January ALA Luncheon to Feature New York Times Supreme Court Correspondent Adam Liptak

By Josh Wolff

Research Attorney, Illinois Appellate Court, First District

On January 21, 2016, the Association will host a luncheon at the Union League Club in Chicago featuring Adam Liptak of the New York Times. Liptak will speak about the United States Supreme Court the past 10 years under Chief Justice John Roberts. Not only will Liptak discuss the impactful stories from the Court the past decade, but he will also reflect on his own experiences covering the Court.

Liptak, an attorney by trade, joined the Times in 2002, first covering the Court in the fall of 2008. Liptak was a finalist for the 2009 Pulitzer Prize in explanatory reporting for his series, "American Exception," which explored the differences between the American legal system and those of other developed nations. 

Liptak originally was a copyboy for the Times after graduating from Yale University. He eventually returned to Yale, and in 1988, he graduated from its law school. After law school, Liptak spent four years working as a litigation associate at Cahill Gordon & Reindel in New York City, specializing in First Amendment cases. In 1992, he returned to the Times, working in its legal department. Liptak has taught media law at Columbia University's School of Journalism, the University of California, Los Angeles, School of Law and Yale Law School.

The ALA welcomes all to join Adam Liptak for an informative and engaging luncheon. For more information and to register, please click here.

Participants will earn one hour of MCLE credit.

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.

SCOTUS to Decide Whether Refusing Body Chemical Tests Can Be a Crime

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Last week, Liptak wrote an article focused on controversial state laws that make it a crime for motorists suspected of driving drunk to refuse blood, breath or urine tests. Currently, 13 states have such laws. 

The Court consolidated three different cases into one: Bernard v. Minnesota, No. 14-1470. In Bernard, William Bernard refused to take a breath test after his arrest for suspected drunk driving. In Minnesota, it is a crime for someone arrested for driving while impaired to refuse to submit to a chemical test of that person's blood, urine or breath to detect the presence of alcohol. Bernard challenged the Minnesota law. In rejecting his challenge to the law, the Minnesota Supreme Court reasoned that because Bernard was arrested, the search of his person was permissible in connection therewith. 

Liptak said that the defendants in the consolidated case are being represented by lawyers affiliated with Yale Law School's Supreme Court Clinic. The defendants noted that review of these laws are necessary because they " 'affect many thousands of people every year.' "

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.

SCOTUS Contemplates "One Person, One Vote" and Re-Considers Race in Higher Education Application Process

By Josh Wolff
Research Attorney, Illinois Appellate Court, First District

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Last week, Liptak wrote multiple articles on oral arguments before the Court, including on Fisher v. University of Texas, No. 14-981 and Evenwel v. Abbott, No. 14-940. Liptak's article on Fisher may be found here while his article on Evenwel may be found here.

In Fisher, the plaintiff, Abigail Fisher, a white student, alleged that the University of Texas denied her admission because of her race. She challenged the school's admission plan which did not make race a deciding factor, but rather one element in considering the applicant's attractiveness. Liptak noted that based on the justices' "skeptical" questions to the attorneys representing the University of Texas, it appeared that the University's affirmative action plan would be held unconstitutional.

Justice Scalia suggested that minority students with inferior academic credentials might do better at "a less advanced school" or "a slower-track school." Chief Justice Roberts wondered "[w]hat unique perspective does a minority student bring to a physics class?"

Liptak noted that, in particular, Justice Kennedy appeared "frustrated" that the Court had encountered the Fisher case again. After all, in 2013, the Court remanded Fisher back to the United States Court of Appeals for the Fifth Circuit so that it could apply the proper strict scrutiny analysis to the University's plan. However, Fisher made its way back to the Court, where Justice Kennedy opined that "[w]e’re just arguing the same case … as if nothing had happened."

Some of the liberal justices, specifically Justice Breyer, wondered if the Court was about to "kill affirmative action through a death by a thousand cuts."

