Decalogue Society and Arab American Bar Association announce 2018 Building Bridges Awards

The Decalogue Society of Lawyers and Arab American Bar Association of Illinois will co-host the annual Building Bridges Awards on Tuesday, August 28, from 5:30 to 7:30 p.m., in the 11th floor reception area of the DePaul Law School.

This year's honorees are the Iraqi Mutual Aid Society and HIAS Chicago, a program of Jewish Child & Family Services. The theme of this year's event is "Honoring the Dreamers."

The Iraqi Mutual Aid Society (IMAS) is a Chicago-based, secular non-profit, founded in 2009, dedicated to providing long-term support services and building community for immigrants, asylees, and refugees. Although the organization's expertise is in assisting those from Iraq and the Middle East, IMAS doors are open to all immigrants, asylees, and refugees.

The Hebrew Immigrant Aid Society of Chicago (HIAS Chicago) was founded over a century ago to support Eastern European Jewish immigrants. The organization's program has expanded over time to address the needs of various refugee and immigrant groups from around the world, regardless of religion, race or national origin. Today, it operates as a program of Jewish Child & Family Services.

Tickets for the event are $10 each. Kosher and Halal food will be served. To register, visit this page of the Decalogue website.

Lawyers Assistance Program Annual Dinner and Awards Ceremony set for November 1

The Lawyers Assistance Program will hold its annual dinner on Thursday, November 1 at the Union League Club. A reception, beginning at 5:30, will precede the dinner, which is scheduled to begin at 6:30 p.m.

Illinois State Senate President John J. Cullerton will be the keynote speaker at this year's event. Scheduled to be honored at the dinner are this year's award winners:

• Warren Wolfson Excellence in Education Award - Northern Illinois University College of Law
• Carl Rolewick Award - Tracy Kepler and Kevin Kelly
• Michael J. Howlett Jr. Award - Christine Anderson
• President’s Award - Lamont Walton and Natasha Dorsey

Individual tickets for the dinner are $125 each; tables of 10 are available for $1,250. Sponsorships are also available (Bronze - $500, Silver - $1,000, Gold - $2,500). Tickets are available at this link.

Judge Raul Vega named Acting Presiding Judge of Domestic Violence Division

Chief Judge Timothy C. Evans announced yesterday that Judge Raul Vega will become Acting Presiding Judge of the Domestic Violence Division of the Cook County on Circuit Court on September 4.

The current Presiding Judge, Sebastian T. Patti, is leaving the Circuit Court to take up a post as an immigration judge in Los Angeles, according to a press release issued yesterday by Judge Evans's office. (Judge Patti's departure will leave a countywide vacancy to be filled at the 2020 election.)

Judge Vega was elected a circuit judge in 2002; he was most recently retained in 2014.

Vega has served in the Domestic Relations Division since June 2003. He has heard just about every type of domestic relations matter, such as divorces, child-custody disputes and requests for orders of protection, according to Judge Evans's press release.

A 1982 graduate of Loyola Law School, Vega worked as a general practitioner in Chicago, handling civil litigation, including election, real estate, family, bankruptcy, federal taxation, criminal, probate and appellate matters, according to Judge Evans's office. Judge Vega did appear before Democratic slatemakers in 2015, when he was named a second alternate for an Appellate Court vacancy that never opened.

As Presiding Judge, Vega will oversee the judges, administrative support staff and all court operations in the courthouse at 555 W. Harrison St.

Marsalek and Lopez to be honored at the Advocates Society Summer Reception

The Advocates Society of Polish American Lawyers will hold its Summer Reception and Awards Ceremony on Tuesday, August 28, beginning at 5:00 p.m. with a cocktail and appetizer reception at the Cerise Rooftop Bar, 203 North Wabash, 26th Floor.

Cook County Circuit Court Judge Diann K. Marsalek, the Supervising Judge of the Traffic Division, and Associate Judge Mark J. Lopez, of the Domestic Relations Division, will receive awards from the Advocates celebrating their lives, legal careers, and respective contributions to the Polish community.

Tickets for the event are $85 each, if purchased by August 25. Limited tickets may be available at the door, but will cost $100 each. Sponsorship opportunities are available.

For more information about the event, to reserve tickets, or to explore sponsorship opportunities, call Advocates President Kristen Kozlowski Lyons at (773) 610-4175 or email her at attorneykristen@gmail.com.

The Advocates are also co-sponsoring two August events with The Decalogue Society of Lawyers.

First up, on Wednesday, August 8, from 5:30 to 7:30 p.m., is a social at Bar Louie, 333 N. Dearborn. Quoting now from this month's Decalogue News, "We will not rest until we have a relaxing informal social event at a local watering hole with every local bar association. Our last social with Black Women Lawyers' Association was a huge hit with all attendees. * * * Bar Louie will run individual tabs for everyone."

Then, on Thursday, August 16, at noon, the Advocates and the Decalogue Society, in conjunction with the American Association of Jewish Lawyers and Jurists and the Chicago Loop Synagogue, will sponsor a talk by Michael Traison on the status of Poland, Law and the Jewish Community. The event will be held at the Chicago Loop Synagogue, 16 S. Clark Street. Tickets are $15 each and the cost includes lunch from the Sandwich Club. For more information, or to reserve tickets, email loopadmn@chiloopsyn.org .

Applications for the next class of Cook County Associate Judges to be taken through August 31

Well, that didn't take long.

The ink is barely dry on the commissions of the latest class of Cook County Associate Judges and already applications are open for the next class.

The above link will take you to the Illinois Courts website where you download an application to which you may affix a 'wet signature' -- which, for those who weren't with us last time, merely means a conventional signature, in ink, as opposed to an "e-signature" which must be affixed to the fillable online application. Persons choosing the fillable online application get, as a bonus, the opportunity to play a game of "beat the clock": Online applications, if not completed sooner, will expire after six hours and, according to the website, "information entered will not be saved."

Associate judge applications are not kept "on file," so (as one person has already asked today) applicants from the last or prior applicant classes must complete a new application in order to be considered.

For online applications, the deadline is August 31 at 11:59 p.m. Paper applications (with 'wet signatures') must be received in the Chicago office of the Administrative Office of the Illinois Courts prior to 5:00 p.m. on that same day, Friday, August 31.

For non-lawyers who may happen across this post, there is nothing nefarious or suspicious about a new class of associate judges opening so soon after the last class was sworn in. This is an automatic process, triggered by the language of Supreme Court Rule 39(b)(1), which must be undertaken "as soon as practicable, but no later than 30 days after the accumulation of five consecutive vacancies for which notice has not been given."

The notice signed today by Cook County Chief Judge Timothy C. Evans to the Administrative Office of the Illinois Courts advises that there are now six vacancies. There will, presumably, be more before the next class is sworn in.

Illinois Judges Foundation Annual Reception set for August 16

The Illinois Judges Foundation, the charitable arm of the Illinois Judges Association, will host its Annual Reception on Thursday, August 16, from 5:00 to 7:00 p.m. at the Kimpton Allegro Hotel, 171 West Randolph Street.

Proceeds from this event support the charitable and educational programs of the Illinois Judges Association, and other charitable initiatives.

New Supreme Court Justice P. Scott Neville, Jr. is among the persons slated to be honored at this reception.

Other honorees are United States District Court Judge Rebecca Pallmeyer, Cook County Circuit; Cook County Circuit Court Judge Sebastian Patti, Presiding Judge of the Domestic Violence Division; and Lake County Associate Judge Luis Berrones.

Tickets are $125 per person and may be obtained at this link online. Sponsorships are available. For more information, email ijf@chicagobar.org or call Christine Athanasoulis at (708) 705-4355.

Peace in the Preserves set for Friday evening

The Puerto Rican Bar Association is among the groups promoting and sponsoring "Peace in the Preserves," billed as a family-friendly event to promote peace and awareness -- the need for which was made apparent by the ugly incident that occurred at Caldwell Woods, on the Northwest Side, a few weeks ago. You've seen the video.

