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By Steven R. Merican The Illinois Supreme Court handed down opinions in these cases recently - September 2001. A.J. Maggio Co. v. Willis, 2001 Ill. Lexis 1083, Docket No. 90624 (Sup. Ct. 9/27/01). Supreme Court Rule 367(e) is not ambiguous. The limitation of one petition for rehearing in the appellate court does not mean one per party. Defendant got a favorable ruling on a motion to dismiss the complaint. The appellate court at first reversed the dismissal, then on changed its mind after defendant timely filed a petition for rehearing. The appellate court vacated its initial opinion, entered judgment on the petition, and affirmed the dismissal. Maggio then filed its own petition for rehearing, which was denied. Maggio then filed an affidavit of intent to appeal, 56 days after the ruling on the first petition for rehearing. Defendant's motion to dismiss Maggio's appeal to the Supreme Court was granted. The Supreme Court ruled that Maggio had to file an affidavit of intent or a notice of appeal within 21 days of the ruling on the original petition for rehearing, and that the second petition for rehearing did not toll the time to perfect the appeal to the Supreme Court. Steinbrecher v. Steinbrecher, 2001 Ill. Lexis, Docket Nos. 89551, 89560 (Sup. Ct. 9/27/01). Failure to perfect a stay of a judgment to sell property to a non-party renders an appeal from that judgment moot. The Steinbrechers could not agree on how to occupy or sell property that they inherited, so one of them filed suit under the Illinois partition act. In August 1998, the circuit court confirmed the sale of the property to Moser, a non-party and highest bidder, and directed that a quitclaim deed be recorded in Moser's name. Rosemary Steinbrecher, acting pro se, filed a motion to stay the judgment on October 2, 1998. The circuit court denied that motion on October 30, 35 days after the judgment was entered. Rosemary did not move for a stay in the appellate court. The Supreme Court held that the matter was moot, and that jurisdiction therefore was lacking, because Rosemary did not perfect a stay within the time for filing the notice of appeal, as required by Supreme Court Rule 305(j). Salsitz v. Kreiss, 2001 Ill. Lexis 1069, Docket No. 89156 (Sup. Ct. 9/20/01). No waiver of the issue of arbitrability if a timely objection is raised in court, not just before the arbitrator. Plaintiffs began this action in municipal court seeking nearly $30,000 in unpaid expenses under a letter of understanding to invest $6,500 in a corporation. The defendants filed their own demand for arbitration. Plaintiffs disputed arbitrability, but the municipal court, giving deference to the arbitrator's decision, stayed plaintiff's court action. The arbitration proceeded, and defendants eventually got an award in excess of $6 million, including punitive damages. Defendants applied in chancery court to confirm the award. Plaintiffs opposed confirmation, and asked for review of the arbitrator's determination of arbitrability and that the award be vacated. Defendants argued that plaintiffs waived objections to arbitrability by participating in the arbitration hearings. The Court held that plaintiffs' participation did not amount to a waiver because they objected in a separate chancery proceeding to stay and enjoin the arbitration. The court distinguished Tri-City Jewish Center v. Blass Riddick Chilcote, 159 Ill. App. 3d 436 (1987), on the basis that Tri-City only notified the arbitrator that arbitrability was disputed, but did not ask a court to stay the arbitration. AFM Messenger Service, Inc. v. Department of Employment Security, 2001 Ill. Lexis 1079, Docket No. 89984 (Sup. Ct. 9/20/01). The "clearly erroneous" standard applied to review of an agency's decision of mixed law and fact. Delivery drivers for messenger service are employees, not independent contractors. Messenger service is liable for unemployment insurance contributions. Pursuant to an audit, the Department ruled that package delivery drivers were employees of AFM. The circuit court confirmed that decision, and the appellate court affirmed, as did the supreme court. The court ruled that the issue presented was a mixed question of law and fact - i.e., one involving an examination of the legal effect of a given set of facts. The decision is factual "because it involves considering whether the facts support the agency's finding that the AFM drivers are employees." There is a question of law because "the three statutory requirements for independent contractor status set forth in section 212 [of the Unemployment Insurance Act] . . . are comprised of legal terms and concepts requiring interpretation." Applying the clearly "erroneous standard," the court held that it was not error for the agency to rule that AFM did not establish that the drivers were engaged in an independently established trade. The evidence did not demonstrate that the drivers were able to operate an independent delivery business without the benefit of a relationship with AFM or another similar service. The Illinois Supreme Court decided a trio
of capital cases on September 27, 2001: People v. Hickey, 2001 Ill. Lexis
1080, Docket No. 87286; People v. Simpson, 2001 Ill. Lexis 1081, Docket
Nos. 85084, 86924; People v. Blue, 2001 Ill. Lexis 1082, Docket No. 87245.
In addition to the discrete legal issues in each, the cases discuss the
retroactivity of the new Supreme Court rules in capital cases, whether
the new rules define new constitutional rights for defendants, and whether
the new rules override a defendant's constitutional right to self-representation.
Hickey and Simpson reject retroactivity of the rules and the notion that
the rules are of constitutional dimension. Simpson states that the new
rules, which require that a defendant have two attorneys who are competent
to try a capital case, do not trump a defendant's Sixth Amendment right
to self-representation. Steve Merican is a sole practitioner in Oak Brook, Illinois. Steve’s practice is concentrated in appeals in state and federal courts. His URL is www.illinoislocalcounsel.com |
