The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Limits Scope of Misconduct Sufficient to Bar Unemployment Benefits

By Kirk Jenkins on Posted in Illinois

14840932266_15e966355eThe Illinois Unemployment Insurance Act provides that benefits may be denied when an employee is terminated for a “deliberate and willful violation of a reasonable rule or policy” of the employer. Last week, in a unanimous opinion by Justice Burke in Petrovic v. The Department of Employment Security, the Illinois Supreme Court held that misconduct may be found absent a written rule only in very narrow circumstances. Our detailed summary of the underlying facts and agency and court rulings in Petrovic is here. Our report on the oral argument is here.

Petrovic began in January 2012 when the plaintiff, a longtime tower planner for a major airline, received a call from a friend at another carrier. The friend asked whether the plaintiff could do something for a passenger flying the airline that day. The plaintiff asked catering whether a bottle of champagne could be provided to the passenger, and asked a flight attendant whether it would be possible to upgrade the passenger’s seat. Three weeks later, the airline fired the plaintiff, citing two rules: misrepresentation of facts and dishonesty in relations with the company.

Plaintiff filed for unemployment benefits. The airline protested, arguing that the plaintiff had been terminated for violation of a “reasonable and known policy.” A claims adjuster, referee and the Board of Review all denied the plaintiff’s claim, holding that she had been terminated for misconduct. Plaintiff sought administrative review, and the Circuit Court reversed. But the Appellate Court reversed the Circuit Court, holding once again that the plaintiff had been fired for misconduct.

The Supreme Court reversed the Appellate Court, holding that no misconduct within the meaning of the unemployment insurance statutes had been shown. The Court began by addressing a challenge to the appellants’ standing (the airline had declined to pursue the matter – the appellants were the Director and Department of Employment Security and the Board of Review). The Court found that the appellants’ function was not purely adjudicatory – they also had independent interests in maintaining a uniform body of law involving the Act and protecting the fund, giving them separate standing to defend the lower courts’ rulings.

The Court then turned to the merits. It began by pointing out that review was of the final decision of the Board, not of the referee or the Circuit Court. Because the main purpose of the Act is to relieve the economic insecurity caused by involuntary unemployment, the Court stated that the Act is to be liberally construed in favor of awarding benefits.

Three factors must be satisfied to prove misconduct sufficient to deny benefits – (1) a deliberate and willful violation; (2) of a reasonable rule or policy governing the individual’s behavior; (3) that either harms the employer or a fellow employee, or is repeated despite a warning or explicit instructions. Thus, “misconduct” within the meaning of the Act is not synonymous with an employee who got fired. A rule or policy need not be written or formalized, but it must be clearly expressed to the employee, so as to put the employee on notice.

The Court held that no one had satisfied the burden of showing these factors. There was no evidence at the hearing regarding the rules cited in the plaintiff’s letter of termination. If the employer had a rule requiring a manager’s approval for upgrades, there was no evidence that the employee knew about it. Even if the employer had a rule against employees “issuing” unauthorized upgrades, such a rule wouldn’t apply, according to the Court – the plaintiff had merely made inquiries of other employees, as opposed to issuing any upgrade herself. “Plaintiff cannot be disqualified from receiving benefits based on others’ conduct,” the Court found.

The Board had held that no written rule was needed, because “there are some acts of misconduct that are so serious and so commonly accepted as wrong that employers need not have rules covering them.” The plaintiffs argued that the “common sense” exception to the misconduct provision could not be reconciled with the plain language of the statute. The Court agreed, but said that the “common sense” exception had an exceedingly narrow scope – benefits could be denied without proof of a written rule only given proof that the employee’s conduct was illegal or constituted a prima facie intentional tort. The plaintiff’s conduct in Petrovic was neither, so proof of a written rule was required. Since the employer had failed to offer such proof, the misconduct exception wasn’t triggered, and the plaintiff was entitled to benefits.

Image courtesy of Flickr by Grempz.

Illinois Supreme Court Rejects Privilege Claims on Hospital Credentialing Materials

By Kirk Jenkins on Posted in Illinois

5922822998_5674be602bEvery medical facility has dozens of files consisting of papers submitted in conjunction with physician applications for credentials to practice in that facility. Are such documents privileged from discovery in a medical malpractice lawsuit claiming, in part, that the facility was negligent for renewing the defendant’s credentials? Late last month, a unanimous Illinois Supreme Court held in Klaine v. Southern Illinois Hospital Services that the answer was “no.” Our detailed report on the underlying facts and lower court decisions in Klaine is here. Our report on the oral argument is here.

In response to the plaintiff’s discovery requests, the defendant hospital produced over 1,700 pages of documents. However, the defendant refused to produce three categories of documents, arguing that they were privileged under two Illinois statutes, the Medical Studies Act and the Health Care Professional Credentials Data Collection Act. The defendant complied with the circuit court’s order to produce one of the three categories, but declined with respect to the other two. The defendant was held in “friendly contempt” to facilitate an appeal. The Fifth District affirmed the lower court’s order in almost all respects.

In an opinion by Justice Burke, the Supreme Court affirmed. The Court began by concluding that because the facts were undisputed and the issue came down to a question of law – whether or not the relevant statutes created privileges – review was de novo. The Court acknowledged that the Credentials Act provides that application materials are “confidential” and “may not be redisclosed without written consent of the health care professional.” However, “confidential” and “nondiscoverable” were not the same thing. The Court held that if the legislature wants to create a privilege, it must plainly state not just that the material is confidential, but also privileged, nondiscoverable, and/or inadmissible.

The information the defendant was withholding was the only material which, by statute, it was required to consider in deciding whether to credential or recredential the defendant physician. Therefore, it was highly relevant to a claim for negligent credentialing. Since the information seemed highly probative, a strong showing was needed as to how nondisclosure would advance other interests outside of the truth-seeking process in order to justify a privilege. The Court held that the defendants had made no such showing. Accordingly, the documents were not privileged in their entirety.

