The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Illinois Supreme Court Debates Tort Duty of Care for 911 First Responders

By Kirk Jenkins on May 5, 2015 Posted in Illinois

In the closing days of the March term, the Illinois Supreme Court heard oral arguments in Coleman v. East Joliet Fire Protection District, a case from the Third District. Coleman poses the question of whether public entities and their employees owe a tort duty of care to callers to 911 emergency lines. Our detailed summary of the facts and court decisions in Coleman is here.

The plaintiff’s decedent called 911 one evening in 2008. The call was transferred from the county 911 operator to the local fire district dispatch center. The first dispatcher tried to ask the decedent some questions, but received no answer. Ultimately, he hung up and tried to call back twice, receiving a busy signal both times. When the ambulance arrived at the house, no one answered. The paramedics asked the fire dispatcher to call the decedent, but received no response. Neighbors of the decedent attempted to reach the residence, and when they were unable to, they called 911 too. Another ambulance was dispatched, but that ambulance received no answer at the house either. While that ambulance was preparing to force entry, the decedent’s husband arrived home and let them in. The decedent was found unresponsive, and she was later pronounced dead at the hospital. The plaintiff filed claims for wrongful death and survival. The defendants successfully moved for summary judgment, and the Appellate Court affirmed.

Counsel for the plaintiff began the argument, arguing that the defendants had a tort duty under both the EMS Act and the ETS Act, as well as for other reasons. Counsel argued that it made no sense for the legislature to provide for a cause of action for willful and wanton conduct if the first responders owed no duty to patients under any circumstances. Justice Theis asked whether the EMS Act was an immunity statute – wasn’t duty something different from immunity? Counsel answered that the legislature wouldn’t have provided for immunity if there wasn’t a duty – you wouldn’t need it. Justice Thomas asked what the Court should do with Zimmerman v. Village of Skokie – it would seem that the Court addressed the continued viability of the public duty doctrine there. Counsel responded that in Zimmerman, the plaintiff wanted to take advantage of the special duty exception to override what the legislature had done with the Tort Immunity Act. Here, the opposite situation existed. Justice Thomas suggested that Zimmerman gave a principled analysis of why the public duty rule had survived the abolition of sovereign immunity as well as the Tort Immunity Act – wouldn’t that rationale apply here? Counsel responded that in fact, the Court hadn’t addressed head on whether Illinois still recognized the public duty rule. Instead, the Court decided based on the Tort Immunity Act. Justice Thomas said that was where Justice Theis was coming from regarding the distinction between duty and immunity. Counsel answered that his position was that unless a duty is created under the Acts, there is no need for immunity. Even if that weren’t so, counsel argued, the defendants were all volunteers. In order to determine that issue, one looked not to the employment status of the defendants, but rather to the scope of their undertaking. Justice Theis asked counsel whether he was arguing that the duty arose from the Acts, or from the traditional four-part common law test for duty. Counsel argued that the duty flowed from both sources. When the paramedics called their dispatcher and reported that there was no patient without a factual basis for doing so, the paramedics became volunteers. Likewise, dispatchers went further than they were required to when they called the next jurisdiction with the information. The Chief Justice asked whether the dispatcher was under a duty to transfer the call. Counsel answered that at some point, the dispatcher had exceeded her duty, increasing the risk of harm to the plaintiff. Justice Karmeier asked when the voluntary duty started. Counsel answered when the dispatcher called Orland Park rather than merely transferring the call. Justice Karmeier asked whether Orland Park staff were volunteers when they received the call. Counsel answered that Orland Park was a harder case. Justice Thomas asked whether voluntary undertaking was applicable when a defendant had a legal obligation to perform. Counsel answered that the issue was whether a defendant had gone beyond the scope of his or her undertaking. Justice Thomas asked whether there was a distinction between doing what the plaintiff was supposed to do in a negligent fashion and a voluntary undertaking. Counsel answered yes.

Counsel for the county and dispatcher followed. Counsel argued that the dispatcher hadn’t performed a voluntary undertaking in responding to calls because that is her job – the statute speaks of both a transfer method and a relay method. Counsel argued that abolition of sovereign immunity impacted only one side of the analysis. Justice Theis asked counsel what was the harm of adopting the four-part test for duty. Counsel answered that uncertainty was the harm – otherwise, there would be hundreds of cases a year.

Counsel for the East Joliet Fire Protection District and the paramedics was next. Counsel argued that given the Tort Immunity Act, there is no tenable argument for a negligence duty. None of the defendants had engaged in a voluntary undertaking – all were merely doing their duty. Justice Theis asked what the need for an immunity was if there was no duty of care. Counsel answered that the Tort Immunity Act applies only to the government, not private EMS employers. The courts cannot be in the business of insuring the well-being of individual defendants. Counsel argued that the legislature has had many years to overrule the Court’s view of the public duty rule, and hasn’t done so – thus implicitly acquiescing in the Court’s view. Counsel wondered how first responders would manage with a regime where duty depended on case-by-case foreseeability. Once a paramedic starts providing treatment, counsel argued, the special duty exception applies, but until then, the public duty rule nearly always blocks a private tort suit.

