Thursday, May 23, 2019

An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service in the Law

In honor of the 200th anniversary of federal courts in Illinois, the U.S. District Court for the Northern District of Illinois is presenting "An Interview with Judge William J. Bauer: Reflections on a Six-Decade Career in Public Service Law." Judge Bauer will reflect on his 65 years as a public servant, including his 48 years on the federal bench.


Judge Bauer is a Senior U.S. Circuit Judge of the U.S. Court of Appeals for the Seventh Circuit. Judge Bauer served in the U.S. Army from 1945 to 1947, before earning his undergraduate degree from Elmhurst College and his law degree from DePaul University College of Law. He worked in private practice and served as an Assistant State's Attorney before being elected as DuPage County State's Attorney. He served as a Circuit Judge for the Eighteenth Judicial Circuit, DuPage County, before being appointed as the U.S. Attorney for the Northern District of Illinois from 1970 to 1971. In 1971, he was nominated to the U.S. District Court for the Northern District of Illinois, where he served until he was elevated to the Seventh Circuit in 1974.


The event will take place on June 13, 2019, from 3:00 p.m. to 4:00 p.m. in the Dirksen United States Courthouse, 219 S. Dearborn, Courtroom 2141, Chicago, Illinois. A reception will follow in the Court History Museum on the 21st Floor.


Those interested should RSVP to: Bauer_RSVP@ilnd.uscourts.gov.


DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Thursday, May 9, 2019

Prohibition Writ Not a Substitute for an Appeal


By Don Sampen
Clausen Miller, P.C.

The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.


As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.


Analysis


Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

Tuesday, May 7, 2019

"Cases Pending" Highlights Cases to be Heard During Illinois Supreme Court's May Term


The Illinois Supreme Court's May Term begins on Monday, May 13th. The Term will include oral argument in 4 criminal cases and 3 civil cases on May 14th and 15th. Below is a listing of the cases that will be heard:


Tuesday, May 14, 2019: People v. John Michael Custer, No. 123339
                                            People v. Ralph Eubanks, No. 123525
                                            People v. Stevie Smith, Nos. 123901 & 123902 (cons.)
                                            People v. Bethany Austin, No. 123910


Wednesday, May 15, 2019: Carmichael v. Union Pacific Railroad Co., No. 123853
                                                 Jones v. Pneumo Abex LLC, No. 123895, 124002 (cons.)
                                                 Accettura v. Vacationland, Inc., No. 124285


Below are summaries of one of the criminal cases and one of the civil cases to be argued. As always, more information about all pending criminal and civil cases is available in the ALA's Cases Pending newsletter.

Monday, May 6, 2019

REMINDER: ALA Presents Signature Luncheon Featuring Former Acting U.S. Solicitor General Neal Katyal

On May 13, 2019, the Appellate Lawyers Association will welcome Neal Katyal, current Partner at Hogan Lovells and former Acting Solicitor General of the United States, to present on National Security Litigation and Other Developments in the U.S. Supreme Court.  


A graduate of Yale Law School and former clerk for Justice Stephen G. Breyer of the U.S. Supreme Court, Neal is one of the most prominent appellate practitioners in the United States. He has orally argued 38 cases before the United States Supreme Court and has already argued more Supreme Court cases in U.S. history than has any minority attorney, recently breaking the record held by Thurgood Marshall.


In addition to his contributions as an appellate practitioner, Neal has also served with distinction as a law professor for two decades at Georgetown University Law Center, focusing on constitutional law, national security law, criminal law, and intellectual property law. He has published dozens of scholarly articles and op-eds in national papers, appeared on numerous news programs and testified before Congress. Among his many honors and accolades, Neal is the recipient of the Edmund Randolph Award, the highest award given to a civilian by the U.S. Department of Justice.


The ALA and signature event sponsors Forde Law Offices LLP and Tabet DiVito & Rothstein LLC are pleased to present this program. Additional details and registration information may be found below.