The defendants also argued that information reported to the National Practitioner Data Bank was privileged. But that Act was similar to the Credentials Act – it provided that the materials were “confidential,” but never said they were privileged or nondiscoverable. Indeed, the Court pointed out, facilities are required to report such data to the Practitioner Bank when a physician applied or reapplied for credentials, and periodically while he or she is on staff.

Finally, the defendant argued that information regarding treatment of nonparties was privileged pursuant to Illinois’ physician-patient privilege. The information being sought wasn’t the medical records of third parties; such persons were only involved peripherally to the extent their care was referred to in the credentials materials. Individual patient identifiers had already been redacted, or were never included in the first place, so there was no possible privilege issue.

The Court concluded by briefly affirming the Appellate Court’s decision to vacate the contempt finding against the defendant, which had been entered solely to make the discovery order appealable.

Image courtesy of Flickr by Lydia.

Sharply Divided Illinois Supreme Court Abolishes “Public Duty Rule” Protecting Government Officials from Tort Suits

By Kirk Jenkins on Posted in Illinois

5457496134_616ac83454A long-standing common law principle called the “public duty rule” holds that local government entities and their employees owe no tort duty of care to individual citizens to provide governmental services such as police and fire protection – such duties are owed to the public as a whole. In the closing days of its January term, a sharply divided Illinois Supreme Court abolished the public duty rule in Coleman v. East Joliet Fire Protection District. Our detailed report on the underlying facts and lower court decisions in Coleman is here. Our report on the oral argument is here.

It has been apparent for some time that the Court was sharply divided about Coleman. By the time the opinion was handed down, it had been under submission for 311 days since oral argument – more than five months above the Court’s average even for non-unanimous decisions. The lead opinion carried the signatures of only two Justices, Justices Kilbride and Burke. Justices Freeman and Theis signed a special concurrence agreeing with the judgment, but disagreeing almost entirely with the rationale for discarding the public duty rule. And – in a very rare moment of party-line division on the Court – Chief Justice Garman and Justice Karmeier joined a spirited dissent by the third Republican Justice on the Court, Justice Thomas.

Coleman began on a June evening in 2008. Will County, where the decedent lived, was experiencing a major tornado outbreak. Eight tornadoes were sighted that afternoon and evening over northeast Illinois. Just after 6 p.m., the decedent called 911 and asked for an ambulance. When the ambulance arrived at the decedent’s home, they found the doors locked, and although they rang the doorbell and pounded on the doors, received no answer. The ambulance attendants called their supervisor, who directed them to go back into service. After the ambulance left, neighbors called 911, and a second ambulance was dispatched. Unfortunately, this ambulance was given an incomplete address, leading to further delays. Finally, the decedent’s husband arrived home and let them in the house. The crew found the decedent unresponsive, and she was pronounced dead at the hospital.

The decedent’s estate filed suit, alleging negligence and willful and wanton misconduct. The negligence counts were dismissed by agreement pursuant to statutory immunity, and the trial court dismissed the willful and wanton counts under the public duty rule. The Appellate Court affirmed, but the Supreme Court narrowly reversed.

The plurality opinion by Justice Kilbride begins by tracing the roots in Illinois law of the public duty rule and of sovereign immunities. The plurality acknowledges that most states continue to adhere to the public duty rule – and even in the relatively few exceptions, the legislature has in several cases acted to overturn judicial decisions abolishing or limiting the rule.

Nevertheless, the plurality concludes that the rule should be abolished for three reasons: (1) the jurisprudence applying the rule and its special duty exception has become “muddled and inconsistent”; (2) application of the rule is inconsistent with the legislature’s acknowledgement of limited liability for willful and wanton misconduct; and (3) the legislature’s enactment of statutory immunities has rendered the rule obsolete.

Justice Freeman and Justice Theis concurred only in the judgment, instead signing a special concurrence. According to the concurring Justices, the plurality went astray at their first step when they argued that the public duty rule and sovereign immunity were analytically distinct concepts. According to the dissenters, the rule was clearly rooted in sovereign immunity. And since sovereign immunity was abolished in Illinois by the 1970 constitution, the rule should have been discarded with it.

Justice Thomas’ dissent begins by emphasizing that the plurality opinion is not a majority opinion for the Court. “Justice Kilbride’s analysis in fact garners less support than even this dissent,” the dissenters write. The dissenters strongly condemned the plurality’s three reasons for abandoning the public duty rule: “they are not compelling, not in the least. In fact, they are not ‘reasons’ at all but rather transparent ex post rationalizations for a foregone conclusion, none of which holds up to even a moment’s scrutiny.”

With respect to the first reason cited by the plurality – that application of the rule has become “muddled and inconsistent” – the dissenters note that the plurality’s main support is a California Supreme Court decision written fifteen years before the main Illinois public duty rule decision. Not only that, but “the quoted portion of the California Supreme Court decision hardly evinces a jurisprudence run amok,” according to the dissenters. Rather, the decision merely notes that at times, for reasons of expediency, courts dispose of cases on immunity grounds rather than lack-of-duty – essentially holding that even if a duty existed in a particular case, there could be no liability because of immunity. “Suffice it to say,” the dissenters continue, “if such practice renders each of these bodies of law ‘muddled and inconsistent’ to such a degree that the protections of stare decisis no longer operate, then the common law of Illinois site on the verge of wholesale collapse.”

Nor are the dissenters persuaded by the proposition that the rule is inconsistent with statutory immunity. First, statutory immunities were granted years before the public rule was squarely reaffirmed by the Court. Second, lack of duty and statutory immunity are two entirely different things, they argue – exactly the reason why the plurality rejected the plaintiffs’ argument that the end of statutory immunity doomed the public duty rule. The dissenters dismiss the third reason given by the plurality as “just another way of saying that the public duty rule did not survive the passage of the Tort Immunity Act.”

The dissent then turns to the special concurrence. Quoting the concurring Justices’ view that the public duty rule has always been firmly rooted in the concept of sovereign immunity, the dissenters argue that previous courts have resolved those issues to the contrary.

