Supreme Court Holds that the Window to Appeal An Order Granting or Denying Class Certification is Not Subject to Equitable Tolling

By Louis J. Manetti, Jr.

Hinshaw & Culbertson LLP

The Supreme Court recently clarified that the 14-day window to appeal from a federal district court order granting or denying class certification is not subject to equitable tolling. In Nutraceutical Corp. v. Lambert, the plaintiff, Lambert, sued Nutraceutical Corp. and alleged that its dietary supplement marketing violated a California consumer protection law. 586 U.S. ___ (2019). Although the district court initially certified a class, on February 20, 2015, it decertified the class. At that point, Lambert had 14 days to ask the Court of Appeals for the Ninth Circuit for permission to appeal. See Fed. R. Civ. P. 23(f).

Instead, 20 days after the decertification order, Lambert moved for the district court to reconsider the order. On June 24, 2015, the court denied the motion to reconsider. Fourteen days after that, Lambert petitioned the Ninth Circuit to take the appeal on the decertification order. Nutraceutical’s response to the petition argued that the petition was untimely. The Ninth Circuit deemed the appeal timely. It reasoned that Rule 23(f)’s time limit was nonjurisdictional, and therefore equitable remedies softening the deadline were available.

The Supreme Court rejected the Ninth Circuit’s approach. Rule 23(f) authorizes federal appellate courts to permit a discretionary appeal if the petition is filed within 14 days after the order is entered. The Court began by noting that because Rule 23’s time limitation is in a procedural rule, and not a statute, it is properly classified as a nonjurisdictional claim-processing rule. Thus, the opposing party can waive or forfeit a noncompliance argument. But merely because a rule is not jurisdictional does not render it “malleable in every respect.” Specifically, some claim-processing rules are “mandatory” in the sense that the rule is unalterable if noncompliance is properly raised.

With that, the Court stated that whether a rule allows for equitable tolling turns on whether the rule’s text leaves room for that flexibility. It first noted that Rule 23(f) is phrased unequivocally. And while that, by itself, was not determinative, the Federal Rules of Appellate Procedure singled out Rule 23(f) for inflexible treatment. Although FRAP 2 authorizes appellate courts to suspend the application of the rules in a particular case on a showing of good cause, it also warns: “except as otherwise provided in Rule 26(b).” And Rule 26(b), while allowing for extensions of time generally, specifies that a court of appeals “may not extend the time to file . . . a petition for permission to appeal.” Given the clear expression of “rigorous enforcement”, compliance with 23(f) could not be suspended on equitable tolling grounds. The Court concluded that this comported with applicable precedent, and was fully consistent with the notion that, because interlocutory appeals disrupt the rule that appeals must ordinarily wait until the end of a case, Rule 23(f)’s time limit would be “purposefully unforgiving.”

Finally, the Court specified that the petition for leave to appeal would have been timely if the motion to reconsider had been filed within the 14-day appeal window. Lambert argued that courts of appeal uniformly hold that, so long as a motion to reconsider is filed within 14 days of an order granting or denying class certification, a Rule 23(f) petition filed within 14 days of the resolution of the reconsideration motion is timely. The Court explained that Lambert’s argument that the same outcome should occur here relied on a mistaken premise. A motion to reconsider filed “within a window to appeal” does not toll anything. Instead, it renders an otherwise final decision of a district court not final for the purposes of appeal. It determines when the 14-day window begins to run—not the availability of tolling. Thus, Lambert’s petition for leave to appeal was untimely, and the case was remanded for further proceedings.

This case should serve as a clear warning that, in the wake of an order granting or denying class certification, whether a litigant intends to move to reconsider the order or to petition the appellate court for review, that action must be taken within 14 days.


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.

U.S. Supreme Court Rule Changes: Less Words, Less Time To File Reply Briefs, And More Disclosures

The U.S. Supreme Court has adopted three amendments to its rules that will take effect on July 1, 2019.


The first limits parties' merits briefs to 13,000 words. The current rule permits merits briefs up to 15,000 words. In a summary explaining the rule change, the Court emphasized that, in its experience, parties could ably present their arguments in less than 15,000 words.


The second rule change requires parties to file their reply briefs by 2 p.m., 10 days before oral argument. Previously, parties could submit their reply briefs a week before oral argument. The purpose of this change is to give the Court more time to review reply briefs before argument.


Finally, the Court will require parties filing certiorari petitions to identify any state or federal cases, in both trial and appellate courts, that are "directly related" to the case at issue. The Court explained that this rule will assist the justices in determining whether they need to recuse themselves from a case.


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.