Justice Kagan recused herself from the case because of her involvement in the case as Solicitor General of the United States.

Also noteworthy was that oral arguments lasted 95 minutes, where a typical case is argued in only 60 minutes.

In Evenwel, Liptak observed that the question presented is what the "one person, one vote" principle means when creating voting districts. Do states and other localities count all residents or merely eligible voters? The current practice is to count all residents.

The case was brought by individuals who were challenging voting districts for the Texas Senate.

Liptak noted that people living in the United States who are ineligible to vote—for example, children and immigrants—usually are concentrated in urban areas which tend to favor Democrats. Meanwhile, rural areas, which tend to favor Republicans, tend to have a higher percentage of eligible voters. Thus, he observed, the resolution of the case has the potential to provide a "big boost to Republican voters in state legislative races in large parts of the nation."

Liptak also observed that the justices' particular political leanings were indicative of whether they thought counting all residents or only eligible voters was proper. During oral arguments, the Court's four Democratic appointees asked questions suggesting that counting all residents was the proper protocol while the Court's five Republican appointees asked questions suggesting that counting just eligible voters was proper.

Chief Justice Roberts opined, "[i]t is called 'one person one vote,' " which "seems designed to protect voters."

Justice Sotomayor differed, stating "[t]here is a voting interest, but there is also a representation interest." Liptak suggested that Justice Sotomayor meant that politicians do not just represent eligible voters, but rather all constituents.

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.

Illinois Supreme Court Adopts New Rules Affecting Appellate Practice

By John M. Fitzgerald, Partner, Tabet DiVito & Rothstein LLC 
Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.

On December 9, 2015, the Illinois Supreme Court announced a series of amendments to the Illinois Supreme Court Rules. A full set of those rule amendments can be found here:

A number of those amendments affect appellate practice, principally in the following ways:

1. New word limits for appellate briefs: The Court amended Rules 341 and 367 to provide word limits for appellate briefs. Practitioners are given the alternative of complying with the new word limits or complying with the pre-existing page limits. The word limits are: 15,000 words for the appellant’s brief and the appellee’s brief; 7,000 words for the appellant’s reply brief; an additional 8,400 words for cross-appellants and cross-appellees; an additional 7,000 words for the cross-appellant’s reply brief; 8,000 words for a rehearing petition and an answer to a rehearing petition; and 3,500 words for a reply in support of a rehearing petition. The amendment will be effective January 1, 2016.

The ALA endorsed the adoption of word limits at the Supreme Court Rules Committee’s public hearing in July, based on our members’ widely shared view that word limits, as opposed to page limits, would encourage practitioners to use more reader-friendly formats and fonts. ALA member Alyssa Reiter has been championing this change for a long time and deserves much credit for paving the way for this development.

The proposal that the Supreme Court adopted today was made by the CBA’s Special Committee on Appellate Practice, which is co-chaired by past ALA Presidents Tim Eaton and Mike Rathsack. ALA Rules Committee member Jon Amarilio also was instrumental in the adoption of this proposal.

Illinois Supreme Court Adopts New Rule To Protect Personal Information in Documents Before Reviewing Courts

By Josh Wolff 
Research Attorney, Illinois Appellate Court, First District

On December 3, 2015, the Illinois Supreme Court adopted a new rule designed to protect personal information in cases before both the Illinois Appellate Court and Illinois Supreme Court. The new rule, Illinois Supreme Court Rule 364, will become effective July 1, 2016. The rule applies to all documents and exhibits filed in civil and criminal cases before Illinois’ reviewing courts.

The rule aims to protect personal identifiers, such as social security numbers, taxpayer-identification numbers, financial account numbers, and debit and credit card numbers. Additionally, the rule was designed to protect the names of juveniles and recipients of mental health services as referenced in Illinois Supreme Court Rule 341(f).