Hosting the event, set for this Friday, August 3, from 5:00 to 8:00 p.m., at the Caldwell Woods Pavilion, 6200 W. Devon, is the Northwest Side Coalition Against Racism & Hate. The Jesse White Tumblers will perform and the linked Coalition Facebook page says that music and other family activities (including face painting) will be provided. Attendees are asked to bring picnic dinners.

No fee will be charged for attendance -- but donations will be solicited for a GoFundMe sponsored by the Puerto Rican Agenda of Chicago for Hurricane Maria relief efforts.

For more information, or for last-minute sponsorship opportunities, email Claudia F. Badillo, the acting PRBA president, at Prba@prbalawil.com.

The wildcat strike is over

Yes, I know there was no strike. The good folks in the Cook County Clerk of the Circuit Court's office did not engage in a job action.

But that's the effect of whatever "challenges" brought Odyssey down yesterday afternoon. (The Tyler Technologies email sounding the 'all clear' was time-stamped 9:44 p.m.)

Look... if this is a one-time hiccup, we'll all be fine. If this is a portent of things to come, however....

Transitions are tough. We are in a transition. But transitions are, by definition, transitory. We will come through this to the other side eventually. What will be there for us when we arrive? A bleak and desolate wasteland... or broad sunlit uplands?

This story will most definitely be continued....

Ooops. Cook County efiling system experiencing "challenges" this afternoon

What were they before?

Anyway, apparently the system has crashed entirely now.

Anyone in Cook County with a "hard" (jurisdictional) deadline today may wish to become familiar with Supreme Court Rules 9(d) and 10(d) forthwith.

Challenges... such an innocent-sounding word....

August 16 fundraiser for Daniel Patrick Fitzgerald

Supporters of Daniel Patrick Fitzgerald's 13th Subcircuit judicial bid are holding a fundraiser for their candidate on Thursday, August 16, from 6:00 to 8:00 p.m., at Mac's on Slade, 117 W. Slade, Palatine. Tickets for the event are $40 each ("Precinct Captains" admitted for $25). Tunes, libations, and appetizers are included. Sponsorships are available (Jazz - $250, Blues - $500, Rock - $1,000).

Live music will continue late into the night at Mac's, even after the fundraiser concludes.

For more information about the event, or to reserve tickets, email Abbey Corbett at abbey@corstrategies.com or call (708) 209-6076. Tickets may also be obtained from this web page.

Fitzgerald is the Republican nominee for the Lawrence vacancy in the far northwest suburban 13th Subcircuit.

ABA seeks nominations for annual Web 100

You're obviously a connoisseur of fine legal blogging, or you wouldn't be here. Unless you got here by accident. Or you're a Russian hacker or provocateur. (You know, I don't like where this is heading....)

Anyway, the American Bar Association is once again soliciting nominations for what its Web 100 award. This used to be called the "Blawg 100," but the ABA broadened the title a few years back so it could include legal podcasts and law-based Twitter feeds and, this year, "all online legal forums—including apps, subscription services and other digital tools."

The ABA's explanation of what it wants to include in this year's Web 100 can be found at this link. No, I don't know what the ABA means by apps, subscription services or other digital tools. If you do, however, you can nominate one by filling out this form. You can even nominate a more traditional blog (*hint, hint*) The deadline for submissions is August 7 at 11:59 p.m.

To be on the safe side, don't start uploading your submission at 11:58 p.m. on the 7th. See, Peraino v. County of Winnebago, 2018 IL App (2d) 170368. (In comedy writing, this is called a "callback.")

The Web 100 winners will be published in the December issue of the ABA Journal. A complete list of legal blogs can be found at the ABA Blawg Directory. The ABA Blawg Hall of Fame can be found here. For What It's Worth may be found in only one of these....

Illinois must reject efiling 'rejections'

Here in Cook County we are adrift this month on Odyssey's wine-dark sea. Those of us who have braved the new efiling system have experienced wildly divergent results. I had one filing take three attempts over six days, another done in one shot -- but it still took 55 hours -- and another that was turned around in just under 30 minutes.

That's some wild divergence. And, from Facebook and the ISBA online discussion groups, I know my experiences are not unique.

But -- assuming progress is being made in this department -- cutting down on the extreme turnaround times will not alone be sufficient to make efiling useful, or even palatable, to the bench and bar.

We must decisively reject any notion that efiling gives our Clerks of Court new powers to "reject" efilings.

The Illinois Clerk of Courts Act, 705 ILCS 105/0.01 et seq., specifies, in great detail, the duties and responsibilities of court clerks and the fees they may charge.

And it is clear that the General Assembly has made the Circuit Clerks into more than mere warehousemen. In addition to receiving and keeping records -- the core historic function of a Clerk of the Circuit Court -- the legislature has made the clerks responsible for the creation of various sorts of records, specifying, down to the bindings, what records to create and how these must be kept.

Nowhere in the Clerk of Courts Act, however, does the legislature make a clerk into a curator of everyday court records: They do not have the power to decide for themselves what to keep and what to reject.

And efiling changes nothing in this regard.

The creation of the court record is the responsibility of judges and lawyers (and unrepresented parties). The court clerk merely keeps that record, and stores it, making it available for further use by the trial court or for appellate review.

It is true that the most recent amendment to Illinois Supreme Court Rule 131 does refer to the power of a clerk to "reject" a document submitted for filing.

As of January 1, 2018, Supreme Court Rule 131 was renamed "Form of Documents" (from "Form of Papers"). The rule now provides:

(a) Legibility. All documents for filing and service shall be legibly written, typewritten, printed, or otherwise prepared. The clerk may reject any documents which do not conform to this rule.

(b) Titles. All documents shall be entitled in the court and cause, and the plaintiff’s name shall be placed first.

(c) Multiple Parties. In cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling documents, except a summons, to name the first-named plaintiff and the first-named defendant with the usual indication of other parties, provided there be added the official number of the cause.

(d) Name, Address, Telephone Number, and E-mail Address.

(1) Attorneys. All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.

(2) Unrepresented Parties. All documents filed or served in any cause by an unrepresented party upon another party shall bear the unrepresented party’s mailing address and telephone number. Additionally, an unrepresented party may designate a single e-mail address to which service may be directed under Rule 11. If an unrepresented party does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.

According to the Supreme Court Rules, a circuit clerk may only "reject" a document which is illegible or otherwise fails to comply with the few specific requirements of Supreme Court Rule 131. And the clerk doesn't even have to do that; he or she "may" reject a non-conforming document.

Note, too, that attorneys are required to provide their name, address, telephone number and an email address on every document. No local attorney ID number is required. Therefore, no clerk has the power to reject a document because a local attorney ID number is omitted.

Yet, this was one of the bases on which the petitioner's notice of appeal was "rejected" by the Clerk of the Circuit Court of DuPage County in In re Marriage of Bordyn, 2018 IL App (2d) 180017-U (discussed more in this post).

The other asserted basis for "rejection" in Bordyn was that the notice of appeal and notice of filing of the notice of appeal were submitted as one document -- an "error" that Presiding Justice Donald C. Hudson noted, 2018 IL App (2d) 180017-U, ¶14, would probably have been rectified, in those carefree, innocent days prior to efiling, simply by pulling out the staple from the offending document and re-stapling it as two documents.

The Bordyn court agreed that the otherwise timely-filed notice of appeal was properly rejected because, under paragraph 3 of the Illinois Supreme Court's Electronic Filing Standards and Principles (as amended September 16, 2014), "Any electronic document or record submitted to the clerk of the court for filing shall be deemed filed if not rejected by the clerk." And paragraph 9(d), also relied upon, provides that, "Bulk filings of multiple cases or multiple documents combined into one PDF document... shall not be accepted." (2018 IL App (2d) 180017-U, ¶7.)

Standard 9(d) was incompletely quoted in Bordyn. The word "bulk" was omitted. Moreover, standard 9(d) further provided, "Documents with different civil or criminal case numbers must be filed individually in separate transactions." Well, of course! In the days before efiling, no attorney would hand over an undifferentiated mass of papers for the unrelated Smith, Jones, White, and Green cases and tell the counter clerk to figure it out for him- or herself. Nor would an attorney glob together her appearance, answer, and initial discovery requests all as one document. But all the attorney did in Bordyn was attempt to file his notice of appeal and proof of service of that notice as a single document.