Counsel for the Orland Park Fire Protection District followed. Counsel argued that one of the most important reasons to keep the public duty rule is to conserve governmental resources. The financial burden of broader tort exposure would require restrictions in emergency services, counsel argued. The public interest isn’t served, counsel argued, by allowing juries, armed with 20-20 hindsight, to second- guess discretionary acts of the defendants. If such an outcome is to be risked, the legislature should make the decision.

The sky didn’t fall in 1969 when sovereign immunity was effectively abolished by statute, plaintiffs’ counsel argued in rebuttal. Safeguards were in place – the need to prove foreseeability, the tort immunity act and the EMS and ETS Acts, limiting liability to willful and wanton conduct. Counsel concluded by arguing that the legislature had imposed a tort duty to locate the patient under the EMS Act, and the Court should not overrule that determination by imposing blanket immunity through the public duty doctrine.

We expect Coleman to be decided in four to five months.

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

Illinois Supreme Court Appears Skeptical of Wrongful Death Claim Arising From Suicide

By Kirk Jenkins on April 30, 2015 Posted in Illinois

Earlier this month, the Illinois Supreme Court heard oral arguments in Turcios v. The DeBruler Company. Turcios poses a simple question: can a plaintiff state a claim for wrongful death arising from a suicide? Our detailed summary of the underlying facts and lower court decisions in Turcios is here.

In April 2011, plaintiff and her husband signed a one-year lease on an apartment. Less than three weeks later, the couple received a notice of eviction giving them 30 days to vacate the premises. Ten days after receiving the notice, they received a letter stating that the building would be demolished in three weeks. The defendant refused to accept a rent payment from plaintiff at the beginning of the next month. A week later, the plaintiff and her husband received another notice saying the building would be demolished.

Three days later, defendant allegedly allowed demolition to begin around plaintiff’s unit. Five days after demolition began, plaintiff’s husband committed suicide in the apartment.

Plaintiffs filed a five count complaint, purporting to allege claims for intentional infliction of emotional distress, wrongful eviction, breach of contract, wrongful death and survivorship. The trial court dismissed the final two counts, holding that there is no claim for wrongful death or survivorship arising from a suicide. The Appellate Court reversed.

Counsel for the defendant began the argument. As a general rule, counsel explained, defendants are liable only for proximately caused injuries. A defendant is only the legal cause of an incident if a reasonable person would see the plaintiff’s circumstances as a natural and probable result of the defendant’s conduct. The court has held that suicide is an independent intervening cause. Here, plaintiff claims that the usual rule doesn’t apply in cases of intentional infliction of emotional distress. The plaintiff cites out of state cases, but in order to recognize the tort, defendant argued, the Court would have to eliminate legal cause as an element of intentional tort cases. Counsel argued that every intentional tort case he’s found requires proximate cause, but the Appellate Court said that it’s only necessary that the emotional distress be proximately caused by the conduct, not the damages. That selective application of the principles isn’t supported by any language in the intentional infliction of emotion distress cases, counsel argued. The Appellate Court relied on Section 46 of the Restatement, according to counsel. But the fact that Section 46 doesn’t mention intervening cause, legal cause or foreseeability doesn’t mean that these concepts don’t apply to intentional infliction of emotional distress. Counsel argued that there were no Illinois cases involving intentional torts where proximate cause hadn’t been applied as an element of the claim. Indeed, the plaintiff’s claim not only failed under Illinois law – it wouldn’t be adequate under the law of any of the alternative states counsel relied upon either. No state in the country would hold that plaintiff’s claim states a cause of action, and the Court should not be the first, counsel argued in closing.

Counsel for the plaintiff followed, arguing that the issue was whether a person who commits intentional wrongdoing will be liable when his or her act causing emotional distress was a substantial factor in causing the plaintiff’s suicide. Many courts have held that there is a significant distinction between persons acting intentionally and negligently, counsel argued. Justice Theis asked counsel whether he was tethering his argument to the tort of intentional infliction. Counsel said yes, the other jurisdictions’ cases did not involve intentional torts. The Chief Justice asked what happens if the victim goes out and hurts someone else – was there transferred liability for that? Counsel said no. So the liability was solely for suicide, the Chief Justice asked? Counsel answered that defendants are not liable for the criminal acts of the victim. The Chief Justice asked what would happen if the plaintiff was so distressed that he or she struck kids in a schoolyard. Counsel answered that at some point, there must be a limit to liability. All these cases involve suicide, counsel argued. Whether the rule goes beyond suicide can be left for another day. Justice Theis asked counsel what the Court should do with Martin v. Heinhold Commodities, Inc., which rejected any distinction between negligent and intentional acts. Counsel answered that Martin had a narrow meaning, applying only to intentional torts such as fraud rather than all intentional torts. Justice Thomas suggested that the Court’s phrase “such as fraud” in Martin was meant to be inclusive rather than exclusive. Counsel answered that the opinion is ambiguous. There is something about fraud, deceit and breach of fiduciary duty requiring a particularly acute connection between actions and damages. Justice Thomas asked whether counsel’s argument rested on how the Court interpreted the language “such as fraud” in Martin – as exclusive or inclusive. No, counsel answered, and here’s why. Counsel argued that no one had ever brought a similar case – an intentional tort followed by a suicide. The Court should take a look at what every other jurisdiction and the commentators have said – that there is a meaningful distinction between negligent and intentional conduct. To the extent that Martin has language foreclosing the plaintiff’s claim, the plaintiff is asking that the Court reconsider. Justice Theis suggested that the four out-of-state cases the plaintiff relied upon set out differing rules. What was the plaintiff proposing? Counsel argued that the issue was as stated in the PLA: whether Illinois should recognize a wrongful death claim where the conduct is a substantial factor in bringing about the suicide. Justice Theis suggested that the out-of-state cases were much more narrow than the plaintiff’s proposed rule, and counsel agreed, although several recognized a distinction between intentional and negligent tort. An intentional wrongdoer, counsel argued, should be liable for whatever happens. Justice Thomas suggested that the plaintiff’s rule would include school bullying, and counsel agreed that it would.