Documents or exhibits filed with such personal identifiers are permissible if the information is redacted. For example, a party may redact the last four digits of a social security or individual taxpayer-identification number, the last four digits of a driver’s license or state identification card number, the last four digits of a financial account number, and the last four digits of a debit and credit card number. For juveniles and recipients of mental health services, generally, the use of the individual's first name and last initial will suffice.

SCOTUS: Injured Plaintiff Cannot Sue Austrian Railroad Company in American Court For Injuries Occuring in Austria

By April Oboikowitch

Law Clerk, Illinois Appellate Court, First District

The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. In his most recent article, Liptak noted that the Supreme Court ruled on Tuesday that a California woman injured in a train accident in Austria cannot sue in an American court. The woman lost her legs after trying to board a moving train in Innsbruck. She argued that she should be allowed to sue the railroad in federal court in California because she bought her Eurail pass on the Internet while located in the United States from a travel agent in Massachusetts.

Chief Justice John G. Roberts, writing for the Court, stated that the crucial events all took place in Austria. The United States Court of Appeals for the Ninth Circuit, in San Francisco, allowed the woman to proceed based on the fact that she purchased the Eurail pass in the United States. The Supreme Court disagreed, noting that “the conduct constituting the gravamen of [the woman’s] suit plainly occurred abroad.” The Court found that there was nothing wrongful about the sale of the Eurail pass standing alone. This case, which was the first one argued this term, resulted in a unanimous decision by the Court. The case is OBB Personenverkehr A.G. v. Sachs, No. 13-1067, and can be accessed here.

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.

Chicago-Kent College of Law Wins National Moot Court Competition

By Charlie Ingrassia
Associate, Adler Murphy & McQuillen LLP

During the first week of November, the Association gathers to host its annual moot court competition. Like previous years, this year's competition attracted teams from across the country, ranging from New York to California, and included many teams from Chicago-area schools. Consistent with the Association's goals of promoting excellence and civility in appellate practice, the competition affords law students the opportunity to prepare briefs on novel legal issues and present oral arguments before esteemed jurists in a collegial environment.

This year's problem asked the competitors to argue a complicated issue involving the extraterritorial reach of the Racketeer Influenced and Corrupt Organizations statute. The problem required the students to understand the three different approaches adopted by the federal district courts in answering such an inquiry. On a more practical level, participants were asked to address whether, under Federal Rules of Civil Procedure Rule 11, a letter to an opposing counsel requesting that a frivolous pleading be withdrawn was sufficient to comply with Rule 11's procedural requirements, or whether Rule 11 requires strict compliance and a request for sanctions to be brought in a separate motion. 

A competitor argues during the
Association's Moot Court Competition.

As in years past, both the final bench and semifinal rounds consisted of a who's who of judges and appellate practitioners. Judge William J. Bauer of the United States Court of Appeals for the Seventh Circuit, Judge Edmond E. Chang of the United States District Court for the Northern District of Illinois, and Judge William E. Holdridge of the Illinois Appellate Court, Third District, presided over the final round. Judges for the semifinal rounds included Judge Maureen E. Connors of the Illinois Appellate Court, First District, Association President and former Illinois Solicitor General Michael Scodro, and former Association president Steven F. Pflaum. Many Association members graciously served as judges for the preliminary rounds. 

Justin Joffe and Matthew Smart 
of the Chicago-Kent College of Law 
along with final round judges 
Judge Williams E. Holdridge, 
Judge William J. Bauer and 
Judge Edmond E. Chang. 

In the final round, two local schools went toe-to-toe, as Justin Joffe and Matthew Smart of the Chicago-Kent College of Law narrowly bested Patrick Simonaitis, Haley Wasserman, and Michael Ovca of the Northwestern University School of Law. The Association also recognized various individual achievements, including best oralist during the preliminary, semifinal, and final rounds.

The Association congratulates all participants for their hard work and superior advocacy, the Association's Moot Court Committee for organizing the popular competition, and the Association members and others who served as judges.

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.