May a Federal Court Count the Vote of a Judge Who Dies Before the Decision is Issued?

By  Katherine A. Grosh 

Levin Ginsburg

This is exactly the question answered by the United States Supreme Court in Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo, 586 U.S. ___ (2019) (Feb. 25, 2019).

This case involved the en banc review of an April 9, 2018 decision by a three-judge panel of the United States Court of Appeals for the Ninth Circuit in an interlocutory appeal involving the Equal Pay Act, in which the Ninth Circuit reversed the district court based on a prior Ninth Circuit deci­sion involving the Equal Pay Act, Kouba v. Allstate Ins. Co., 691 F.2d 873 (1982) (“Kouba”), which the panel “believed it was compelled to follow.” 586 U.S. at ___, citing 887 F. 3d 453, 459 (2018) (en banc). The Ninth Circuit then granted en banc review “to clarify the law, including the vitality and effect of Kouba.” Id.

Because a panel decision like Kouba can be overruled only by a decision of the en banc court or the United States Supreme Court, a purpose of the April 9, 2018 en banc decision was to announce new and binding Ninth Circuit precedent interpreting the Equal Pay Act. Judge Reinhardt, who died 11 days after the decision was issued, was the author of the Ninth Circuit opinion – but its status as a “majority opinion” of the en banc court depended on counting Judge Reinhardt’s vote; without his vote, the opinion would have been approved by only 5 of the 10 members of the panel who were still living when the decision was filed.

The Supreme Court ruled that Judge Reinhardt was no longer a judge at the time the en banc decision in this case was filed, and therefore, the Ninth Circuit erred in counting him as a member of “the majority.” Counting his vote, the Court reasoned, effectively allowed a deceased judge to exercise the judicial power of the United States after his death. “[F]ederal judges are appointed for life, not for eternity.” Even though Judge Reinhardt fully participated in this case and authored the opinion, which (along with all concurrences) was final with voting completed by the en banc court prior to his death, the Supreme Court found that the opinion was not endorsed by a majority of the living judges at the time the opinion was “filed,” entered on the docket, and released to the public.

In support of its decision, the Supreme Court relied on the rule it endorsed in United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960), that “a judge may change his or her position up to the very mo­ment when a decision is released,” along with 28 U. S. C. §46(c), the statutory provision authorizing the courts of appeals to hear cases en banc. In the Court’s view, Judge Reinhardt was without statutory or judicial power to participate in the en banc court’s decision at the time it was rendered. Accordingly, the Court granted the petition for certiorari, and vacated the Ninth Circuit’s judgment and remanded the case.

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.

D.C. Circuit Judge Kavanaugh nominated for U.S. Supreme Court

D.C. Circuit Court Judge Brett Kavanaugh has been nominated to replace retiring Justice Anthony Kennedy on the Supreme Court of the United States.

Judge Kavanaugh was appointed to the D.C. Circuit Court of Appeals in 2006, and is a graduate of Yale Law School.

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.

United States Supreme Court Justice Anthony Kennedy to Retire Effective July 31

United States Supreme Court Justice Anthony Kennedy has sent a letter to President Donald Trump, informing the president that he will retire from the High Court on July 31.

President Trump has stated that he will select Justice Kennedy's replacement using a list he initially created during his 2016 presidential campaign. The list includes Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit, as well as several other United States appellate court judges, multiple state supreme court justices, and a current United States senator. 

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.

Bright Line from Supreme Court: Consolidated Cases Remain Independent for Appeal

By E. King Poor

Partner, Quarles & Brady LLP

Going back to the early 1970s, federal courts have disagreed on a basic question of appellate procedure: If a case has been consolidated with others, does it remain independent when it comes to filing an appeal? The Supreme Court finally settled that question in Hall v. Hall, 2018 WL 1472897 (March 27, 2018) and did so with a unanimous and unequivocal “yes,” holding that a judgment in a consolidated case may be appealed immediately.

Important practical considerations flows from the Hall decision—namely, parties in consolidated cases cannot wait to appeal. The appeals clock begins when judgment is entered for any consolidated case, and not when all the consolidated cases have been finally decided.

Third Circuit Dismisses Appeal from a Consolidated Case

The Hall case arose from a family dispute over real estate in the U.S. Virgin Islands. A mother had a falling out with her lawyer son over property that he managed and she then transferred her property to a trust. The trust later sued her son and his law firm for mismanagement. After the mother died, her daughter became the successor trustee and continued the suit against her brother.  The brother then sued his sister individually and the individual and trust cases were eventually consolidated.