The dissent closes with a pointed condemnation of the plurality and concurrence, taken with minor emendations from a 2000 dissent by Justice Freeman, the author of the special concurrence in Coleman:

[T]oday’s decision demonstrates that ‘power, not reason, is the new currency of this court’s decisionmaking’ . . . [N]either the law nor the facts supporting the [public duty rule] underwent any change since the last time that this court issued its last [public duty rule] case . . . in 1998. Only the personnel of this court did. One must now wonder how many of our previous decisions . . . will be similarly overruled on the basis of a change in court personnel . . . It is obvious to me, at least, that four members of this court are willing to discard any principle of . . . law that, in the past, was recognized . . . and with which four justices currently disagree. This does not bode well for the future.

Image courtesy of Flickr by SV1ambo.

California Supreme Court In 2015: A Year In Transition

By Kirk Jenkins on Posted in Appellate Practice, California

7323267556_e8cbc65a8bOriginally published on Law360, Feb. 4, 2016. Posted with permission.

2015 was a year of transition for the California Supreme Court as two new justices appointed by Gov. Jerry Brown, Justices Mariano-Florentino Cuellar and Leondra R. Kruger, took office in early January. Because the new justices replaced Republican appointees, there has been widespread speculation that the court’s decisions might move in a more liberal direction. One year into the new justices’ tenure, the statistical evidence for any marked shift at the court is decidedly mixed.

For 2015, the court decided 32 civil cases and 44 cases from the criminal, quasi-criminal, juvenile and disciplinary side of the docket. Final judgments made up 46.88 percent of the court’s civil docket; an additional 15.63 percent arose from petitions for writs of administrative mandate, with 6.25 percent involving petitions for writ of mandate taken from decisions of the lower courts. Appeals from orders relating to arbitration and workers’ compensation appeals amounted to 6.25 percent of the civil docket apiece. The criminal docket was dominated by review of final decisions (45.45 percent of the docket) and review of death penalty judgments (38.64 percent). An additional 9.09 percent of the docket arose from petitions for writs of habeas corpus.

Not surprisingly, Los Angeles dominates the court’s civil docket, producing 34.48 percent of the caseload. Orange County was next, with 15.63 percent of the civil docket, followed by Alameda and San Diego counties, which accounted for 9.38 percent each. San Francisco and the Workers’ Compensation Board accounted for 6.25 percent of the court’s civil docket apiece.

The criminal docket this past year was more widely dispersed than the civil docket was. Riverside County was the leading source of criminal cases, but accounted for only 15.91 percent of the criminal docket. Another 13.64 percent of the docket arose from Los Angeles County Superior Court. Orange County accounted for 11.36 percent of the criminal docket, with Santa Clara and San Diego counties providing 9.09 percent each. San Bernardino, Contra Costa and Alameda counties contributed 6.82 percent apiece of the criminal docket.

The court’s civil docket was dominated by government and administrative law cases — 43.75 percent of the total caseload. Sixty-four percent of those cases were won by the plaintiffs below, and the court reversed in two-thirds. This is in line with the court’s recent history — between 2010 and 2014, the court reversed 62.5 percent of government and administrative law decisions where the plaintiff won below. The court decided two cases each in a variety of subject areas, including arbitration, constitutional law, workers’ compensation, insurance, commercial law and employment law. All four cases the court heard in insurance and commercial law were won by the defendants below, and the court reversed in all four. The death penalty was the largest single share of the criminal docket, comprising 38.64 percent of the total. Sentencing issues contributed another 22.73 percent of the cases, followed by 18.18 percent in criminal procedure.

Conventional wisdom has it that a successful petition for review to the California Supreme Court requires a dissent at the Court of Appeal from a published opinion. But in fact, only one of the court’s civil decisions this past year drew a dissent below. There’s considerably more truth to the second part of that adage — only 12.5 percent of the civil docket arose from unpublished Court of Appeal opinions. Not surprisingly, 54.54 percent of the criminal docket arises from unpublished Court of Appeal opinions.

Lag times between the Supreme Court granting review and a final decision have become a subject of increasing discussion in recent years in the California appellate bar. Our data analytics research on the Illinois Supreme Court has found that the amount of time a case is pending can be a reasonably accurate predictor of whether the court’s decision will be unanimous or divided. California, however, is different. Non-unanimous civil decisions in 2015 were pending an average of 700.75 days, and cases decided unanimously were pending only slightly less — an average of 699.54 days.

Lag times have increased significantly since 2000. Between 2000 and 2005, lag times tended to average between 500 and 600 days, 100-200 days less than today. Non-unanimous civil decisions reached a low in 2005, averaging 543.18 days pending. In 2002 and 2003, unanimously decided civil cases were pending an average of only 490 days from grant to decision — more than 200 days less than the average for 2015. But since that time, average lag times for civil decisions have bounced around between 600 and 800 days. In fact, the 2015 lag time for non-unanimous civil decisions is a substantial improvement over 2014, when such cases were pending an average of 858.67 days. Curiously, lag times on unanimous civil cases in 2015 increased by 100 days over 2014. Measuring lag times from oral argument to decision is not especially informative given that opinions in California generally must be issued within ninety days of argument. For 2015, non-unanimous civil cases took an average of 87 days from oral argument to opinion. Unanimous cases were pending for an average of 70 days.

Many observers have argued that the lag times at the court are driven by the court’s heavy docket of death penalty cases. Criminal cases as a whole average a much longer lag time than civil cases. Non-unanimous decisions average 1854.27 days from grant to decision, and unanimous decisions average 1905.76 days. Death penalty appeals were pending an average of 3587.5 days (measured from appointment of appellate counsel to decision) in non-unanimous cases, and 3767.08 days for unanimous decisions. Non-unanimous criminal cases not involving the death penalty were pending an average of 863.86 days, while unanimous nondeath criminal cases averaged 695.9 days.