Further, these 2014 "standards" generally refer to the voluntary efiling regime that the Illinois Supreme Court was then trying to encourage. These standards were referred to in the introductory paragraphs of the January 22, 2016 Order adopting a timetable for mandatory efiling across the state, but they were not adopted as rules. Rather, paragraph 9 of that Order provided, "The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order." Nor were these 2014 standards adopted as rules in the May 30, 2017 amendment to the mandatory efiling Order."

And, besides, nothing in these standards creates or confers any power on a clerk to reject a document; it merely states the obvious: that which is not rejected is accepted.

The Bordyn court also refers (2018 IL App (2) 180017-U, ¶7) paragraphs 7(d) and (f) of the Supreme Court's Electronic Filing Procedures and User Manual. But, of course, this is the manual for filing documents in the Supreme Court, not in DuPage County.

But let's look at the cited sections inasmuch as these may serve as templates for rules that may be adopted elsewhere. Section 7(d) provides, "An e-filed document submitted to the Clerk for filing shall be deemed filed upon review and acceptance by the Clerk. The filed document shall be endorsed with the clerk's electronic file mark setting forth, at a minimum, the identification of the Court, the Clerk, the date and the time of filing."

That provision gives no specific power to the Clerk of the Supreme Court; the objective evaluation that the Supreme Court Clerk may properly perform for, say, briefs submitted for filing in that court (e.g.left margins of 1.5", font sizes, brief cover colors, word counts) are already specified elsewhere in the Illinois Supreme Court Rules. Rather, the paragraph merely describes what consequences follow for a document that fails to conform to these objective filing requirements that the court -- not the clerk -- has set forth.

Paragraph 7(f) provides, "In the event the Clerk rejects a submitted document, the document will not be filed and the registered user will receive an electronic notification of the reason(s) for the rejection."

This provision gives no power to the Supreme Court Clerk to reject documents for any reason it wants; rather, it requires the Clerk, in the event she feels compelled to reject a document, to specify the reason -- and it is assumed, or should be, that the reason specified will be one specifically authorized by Supreme Court rule.

Now, I understand that one should not read too much into a Rule 23 Order like Bordyn. It will never be cited by any reviewing court addressing an efiling issue.

But it will have been read. As long as the case pops up in Lexis or Westlaw, at least until a body of published case law emerges, every trial or appellate court judge faced with an efiling issue, and all of their law clerks, will look at Bordyn.

And if one appellate panel was not inclined to critically examine the limitations placed on the circuit clerk's powers to "reject" documents submitted for efiling, others may be as well -- unless the bench and bar get together on this and make abundantly clear that efiling creates no new powers for circuit clerks. Circuit Clerks have limited powers to reject any proposed filings; specifically, they have only those powers granted by statute and by the Supreme Court Rules. We must reject efiling rejections.

An efiling nightmare -- but with a happy ending

I left you yesterday with a tease for a "doozy" of an efiling story.

This particular nightmare scenario came to me courtesy of long-time colleague Orlando Velazquez, an experienced bankruptcy practitioner, who recently set up a solo practice in Warrenville.

Velazquez had a new client, a defendant in a collection case, who came to him just before the deadline for filing a responsive pleading. He had a substantive legal question to kick around, and we did, and I gave him my free advice (worth every penny he paid for it, I must say). (For the benefit of non-lawyers or lawyers in big firms or government settings, this is pretty common among solos. We pick each other's brains; sometimes it helps just to articulate an issue to a colleague. And Orlando has never given me a wrong answer to a bankruptcy question; sadly, however, there have been instances when I didn't immediately know the right questions to ask....)

Anyway, the substantive question addressed, we turned to the problem of efiling into the First Municipal District. He'd signed onto Odyssey, reaching a screen that looked something like this:

He'd entered the case number -- but Odyssey answered "No Record Found."

Well, here on the lower end of the legal food chain, where the clients aren't Fortune 100 general counsels, sometimes clients provide inaccurate information about docket numbers. An experienced attorney like my colleague Orlando would not be discouraged by this. Like the Chuck Yeager-imitating pilots in The Right Stuff, when A doesn't work, one just calmly moves on to try B. In this case, since his client had a fairly distinctive surname, Velazquez figured he'd search by party name. He moved to a screen that looked like this:

The grayed-out Search button turned blue as soon as the first and last names were entered, and Velazquez clicked...

...

...

... and got a "No Record Found."

At this point, even a pilot with the rightest stuff would start glancing at the eject button.

How does one file into a case that Odyssey says doesn't exist?

The Cook County Clerk of the Circuit Court's former electronic docket is still operational. I looked up the case using the number Velazquez's client had supplied -- and, sure enough, the case was there. It just wasn't in Odyssey. Not that we could find.

We discussed possible plans of action, but Orlando needed to get to work on the responsive pleading and I had things to do myself.

But I followed up yesterday afternoon. (I'd promised to write this post, after all.)

"Did you get that pleading on file?"

"I got it submitted," Velazquez said.

"How?" I asked. "Did you have to go downtown and ask in person?"

"No," Velazquez replied. "I called Texas."

Odyssey is operated by Tyler Technologies, a Texas-based company.

According to Velazquez, the problem was that he had entered the actual case number on the case number search screen.

That was a mistake.

In Law Division cases one must include the L as part of the case number in order to pull up a case in Odyssey. But in First Municipal ("Civil" in the nomenclature of the Cook County Clerk of the Circuit Court), one must not include the "M1" as part of the docket number -- one must include the extra "1" but not the "M."

Well, that makes sense.

Not.

But it was an answer, at least, and the case really was there. And Velazquez had a place to submit his filing.

So why didn't the Party Name search bring the case information up?

Well, said Velazquez, the folks in Texas told him that the Clerk of the Circuit Court has disabled the Party Name search. The feature is still there -- still on the screen -- and the search looks like it's running -- but it's been disabled. And it doesn't tell you that.

So we have a happy ending to one efiling nightmare at least -- and a tip about how to avoid this one pitfall.

We're going to need to share like this to get through this transition to the brave new (and scary) world of Cook County efiling.

The Cook County efiling system is not just slow and inconvenient, it is downright scary... a review, continued

We have this terrible horrible no good very bad efiling system in Cook County -- and it is downright dangerous for us practitioners.

Yesterday I left off with an assertion that the case law on efiling that has so far come down should be terrifying for those of us practicing in Cook County. There are two cases of particular import, both from the Second District, one published -- and the other decided under Rule 23. (In a blog a lawyer can cite a Rule 23 Order. And I intend to.)

The published case is Peraino v. County of Winnebago, 2018 IL App (2d) 170368.

Summary judgment was entered against Plaintiff in a personal injury case on December 2. His motion to reconsider or a notice of appeal was due on January 3. Plaintiff's counsel chose to file a motion to reconsider. But, with one thing or another, including the attorney's illness and deadlines in other cases, the motion wasn't ready to be filed until 11:58 p.m. on January 3. And then the attorney's assistant had difficulty uploading the exhibits, so the motion wasn't file-stamped until 12:04 a.m. on January 4.

Plaintiff's counsel next filed a motion on January 5, this one seeking to have his motion to reconsider filed nunc pro tunc as of January 3. This motion was briefed in the trial court, the trial court ultimately deciding to deny the motion. Plaintiff appealed.

And the Appellate Court held that the trial court was wrong to deny the motion for leave to file nunc pro tunc -- but that did not help the plaintiff any.

No, the Appellate Court determined that it did not have jurisdiction to hear the appeal in the first place, since the trial court lost jurisdiction over the case at the stroke of midnight on January 4.