A single jury heard both cases. It rendered a verdict in favor of the brother in his individual case and against the sister in her trust case. But the verdict for the individual case was set aside for a new trial, while final judgment was entered against the sister in the trust case.

Supreme Court Decides When Clock Stops for State Claims

By E. King Poor (Partner, left), William A. Walden and Matthew A. Sloan (Associates), Quarles & Brady LLP

Joining state law claims in a federal suit is common. But until the Supreme Court decided Artis v. District of Columbia, 2018 WL 491524 (Jan. 22, 2018), this question remained unsettled: How much time does a plaintiff have to refile state law claims if all the federal claims are dismissed? In Artis, the Court provided a simple answer: a state statute of limitations is suspended while the federal case is pending and a plaintiff has the time remaining on that statute, plus 30 days, to refile.

Yet simple answers are not always the product of simple decisions. Here, in answering this narrow question of civil procedure, the Supreme Court split five-to-four. Justice Ginsberg authored a majority opinion relying on the textualism championed by the late Justice Scalia. Yet Justice Gorsuch’s dissent harkened back to the common law of the 1600s and argued that the majority’s position was not only contrary to the principles of federalism, but unconstitutional.

“Tolling” Means What the Text Says

Employment cases, like many federal suits, often join state law claims under a federal court’s “supplemental jurisdiction.” The Artis case followed that pattern. After being terminated from her job with the District of Columbia, the plaintiff brought suit in federal court and joined D.C. law claims in her suit. Later, the court dismissed the federal claims without deciding those brought under D.C. law.

Section 1367(d) of the Judicial Code (28 U.S. C. § 1367(d)) governs how much time a plaintiff has to refile in state court, after any federal claims are dismissed. It states that the time to refile in state court is “tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

United States Supreme Court: Only Statutory Deadlines Are Jurisdictional

By E. King Poor (Partner, left) and Jerome C. Mohsen (Associate),

Quarles & Brady LLP

Justice Frankfurter once observed that the term “jurisdiction” was “a verbal coat of too many colors.” United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952). But in its recent decision in Hamer v. Neighborhood Hous. Servs. of Chicago, 2017 WL 5160782 (Nov. 8, 2017), the Supreme Court makes plain that the color choices for that term are now more black and white.

In particular, when considering the time to appeal, the Court in Hamer held that only time limits set by Congress, as opposed to those set by a court rule, are jurisdictional.

In Hamer, a plaintiff’s discrimination claims were dismissed by the district court. Her lawyer then withdrew shortly before the notice of appeal was due, and the court granted her an extension of time to appeal, but beyond what was permitted by Federal Rule of Appellate Procedure 4(a)(5)(C). The defendants did not oppose that request in the district court. But the Seventh Circuit, on its own, ruled that it lacked jurisdiction because the district court had no authority to extend the time to appeal beyond what it termed was a “jurisdictional” deadline and dismissed the appeal.

United States Supreme Court Justice Ruth Bader Ginsburg to Speak in Chicago on September 11

On Monday, September 11, United States Supreme Court Justice Ruth Bader Ginsburg will speak at the Auditorium Theatre in Chicago with United States Court of Appeals Judge Ann Claire Williams.

Justice Ginsburg, who has served on the Supreme Court since 1993, will discuss her life and judicial career. Judge Williams has served on the Seventh Circuit since 1999 and recently assumed senior status.

Individual tickets go on sale on July 28 at 10 a.m. and are $35 for the general public.

Please visit here for more information.

Notre Dame Law Professor Amy Coney Barrett Nominated to the U.S. Court of Appeals for the Seventh Circuit

On May 8, President Donald Trump nominated Notre Dame University Law School Professor Amy Coney Barrett to the United States Court of Appeals for the Seventh Cirucit. 

According to the White House's press release, Barrett currently serves as the Diane and M.O. Miller II Research Professor of Law at the Notre Dame University Law School where she teaches federal courts, constitutional law and statutory interpretation. Prior to becoming a faculty member at Notre Dame, Barrett clerked for Associate Justice Antonin Scalia of the Supreme Court of the United States and for Judge Laurence H. Silberman of the United States Court of Appeals for the D.C. Circuit. She also worked as an associate at Miller, Cassidy, Larroca & Lewin in Washington, D.C., and served as a visiting associate professor at the George Washington University Law School and the University of Virginia Law School.

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.

Former ALA President Michael A. Scodro Discussed the Confirmation of Judge Neil Gorsuch to the United States Supreme Court on Chicago Tonight

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the confirmation of Judge Neil Gorsuch, formerly of the United States Court of Appeals for the Tenth Circuit, to the United States Supreme Court.


If the embedded video does not work, you may watch 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.