Counsel for the defendant began his rebuttal by arguing that although this was a case of first impression for the interrelation of suicide and intentional infliction, it was not the first case involving suicide and an intentional tort. In Luss v. Village of Forest Park, the Appellate Court applied the suicide rule and held that an intervening cause barred all intentional tort claims. The plaintiff’s cause of action was not sufficient in Illinois or any of the four other jurisdictions plaintiff relied upon. Counsel closed by arguing that the Court should not be the first to recognize a cause of action under such circumstances.

We expect Turcios to be decided in three to four months.

Image courtesy of Flickr by Andy Atzert (no changes).

Illinois Supreme Court Debates Whether Attorneys’ Fees Are Charged to Health Care Liens

By Kirk Jenkins on April 29, 2015 Posted in Illinois

In the final days of its March term, the Illinois Supreme Court heard oral arguments in McVey v. M.L.K. Enterprises, LLC. McVey poses a question of considerable importance for tort litigation: must attorneys’ fees and costs be deducted from a tort settlement before a lien under the Health Care Services Lien Act is paid? Our detailed summary of the underlying facts and lower court decisions in McVey is here.

McVey arose from an accident in a bar. After the plaintiff settled her lawsuit, a petition to adjudicate liens was filed by the hospital that treated the plaintiff. The trial court awarded the hospital $2,500, declining to deduct the plaintiff’s attorneys’ fees from the settlement before calculating the lien. The Appellate Court reversed.

Counsel for the health care provider began the argument. Counsel argued that despite the Supreme Court’s clear instruction in Wendling v. Southern Illinois Hospital Services that the common fund doctrine doesn’t apply to health care providers, the Fifth District’s decision in Stanton v. Rea allowed attorneys’ fees to be shifted to health care lien holders on the grounds that Wendling only applies to common fund claims. Counsel argued that the statute is plain and unambiguous – if there are lien holders in a settlement, then the lien holder collects 40%. If the lien holders have liens exceeding 40%, then the Health Care Lien Act applies; if not, it doesn’t. If the Act applies, the gross settlement is multiplied by 40%, and the health care lien holder collects that. Thirty percent goes to the attorney, and the balance goes to the plaintiff. Stanton said that the legislature wanted the plaintiff to be guaranteed thirty percent, and for that to happen, attorneys’ fees must be deducted from every share. Justice Thomas asked if deducting costs and fees from every share means at times that the plaintiff gets less money. Counsel responded that the problem with the Fifth District’s decision is that the Court didn’t pay any attention to the Attorneys’ Lien Act. If one looks at the Act, it specifically says that the lien includes fees, costs and expenses. The Attorneys Lien Act specifically references the Health Care Lien Act, and says if that Act applies, the attorneys’ lien is limited to thirty percent, including costs and expenses. If one applies that rule, the plaintiff always gets thirty percent, which is what the statute calls for. Justice Theis said that counsel was suggesting that the costs are included in the 30% share in the statute – then what happens if the client and attorneys have agreed that the client is to bear the costs? Counsel responded that the attorney might have a claim against his or her client, but would not have a lien against the settlement. The attorney would have a contract with the plaintiff to get his or her costs back. Counsel explained that the attorney is entirely separate from the health care provider. The health care provider can’t intervene in the principal case, and therefore, the costs shouldn’t be paid out of the provider’s share, counsel argued. The legislature was clear about its intentions, because it was combatting the risk of a plaintiff getting nothing. The attorney’s expenses in Stanton had nothing to do with the legislature’s intent, counsel argued – the thirty percent share assigned to the attorney includes costs and expenses. Counsel argued that the statute is perfectly clear, and there’s no reason to go beyond the language of it.