Moreover, the late-filed motion was not a proper motion for nunc pro tunc relief. The Appellate Court explained (2018 IL App (2d) 170368, ¶16) (internal citations omitted):

[I]f there is proper evidence of a clerical error, the court may use a nunc pro tunc order at any time to correct the mistake.... Stated differently, nunc pro tunc orders incorporate into the record judicial actions taken by the court that were inadvertently omitted due to a clerical error.... However, such a correction must be based on a note, memorandum, or paper remaining in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony.... Here, plaintiff did not seek to correct a clerical error in the trial court's judgment, and the evidence he sought to rely on surrounding the filing date of his motion to reconsider came from outside of the established court record. Accordingly, plaintiff's January 5, 2017, motion could not be resolved on a nunc pro tunc basis.

Nor did the doctrine of revestment apply (2018 IL App (2d) 170368, ¶23): "The revestment doctrine causes the trial court to regain jurisdiction of a case even after 30 days have passed following the entry of a final judgment if both parties actively participate, without objection, in proceedings that are inconsistent with the merits of the prior judgment." However, where "a party opposes setting aside the prior judgment, jurisdiction will not be revested, even if the party does not raise a timeliness objection." Here, because Winnebago County opposed the nunc pro tunc motion, "the parties' actions did not revest the trial court with jurisdiction."

"We acknowledge," the Peraino court concluded, "that the outcome in this case might appear harsh, as plaintiff has lost both his chance to have the trial court reconsider its grant of summary judgment in favor of the County and his chance to have this court review that ruling. However, plaintiff's attorney had 30 days in which to file a motion to reconsider and could even have obtained an extension during those 30 days. He instead waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time. As that deadline was jurisdictional, the trial court lacked authority to consider the untimely motion to reconsider and plaintiff's subsequent request to backdate that motion. Plaintiff's notice of appeal was correspondingly untimely, and we lack jurisdiction to consider the merits of this case. (2018 IL App (2d) 170368, ¶24).

So, sure, you say, Peraino isn't that scary. You'd never wait until two minutes before midnight to begin efiling a motion to protect a hard and fast jurisdictional deadline. And, besides, what kind of a person keeps staff working at the office at 11:58 p.m., especially during the holiday season? Karma jumped up and bit that lawyer, but that's not a reason to fear efiling, even into a slow and unpredictable efiling system such as we appear to have in Cook County.

To which I respond, please see In re Marriage of Bordyn, 2018 IL App (2d) 180017-U.

Bordyn concerned a notice of appeal, not a motion to reconsider. And the petitioner didn't wait until nearly the stroke of midnight before making his attempted filing.

No, in Bordyn, the petitioner submitted his notice of appeal for efiling at 2:37 p.m. on the afternoon of the 30th day -- receiving confirmation that the DuPage County Circuit Clerk's office had received the papers with that timely time stamp thereon. However, next morning, at 9:40 a.m., the Clerk rejected the filing. Why? Because the notice of appeal and notice of filing of the notice of appeal were submitted as one document instead of two documents -- the clerk thought they should be filed separately -- and the filing contained counsel's ARDC number instead of his DuPage County attorney ID number. (2018 IL App (2d) 180017-U, ¶¶3-4.)

Petitioner immediately corrected these "errors" and resubmitted the filing -- but now the notice of appeal was file stamped on the 31st day, not the 30th (2018 IL App (2d) 180017-U, ¶4.)

Are you scared yet? You should be. Respondent seized the opportunity and moved to dismiss the appeal as untimely. And the Appellate Court granted the motion on March 1, probably as a matter of course. It presumably did not take a full appellate panel to consult a calendar and determine that January 5 was more than 30 days after December 4.

The Rule 23 Order here under discussion arises prom Petitioner's motion to vacate that order -- which the Appellate Court denied.

After reviewing the language of the Supreme Court's efiling order, including language specifying that "multiple documents combined into one PDF document shall not be accepted (2018 IL App (2d) 180017-U, ¶7), the court acknowledged (2018 IL App (2d) 180017-U, ¶8), "We recognize that this result is harsh, and we are not without empathy for petitioner's circumstances. His arguments hold emotional appeal. Indeed, there appear to be no deadlines with which the clerk's office must comply in the process of accepting or rejecting submitted jurisdictional documents. Here, (unlike the plaintiff in Peraino), petitioner did not submit his documents at the proverbial '11th hour,' resulting in receipt on day 31. Clearly, the documents were received on day 30, early-to-mid afternoon. However, petitioner did not receive from the clerk's office a rejection until the next day, a response time that had jurisdictional implications."

The Appellate Court was not blind to the consequences of its reasoning (2018 IL App (2d) 180017-U, ¶8): "One might imagine scenarios wherein a litigant submits his or her documents even earlier than day 30, but a combination of weekends, court holidays, or even a busy or short-staffed clerk's office nevertheless operate to delay a rejection notice of rejection until after the jurisdictional period has expired. Here, petitioner was not alerted to his mistake until 18 hours after his submission was received by the clerk, and he could not timely correct the basis for the rejection and preserve his jurisdiction. While petitioner's suggestion—that we should treat at least the jurisdictional portion of his submission (the notice of appeal) as filed when it was received into the custody of the clerk's office—is tempting, we have no authority to do so. It is simply not for this court to make exceptions to jurisdictional requirements, re-write supreme court rules, or create new rules in this situation."

Besides, the Appellate Court suggested, petitioner was not entirely without recourse. He might have filed a motion under Supreme Court Rule 303(d) for the late filing of a notice of appeal. But such a motion would have been due within 30 days of January 4... and even if petitioner's motion to vacate the March 1 dismissal was deemed a 303(d) motion, it would have been late. (2018 IL App (2d) 180017-U, ¶9.)

Rule 303(d) is something that we all need to burn into our memory banks at this point -- but, in Bordyn, I could not help but notice that the court did not mention when respondent filed her motion to dismiss the appeal -- something that would have alerted petitioner to the mortal peril threatening his appeal. I don't know, of course, one way or the other, but if you were to tell me that the motion to dismiss wasn't filed until mid-February I wouldn't be at all surprised.

Presiding Justice Donald C. Hudson filed a separate concurrence in the Bordyn case. He was "compelled to concur in the majority's decision" primarily because petitioner didn't timely invoke Rule 303(d). But, he said, he wanted to write separately to "highlight the problematic implications this decision portends." (2018 IL App (2d) 180017-U, ¶13.)

Justice Hudson observed, 2018 IL App (2d) 180017-U, ¶14, emphasis mine, "Like most technological innovations, e-filing was supposed to make things easier and more efficient. Yet in this case the opposite seems to have occurred. Before e-filing, had petitioner submitted two documents that were improperly stapled together, the clerk would likely have simply removed the staple and filed the documents."

Perhaps, Justice Hudson continued, 2018 IL App (2d) 180017-U, ¶15, "It might be advisable to clarify the scope of the clerk's power of rejection. Perhaps, the filing date of a document that is rejected under the circumstances that exist in this case and then correctly resubmitted should automatically relate back to the date of its original submission."

That strikes me as a reasonable place to start.

It would be far better, however, to make it clear that Clerks of the Circuit Court do not have the power to "reject" documents submitted for filing, particularly documents submitted by attorneys, who are, after all, subject to Rule 137 sanction if they submit wholly improper pleadings. Otherwise, we are forcing our clerks to assume evaluative roles, not just engaging in the unauthorized practice of law, but, indeed, exercising judicial powers.

Even in DuPage County, where efiling has been the norm for some time now, and appears to be working fairly well, there will be more cases like Bordyn, Justice Hudson warned.

And here in the County of Cook, with our miserable system, we are heading over a cliff.

The Supreme Court will need to reconsider the details of its efiling orders -- and, please, do so soon.

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Postscript: In yesterday's post I wrote about how long it took to file a lengthy motion with voluminous exhibits and the various problems I encountered along the way. And although six days seems unconscionably long, it was not surprising that it that took a significant amount of time to get such a long, complicated document like that on file. So... why should I complain? That could have been merely a special case.

However, this past Tuesday morning, I filed a much simpler notice regarding the filing of a hearing transcript. It took until Thursday evening at 5:05 p.m. to get an acceptance back on that, much simpler document -- almost 55 hours. That can not be acceptable to anyone... can it? But my efiling problems pale compared to those presented by a colleague of mine. I'll report on his issue tomorrow. And it's a doozy.