Like civil cases, lag times in criminal cases have drifted upward since 2005. In 2004, for example, non-unanimous criminal cases were pending only 870.6 days, less than half the average today. For most years between 2000 and 2005, criminal cases averaged somewhere between 1000 and 1400 days. Death penalty appeals are taking at least somewhat longer as well. Between 2000 and 2005, death appeals were pending an average of 2,500-3,500 days. Although average lags were down significantly from 2014 to 2015 — the average death penalty appeal was pending for 4028.87 days in 2014 — the numbers from 2015 are roughly comparable to most years since 2005.

The unanimity rate at the court was substantially up in 2015, with the court deciding 87.5 percent of its civil cases unanimously. This is an increase over the court’s trend in civil cases during the past 10 years, when unanimity rates in civil cases tended to be in the low 70s. It represents a sharp increase from the court’s record in the years 2000-2005, when the unanimity rate in civil cases was generally between 55 and 65 percent. In fact, in 2000, the California Supreme Court decided less than half of its civil cases unanimously.

On the other hand, the unanimity rate was slightly down from historic trends on the criminal side of the docket. The court decided 75 percent of its criminal, quasi-criminal and disciplinary cases unanimously, following eight straight years with a criminal unanimity rate in the 80s. Only 81 percent of the court’s criminal cases in 2015 were decided by lopsided margins, with zero or one dissenters. Unanimity was down on the death penalty docket as well. The court decided 76.47 percent of its death cases unanimously — with the exception of a single-year dip in 2011, the lowest unanimity rate on the court in death cases since 2002. Although reversal of a death penalty remains a very high mountain to climb before the court, the court reversed more death penalties in 2015 than in any single year since 2000.

Overall, the court reversed in 71.88 percent of its civil cases. This is a significant increase over its recent trend; the three-year weighted average reversal rate in civil cases is 61.25 percent. Indeed, the court’s reversal rate in civil cases has been remarkably stable for quite some time. With the exception of the two-year blip in 2012 and 2013, the three-year weighted average reversal rate has been between 57 and 66 percent for the past 16 years.

A substantial share of the court’s docket arises from San Diego and Los Angeles. In 2015, the three divisions of the Fourth District (San Diego) accounted for 37.5 percent of the civil docket, while the Second District (Los Angeles) produced 34.38 percent of the civil caseload. That’s a substantial increase for the Fourth — the court heard only one civil case from the Fourth District in 2014, and only four in 2013.

The court reversed the divisions of the Second District 81.82 percent of the time, up significantly from 2014, when the court reversed the divisions of the Second District in only 54.55 percent of civil cases. In fact, the three-year weighted average reversal rate for decisions arising from Division Three of the Second District is only 42.86 percent. San Francisco’s First District was the next biggest portion of the civil docket, producing 15.63 percent of the caseload and being reversed every time. This represents a departure from the court’s recent history; the three-year weighted average reversal rate for the First District is 50 percent or less for four of the five divisions.

The Second District accounted for a much smaller proportion of the criminal docket — only 9.3 percent. The court was reversed in 40 percent of those cases. The Fourth District accounted for 23.26 percent, and was reversed in 60 percent of those cases. Although the First District historically has played a relatively minor role in the court’s criminal docket, 11.63 percent of the criminal caseload arose from there in 2015. The First District was reversed in whole or in part in only 40 percent of those cases, and indeed, the First has fared relatively well on the Supreme Court’s criminal docket in recent years. Two of the five divisions of the First District have a three-year weighted average reversal rate in criminal cases of 50 percent, and two of the five have weighted average reversal rates of zero.

The court reversed, at least in part, in 41.18 percent of its death cases in 2015, following up on a 43.48 percent reversal rate in 2014. These are the highest single-year reversal rates for the court in direct appeals from death judgments since our data begins in 2000. Looking at the rest of the criminal docket without taking the death appeals into account, we find that the court reversed in 57.69 percent of its nondeath criminal cases. The three-year floating average for reversal rates in nondeath criminal cases at the court is only slightly higher — 59.3 percent.

For a number of years, the court has tended to write somewhat longer opinions than other state supreme courts. In civil cases for 2015, the average majority opinion in a non-unanimous decision was 31.25 pages. The average unanimous opinion was 27.14 pages long. Dissents averaged 12 pages in civil cases.

The data for criminal cases is dramatically affected by the death penalty appeals. Overall, the average majority opinion in a non-unanimous criminal decision was 42.91 pages. The average unanimous decision was 36.66 pages long. Breaking the docket up between death and non-death cases, we find that the average majority opinion in a non-unanimous death penalty case was 68.75 pages long, and 60.46 pages in a unanimously decided death case. The average majority opinion in a non-death criminal case decided with dissenters was 28.14 pages, and the average unanimous decision was 19.35 pages long — in both cases, shorter on average than the civil cases. The average dissent in criminal cases was 14.14 pages long.

For many years, the California Supreme Court has been quite hospitable to amicus curiae briefs. Between 2000 and 2015, the court has accepted 2,618 amicus briefs in civil cases — an average of 4.16 briefs per case. The court’s average was somewhat down in 2015 over recent years, as the court accepted 3.78 amicus briefs per case on the civil side of the docket, the lowest number since the court averaged 3.45 in 2010. The court’s heaviest year since 2000 for amicus briefs was 2008 at 5.93, but that number is substantially skewed by litigation regarding same-sex marriage. Excluding the marriage cases from our calculations yields averages for 2008 and 2009 right in line with the court’s trends. The court’s second-heaviest year for amicus briefs was 2003, when an average of 5.68 amicus briefs per civil case were filed. Not surprisingly, amicus briefs were far less common in criminal cases, although by no means unheard of. The court averaged 0.48 amicus briefs per case in 2015 on the criminal docket. The court’s lightest year in our data was 2006, when the court received only 0.13 amicus briefs per criminal case; its heaviest was 2002, when the court averaged 0.83 amicus briefs per case.

Chief Justice Tani Cantil-Sakauye led the court with seven majority opinions on the civil side. Next were Justices Carol Corrigan and Kathryn Werdegar, who wrote six each. Justices Ming Chin and Cuellar wrote for the Court three times each in civil cases, Justice Liu twice and Justice Kruger once. The Chief Justice averaged the longest majority opinions at 38.86 pages, followed by Justices Chin and Werdegar at 31.25 and 31.14 pages, respectively. Justice Liu was next at an average of 24.25 pages per majority opinion, and then Justice Cuellar at 23 pages.