Counsel for the plaintiff followed, asking what the courts should do when the party’s costs equal thirty percent. Under the health care provider’s solution, counsel argued, the provider gets 40%, the client gets thirty percent, and the attorney gets nothing. Justice Burke asked what language in the Health Care Act supports the conclusion in Stanton that fees and costs are deducted before the percentages are applied. Counsel answered that there is no express language in the Act, but the Court should reject a literal construction. Justice Thomas said that he understood and could empathize with counsel’s example where the attorney gets nothing. But by definition, a plaintiff’s attorney has already told the client that if the client doesn’t recover, the attorney absorbs costs. So if the case ends in a small settlement, isn’t that a risk the attorney took on from the beginning? Counsel answered that under such circumstances, the case would never be brought – and the only person rewarded is the tortfeasor. That, counsel argued, is an absurd result. Justice Karmeier asked how the court should get to the policy issues if it concludes that the language of the statute is clear that a lien includes fees and costs? Counsel answered that the court rejects a literal reading which leads to absurd or unreasonable results. Chief Justice Garman asked whether the statute was absurd in all circumstances. Counsel answered that in Wendling, the Court had not engaged in a statutory analysis of what the statute meant. The Court didn’t parse the statute or analyze how much each side would get. Counsel concluded by arguing that Stanton and McVey are not outliers. The overwhelming majority of the settlements the Court’s decision would apply to are in the tens, not hundreds of thousands, and if all the costs are assigned to the attorney or client, the attorney or client cannot possibly receive the percentage of the settlement which the legislature intended.

Counsel for the health care provider concluded by arguing that if the tortfeasor is being rewarded by the eventual result, that’s part of dealing with the legal system. Plaintiff is asking the Court to rewrite the statute, counsel argued – and that’s the legislature’s job. The statute is clear: the lien holder receives 40%, the attorney receives 30% and the rest goes to the plaintiff. The only way to accomplish that is to assign the percentages before deducting costs.

We expect McVey to be decided in three to four months.

Image courtesy of Flickr by Till Krech (no changes).

Join Us Wednesday for “The California Supreme Court: What to Expect in 2015”

By Kirk Jenkins on April 28, 2015 Posted in Announcements, California

On Wednesday, April 29th at 11:00 AM Pacific/2:00 PM Eastern, Sedgwick’s Appellate Task Force will present its webinar “The California Supreme Court: What to Expect in 2015.” Highlights of the hour-long CLE presentation include:

Data Analytics and the Court: We’ll preview our group’s new data analytics database on the Court’s work since 2000. We’ll discuss which Court of Appeal districts are reversed most and least often; whether the Court more often reviews plaintiffs’ or defendants’ wins in each of the most common areas of the law on its docket (and how often each side’s decisions are reversed); the Court’s average time from argument to decision, and what a longer-than-average delay might mean; and the voting patterns of the individual Justices, including which Justices often vote together in close cases;
Personal Jurisdiction over Out-of-State Defendants: The Court will soon consider and apply recent landmark cases from the U.S. Supreme Court restricting plaintiffs’ ability to sue out-of-state defendants on claims with little or no connection to the forum. Will the California courts continue to be burdened with thousands of “litigation tourist” lawsuits in a time of tight court budgets?
Enforcing Limits on Healthcare Provider Liability: Can limits on healthcare provider liability be avoided by alleging a general negligence duty of care distinct from concepts of professional negligence?
Expanding the Scope of Asbestos Liability: A dozen years after the last domestic asbestos mine closed, will the Court double down on California’s pro-plaintiff asbestos standards by authorizing bystander suits by plaintiffs who never worked for the defendant or used the defendant’s products?
Arbitration of Consumer Disputes: Will the Court continue to soften its longstanding hostility to arbitration in the wake of recent U.S. Supreme Court decisions and hold that federal law preempts a state bar on arbitration clauses in consumer contracts?

For CLE details and to register for the webinar, click here.

Image courtesy of Flickr by Cliff (no changes).

Illinois Supreme Court OKs Injunctive Suit Against University Trustees

By Kirk Jenkins on April 28, 2015 Posted in Illinois

Earlier this month, the Illinois Supreme Court disposed of one of the older cases on its advisement docket. A sharply divided Court held in Leetaru v. The Board of Trustees of the University of Illinois that a former employee and graduate student at the University of Illinois could maintain a suit for injunctive relief against the Board of Trustees and an associate vice chancellor. Our detailed summary of the facts and lower court opinions in Leetaru is here. Our report on the oral argument is here.

Leetaru began in January 2011, when the plaintiff was informed by a university official that his employment would cease the following January for “budgetary and performance issues.” Six weeks before his job was scheduled to be eliminated, the plaintiff was placed on administrative leave. Once that happened, the plaintiff was allegedly barred from his office and denied access to various documents, including documents and data relating to his graduate studies, doctoral research and dissertation materials. In February 2012, the plaintiff received notice that a formal research misconduct complaint had been filed against him. Attached to the complaint were the University’s Policy and Procedures on Academic Integrity in Research and Publication, and the bylaws of the Graduate College Handbook. Those two documents contain detailed procedures as to how a complaint for research misconduct is to be investigated and resolved.