Cook County efiling: An incomplete review

Slow. Glacially slow. Maddeningly, dangerously slow.

That is so far my experience with the new Cook County efiling system. And, from what I've heard from colleagues and from what I've been seeing online, specifically from the Civil Practice and Procedure Section on ISBA Central, I am not alone.

But, first, the good news: Free filing online is once again free. It no longer costs $3.95. (I'm still waiting for word of the class action suit on this one. I've saved my receipts.)

I have heard from one colleague who said that she signed up with an EFSP (I believe that's the appropriate jumble of letters) that charges a fee for free filing. But what my colleague did was analogous to paying someone else to file her documents for her. There have always been services willing to take your money and wait in line to file your documents, right?

But this is no longer required.

I can access the virtual file counter through Odyssey File & Serve. In the past, I had efiled in DuPage or Will Counties using I2File -- but I2File is not yet accepting Cook County filings.

The new Cook County efiling system went into effect at the beginning of the month. At the end of that week I had to file a rather involved motion -- one with hundreds of pages of exhibits.

Just my luck.

But, as I'd learned from efiling in DuPage, even competently run systems will have limitations on file sizes for documents to be filed. So I knew I had to break this mammoth motion into more manageable parts. And I had also learned, from my DuPage experience, that it would be best to put cover pages -- with case caption -- on each subpart, this one labeled Exhibits A through J, for example, and that one Exhibits K through N.

Documents are efiled through Odyssey in "envelopes."

Who in the world came up with that name? The way it's used here conjures images of Greylord -- I got what you need in this envelope right here.

I think the Cook County efiling interface must have been designed by someone who saw a file-stamped pleading once. The file stamp winds up on the page in the place you'd expect. But the designer could not possibly have had any experience actually filing documents.

Here is the process by which one filed papers with the Clerk of the Circuit Court of Cook County back in the Old Days --

1. Create the document, and print it out. (I remember when we typed our documents, on typewriters, and we affixed bluebacks -- but let's stay with the more recent Old Days.)
2. Sign the document. (Under Ill.Sup.Ct. Rule 137(a), that simple act alone "constitutes a certificate by [the attorney] that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." I will come back to this.)
3. Make copies. (All parties entitled to service should receive a file-stamped copy.)
4. Prepare a Notice of Filing for the document -- and sign that -- and make the requisite number of copies.
5. Go the Daley Center.
6. Get in the appropriate line on the 6th or 8th floors thereof.
7. Wait. (The wait times sometimes seemed extraordinary in those days -- 15 minutes sometimes, even a half hour -- and for most of those years when I had occasion to wait in these lines, I didn't have my Twitter feed to consult while I waited. To cut down on the wait times, the Clerk's office set up self-serve stations for free filing, or sometimes opened up a separate 'no fee' line, and these were appreciated -- when they were available. They weren't always. Especially not recently, when the Clerk's office was trying to steer us into paying $3.95 a shot for 'free' filing.)
8. Eventually, when called to the counter, hand your papers to the clerk, who would stamp the original and put it aside, then stamp the copies and return them to you.
9. Send the file-stamped copies to opposing counsel. (That's where envelopes used to come into the picture.)

The current hang-up, even with free documents, is step 8. Instead of the few seconds it would take an experienced counter clerk to file-stamp a dozen copies (a speed I could never come close to imitating, even when I was using those self-serve machines on a regular basis), it now takes DAYS.

And there's no guarantee that the document will be "accepted."

Come back with me now to the early morning hours of July 6. I had finished the lengthy motion some hours before, but it took time to divide the motion and exhibits into appropriately-sized parts, and to put on cover sheets. And then I had to try and interface with Odyssey. That took some time, too.

It turns out my particular motion was too large for one "envelope." So I had to submit two. The motion and some of the exhibits went into one, and the rest of the exhibits, and the proof of service, went into the second. The envelopes were submitted at 3:17 and 3:19 a.m., according to email acknowledgements I received.

Now I knew better than to expect any response to this filing until business hours and, given the size of the document, I fully expected to wait into Friday afternoon for my file-stamped copies.

But Friday came and went, with no response.

Monday afternoon, though, I got the word: One envelope was accepted -- and one envelope was rejected.

The form email from Tyler Technologies had one box marked "Returned Reason" -- but all it said was "Missing Items Missing Items."

Another box was marked "Returned Comments." It stated:

Please put the attorney code in the cross reference section.

No rejection comment was provided. Please contact the court into which you are filing for more information.

You had better believe that I did figure out how and where to put my attorney ID number. I did it exactly the same way on the other "envelope" too. And that one was accepted.

The only difference between the two envelopes was that the motion itself was in one envelope, and that was the one rejected. Now I had chosen not to schedule this motion for hearing, mainly because it is already set for hearing. But I wondered, as I vainly perused both the Odyssey and Circuit Court Clerk websites looking for a number at which to contact the court whether that might have been the problem.

I eventually found a help number for Odyssey. I called Texas.

The lady with whom I spoke there was very nice. She seemed to think that I had to specify both my attorney code and the calendar number on which my case was pending in order to successfully file the motion. OK -- I thought -- new system, directions not very clear, but I'll go along with the program. The nice lady in Texas walked me through the process of copying the contents of the rejected "envelope" into a new envelope and how and where to specify the motion calendar in addition to my attorney code. The new envelope was cast into the wine-dark sea of Odyssey within 41 minutes of my receipt of the rejection email.

The rest of Monday afternoon passed without further word.

And all of Tuesday.

And Wednesday morning.

Late Wednesday afternoon I got a call from someone in the Clerk's office. She was reviewing the renewed filing. And she was about to reject it. I wasn't supposed to put the motion calendar in at all when I wasn't scheduling the motion for hearing. I went into my motorboat imitation, "But, but, but, but the nice lady in Texas told me to do that --"

"Well, yes," the Clerk's office employee said, "they've been telling people to do that. But it's wrong."

Let me interrupt this narrative here for an important statement:

I realize this is the Internet and people here seem incapable of making any rational distinctions. But I must try.

I've been working with people in the office of the Clerk of the Circuit Court of Cook County since Morgan Finley's time. The people with whom I've dealt over the years -- counter clerks, file clerks, courtroom clerks, the occasional supervisor -- have all been wonderful, polite, professional people. I think this new efiling system is an abomination -- but that in no way means that I think badly of those who have been, and continue to be, the front-line people in that office. These front-line employees in the Clerk's office are just as much victims of this abysmal system as us lawyers and taxpayers.

So in criticizing the efiling system, I am not heaping opprobrium on those who are stuck administering it. There is considerable blame to go around for this execrable excuse for an efiling system -- but it does not fall on the Clerk's front-line employees. Please try, even though this is the Internet, to grasp that distinction.

And now, back to the review.

Cutting to the chase, the Clerk's office employee rejected my filing a second time -- then stayed with me on the phone while I copied the contents of the rejected envelope into now a third envelope. She stayed with me while I recited each step I was taking to perfect my filing -- including getting that attorney code number in as directed (and as I'd done before). I hit send and still she waited with me until the new envelope showed up in her queue. She checked the new filing to make sure I had done all that I said I had done -- and I had -- and she told me that she was accepting the filing right then and there. Five days after this odyssey had begun.

But I was not home yet.

The system still had to "process" the acceptance.

Twenty-one and a half hours later I finally got my confirmation that the filing had been accepted.

"I don't think they anticipated the volume of filings that we have here," the one-time counter clerk told me while we were getting that third envelope in place. "I think they're a little overwhelmed."

Overwhelmed? Overwhelmed?

Well, of course they're overwhelmed, given the way the Supreme Court imposed this efiling regimen on us on a mere whim, at the drop of a hat, with no time to prepare....

Oh, wait, that's not what happened here at all, is it?

But the appalling lag times are only part of the problem with this efiling regimen.

Here is a redacted (and slightly marked-up) screen from Odyssey that was obtained after a pleading was accepted for filing.

Note the arrows I added pointing to three download links. One, under the heading "Stamped Documents," points to a link for "a collection of court filings for this filing." The other two, under a different heading ("Lead Document") point to one link for "Original File" and the other for "Court Copy."