On the criminal side, Justice Werdegar was the most frequent writer, with nine majority opinions. Justice Chin was next, writing for the Court in eight criminal cases. Justice Liu was third, writing the majority opinion in seven criminal cases. Chief Justice Cantil-Sakauye wrote six majorities on the criminal side, as did Justice Corrigan. Retired Justice Marvin Baxter wrote for the court in three criminal cases, and Justice Cuellar wrote two criminal majority opinions. The chief justice wrote the longest majority opinions in criminal cases (including death penalty cases) at 46.67 pages, followed by Justices Werdegar (41.56), Liu (40.29) and Corrigan (38.33 pages).

We’ve argued in our work on the Illinois Supreme Court that one measure of the dynamics of a state supreme court is how often justices tend to be in the majority when the court is divided. Four justices — the chief justice and Justices Werdegar, Cuellar and Kruger — voted with the majority in all of the court’s non-unanimous civil decisions. Justice Goodwin Liu voted with the majority in three-quarters of the non-unanimous civil cases, and Justices Corrigan and Chin did so in half. Only Justices Kruger and Cuellar were in the majority in all the court’s non-unanimous criminal decisions. Justice Corrigan was with the majority in 90.91 percent of those cases. Justice Liu was next at 81.82 percent. The chief justice and Justice Werdegar voted with the majority in 72.73 percent of the non-unanimous criminal cases, and Justice Chin did so in 45.45 percent.

So far, evidence that the court is shifting in a more liberal direction is sparse on the civil side of the docket. Justices Cuellar and Kruger voted together in every non-unanimous civil case in 2015, but their agreement rates were 100 percent with the chief justice and Justice Werdegar as well — both Republican appointees. Cuellar and Kruger voted with Justice Liu, the third Gov. Jerry Brown appointee, in 75 percent of the non-unanimous civil decisions this past year. The two newest justices voted only half the time with Justices Corrigan and Chin.

Agreement rates among the Republican appointees to the court are somewhat lower. Between 2013 and 2015 in non-unanimous civil cases, the chief justice has agreed with Justice Corrigan 75 percent of the time, with Justice Werdegar in 70.59 percent of cases, and with Justice Chin two-thirds of the time. Although Justices Corrigan and Chin have agreed in 93.33 percent of split civil cases during that three year period, she has voted the same way as Justice Werdegar in only 43.75 percent of non-unanimous civil cases. Meanwhile, Justice Werdegar has agreed with Justice Chin in only one-third of the non-unanimous civil decisions during that time. Justice Liu has maintained a centrist position in the court’s voting dynamics, agreeing with the chief justice in 76.47 percent of non-unanimous civil cases since 2013, with Justice Werdegar 70.59 percent of the time, with Justice Chin in 53.33 percent of cases, and with Justice Corrigan in half.

There is somewhat more evidence of a relatively consistent liberal voting wing of the court in criminal matters. Justices Cuellar, Kruger, Liu and Werdegar agreed in every one of the non-unanimous criminal cases decided in 2015. Justices Cuellar and Kruger agreed with Justice Corrigan in 85.71 percent of such cases last year. In contrast, the two Brown appointees agreed with the chief justice in only 57.14 percent of criminal cases, and with Justice Chin in only 14.29 percent.

Turning to the Republican appointees, the chief justice and Justice Chin have agreed in 89.29 percent of non-unanimous criminal cases since 2013. The chief justice has agreed with Justice Corrigan in 75 percent of cases during that same period, and with Justice Werdegar 67.86 percent of the time. Justices Corrigan and Chin have agreed in 71.43 percent of non-unanimous criminal cases since 2013, and Justices Corrigan and Werdegar have agreed 64.29 percent of the time. Justices Werdegar and Chin have agreed in only 57.14 percent of the court’s non-unanimous criminal decisions in the past three years. Justice Liu, the only Brown appointee to serve the entire three-year period, has agreed with Justice Werdegar 82.14 percent of the time, with Justice Corrigan in 71.43 percent of non-unanimous criminal cases, and with the chief justice in 60.71 percent of such cases.

We can draw a number of conclusions from our review of the California Supreme Court’s decisions in 2015: (1) the court continues to have a strong interest in government and administrative law; (2) although unanimity at the Court of Appeal is not fatal to one’s chances of persuading the Supreme Court to grant review, an unpublished appellate decision very nearly is; (3) both the court’s unanimity rate and its reversal rate may be edging upward; (4) there is significant evidence that the court may be taking a more liberal approach in criminal law; and (5) although the margin for error for civil defense counsel may have decreased with the retirement of two Republican justices, there remains a viable center on the court, consisting of the chief justice and Justices Corrigan, Chin and Werdegar.

Image courtesy of Flickr by Amit Patel.

Florida High Court to Decide Whether Attorneys’ Fees Limitation in Claim Bill Is Constitutional

By on Posted in Florida

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The Florida Supreme Court has accepted review of Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, No. 4D13-3497, 2015 WL 4269031 (Fla. 4th DCA July 15, 2015), which will require it to decide whether a claims bill* that awarded $15 million to a minor plaintiff, but limited attorneys’ fees to $100,000, when the law firm spent $500,000 in costs alone, is constitutional. See No. SC15-1747.

This case arises from a catastrophic brain injury sustained by Aaron Edwards during his birth as a result of the medical negligence of employees at Lee Memorial Health System. Aaron and his parents retained the law firm of Searcy Denney Scarola Barnhart & Shipley, P.A. (“Searcy Denney”) to represent them. The Edwards family agreed to pay Searcy Denney a 40% contingency fee and acknowledged that to the extent that a governmental agency was responsible for their damages, federal and Florida law may limit the amount of attorneys’ fees charged by Searcy Denney.