April ALA Speaker Erwin Chemerinsky Discusses Impact of Only Eight Supreme Court Justices

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

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal discussing how the United State’s Supreme Court’s lack of a ninth justice has affected its docket.

 

Chemerinsky observed that, at the end of the Court’s first month, its docket only had 39 cases, which was “significantly fewer than usual for this point of the term.” In addition to the smaller docket, Chemerinsky noted that the effect of only eight justices could be seen by looking at the Court’s December schedule for oral argument. “Four of the six days that the court is hearing arguments, the justices will hear only one case, rather than the two, or occasionally three, cases usually heard per day.”

 

Chemerinsky also believed that the Court is waiting for the appointment of a ninth justice for some cases that were granted review last January and have already been fully briefed, but remain without a date for oral argument. Those cases include: Trinity Lutheran Church of Columbia,Missouri v. Pauley, which “concerns whether it violates free exercise of religion or denies equal protection for a state to give aid (the material for the bottom of playgrounds) to public and secular private schools, but not to religious schools”; Wisconsin v. Murr, which concerns “the takings clause and how it is determined whether adjacent pieces of property should be deemed to be one or two pieces of property”; and Microsoft v. Baker, which concerns “whether plaintiffs can appeal the denial of class certification by dismissing their suit.”

 

The full article 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.

April ALA Speaker Erwin Chemerinsky Previews New Supreme Court Term

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

The Association’s April 2017 luncheon will feature Erwin Chemerinsky, the renowned legal scholar and dean of the University of California, Irvine School of Law. Chemerinsky recently wrote an article for the ABA Journal, previewing the United States Supreme Court new term, which began on October 3.

 

Initially, Chemerinsky noted that, for the first time in 30 years, the Court will begin its new term with only eight justices. He also discussed the possibility that the Court goes the entire term without having a ninth justice, observing that if Donald Trump were to be elected president, “hearings would not likely be held until spring” and if Hillary Clinton were to be elected president, various possibilities exists including nominating someone other than Merrick Garland.

 

Chemerinsky divided the Court's new term into three major areas of law: race discrimination, criminal justice and constitutional rights.

 

Among the race discrimination cases is Pena-Rodriguez v. Colorado, which “concerns whether a jury verdict can be reconsidered after it is learned that one of the jurors expressed racial bias during deliberations.” Additionally, Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris concern “the use of race in drawing election districts.”

 

Among the criminal justice cases is Moore v. Texas, which concerns how to determine “whether a person is intellectually disabled and thus cannot be executed.”

 

Finally, among the constitutional rights cases is Trinity Lutheran Church of Columbia v. Pauley, which concerns “whether a state may deny aid to parochial schools that it provides to public and secular private schools in the state.” Additional, in Murr v. Wisconsin, the Court discuss “how to determine what constitutes a parcel of land for purposes of the takings clause of the Fifth Amendment.”

 

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: Sixth Circuit Did Not Apply Appropriate "Fairminded Jurist" Standard Under Antiterrorism and Effective Death Penalty Act of 1996

By Richard Harris
Law Clerk to Hon. Susan F. Hutchinson, Illinois Appellate Court, Second District

The Supreme Court of the United States recently concluded in a per curiam decision that the Sixth Circuit Court of Appeals did not apply the appropriate "fairminded jurist" standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) after Timothy Etherton sought federal habeas relief pursuant to AEDPA. In turn, the High Court found it was not objectively unreasonable for Etherton's direct appellate counsel to refrain from raising Confrontation Clause and ineffective assistance of trial counsel claims where trial counsel failed to object to the admission of an anonymous tip.

 

Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016), involved an anonymous tip that led Michigan law enforcement officers to discover 125.2 grams of cocaine in car being driven by Etherton. The lone passenger in the car was Ryan Pollie. Etherton was tried in state court for possession with intent to deliver cocaine. The central issue in the trial was whether the cocaine belonged to Etherton or Pollie; the facts reflected in the tip were not contested. Woods, 578 U.S. at ___, 136 S. Ct. at 1150. Pollie testified against Etherton pursuant to a plea agreement, claiming that Etherton left him at a restaurant at one point during their trip and returned around 45 minutes later. Pollie further claimed he had no knowledge of Etherton's intent to obtain cocaine, and he learned of the cocaine only after the pair left the restaurant and Etherton revealed its presence. Three officers testified to the content of the tip, which included a claim that two white males would be carrying cocaine while traveling in a white Audi. Etherton's trial counsel raised only one hearsay objection during the third officer's testimony, but the prosecutor agreed to move on and no ruling was made on the objection. A jury convicted Etherton, his conviction was affirmed on direct appeal, and the Michigan Supreme Court denied him leave to appeal. Id.