Good Lord.

If these three links don't produce identical copies of the exact same document, namely, the document submitted for filing, we have bigger problems than lag time.

I am so far confident that this is not an issue. This is merely a dumb and dangerous screen arrangement. There should be one link, and one only, to the file-stamped copy of the document accepted. (Can you imagine how the Sovereign Citizens will run with this one?)

The Clerk's Office has too much power to 'accept' or 'reject' documents. In the Old Days, one handed over one's papers to the counter clerk, who stamped them and gave them back. There was no evaluation. About the only thing the clerks could screen for was whether the document required a fee. (I'd sometimes get questioned about my attorney ID number -- it's a little unusual -- but the clerk did not have the right to refuse to stamp my documents because he or she thought I'd gotten my ID number wrong. I'd just say 'look it up' -- and sometimes they did and sometimes they didn't. But they always filed my papers.)

Remember I mentioned that we'd get back to Sup.Ct. Rule 137(a). Here is where it comes back: If I file a document, under the rule, I shoulder the risk that a court may find my document wanting. If it is sufficiently inadequate---so defective---so improper---I may wind up being sanctioned.

Perhaps some heightened scrutiny at the 'virtual counter' is an inevitable consequence of the explosion in the numbers of pro se litigants. But the Clerk can not practice law and almost any evaluation of a proposed filing beyond whether a fee should be assessed for same moves dangerously close to having the Clerk -- or her front-line employees -- engaged in the practice of law.

On the basis of my recent experience, I don't think the Clerk's office is spending time weighing the merits of pleadings submitted; rather, the problem lies in the enormously underestimated volume of filings in the Cook County system and the "processing" time that inexplicably follows document acceptance. But this is an area where tremendous abuse can take place, especially where the rejection messages are at best... cryptic.

If there's no confidence that a filed pleading will be accepted, there will be other consequences as well.

Take the example of an attorney with a PI case where the statute of limitations is looming. In the Old Days, we could negotiate right up to the last day for filing and, if unsuccessful, throw a complaint together in a nonce, scurrying over to the Clerk's office at 4:25 p.m. (Some of the friendly front-line employees might not be as friendly on such an occasion -- but that's understandable, right?)

But now... if attorneys can't be sure that a pleading will be accepted... must we file a week in advance of the statute to protect ourselves? Two weeks? What of the complaint that was in a timely-submitted envelope that is rejected for reasons not immediately clear? The resubmitted envelope will bear a later date, the date on which it was resubmitted. Are we not guaranteeing judicial review of the filing process on some unlucky case?

And the case law that is out so far on this subject should terrify every Cook County practitioner. And that, gentle readers, is where we will pick up this discussion in our next installment.

On the passing of Dr. Neil Winston

When somebody drops offline these days, I worry.

That's a sentence I could not have imagined myself writing back in the mid-1970s when Neil Winston and I were both undergraduates at Loyola. Neil is the guy on the left in the picture above; you probably recognize the guy on the right. When this picture was taken, Neil was the one who was the President -- the President of the Chicago Medical Society.

In addition to his service in that role, Dr. Winston served as a Trustee for the American Association of Public Health Physicians (from 2006), a Trustee of the Illinois State Medical Society (ISMS) (from 2002), a member of the ISMS House of Delegates (from 1994), and a member of the Illinois Medical Political Action Committee (IMPAC) Board of Directors (from 2002). Dr. Winston was also active with the AMA as a member of the Illinois delegation to the AMA House (from 2006); he served on the Commission to End Health Care Disparities since 2005. He was also a member of the Board of the Illinois Channel. All these biographical details, in fact, are taken from a tribute to Dr. Winston written by Illinois Channel Executive Director Terry Martin.

These remarkable accomplishments were in the unknown future back when we were at Loyola. This is the Neil Winston I remember from undergraduate days, back when we served together on the student government. But I particularly remember Neil as a photographer. He was officially the photography editor for the Loyolan yearbook only once---I looked it up this afternoon---but my recollection is that he was deeply involved in supplying photographs for the yearbook every year during those long-ago undergraduate years.

It was through photography that we would would reconnect, many years later, after I joined Facebook. He regularly put up professional-quality photos he'd taken at sporting or political events. I'd "like" his photos and he'd "like" the much more amateurish pictures I'd post of me and my latest grandchild. He even plugged this blog a couple of times, during primary seasons past.

He was quite active on Facebook -- and then he wasn't.

I knew Mr. Zuckerberg was fiddling with the Facebook algorithms, whatever they are, and so some people were expected to pop up more frequently, and others less so.

And I know lots of people who have abandoned Facebook entirely, or at least cut back substantially, because it has become almost as toxic as Twitter.

But I didn't think either of these a sufficient explanation for Neil's disappearance. So I started to worry. Some weeks ago I looked up his Facebook page. There were all sorts of posts -- and then there weren't any more.

I searched for Neil's name online at the time, but came up with nothing specific. Or conclusive.

I looked again this afternoon. I now find that Dr. Winston left us in March.

I don't know where to send the Mass card. But I felt I should say something. So here goes:

Eternal rest grant unto Dr. Neil Winston, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. Amen.

Judicial Inquiry Board files complaint against Judge Jessica O'Brien

When the Illinois Supreme Court suspended Judge Jessica A. O'Brien's law license on April 26 it did not remove her from the bench. Instead, the Court referred the matter to the Judicial Inquiry Board.

And, today, the Judicial Inquiry Board filed a Complaint before the Illinois Courts Commission seeking Judge O'Brien's suspension from office without pay pending further order of the commission.

O'Brien's federal conviction on mortgage fraud charges is not the immediate cause of today's complaint. Rather, today's action is probably best seen as an attempt to resolve something of a constitutional crisis.

Article 6, Section 11 of the 1970 Illinois Constitution provides, in pertinent part, "No person shall be eligible to be a Judge or Associate Judge unless he is a United States citizen, a licensed attorney-at-law of this State, and a resident of the unit which selects him." That language would have been sufficient to prevent O'Brien from becoming a judge (as it in fact prevented the late Rhonda Crawford from taking judicial office) -- but O'Brien became a judge years before federal charges were brought against her. And, according to Article 6, Section 15 of the Illinois Constitution, only the Illinois Courts Commission, acting on a complaint brought by the Judicial Inquiry Board, can remove a judge from the bench.

O'Brien clearly does not want to resign, at least not while her post-trial motions remain pending.

And her post-trial motions are still pending. Just today, in fact, the government filed a motion seeking a seven day extension (to July 2) for it to respond to O'Brien's 70 page post-trial motion. Assuming that the motion will be granted (the government represents that the motion is unopposed), O'Brien's reply in support of her motion will be due on August 1.

And November is coming.

First elected in 2012, O'Brien would be up for retention this November -- and she has filed for retention. Indeed, according to today's complaint by the JIB, O'Brien filed for retention after her law license was suspended on April 26 (complaint, par. 13).

Thus, the JIB alleges, in its complaint (par. 15), that the basis for removing O'Brien from office is that:

Respondent's continued presence as a member of the Illinois judiciary, despite the Illinois Supreme Court's suspension of her license to practice law in response to a jury verdict of guilty on two federal criminal charges, is prohibited by the Illinois Constitution and undermines public confidence in the judicial system. As such, it is prejudicial to the administration of justice and has brought the judicial office into disrepute.

Specifically, the JIB complaint against O'Brien alleges that, by remaining in office after her law license has been suspended, O'Brien violates two of the Canons of Judicial Ethics (Supreme Court Rules 61 et seq.).

First, the JIB charges that O'Brien violates Rule 61 (Canon 1) by her continuation in office. Rule 61 provides:

A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

The JIB also charges that, by remaining in office, O'Brien violates Rule 62 (Canon 2) The portion of Rule 62 cited by the JIB provides:

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities

(A) A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

O'Brien's attorneys have argued (in response to the ARDC's petition in the Supreme Court):

Respondent is currently pursuing post-trial remedies in the federal court. The process she is due is clearly set forth in the Federal Rules of Criminal Procedure. At this time, there is no final judgment, and Respondent still has the opportunity to be found innocent under those Rules. See, Berman v. United States, 302 U.S. 211, 212 (1937) (holding, "[f]inal judgment in a criminal case means sentence. The sentence is the judgment.") This Court should allow Respondent to exhaust her due process rights before making any determinations related to her law license or judicial office.