A jury awarded Aaron over $28 million, his mother $1.34 million, and his father $1 million. Because Lee Memorial was a governmental agency, the judgment against the hospital was limited to $200,000 pursuant to Florida’s sovereign immunity statute. The Florida Legislature ultimately passed a claim bill directing Lee Memorial to appropriate $10 million, with an additional $5 million payable in annual installments to Aaron’s guardianship. See Ch. 2012-249, Laws of Fla. The claim bill also limited the total amount paid for attorneys’ fees, lobbying fees, and costs to $100,000.

After the first $10 million installment had been paid, various law firms that had worked on the case, petitioned the guardianship court to approve a closing account statement transferring $2.5 million to them—an amount that was consistent with the sovereign immunity statute, but which contravened the limitation in the claim bill. The law firms argued that the claim bill was an unconstitutional impairment of their contract with the Edwards family. The guardianship court refused to transfer the money.

On appeal, the Fourth District agreed with the guardianship court’s ruling based on two Florida Supreme Court decisions, Gamble v. Wells and Noel v. Sheldon J. Schlesinger, P.A., which upheld the constitutionality of attorneys’ fees limitations in claim bills significantly less than the amount contracted for by the claimants. The district court grounded its decision on two principles: (1) a claim bill is a “voluntary recognition of its moral obligation by the legislature” and is a “matter of legislative grace”; and (2) parties cannot enter into a contract to bind the state in the exercise of its sovereign power. Judge Ciklin wrote a lengthy dissenting opinion.

The parties are currently briefing the issues for the Court. This article will be updated once the supreme court decides the case.

*A claim bill, sometimes called a relief act, is a bill that compensates a particular individual or entity for injuries or losses occasioned by the negligence or error of a public officer or agency. It is a means by which an injured party may recover damages even though the public officer or agency involved may be immune from suit. For further information on claim bills, see Legislative Claim Bill Manual.

Image Courtesy of Flickr by Boston Public Library

Florida Supreme Court to Resolve Conflict Regarding Whether a Proposal for Settlement Must Reference Attorneys’ Fees When There Is No Fee Claim Pled

By on Posted in Florida

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The Florida Supreme Court will review the First District’s decision in Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 2d 242 (Fla. 1st DCA Aug. 14, 2015), which certified conflict with the Fourth District’s decision in Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003). See No. SC15-1682. The conflict centers around whether a plaintiff’s proposal for settlement is unenforceable when it fails to state if it includes attorneys’ fees and if attorneys’ fees were part of the legal claim, as required by Florida Rule of Civil Procedure 1.442(c)(2)(F), when the plaintiff did not seek attorneys’ fees in her complaint.

Sometime before trial, Plaintiff Susanne Kuhajda served on defendants identical offers of judgment that proposed to settle all claims for one lump sum. The offers specified that they included costs, interest, and all damages recoverable under the complaint and by law. The offers, however, failed to state whether they included attorneys’ fees and whether attorneys’ fees were a part of the claim as required by Rule 1.442(c)(2)(F). Plaintiff prevailed on her negligence claim against the defendants and the jury awarded her damages in excess of the amount contained in her offers of judgment. The trial court granted plaintiff’s motion to tax attorneys’ fees and costs pursuant to the unaccepted offers of judgment, concluding that the failure to include the attorneys’ fees language did not create an ambiguity because plaintiff never sought attorneys’ fees in her complaint.

The First District reversed. It reasoned that the supreme court has repeatedly held that the rule and statute governing offers of judgment must be strictly construed. The First District found that plaintiff did not strictly comply with Rule 1.442(c)(2)(F) when she failed to state in the offers of judgment whether the offers included attorneys’ fees and whether attorneys’ fees were part of the legal claim. To bolster its conclusion, the First District pointed to a supreme court decision that invalidated a similar proposal for settlement where the plaintiff did seek attorneys’ fees in the complaint. It saw “no reason why this holding would not apply equally to a case where attorneys’ fees were not sought in the complaint.”

The Court will not hear oral argument on this case. This article will be updated once the supreme court decides the case.

Image Courtesy of Flickr by Northern Illinois University Digital Library (no changes).

Florida Appellate Court Confirms That Pedestrian May Be Responsible For Collision With Vehicle

By Erin E. Dardis on Posted in Appellate Practice, Florida

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On December 2, 2015, the Second District Court of Appeal, in Panzera v. O’Neal (Case No. 2D14-4302), held that the plaintiffs did not present any admissible evidence to support their negligence claim against the defendant-truck driver and his employer or to refute the conclusion that the decedent-pedestrian caused the highway collision. Accordingly, the court affirmed the lower court’s order granting summary judgment in favor of the defendants.

Read the opinion here.

The undisputed facts established that at approximately 3 a.m., Anthony Panzera climbed a fence and entered Interstate-75, where he was struck and killed by a Publix semi tractor-trailer driven by Darryl O’Neal. Panzera was wearing a dark shirt and there were no street lights in the area. The truck was equipped with a device that capped its speed at 65 mph, which was 5 mph less than the posted speed limit. The truck was also equipped with a device that generated a report when the truck suddenly decelerated. On the night of the collision, the truck was traveling at 65 mph when it suddenly decelerated.
O’Neal testified that he saw Panzera run across the interstate into his lane of traffic. He applied the brakes and steered to avoid Panzera, but was unable to avoid the collision. The officers who responded to the accident testified that the evidence at the scene, including the lengthy skid marks, led them to conclude that O’Neal took immediate evasive action and could have done nothing more to avoid the collision.
At the hearing on the defendants’ motion for summary judgment, the plaintiffs, Panzera’s parents and the personal representatives of his estate, presented no evidence or expert testimony to refute the officers’ conclusions. The trial court granted final summary judgment in favor of the defendants.
On appeal, the appellate court reiterated that in a negligence action, summary judgment is improper “unless a defendant can establish unequivocally the absence of negligence or that the plaintiff’s negligence was the sole proximate cause of the injury” and that “[t]he party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.” Once the moving has met this heavy burden, the nonmoving party must offer admissible evidence that shows the existence of a genuine issue of material fact. The court stated that many litigants labor under the misconception that they only need to argue or proffer any fact that they believe to be in conflict in order to defeat a motion for summary judgment, but that to prevail, it must be admissible evidence that creates a colorable issue of material fact.
Here, in response to the defendants’ motion for summary judgment, the plaintiffs raised only speculative, rather than genuine, issues of material fact. In particular, the plaintiffs submitted their testimony that O’Neal could have avoided the accident by taking additional evasive maneuvers. However, because the plaintiffs did not witness the accident and admitted that they were not experts in accident reconstruction; their lay opinion testimony could not be relied upon to create a material issue of fact. Rather, the evidence established that O’Neal was driving below the speed limit, he applied his brakes, and he steered to avoid the collision, which supported the defendants’ argument that Panzera was the sole proximate cause of the accident. Because the plaintiffs’ evidence was purely speculative, no material issues of fact remained and the appellate court affirmed the entry of final summary judgment in favor of the defendants.