 

Etherton next sought post-conviction relief in state court, claiming, inter alia, that appellate counsel was ineffective for failing to raise the Confrontation Clause and related ineffective assistance of trial counsel issues. Id. The state court rejected this claim, noting that trial counsel may have made a strategic decision to forgo any objections because the reference to "two men" suggested Pollie's prior involvement in the crime, which arguably contradicted Pollie's claims that he had no knowledge of the cocaine and Etherton was alone when he picked up the cocaine. Woods, 578 U.S. at ___, 136 S. Ct. at 1151.

Judge Diane Woods, Chief Judge of the Seventh Circuit Court of Appeals, Discusses Supreme Court Vacancy and Immigration Debate on Chicago Tonight

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

Judge Diane Woods, Chief Judge of the Seventh Circuit Court of Appeals, appeared on Chicago Tonight recently to discuss various topics of interest to appellate lawyers.

In discussing the current vacancy at the United States Supreme Court, Judge Woods referred to the open seat as "a big loss," which, in the case of a 4-4 vote split, will leave the lower court's ruling in tact.

Judge Wood also described the Supreme Court vetting process as "very thorough," in which speeches from 20 years ago may be viewed and dissected.

The full video interview with Judge Wood is available 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.

ALA President Michael Scodro and ALA Member Carolyn Shapiro Discuss the Legacy of Justice Antonin Scalia on Chicago Tonight

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

Yesterday, ALA President Michael Scodro, and Illinois Solicitor General and ALA member Carolyn Shapiro appeared on Chicago Tonight to discuss the legacy of Supreme Court Justice Antonin Scalia who passed away over the weekend. Joining Scodro and Shapiro on the panel were David Franklin and Andrew DeVooght. All four panel members previously clerked at the Supreme Court, though not for Justice Scalia, and each discussed a personal memory of him.

The panel discussed Justice Scalia's colorful writing, his renowned dissents and his interactions with other justices of the Court. The panel also discussed the future of the Court without Justice Scalia.

Please click here to watch the thoughtful and informative discussion.

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.
 

New York Times Reporter Adam Liptak Shares Insight into SCOTUS at Association Luncheon

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

On January 21, 2016, the Association gathered at the Union League Club of Chicago to host "The Roberts Court at Ten: A Reporter's Reflections" featuring Adam Liptak, the United States Supreme Court reporter for the New York Times.

The Appellate Lawyers Association President Michael A. Scodro began the event by offering welcoming remarks as Association members and guests enjoyed lunch. President Scodro previewed future Association events, including one on February 17, 2016, at the Union League Club of Chicago, featuring Justices Diane Sykes and David Hamilton of the Seventh Circuit Court of Appeals, who will discuss the various approaches judges use in statutory and constitutional interpretation. President Scodro also took a moment to recognize former Association President Judge Jean Prendergast Rooney, a "driving force of the" Association, who recently passed away.

Liptak began his discussion previewing the three questions he intended to answer: (1) What the name the "Roberts Court" means? (2) What cases the United States Supreme Court has decided recently? and (3) What challenges he has faced covering the Supreme Court in an accelerated and fragmented news environment?

SCOTUS Likely to Deal Unions Drastic Blow in Union-Fee Case

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

The Association's upcoming luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Over the years, Liptak has provided unique insight on how the High Court operates behind the scenes. His recent article featured the case, Friedrichs v. California Teachers Association, No. 14-915, whose oral argument was held on Monday.

In this highly anticipated case, the California law at issue requires public employees who do not join a union to still pay fees that compensate for the costs of collective bargaining. Ten California teachers contend they have a First Amendment right not to pay the union fees. The union argues that the non-members are trying to obtain a windfall, reaping the benefits of collective bargaining without paying for its costs.

The importance of the Court's outcome in the case, Liptak noted, is that a ruling in favor of the teachers would represent a drastic blow to unions.

Liptak observed that the Court's conservative majority seemed likely to agree with the teachers. The "best" hope unions have for a ruling in their favor, Liptak said, is Justice Antonin Scalia who has been sympathetic toward them in the past. However, Liptak observed a certain sense of hostility by Justice Scalia toward unions during oral arguments, especially when he proclaimed "[t]he problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition."

The liberal minority on the Court seemed focused, Liptak asserted, on a worthy reason to overturn past Supreme Court precedent, Abood v. Detroit Board of Education, which held in 1977 that forcing non-union members to pay for a union's collective bargaining efforts was constitutional.

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.

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.