The plaintiff’s initial response to the charges argued that, notwithstanding the University’s own rules and procedures, he had been denied access to the papers and data that might aid in his defense, and that his papers had in fact been placed in the custody of the person who had initiated the charge. Although a formal decision to proceed to the next stage of the proceeding, “inquiry,” was allegedly made in May 2012, the plaintiff didn’t learn about that until September 2012, when he was notified of nine specific charges. The inquiry team’s report was issued in November 2012. Both the plaintiff and his attorney responded, alleging that the university had failed to follow its own procedures in a host of ways.

In February 2013, the plaintiff initiated the lawsuit, alleging that the academic investigation had ignored the University’s regulations and seeking preliminary and permanent injunctive relief. The plaintiff did not challenge the University’s right to make the investigation; rather, he sought injunctive relief requiring the University to follow its own regulations in doing so.

The State moved to dismiss the action, alleging that pursuant to the State Lawsuit Immunity Act and the Court of Claims Act, the lawsuit was in effect one against the State, and therefore could proceed only in the Court of Claims. The Circuit Court agreed and dismissed the action for lack of jurisdiction, and the Appellate Court affirmed.

In a majority opinion by Justice Lloyd Karmeier (joined by the Chief Justice and Justices Thomas and Kilbride), the Court reversed. The majority explained that whether the lawsuit was actually one against the State depended on the issues involved and the relief sought. The general bar against Circuit Court actions against the State was subject to a well-settled exception; when an officer or agent of the State acted unlawfully, unconstitutionally or in excess of his or her authority, an action may be brought to restrain the conduct. In effect, by acting ultra vires, the employee’s conduct ceases to be that of the State. The officer exception includes actions to require compliance with administrative rules and regulations.

Since the plaintiff was merely asking for an injunction requiring the University to follow its own rules, the suit was properly in the Circuit Court, the majority held.

Justice Burke filed a lengthy dissent, joined by Justices Freeman and Theis. The dissenters argued that the proposition on which the majority opinion rested – that a purely injunctive claim could proceed against an arm of the state when it sought merely to restrain ultra vires conduct – conflicted with other authorities, both in Illinois and elsewhere. The dissenters would have found that an action against an arm of the state is barred regardless of the nature of the relief sought. Further, the dissenters argued that not even the plaintiff’s claim against the University officer should have survived, since the complaint alleged no ongoing misconduct – only past misconduct during earlier stages of the investigation. Moreover, the dissenters pointed out counsel’s statement at oral argument that the investigation was now in the penalty phase, and suggested that the appeal was likely moot anyway – a claim which they invited the State to raise on remand.

Given the limited scope of the majority opinion and the serious questions as to whether prospective relief is even possible, the decision in Leetaru may have limited impact.

Nevertheless, the opinion is interesting for those of us who carefully follow the Court’s work. Leetaru was argued on September 18, 2014. The State was asked slightly more questions than the plaintiff was – never an encouraging sign for an appellee. The Court originally announced that it would hand Leetaru down on December 18, 2014, as we wrote here – only 91 days after the argument. Ordinarily, such a short lag time suggests that a unanimous opinion is fairly likely. Such circumstances – an opinion listed on the upcoming list, but not filed – are exceedingly rare at the Court.

Although the decision was not listed on the Court’s initial upcoming opinions list for the week of April 13, it was filed on April 16, 2015. That’s 203 days after the oral argument, about 2-3 weeks longer than the Court’s mean lag time in recent years for non-unanimous civil decisions. The 20-page dissent has certain structural features which are more typical of a majority opinion, including a detailed discussion of the facts and procedural history. Lengthy dissents are exceedingly rare at the Court. Last year, the average dissent in a civil case was only 6.6 pages, and the Court’s average dissent has been below ten pages each of the last fifteen years. Indeed, Leetaru is the longest dissent in a civil case since 2011.

Image courtesy of Flickr by Taber Andrew Bain (no changes).

Illinois Supreme Court Holds Treasurer Needs Appeal Bond Too

By Kirk Jenkins on April 27, 2015 Posted in Illinois

Earlier this month, a unanimous Illinois Supreme Court held in Illinois State Treasurer v. Illinois Workers’ Compensation Commission that the State Treasurer, when appealing a workers’ compensation award in a case where he appears as custodian of the Injured Workers’ Benefit Fund, must file an appeal bond.

If this sounds like a minor procedural flaw, easily remedied – well, no. Understanding why requires a bit of a bit of background on the nature of appellate jurisdiction under Illinois law. Courts have jurisdiction in Illinois over all justiciable matters as a matter of constitutional law. But administrative law is different. In the administrative arena, courts have the jurisdiction the legislature says they do. So when a court sets out to review a workers’ compensation award, the prerequisites for invoking the court’s jurisdiction must be followed exactly. And one of those prerequisites is – you guessed it – is filing an appeal bond. So no appeal bond, no subject matter jurisdiction. Our detailed summary of the facts and underlying court decisions in Illinois State Treasurer is here. Our report on the oral argument is here.