Wednesday, May 1, 2019

May 1st is Law Day -- Read Chief Justice Karmeier's Law Day Press Release

In honor of Law Day, the Appellate Lawyers Association is reposting Chief Justice Karmeier's article, "Free Speech, Free Press, Free Society". The link to the article is below:


http://www.illinoiscourts.gov/Media/PressRel/2019/042619.pdf


DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Thursday, April 25, 2019

Supreme Court Holds that Counsel's Failure to Appeal at Client's Request Prejudices Client, Even with Plea Waiver

By Nate Nieman


The defendant in Garza entered into two plea agreements in which he agreed to waive his right to appeal. Garza v. Idaho, 139 S. Ct. 738, 742 (2019). Garza was then sent to prison. Id. Garza repeatedly told his attorney that he wished to appeal after he was sentenced, but Garza’s attorney did not file a notice of appeal because Garza had waived his right to appeal through the plea agreements. Id. at 743.


Garza sought post-conviction relief after the time for filing a notice of appeal had run, claiming that trial counsel rendered ineffective assistance of counsel by failing to file a notice of appeal at Garza’s request. Id. The trial court denied the petition, and the Idaho Court of Appeals and Idaho Supreme Court affirmed that decision. Id. The Idaho Supreme Court held that “Garza, given the appeal waivers, needed to show both deficient performance and resulting prejudice; it concluded that he could not.” Garza v. Idaho, 139 S. Ct. at 743. The Idaho Supreme Court joined a minority of courts in ruling that Garza needed to show prejudice. Id. Eight out of ten Federal Courts of Appeals have held a presumption of prejudice applies “even when a defendant has signed an appeal waiver.” Id. The Supreme Court granted certiorari to resolve the split of authority. Id.


The court began its analysis by invoking its decision in Roe v. Flores-Ortega, 528 U.S. 470 (2000), which held that prejudice is presumed under the second prong of the Strickland ineffective assistance of counsel test “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” Id. at 744. The question in this case was whether Flores-Ortega applied when a defendant signed an appeal waiver. The Garza court held that it did. Id.


The court reasoned that “while signing an appeal waiver means giving up some, many, or even most appellate claims, some claims nevertheless remain,” Garza v. Idaho, 139 S. Ct. at 745, such as the right to challenge whether the waiver itself was valid and enforceable. Id. The court also determined that “a notice of appeal is, generally speaking, a simple, nonsubstantive act that is within the defendant’s prerogative,” id. at 746, not the attorney’s. The court concluded that “Where, as here, a defendant has expressly requested an appeal, counsel performs deficiently by disregarding the defendant’s instructions.” Id.


The court found that Flores-Ortega resolved the “prejudice” issue in this case, reaffirming that “‘when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,’ with no need for a ‘further showing’ of his claims’ merit, ibid., regardless of whether the defendant has signed an appeal waiver.” Id. at 747. 


The court rejected Idaho’s argument that Garza was not deprived of his right to appeal because he “never ‘had a right’” to do so. Id. at 748. The court responded that “Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants.” Id. Idaho’s argument was at odds with the rule already in place in most of the federal circuits that “When counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken, the defendant gets a new opportunity to appeal.” Garza, 139 S. Ct. at 749. Idaho could not persuade the Supreme Court to depart from the majority of jurisdictions that have adopted this rule. Id.


The Garza court therefore held that “the presumption of prejudice recognized in Flores-Ortega applies regardless of whether a defendant has signed an appeal waiver. This ruling follows squarely from Flores-Ortega and from the fact that even the broadest appeal waiver does not deprive a defendant of all appellate claims. Accordingly where, as here, an attorney performed deficiently in failing to file a notice of appeal despite the defendant’s express instructions, prejudice is presumed ‘with no further showing from the defendant of the merits of his underlying claims.’” Id. at 749-50 (citing Flores-Ortega, 528 U.S. at 484).


DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

Northern District of Illinois and Federal Bar Association Host Awards for Excellence in Pro Bono and Public Interest Service

The Judges of the U.S. District Court for the Northern District of Illinois and the Chicago Chapter of the Federal Bar Association are presenting their 20th Annual Awards for Excellence in Pro Bono and Public Interest Service. Maria Z. Vathis, the president of the Federal Bar Association, will act as Keynote Speaker.


The event will be held Wednesday, May 1, 2019, in the James Benton Parsons Memorial Courtroom, Everett McKinley Dirksen United States Courthouse, 25th floor, 219 S. Dearborn Street, Chicago, Illinois. The event will begin at 1 p.m. and be immediately followed by a reception in the Dirksen U.S. Courthouse Museum and History Center on the 21st Floor.


DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.