Image courtesy of Flickr by Alan Taylor (no changes).

Illinois Supreme Court Sides With Chicago Board of Education in “Do Not Hire” Union Dispute

By Kirk Jenkins on Posted in Illinois

6288971_713a12216a_zThis morning, a majority of the Illinois Supreme Court sided with the Chicago Board of Education in a dispute with its teachers union, holding in The Board of Education of the City of Chicago v. The Illinois Educational Labor Relations Board that the Board of Education was not required to participate in mandatory arbitration over its policy of placing “do not hire” designations in the files of certain nonrenewed probationary appointed teachers. Our detailed summary of the underlying facts and lower court rulings is here. Our report on the oral argument is here.

Board of Education begin in the summer of 2010, when the Board notified the teachers union that it was designating as ineligible for rehire certain probationary appointed teachers who had either been nonrenewed twice or given an unsatisfactory performance rating. The Board began placing “do not hire” designations in the affected teachers’ files.

The union presented four grievances to the Board – three on behalf of individual teachers and one on behalf of all probationary appointed teachers – and demanded arbitration under the parties’ collective bargaining agreement. The Board refused to arbitrate the matter, contending that the “do not hire” notices went to the Board’s exclusively managerial right to decide who it would and wouldn’t hire as teachers. The union filed an unfair labor practice charge with the Illinois Educational Labor Relations Board, alleging that the Board of Education’s refusal to arbitrate violated the Educational Labor Relations Act. The IELRB upheld the grievances and ordered the Board of Education to arbitrate the dispute. A divided panel of the Appellate Court reversed the IELRB, concluding that the matter was exclusively managerial.

In an opinion by Justice Freeman, the Supreme Court affirmed. The Court noted that a school district was permitted to refuse to arbitrate a grievance where: (1) no contract required arbitration of the substance of the dispute; or (2) the dispute was not arbitrable under Illinois law.

Several provisions of the parties’ CBA were relevant to the question of whether the contract covered the matter, according to the Court. According to Article 3 of the CBA, “a complaint involving a work situation, a complaint that there has been a deviation from, misinterpretation of or misapplication of a practice or policy; or a complaint that there has been a violation, misinterpretation or misapplication of any provisions” of the CBA were all arbitrable. Article 34-4 expressly provided that “no derogatory statement about a teacher or other bargaining unit member . . . shall be placed in the teacher’s or other bargaining unit member’s personnel file” without giving the affected person notice and an opportunity to respond. Finally, Article 48-2 provided that “matters of inherent managerial policy” were not arbitrable.

The Court held that the “do not hire” policy related to the Board’s decision to initiate employment – a matter of managerial policy – not to the terms and conditions of employment, and was therefore not arbitrable. Even if the CBA had arguably required arbitration of the matter, the Court majority held that arbitration would still be barred by Section 4 of the Act, which bars arbitration over “matters of inherent managerial policy . . . includ[ing] . . . selection of new employees.” The Court also concluded that requiring arbitration would conflict with various provisions of the School Code, including requirements that Boards appoint teachers “for merit only,” and authorizing Boards to dismiss teachers, including by nonrenewal.

Justice Kilbride dissented. He agreed that employment decisions were a matter of inherent managerial policy and therefore not arbitrable. But the dispute wasn’t about who the Board would and wouldn’t hire, Justice Kilbride concluded. Rather, it was about the placement of derogatory matter in personnel files, which appeared to be a clear violation of Section 34-4 of the CBA. Accordingly, Justice Kilbride concluded that the IELRB’s decision compelling arbitration should have been upheld.

Image courtesy of Flickr by Alan Levine (no changes).

Illinois Supreme Court Rejects Broad Construction of Judge Challenge Statute

By Kirk Jenkins on Posted in Illinois

3293465641_b6c5081e87_zA litigant files suit, litigates for several years, and then, prior to trial, exercises her right to voluntarily dismiss the action without prejudice. Not long after, she refiles the action and is assigned (apparently by chance) to the same judge. The litigant attempts to exercise her statutory right to one automatic substitution of judge under Section 2-1001(a)(2)(ii) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2)(ii)).

Can the trial court take the first action into account in ruling on the challenge? This morning, the Illinois Supreme Court held in Bowman v. Ottney that the answer was “yes,” writing that a contrary holding would have opened a loophole in the statute likely to encourage judge-shopping. Our detailed report on the facts and underlying court rulings in Bowman is here. Our report on the oral argument is here.

Bowman began in 2009 when the plaintiff, acting as special administrator of a decedent’s estate, sued the defendant doctor and a medical practice for malpractice. The case was litigated for four years, during which the judge made various substantive rulings, including resolving discovery matters. Ultimately, the plaintiff filed a voluntary dismissal without prejudice under Section 2-1009(a) of the Code of Civil Procedure (735 ILCS /2-1009).

Four months later, she refiled, this time naming only the doctor as a defendant. The case was assigned to the judge who had heard the first case. The plaintiff moved for automatic substitution of judge. The defendant objected on the grounds that the judge had made substantive rulings in the first action, making the challenge untimely. The circuit court denied the motion for substitution, but certified a question under Rule 308(a) as to whether under the circumstances a trial court had discretion to take the first case into account in ruling on a substitution motion in the second case. The Appellate Court answered that question “yes,” with one Justice dissenting.