Today's complaint would appear to be an effort to sidestep the ultimate question of O'Brien's guilt or innocence on the bank fraud charges. The issue framed for the Courts Commission is whether O'Brien's remaining in office after the jury verdict undermines public confidence in the judiciary and is consistent with the high standards of conduct that citizens are to expect from judicial officers. Significantly, the JIB complaint does not necessarily seek to remove O'Brien from the bench, only from the payroll.

Justice P. Scott Neville, Jr. joins the Illinois Supreme Court

Justice Anne M. Burke administering the oath of office

Before a packed Thompson Center auditorium audience that included many of his colleagues from the Illinois Appellate Court, Justice P. Scott Neville, Jr. was sworn in yesterday afternoon as the 117th justice of the Illinois Supreme Court.

The only empty seats were in the middle of the room;
many stood in the side aisles to see the ceremony

Justice Neville's sister, Professor Florise Neville-Ewell of the Western Michigan University Cooley Law School, introduced Appellate Court Justice Shelvin Louise Marie Hall, who served as Mistress of Ceremonies.

A dozen speakers offered congratulations to and reminiscences about Justice Neville: State Sen. Kwame Raoul (13th); State Rep. Barbara Flynn Currie (25th); Cook County Board President Toni Preckwinkle; Justice Terrence Lavin, Vice Chair of the Executive Committee of the Illinois Appellate Court, First District; Chief Judge Timothy C. Evans of the Cook County Circuit Court; Judge Andrea Buford, Chairperson of the Illinois Judicial Council; Judge James E. Snyder, President of the Illinois Judges Association; Judge Ramon Ocasio, President of the Latino Judges Association; Allen Nettles, a law school classmate of Justice Neville at Washington University; Dr. Conrad Worrill, the retired Director of the Center for Inner City Studies at Northeastern Illinois University and a Neville family friend; Josephine Wade, the owner of Captain's Hard Times Restaurant on E. 79th Street; and Dartesia A. Pitts, the President of the Cook County Bar Association.

Some of the speakers at yesterday's ceremony.  Front row, from left to right, Justice Shelvin Louise Marie Hall, Dartesia Pitts, Judge Buford, Rep. Barbara Flynn Currie, Chief Judge Timothy C. Evans, Judge Ramon Ocasio, and Justice Terrence Lavin.  Back row, left to right: Dr. Conrad Worrill (obscured), Allen Nettles, Judge James E.Snyder (obscured), and Pastor David B. Thornton

Pastor David B. Thornton, of the Sixth Grace Presbyterian Church, offered the invocation and benediction and Felicia Coleman-Evans, accompanied by Elsa Harris, provided music.

Outgoing Justice Charles E. Freeman was lauded by virtually every speaker, as were the late Appellate Court Justices Glenn T. Johnson and R. Eugene Pincham.

In his remarks, Justice Neville praised Justices Johnson (for whom he clerked) and Pincham as the mentors of his legal career and Justice Freeman as the mentor of his judicial career.

In his service on the Supreme Court, Justice Neville said repeatedly, no one will be unseen, no one will be unheard ("whether pro se or no say," he added at one point, to applause).

Neville did not announce that he will appoint a committee to screen judicial candidates, but he pledged to work with the Alliance of Bar Associations for Judicial Screening (the United Nations of bar associations, he said) to vet his appointments. I have "complete confidence" in the Alliance, Neville said, "because I co-founded" that group.

Justice Neville proposed that every court should be a "court of record" -- that court reporters, or at least tape recorders, be present in every courtroom so that there is a record in every case and no case is ever "bounced" in a court of review for lack of a record. Justice Neville suggested that this could be financed by law firm donations, though he did not specify how this might be done.

Personal opinion, clearly labeled as such: This is a great proposal. Personally, I'd prefer live court reporters in every courtroom for every hearing and trial. While I've been impressed with the quality of transcripts I've seen transcribed from tapes in DuPage County, I think a live court reporter in the room would provide the best, and most accurate, record. But the cost would presumably be substantial -- and the funding of such a laudable venture would be problematic.

Justice Neville also proposed that the State should organize a trial bar, like that utilized by the United States District Court for the Northern District of Illinois.

Fully half the litigants in Cook County, Neville said, are unrepresented. They may be effectively denied access to justice on account of their inability to navigate the tricky shoals of the justice system. Lawyers from the proposed 'trial bar' could be appointed to assist these litigants, Neville suggested.

Personal opinion clearly labeled as such: This is a terrible idea. While the pro se problem is real and a true access to justice issue, the solution is not to impose yet another unfunded mandate on the bar.

The problem is an economic one: Litigation costs too much.

Note that I did not say lawyers cost too much. There are a privileged few -- a very few -- who command $1,000 or more per hour for their services. But there are a great many lawyers struggling to pay the rent, who charge far, far less -- and who can't collect the fees they do charge.

The truth is that, for too many litigants, the cost of obtaining, and paying for, a lawyer is the only litigation cost that can be "controlled." Even though judges recognize the folly of this -- like cutting off one's nose to spite one's face -- litigants too often forego the services of a lawyer (or, as litigation costs mount, stop paying their lawyer).

By reducing the cost of litigation, we will reduce the numbers of pro se litigants -- and increase employment opportunities for lawyers. (See my 2017 article, Solving the Pro Se Revolution, and putting lawyers back to work, too.) And how do we reduce litigation costs? We move from "routine" (and prohibitively expensive) discovery to a system of zero-based discovery.

Of course, serving as a fair but skeptical gatekeeper in discovery matters will take effort on the part of the judiciary, but the courts have always had the power to control discovery. And better this than to respond to one economic injustice by imposing another.

I suppose it is unwise for a mere solo practitioner to stake out a policy disagreement with a newly-installed Supreme Court justice on Day One of his tenure. But, then, I never was much of a politician.

And this is too important.

Wright takes runoff for final associate judge slot

FWIW is a little late to the party, but the AOIC has announced James A. Wright as the winner of the runoff for the 17th and final spot in this year's class of Cook County associate judges.

Presently of counsel to the firm of Chico & Nunes, P.C., and licensed as an attorney in Illinois since 1989, Wright has also served as Chief of Staff for the Chicago Board of Education, as Inspector General for the Illinois Toll Highway Authority, and as the Executive Inspector General ("EIG") for the Agencies, Board and Commissions under the Illinois Governor, (the Office of the Executive Inspector General, or "OEIG"). Wright obtained a CPA in 1981 and also holds an MBA.

For more, see Jordyn Reiland's article in the June 12 issue of the Chicago Daily Law Bulletin (subscription required).

Judge George N. Leighton passes away, aged 105

Photo obtained from linked Sun-Times story

George N. Leighton, the man for whom the Cook County Criminal Courthouse has been named, has died at the age of 105.

A former Cook County Circuit Court judge, and the first African-American to sit on the Illinois Appellate Court, Leighton was appointed to the U.S. District Court for the Northern District of Illinois in 1976. He took senior status on the court in 1986 and returned to the private practice of law in 1987, retiring, finally, in 2011, at the age of 99, from the law firm now known as Neal & Leroy.

Cook County Circuit Court Chief Judge Timothy C. Evans has issued a statement concerning the passing of Judge Leighton:

“I join the legal community in mourning the passing of our friend and my former law professor, George N. Leighton. He served the public in many ways as a Circuit Judge, an Illinois Appellate Justice and a U.S. District Court Judge.

“Judge Leighton came to Chicago in 1946 at a time when an African-American man could neither rent an office downtown nor hail a taxi in the Loop. He made a name for himself as an attorney who fought for voting rights, integrated schools, fair housing and equal access to jury service.

“His fierce advocacy even led to a grand jury indictment against him, in which he was accused of conspiring to incite a riot after an African-American family tried to move into a white neighborhood. Thurgood Marshall represented Mr. Leighton, and the charges were dismissed.

