Chief Justice Fitzgerald's term. Justice Theis served as an Associate Judge and later, a Circuit Judge before being elected to the Appellate Court in 1994. Once Justice Theis takes her seat, three of seven members of the Court will be women for the first time in state history.

Chief Justice Fitzgerald "has served the people of Illinois with honor and integrity," said Governor Quinn in a statement. The retiring Chief Justice "will be greatly missed." According to the Governor, "Justice Theis has demonstrated sound legal judgment and an unwavering commitment to finding truth and upholding the law of the land."

According to Supreme Court spokesman Joe Tybor, the Court will file its order naming one of its members Chief Justice later today.

Illinois Supreme Court Holds Transit System Has No Duty to Clear or Warn of Snow and Ice

Snow and ice are a fact of life in Chicago during the winter months. So what duties of care do government agencies, individuals and businesses have in relation to dealing with winter conditions? The Illinois Supreme Court addressed this important issue late last week in Krywin v. The Chicago Transit Authority [pdf].

Illinois has long followed the "natural accumulations rule": a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow or water from its property. But it's equally true that because mass transit agencies are "common carriers" under the law, they have a duty to their passengers to exercise the highest degree of care, not only to carry them safely to their destinations, but to provide them with a reasonable opportunity to leave the conveyance safely.

So does the natural accumulations rule apply to mass transit? In Krywin, a divided Supreme Court answered "yes."

Krywin arose from a 2005 accident, when plaintiff slipped on an icy subway platform owned by the Chicago Transit Authority. Plaintiff sued the CTA in a two-count complaint, alleging negligence and willful and wanton conduct. The trial court allowed a limited version of plaintiff's theory to go to the jury, and the jury returned a verdict for plaintiff. The Appellate Court reversed.

Before the Supreme Court, Krywin argued that the natural accumulations rule has always been based on the proposition that it is unfair and unrealistic to require municipalities and businesses to remove snow and ice on an ongoing basis while a storm continues. The Court disagreed, finding that the rule applies regardless of whether a storm is in progress, or how long a natural accumulation has existed. The Court concluded that the natural accumulation rule should apply to plaintiff's claim:

CTA had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation.

Plaintiff's fallback argument was that even if the natural accumulations rule applied to common carriers, the CTA could have met its duty to provide a safe place to alight by stopping under the canopy which covered less than half of the platform. The Court disagreed, finding that it was impractical to require the CTA to evaluate each platform each time a train pulled in to determine what portions of the platform, if any, were the most free of snow and ice.

Justice Freeman dissented, with Justice Kilbride joining. Justice Freeman argued that because the Illinois Legislature had codified the natural accumulations rule in the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-105, but had specifically excluded the CTA from the Act, 745 ILCS 10/2-101(b), the Legislature intended that the natural accumulations rule not apply to the CTA.

Justice Freeman also argued that the majority's holding was contrary not only to the Court's earlier authorities, but also to the weight of authority in foreign jurisdictions. Pointing to decisions of the Alaska and Michigan Supreme Courts, as well as Section 343 of the Restatement (Second) of Torts, Justice Freeman argued that the weight of authority around the country rejected the natural accumulations rule. "I would hold that a common carrier's standard of care trumps the natural accumulation rule," Justice Freeman wrote, arguing that the CTA should be required to warn passengers of icy platforms, and "a jury would have to decide whether the parties acted reasonably."

Ironically, the "take-away" from Krywin comes from Justice Freeman's dissent. "[I]n northern climates, like ours, where ice and snow are a fact of life, people are aware of the hazards posed by such conditions, and it is impractical to require property owners and carriers to remove snow and ice." The Court's decision in Krywin provides a needed dose of common sense for defense counsel to fight suits arising from the difficult winter weather that is a "fact of life" here in Chicago.

Illinois Supreme Court Reaffirms Strong Federal Policy in Favor of Arbitration

Many states have enacted statutes automatically invalidating, under one set of circumstances or another, contracts which seem to require mandatory arbitration of disputes. In a 5-0 decision today (with two justices not participating), the Illinois Supreme Court cast such statutes in doubt, holding that two clauses of the Illinois Nursing Home Care Act were preempted by the Federal Arbitration Act. Carter v. SSC Odin Operating Company.

Plaintiff's decedent and plaintiff herself, as special administrator, executed contracts providing that disputes over decedent's care while she lived in the defendant's nursing home would be decided in arbitration. After decedent's death, plaintiff sued for wrongful death and violations of the Nursing Home Care Act. The defendant moved to compel arbitration, relying upon section 2 of the Federal Arbitration Act.

At first glance, the Illinois Nursing Home Care Act would seem to have required the Circuit Court to deny defendant's motion. The Act invalidates any waiver by a resident or his or her legal representative of the right to sue under the Act, and also invalidates any waiver of the right to trial by jury for an action under the Act. But not so fast: according to the Federal FAA, mandatory arbitration terms are valid "save upon such grounds as exist at law or in equity for the revocation of any contract."

So was the Nursing Home Care Act's language grounds equally applicable to revocation of any contract? No, according to the Illinois Supreme Court.

The sort of defense Congress had in mind, the Court wrote, was fraud or lack of consideration -- general defenses that had nothing specifically to do with arbitration. But the FAA strips the states of any power to invalidate arbitration clauses per se. According to the unanimous Court, that national policy is to be applied in broad terms: any statute requiring that a dispute be resolved in court is invalid if the underlying contract had a mandatory arbitration clause.

The lesson for defense counsel is clear. If a statute forbids waiver of a cause of action, or requires a jury trial, and the contract at issue contains an arbitration clause, the underlying statute is probably preempted. Under the Court's reasoning, a statute apparently aimed at protecting a certain class of plaintiffs -- whether nursing home residents, or seniors, or consumers -- from mandatory arbitration clauses will almost never prevail against the FAA.