Illinois State Treasurer began when a home healthcare provider to an elderly man was injured on the job. Because the patient didn’t have workers compensation insurance at the time of her injury, the claimant looked to the Injured Workers’ Benefit Fund for relief. The Fund consists of money from penalties and fines collected from employers and insurance companies pursuant to the Workers’ Compensation Act, and is intended to serve as a source of payment for employers lacking coverage. The State Treasurer serves ex officio as custodian of the Fund.

The arbitrator awarded benefits to the claimant. The Treasurer appealed, and the Commission unanimously affirmed. The Treasurer then appealed to the Circuit Court. That court affirmed, and the Treasurer sought to appeal to the Appellate Court. The Appellate Court initially reversed the award, but on rehearing, the claimant raised two arguments: first, that the award was in effect against the State, and therefore no appeal was possible, and second, that the Treasurer’s failure to file an appeal bond, as required to invoke the Appellate Court’s jurisdiction under 820 ILCS 305/19(F)(2), deprived the Appellate Court of jurisdiction. The Appellate Court rejected the first argument but agreed with the second.

In an opinion by Justice Karmeier, the Supreme Court affirmed. According to the Treasurer, the statutory requirement that “one against whom the Commission shall have rendered an award for the payment of money” must post a bond in order to invoke the court’s jurisdiction was aimed at employers and insurers, not the State Treasurer. But the Supreme Court pointed out that the legislature had used the terms employer and insurer throughout the statute. It could have easily used the same terms in Section 19(f)(2), but it deliberately used broader language. The Treasurer pointed out that awards against the State aren’t appealable unless they arise from claims by current and former employees and appointees of the Workers Compensation Commission, and argued that it was unreasonable to treat him differently. But he was different, the Court pointed out – the Treasurer was only in the litigation as the custodian of the Fund.

The Treasurer argued that he should be exempt from the bond requirement since the State is generally excused from paying court costs and analogous litigation expenses. But once again, the Court pointed out, the Treasurer was in a materially different position. In those cases, the State was a party to the litigation – here, the Treasurer was merely present in his ex officio capacity. Besides, since court costs are essentially a charge levied to help pay for the judicial system, assessing costs against the State essentially charged the taxpayers twice. An appeal bond, on the other hand, was intended for a very different purpose – to secure the payment of the award and any applicable costs if the appeal is ultimately unsuccessful. If the legislature disagreed with the Court’s construction, the Court said, it was free to amend the statute for purposes of future cases.

But in the meantime, no bond meant no jurisdiction, the Court held.

Image courtesy of Flickr by Dark Day (no changes).

Illinois Supreme Court Agrees to Decide Property Dispute Between Former Same-Sex Domestic Partners

By Kirk Jenkins on April 8, 2015 Posted in Illinois

In Hewitt v. Hewitt in 1979, the Illinois Supreme Court decided that for public policy reasons, Illinois courts cannot decide property disputes between unmarried couples. In the closing days of the March term, the Court agreed to decide whether or not Hewitt remains good law in the context of same-sex domestic partner relationships.

According to the complaint in Blumenthal v. Brewer, the parties became domestic partners in 1981 or 1982 while they were graduate students. One partner attained a law degree, the other a medical degree. The couple had three children, and subsequently allocated work and family responsibilities to care for their children. In 2002, they went through the procedures to cross-adopt their three children. In 2003, the couple registered as domestic partners.

The parties’ relationship ended in 2008. In a separate action, the parties resolved issues of custody, child support and responsibility for certain child expenses. The plaintiff – a physician – filed suit seeking to partition the home she owned with her former domestic partner. The defendant, who was by then a judge, counterclaimed for various remedies, including for a constructive trust over the residence and the physician party’s net earnings. The plaintiff successfully argued that Illinois law doesn’t recognize property claims between unmarried domestic partners, citing Hewitt.

On appeal, the defendant argued that Hewitt was no longer good law because the legislative policies underlying that decision either no longer existed or had been modified substantially. In the years since Hewitt, the legislature has repealed the criminal prohibition on nonmarital cohabilitation, prohibited differential treatment of marital and nonmarital children, adopted no-fault divorce and established civil unions (Illinois adopted same-sex marriage after the parties’ relationship terminated). The plaintiff responded that Hewitt was based not on Illinois’ former hostility to claims by unmarried cohabitants, but rather on Illinois’ refusal to recognize common-law marriage – a public policy which was still in place.

The Appellate Court agreed that Hewitt was based, at least to some degree, on the state’s refusal to recognize common law marriage. But Blumenthal was not an attempt to retroactively create a marriage, the Court concluded. The Court emphasized that Illinois law has changed dramatically in the 35 years since Hewitt. Courts across the country are increasingly inclined to enforce agreements between former cohabitants, the court pointed out, citing the landmark California case of Marvin v. Marvin as the beginning of the trend.

Besides, the Court noted, Hewitt might have unintended consequences. Although the Hewitt line of authority was purportedly intended to encourage marriage, in fact, if a more financially well-off partner could turn aside any claim from an unmarried cohabitant, he or she had a significant incentive not to marry. The Court further commented that Hewitt appeared to be based to a significant degree on the legislature’s then-recent decision to reject no-fault divorce, which the Court interpreted as a decision to prevent marriage from becoming a civil contract terminable at will.

Ultimately, the Court concluded that Illinois law no longer disfavors either the parties’ 26-year cohabitation or the property claims at issue between them. The defendant was merely seeking to assert cross claims for relief that is available to anyone else. The Court held that the trial court’s refusal to let her do so was error.

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

Image courtesy of Flickr by Alexandre Dulaunoy (no changes).

Illinois Supreme Court to Decide If State’s Union Contract Conditioned on Appropriations

By Kirk Jenkins on April 7, 2015 Posted in Illinois

In the closing days of the March term, the Illinois Supreme Court agreed to wade yet again into the contentious and politicized area of public employee wages and benefits. State of Illinois v. American Federation of State, County, and Municipal Employees, Council 31 poses the question of whether pay raises promised in the State’s contracts with its employee unions are conditional on the Legislature actually appropriating the necessary funds.

In 2008, the State agreed to a four-year collective bargaining agreement with AFSCME, which represents most state employees. The CBA provided for small twice-yearly wage increases in 2009, 2010 and 2011. But with the State mired in budget woes, AFSCME agreed to defer the mandated wage increases in 2009 and 2010.

In early 2011, then-Governor Quinn proposed a budget which included sufficient appropriations to fund the required raises for that year, but the legislature rejected parts of the budget. When the budget was finally approved, the State’s Central Management Services determined that there was insufficient money in it to finance the agreed increases for employees at 14 agencies. Those employees’ wages were frozen at 2011 levels, while employees at all other state agencies began receiving the increases.

AFSCME sought arbitration of the dispute. The union argued that the State was required to pay the mandated increases, but the State argued that it owed no duty to pay any employees unless and until the legislature appropriated sufficient funds – which had not happened. The arbitrator entered his award, finding that the State’s position would have required him to add language to the arbitration agreement – which he lacked the power to do. The arbitrator ordered the increases paid.

The State filed a complaint in Circuit Court seeking to vacate the award, together with an emergency motion for stay. The trial court granted the stay. In the weeks that followed, the legislature made supplemental appropriations, and several agencies experienced enough attrition to pay the increases to remaining employees, but employees in six agencies remained without the mandated increases.

The trial court held that an overriding public policy made the CBA and the subsequent agreements invalid unless the legislature appropriated the necessary funds. Following a hearing, the judge determined that the affected agencies had the funds to pay partial increases. Both the State and AFSCME appealed. Following the trial court decision, the State reached an agreement with the union to pay the partial increases due under the trial court’s decision. The State’s negotiators agreed to withdraw its appeal, but the Attorney General refused to do so. Nevertheless, AFSCME members ratified the agreement, and the increases were paid.

The Appellate Court (First District, Division 2) reversed in an opinion by Justice Neville. The Court began by summarily rejecting the notion that the State’s payments under the trial court order had mooted the appeal. The Court also briefly noted that no party had questioned its power to decide the case, even though the Justices’ staffers were members of AFSCME subject to the CBA at issue. In any event, the Court concluded that the rule of necessity authorized the Court to proceed.

The Court began by addressing the State’s argument that the arbitrator had improperly declined to disregard the language of the CBA and other union agreements on public policy grounds. The Court rejected the State’s argument, finding that the arbitrator’s authority was drawn from the agreement between the parties, and if the agreement did not expressly give him the power to consider public policy, he had no power to do so.

The State pointed to language in the CBA providing that the “provisions of this contract cannot supersede law.” Given that Section 21 of the Public Labor Relations Act provided that “employers” may negotiate multi-year collective bargaining agreements “subject to the appropriation power of the employer.” According to the State, this meant that all CBAs were by definition conditional on appropriations.

The Appellate Court disagreed. The problem, the Court found, was that the State overlooked the Act’s definition of “employer,” which expressly excluded the General Assembly.

The State next made a related argument, claiming that public policy forbade the State from negotiating any binding contracts which required the payment of funds the legislature hadn’t appropriated yet. There were two fatal flaws in that argument, the Court concluded. First of all, it ran squarely into the constitutional contract clause, which provides that “no . . . law impairing the obligation of contracts . . . shall be passed.” Second, it conflicted with the language of the Act, which expressly authorized multi-year contracts.

The Court quoted at length from a 1992 decision of the Iowa Supreme Court, AFSCME/Iowa Council 61 v. State, which the Court said involved an identical argument that the State owed its employees nothing under a CBA until appropriations were made. But the Iowa Supreme Court concluded that it would be doing the state no favors if it accepted the argument: “To do so would seriously impair its ability to function. The government must finance its affairs, must contract for buildings, highways, and a myriad of other public improvements and services. It would lead to untenable results if a government, after having contracted for needed things, did not have to pay for them.”