“This is the courage we celebrated when we renamed our criminal courthouse as the George N. Leighton Criminal Court Building in 2012. That day, he said, ‘I practiced law. That’s all I did.’ Well, we all know it was so much more. And we will always remember the man who made it his mission to make sure that the law was equally applied to all.”

.
A graduate of Howard University and Harvard Law School, Leighton was a veteran of World War II, rising to the rank of Captain in the U.S. Army.

Nichole C. Patton appointed to 15th Subcircuit vacancy

The Illinois Supreme Court today appointed Assistant State's Attorney Nichole C. Patton to the 15th Subcircuit vacancy created by the elevation of Judge John C. Griffin to the Appellate Court.

Patton's appointment is effective June 13 and terminates December 7, 2020.

Patton has previously sought judicial office. She applied for associate judge in 2017. She sought Democratic Party slating for a 2016 judicial bid, opting not to run after being named a fourth alternate. Patton withdrew from an Appellate Court bid in the 2014 primary.

A countywide candidate in 2012, Patton also sought a 15th Subcircuit vacancy in 2010. Ironically, the winning candidate in that 2010 race was John C. Griffin.

June 14 fundraiser set for David Studenroth

Supporters of David Studenroth's 12th Subcircuit bid are holding a fundraiser for their candidate on Thursday, June 14, from 5:30 to 7:30 p.m., at Stormy's Tavern and Grille, 1735 Orchard Lane in Northfield.

The Northfield Bar Association is hosting this event. Food, beer, and wine will be provided. Tickets are $75 each, but sponsorships are available (Silver - $150, Gold - $250, Platinum - $500). For more information about the event, or to reserve tickets call Frank DiFranco at (847) 825-7744 or email him at difrancolaw@aol.com.

Retention judges launch website, Facebook page; September 17 fundraiser set

Most of the Cook County judges seeking retention this November have collectively launched a campaign website and campaign Facebook page. Those are links to the respective sites in the preceding sentence; the image here was obtained from the Facebook page.

The retention judges fundraiser has already been set for Monday, September 17, from 5:00 to 8:00 p.m., at the Preston Bradley Hall in the Chicago Cultural Center. Tickets are already on sale. Individual tickets will cost $125 each, and sponsorships are available (Silver - $1,000, Gold - $2,500, Platinum - $5,000). The Silver sponsorship comes with five admission tickets, the Gold with 10, and the Platinum with 20. Tickets may be ordered at this page of the retention judges' website.

Supreme Court fine-tunes a number of rules

Updated June 8, 2018

Most of the amended Supreme Court Rules issued by the Supreme Court at the end of May are fairly technical and uncontroversial.

But two of the changes are more interesting than the others.

On May 25, the Illinois Supreme Court issued amendments to Supreme Court Rules 341, 352, and 756. Then, on May 31, the Court issued an amendment to Rule 39.

The change to Rule 341 is one of the noncontroversial ones.

The last sentence of Rule 341(h)(7) has been changed from "Points not argued are waived..." to "Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."

I attended a CLE seminar a few years ago at which the distinction between "waiver" and "forfeiture" was made exquisitely clear. (I've spent the last week looking for the materials from that presentation, without success.) Unfortunately, the distinction between the words can become blurred as soon as one begins reviewing the cases. This minor change may allow the distinction between the words to become more clear in case law. Essentially, however, there is an element of voluntariness in waiver. The "classic" formulation of waiver is that it is "the intentional relinquishment of a known right" -- but, in the law of insurance, for example, waiver need not be express, but may be implied from conduct (see, for example, Allstate Insurance Co. v. National Tea Co., 25 Ill.App.3d 449, 461 (1975)). Forfeiture also concerns someone failing to do something, but the reason for the failure is irrelevant: Either something (like raising a particular argument) was done or not done, and if it was not done, the right to do it thereafter is forfeited. See, Maniez v. Citibank, F.S.B., 404 Ill.App.3d 941, 947-48 (2010)("[f]orfeiture occurs when a party seeks to raise an issue on appeal it failed to raise in the lower court").

However the rule is formulated, one can only hope that it remains clear that the rule is a limitation on the parties, not on a reviewing court, which, in the interest of properly resolving a matter and doing justice to the parties, may choose to consider an issue that was otherwise "forfeited."

The amendment to Supreme Court Rule 756 also appears to be an attempt to impose a more objective standard, this time in the area of attorney discipline.

Rule 756(a)(8) concerns an attorney's right to seek permanent retirement status. The key provision of this rule is 756(a)(8)(C) which provides that disciplinary actions will be dropped against an attorney granted permission to permanently retire. Not surprisingly, Rule 756(a)(8)(A) requires the consent of the ARDC Administrator before the Supreme Court will grant permanent retirement.

The new change to Rule 756 concerns Rule 756(a)(8)(B), addressing when permanent retirement status will be not be granted. Previously, permanent retirement was to be denied when the attorney's conduct was likely to result in actual prejudice to a client or third party unless restitution is made. Now, however, Rule 756(a)(8)(B)(3) provides that permanent retirement will be denied where "the attorney's conduct resulted in an actual loss to a client or other person and the Court's rules or precedent would allow for a restitution order for that type of loss in a disciplinary case, reinstatement case, or Client Protection Program award, unless restitution has been made" (emphasis mine).

The amendment to Rule 352 is likely to be more controversial, at least with some sitting justices of the Appellate Court.

Effective July 1, the last paragraph of Rule 352(a) has been amended so as to require oral arguments in many more appeals.

This paragraph used to provide, "After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented but this power should be exercised sparingly."

Now, however, this paragraph of Rule 352(a) begins (emphasis supplied), "After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case."

But that's not all. A second sentence has been added to this paragraph by the May 25 amendment: "Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it."

From what I've been told, when an appellate justice asks his or her colleagues to conduct oral argument in a given case, that request has usually been honored.

But, obviously, these requests have not always been honored.

While there may be some grumbling on the appellate bench in the short term, this rule, in my opinion, will be a benefit to the court in the long run: Courts need to conduct their public business in public. In every case in which oral argument is conducted there can be no doubt that the elected (or assigned) justices were actually involved in the decision-making process. Increasing the frequency of oral arguments will necessarily enhance the confidence of the public generally and the bar in particular in the appellate process.

That said, I'm sure every appellate lawyer has had a case or three that they were just as happy to see decided on the briefs, and under Rule 23. I know I've had some over the years -- and, yes, like everyone else, I've dutifully requested oral argument in those cases, too -- but, presumably, these cases would not be called for argument even under this new Rule 352.

The Supreme Court also amended Rule 39, concerning the election of associate judges. There is one stylistic change as well, but the substantive change is to Rule 39(b)(5), concerning balloting for associate judge.

The first sentence of this rule formerly began, "Each circuit judge shall complete his or her ballot by voting for one candidate for each vacancy to be filled...." As amended, however, the sentence reads (emphasis mine), "Each circuit judge shall complete his or her ballot by voting for not more than one candidate for each vacancy to be filled...."

As FWIW readers well know, we did just have a controversial associate judge selection here in the County of Cook -- a ballot of 34 names, with 17 vacancies to be filled (16 have been selected; there was a tie for the 17th spot and a runoff is underway). So it is only natural to consider the change to the rule in the context of recent Cook County events.

Initially I thought the change might be a codification of the practice of some judges deliberately undervoting -- the only means available for a judge to maximize the support he or she can give to favored candidates -- and one that I believe many judges have employed in prior associate judge elections. The more I thought about it, though, the more it seemed to me that this language represented a caution against overvotes. Why would that be necessary?

Surely, no one with a vote would vote for more than half the candidates -- thereby spoiling the ballot and actually voting for no one -- right?

However, I have confirmed with court personnel that the rule was amended as a caution against overvoting. Unsurprisingly, I have not learned why this amendment was deemed necessary, and at this time, just after a controversial Cook County associate judge selection -- and I don't expect to.

But I will say this: coincidence alone does necessarily establish causation. So the timing of this amendment is merely coincidental. I hope.