In an opinion by Justice Freeman, the Supreme Court affirmed. The Court noted that Section 2-1001(a)(2)(ii) provides that a litigant is entitled to one substitution so long as the motion is made “before the judge to whom it is presented has ruled on any substantial issue in the case.”

So everything turned on what “in the case” meant. If the refiled action was a different “case,” the plaintiff wins. If “case” was interpreted more broadly, then the defendant did.

Although Section 2-1001(a)(2)(ii) had always been interpreted liberally in favor of the right of substitution, it was equally true that the courts have been wary of constructions which would seem to promote judge-shopping and gamesmanship, the Court wrote. The plaintiff relied on a line of cases holding that the second action after a voluntary dismissal is a separate case, filed under a different docket number and requiring the payment of a new filing fee. But “new” for some purposes didn’t mean “new” for all, the Court concluded.

The problem was that holding that a voluntary dismissal revived the right to automatic substitution of judge invited judge shopping. A litigant dissatisfied with a judge’s rulings could treat the voluntary dismissal as a “do-over,” dismiss the first case, refile and then challenging the judge. The plaintiff had argued that Supreme Court Rule 219(e), which provides that certain orders entered in the previous action could be considered in the refiled action, sufficiently discouraged judge shopping, but the Court concluded that it cut the other way, demonstrating that the new action wasn’t entirely separate for all purposes.

Justice Kilbride dissented, arguing that the statutory language contained no reference to any previously dismissed case and should be interpreted pursuant to its plain language to allow a mandatory substitution after a dismissal.

Image courtesy of Flickr by Brian Turner (no changes).

Illinois Supreme Court Agrees to Clarify When Workers’ Comp Settlement Eliminates Contribution Claim from Third-Party Tortfeasor

By Kirk Jenkins on Posted in Illinois

4418145006_75edbc7617According to Section 2 of the Contribution Act, when a party settles a claim in good faith against one tortfeasor, the finding of good faith automatically discharges that tortfeasor from any liability for contribution to another tortfeasor. (740 ILCS 100/2.) On the final day of its November term, the Illinois Supreme Court allowed a petition for leave to appeal in Bayer v. Panduit Corporation, a decision from Division 1 of the First District which poses a number of interesting questions about the interaction of the Workers Compensation Act and the Contribution Act.

The defendant is an electrical components manufacturer in De Kalb. In 2007, the defendant entered into a contract with an iron works company to fabricate structural steel for the expansion of the defendant’s warehouse. The iron works company then subcontracted with the plaintiff’s employer to upload and erect the structural steel at the site.

In June 2007, the plaintiff was seriously injured when he fell at the site. His injuries rendered him a quadriplegic. The plaintiff filed a workers compensation claim against his employer, and subsequently sued the defendant and the iron works company for negligence. The defendant then filed a third-party claim against the plaintiff’s employer, alleging that it was negligent in failing to ensure the safety of its employee, and seeking judgment in contribution commensurate with its relative fault.

Three years after the lawsuit began, the plaintiff and his former employer filed a motion for finding of good faith settlement. Following a hearing, the motion was granted. Less than two weeks later, the plaintiff settled with the iron works company, leaving the defendant to go to trial. Judgment was ultimately entered following trial for the plaintiff in the amount of $64 million.

The defendant filed a posttrial motion alleging that the court had erred in dismissing the contribution claim against the plaintiff’s employer because the settlement was not in good faith. Following a hearing, the trial court denied the defendant’s motion. Concurrently, the plaintiff filed a motion for attorneys’ fees and costs against his employer pursuant to the Workers Compensation Act. That motion was granted as to fees relating to future workers’ compensation payments, but denied as to costs. Both the defendant and the plaintiff’s employer filed notices of appeal.

The Appellate Court began its analysis with the good-faith settlement issue. On appeal, the defendant challenged the settlement because (1) no consideration was given for the release, since the employer had paid the plaintiff nothing further, nor had it waived its workers’ compensation lien; and (2) because of the sizable judgment against the defendant and the employer’s failure to waive its lien in the settlement, the employer stood to recover everything it had paid the employer from the defendant, effectively shifting its entire liability to the defendant.

The Court noted that the settlement agreement provided that the plaintiff’s employer: (1) agreed to waive its entire workers compensation lien with respect to any pre-verdict settlements; and (2) agreed to continue making workers compensation payments to the plaintiff until the matter was resolved against all defendants (Illinois law provides that an employer may terminate ongoing workers compensation payments when an employee receives any amount for the same injury from a third-party tortfeasor). The parties’ agreement also provided for partial waivers of the lien depending on exactly how much the plaintiff recovered from a verdict.

The Appellate Court affirmed the trial court’s finding that the settlement was supported by good faith. The Act itself gave employers the right to lien an employee’s recovery from third-party tortfeasors to recover some portion of their payments, the Court noted. Although the plaintiff’s employer ultimately stood to recover all of its workers compensation payments, that was only because of the size of the verdict – and Illinois courts have consistently rejected the notion that a large verdict after-the-fact is relevant to a good faith finding before or during trial. Further, the Court found that the employer’s agreement to continue workers’ compensation payments throughout the case – including, if necessary, any appeals – was sufficient consideration for the settlement by itself.

The Appellate Court then turned to the question of the attorneys’ fees order. On appeal, the employer did not dispute its liability under Section 5(b) of the Workers Compensation Act (820 ILCS 305/5(b)) for attorneys fees in the amount of 25% of the plaintiff’s permanent total disability benefits, but did dispute the payment of attorney fees for benefits suspended by statute as a result of the tort settlements. The Appellate Court held, based on the plain language of Section 5(b), that the employer was not required to pay attorney fees for suspended future medical payments under the Act.

We expect Bayer to be decided in eight to ten months.

Image courtesy of Flickr by Elliott Brown (no changes).

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