At bottom, the Court concluded, the State’s argument meant that notwithstanding the language of the contract clause, the legislature had a right to impair any contract involving the state at any time. Such an argument was untenable, the Court found. If the State wanted to make its promises to pay contingent on appropriations, it would have to include express language in the contract saying so.

The Court held that the arbitrator’s final award drew its essence from the State’s agreements with the union and didn’t offend public policy. Accordingly, the trial court erred by modifying the award in part.

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

Image courtesy of Flickr by Donkey Hotey (no changes).

136 Means 136: Ballot Signature Requirement Requires Strict Compliance

By Kirk Jenkins on April 6, 2015 Posted in Illinois

Ballot access statutes nearly always require that prospective candidates present a given number of valid voters’ signatures in order to qualify for the ballot. In Illinois, nomination for offices below the statewide level requires signatures from not less than 5% nor more than 8% of the registered voters who participated in the last preceding regular election.

So what happens if the prospective candidate falls a bit short? Is substantial compliance enough?

Late in the March term, the Illinois Supreme Court answered this question in Jackson-Hicks v. The East St. Louis Board of Election Commissioners: “No.”

Candidates in the election for Mayor of East St. Louis run on a nonpartisan basis. In order to be listed on the ballot, candidates are required to present 136 valid signatures. On their face, the incumbent mayor’s petitions contained 171 signatures. Another candidate for mayor challenged the incumbent’s petitions, arguing that he didn’t have enough valid signatures to qualify. During a hearing on the challenge, an attorney for the Election Board presented evidence that at least 48 of the mayor’s signatures were invalid, leaving him with no more than 123 valid signatures.

In its written decision, the Election Board concluded that the mayor had only 123 valid signatures. Nevertheless, the Board found that the mayor had substantially complied with the statute, and ordered that his name be included on the ballot. The Circuit Court affirmed that finding, as did the Appellate Court. In an opinion by Justice Karmeier following accelerated review (without oral argument), the Supreme Court unanimously reversed.

Since the primary had passed by the time the Court issued its decision, the Mayor argued that the case was moot. The Court disagreed, pointing out that there were only three candidates, making a primary unnecessary. Given that the challenger’s goal was to prevent the mayor’s name from appearing on the ballot, the Court was still able to offer the plaintiff full relief, meaning that the case was not moot.

The Mayor argued that the ballot access provisions of the Election Code were merely directory rather than mandatory. But the Court noted that the requirements of the Election Code were typically mandatory – and the statutes governing nomination papers were certainly no exception.

The Mayor argued that his nomination papers contained enough valid signatures to serve the underlying purpose of the law – to demonstrate that a candidate has initiative and at least a minimal appeal to the voters. The Court disagreed, writing that the “Mayor’s position is unprecedented, unworkable and contrary to law.” To hold that substantial compliance satisfies the statute “would require us to disregard the clear, unambiguous and mandatory language of the statute and graft onto it exceptions and limitations the legislature did not express.”

The Court acknowledged that a few cases from the Appellate Court had held that substantial compliance was enough when the candidate complied with the basic requirements of the Code in a technically deficient manner (such as including a single nonconforming page in a petition or filing a statement of economic interest in the wrong county). But the mayor hadn’t met the basic requirements of the Code at all, according to the Court: “Here, the candidate failed to meet a threshold requirement completely.”

Ultimately, the Court viewed the Mayor’s position as completely unworkable. If substantial compliance was good enough, “there would be no way to insure consistency from one electoral jurisdiction to another, from one election to another, or even from one race to another . . . Will 90% of the statutory minimum turn out to be enough? 75%? Less than that? Candidates will be left to speculate.”

The bottom line was simple, the Court said. The mandatory minimum signatures requirement was mandatory and had to be followed. Otherwise, the candidate doesn’t qualify for the ballot. The Court remanded to the Circuit Court with instructions to enter judgment requiring that the Mayor’s name be removed from the ballot, and that any votes cast in his favor before the ballot was corrected be disregarded.

Image courtesy of Flickr by Seattle Municipal Archives (no changes).

Join Us on April 29 for “The California Supreme Court: What To Expect in 2015”

By Kirk Jenkins on April 6, 2015 Posted in California

On Wednesday, April 29^th at 11:00 AM Pacific/2:00 PM Eastern, Sedgwick’s Appellate Task Force will present its first webinar of 2015, “The California Supreme Court: What to Expect in 2015.” We’ll preview our group’s analytical data library on the Court’s 600+ civil decisions since 2000, and take a look at the highlights of the Court’s civil docket:

Which Court of Appeal districts are reversed most and least often; what areas of the law the Court draws its civil docket from; whether the Court more often grants review of defense or plaintiff’s wins from the Courts of Appeal in each area of the law; reversal rates for each type of case; and which Justices tend to vote together in the most closely contested cases;
Will California continue to be a welcoming host to out-of state plaintiffs in complex product cases?
Will potential asbestos liability continue to expand 12 years after the last U.S. mine closed?
Who is the prevailing party when a defendant pays plaintiff for a dismissal?

For CLE details and to register for the webinar, click here .

Image courtesy of Flickr by OmiB91 (no changes).