Law Firm Publications
Contributing knowledge and sharing expertise are important elements of leadership in the practice of law. The attorneys of Kinnally Flaherty Krentz Loran Hodge & Masur P.C. have been educating the profession for years. Some of those contributions are outlined below.Jurisdiction Stripping and the Presumption of Judicial Review: Who Gets to Make the Call in 2020
By Patrick M. Kinnally
February 2020
To many practitioners, including myself, Congress’s authority to strip federal courts of jurisdiction to hear certain cases, emanates in our politic because Congress does not like what federal judges might rule, or more probably it wants to control the outcome from the beginning. This seems troubling. Patchak v. Zinke 137 S. Ct. 2091 (2017) (Patchak)
Yes, Congress has the power to enact laws, even ones which define or limit the jurisdiction of federal courts. Do legislators have the authority to tell a court to dismiss a case based on statute they create? Or, prescribe a certain outcome in single controversy? See Peck “Congress’s Power Over Courts; jurisdiction Stripping and the Rule of Klein,” Congressional Research Service (August, 2018) (Peck).
Promises Kept and Unkept and Quasi Contracts
By Patrick M. Kinnally
December 2019
Recent opinions in Illinois courts have brought into focus contract enforcement in both private and public settings. As to the former, at least as to voluntary unincorporated associations (765 ILCS 115), the likelihood of strict construction as to a party's ability to contract is paramount. 1550 MP Road LLC v. Teamsters Local Union 700, 2019 IL 123046 (" MP Road').
Apparently, it can be different where municipal actors are involved. Our appellate court has restated what appears to be a remedy which is simply restitution. It is called "quasi-contract." Restore Construction Co. V Board of Education, 2019 11.App.(1 st) 181480 (" Restore'); and Karen Stavins EnteIprises v. Community College District 508, 2015 I1.App.(1 st) 150356 ("Stavins'). But before we get to that analysis, let's go back and review what we all learned in our 1 L contracts class in years past.
Pleading Guilty in Illinois Courts: A New Judicial Admonition Rule
By Patrick M. Kinnally & Cindy G. Buys
November 2019
Due process requires that acceptance of a guilty plea be a "knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and the likely consequences."1 In light of this commandment, the Illinois legislature passed a law in 2004 requiring that state judges admonish defendants regarding the possible immigration consequences of a guilty plea prior to accepting that plea.2 Unfortunately, not all judges complied with this command. As a result, some foreign defendants accepted guilty pleas not knowing the consequence would be deportation. When they discovered the immigration consequences of the guilty plea, some attempted to vacate their plea on the grounds of lack of notice and take their chance at trial, but the Illinois courts refused to provide any remedy for the judiciary's failure to comply with the law.
To correct this problem and ensure respect for the original legislative intent, the Illinois State Bar Association, through its International Immigration Section Council, drafted an amendment to the Judicial Admonition Statute relating to guilty pleas.3 The new law,,i which Governor Pritzker signed on August 16, 2019, states:
Publication 43
"Consular reviewability: It is time for the main event," by Patrick M. Kinnally, The Globe, Illinois State Bar Association, March 2019 (Click here to read)A keepsake: The Due Process Clause in civil litigation-People v. Gawlak
By Patrick M. Kinnally & Cindy G. Buys
March 2019
In the civil litigation fray, sometimes we get lost in motions, discovery, a new evidence code, briefing schedules and memoranda of law. Fundamental concepts such as the right to counsel under the Due Process Clause right to have a private attorney assist in civil litigation get overlooked in the maze of special interrogatories, requests for admissions, or perhaps a new jury instruction on implicit bias. Let's stop for a cup of coffee. 1
More than eight decades past, nine African American men, 20-years-old or younger were accused of raping two white woman while hoboing on a train in the rural south. They were charged in Alabama and convicted in three trials held within days of arrest. They claimed their lawyers, privately retained were not afforded time to prepare for their criminal prosecution hearing. Indeed, they were not. Our Supreme Court so held
in Powell v. Alabama.2
The issue in Powel/was not the 6th Amendment right to counsel in a non-capital felony case. That guarantee would not be realized until Gideon v. Wainwright, 372 U.S. 335 (1963), thirty years later. In Powell the court noted:
Presumptions and powers of attorney
By Patrick M. Kinnally & Cindy G. Buys
July 2018
Recently, the appellate court filed an opinion that, on first reading, seems innocuous. It hardly is. The facts of Collins and Richard v. Noltensmeie? are not complicated.
married or had a civil union. Billy had a terminal illness in 2011. A week before he died, he appointed Patricia as his agent under an Illinois Statutory Short Form Power of Attorney for Property ("POA"), and as his sole beneficiary under his will. Under the POA, Patricia had the "power to make gifts, exercise powers of appointment, name or change beneficiaries under any beneficiary form or contractual agreement." This provision would appear to imbue Patricia with broad powers. It would seem to be what Billy wanted Patricia to be able to do with his property. Yet, this is not what happened in Collins.
Trails, tribulations, and tort immunity: Then and now
By Patrick M. Kinnally
February 2018
Sometime ago I authored an article that addressed tort immunity statutes as applied to my client, the Kane County Forest Preserve District ("Happy Trails: Immunity from wilful and wanton conduct for local public entities" ISBA, General Practice, (2004) Vol. 32, No.7). The article was based on the results of jury trials tried at that time. The precept of willful and wanton conduct was in play. Lawyers and judges wanted to understand what that meant to a jury. (See, Burke v. 12 Rothschild's Liquor Mart(1992) 148 Ill. 2d 429, Ziarko v. Sao Line R.R. Co. (1994) 161 ///. 2d 267, and Poole v. City of Rolling Meadows 167 Ill. 2d. 41 (1995).
Two of the cases were reported. The first addressed whether a forest preserve district was liable for an injury where its duty was based on the existence of a condition of public property intended to be used for recreational purposes. In such an instance, the public entity is only responsible if its behavior amounts to willful and wanton conduct. (745 ILCS 10/3-106 (A.D. v. Kane County Forest Prese1ve District(313 Ill. App. 3d 919) (2000) [A.D.].
The jury instruction on what constitutes willful and wanton conduct says:
