good morning welcome to the only supreme court call the docket today thursday september twenty eighth two thousand and twelve the first case is agenda number twenty two case number one one two three four one guy's  action in the state case this court stated that the elemental determination that some class members may not be allowed to recover due to some individual factor again does not bar a class action as we set forth in our arguments if those considerations are statute is supposed to bring together common claims that are unified by a common issue and in this case the common issue is the legality of the city's practice of issuing flyby violations that was the basis upon which sort of occasion was based in conjunction with the fact that there were numerous plaintiffs at least two hundred ten if not much more than that the impracticality of entertaining the appearance of that many plaintiffs in a tribunal and the fact that these claims were in the aggregate very small the individual find for a fly by violation is thirty dollars the average claim of about eighty plaintiffs as the record shows was about thirteen hundred dollars which is not enough to warrant individualized  as some of the cases have said the whole case and the ice case that we cited in the reply the need for individualized determinations not defeat class action and once you determine the litigate you become an questions individual matters concerning particular class can be resolved in ancillary proceedings there will always have to be a determination of what was done to each individual class plaintiff but to say that that means they will have to be a trial all the time would essentially make the class action device meaningless because again once you define as you define or determine what the illegality come in practice which was done here all that's left to decide who did it happened to the class plaintiffs as they claim or did it not happen to them but  well as we argued under our definition it is it first of all the lemon case from this court said that liability is a legal obligation a responsibility and forcible by civil remedy or criminal punishment the legal obligation and the city here is afoul of the state it does issue flyby violations to determine the galley that practice as we have argued is a decision on the merits it is a determination of what you did is wrong and we think that that is a decision on the merits all  left then as as hall in that annex and other cases would say is now decided if it who would happen to and that's what judge siegel said when he entered his order saying that the practice was illegal he said i don't know how often it was done we'll worry about that down the line but i think that answers your question the point is it is a decision on the merits it was a it was a statement that you did something you admit you do it you've put forth arguments why the city said we did this because taxidermists fled and we could they became confrontational belligerent whatever and judge people heard those arguments considered them and said you know what the statute is what it is and you have violated it and we submit that that was a determination of liability i don't know how also how also could be characterize and with that definition with that finding as we said in our in our previous i think and the one in this case could be said to be extremely simple if you allow determination as to the legality of the practice said issue whatever it is the common legal issue that that makes this a class action if you out term nation as i would you know that practice to then serve as a vehicle for seeking the sort of occasion that will create an exception that will swell the class action statute because then all defendants will do that and it's a win win scenario for defendants because if they file a summary judgment motion saying we we did this whatever the accusation is against as we've done it but we think that it doesn't ballot any statute or anything and if that's motions granted then the case is over and the defendants win and if the motions denied and if but if the course was you know what you did wrong now the defense will come back and say well you've now decided what the kind of legal issue is we don't need to have a class anymore let's just let all these plaintiffs you know litigate their own individual claims but that is antithetical to the purpose of the class action statute which again is premised and the idea and the notion that these individual plaintiffs it's impractical for them to litigate their individual claims so again to come back to where i started in the beginning the reason you sort of find the first place should guide how we define a decision in america so we don't have the scenario that has happened here which is the city comes in instead and tries to win which they're entitled to do but once they make that attempt and of course there's no what you've done is wrong now we have now that the focus has shifted and in the plainest position is is the sort of course of terminations that the city's practice of issuing flyby violations was in fact a decision on the merits and these two of kind of blended into the session i've made so far and the answer to that we submit is yes the court again said what you did was wrong and to be told your conduct is wrong it fits if that's not it i know it certainly but if it's not a determination of liability i don't know how it could be characterized they were found to be in violation of state statute and chicago's own ordinances and how with these sort of these say that that's the same as an individual trial that again that's going to happen in every class action statute and i think again that would create a situation that would an exception that would swell the rule because that same arrogant can be made about every class action at some point you've got to decide who are the victims of the alleged misconduct on the part of the defense somehow that has to be decided and i know that that kind of gets into the shades of the smith case from this court where that where this court said week if you're going to have individual trials it's a proximate cause that's not really a proper vehicle for class certification but as we said in our in our briefs smits involves a train derailment in which there was exposure to toxic chemicals and this quote said the thrust of the injuries do not come not itself but they come from the exposure to the chemicals and there are varying circumstances in which the various plaintiffs were exposed to the chemicals and due to those differences in you know intensity of exposure or just the  chemicals and everything else that's not a proper vehicle for class action treatment that's not what we have here the appellate court in the s three seven management case one of the cases we cited so if you have a common practice uniformly applied that is ideal for class action treatment and that's what we have here the city admits that it issues flyby violations it's a common practice how often it's done we don't know but it's a common practice uniformly applied the city does it that's proper for class action treatment and again if that's why we sort of fight in the first place it should not be then allowed to be undone by a determination down the line that the practice is illegal but then that still lets the city or a class action defendant more generally try and he said none of these are for the fences bars plaintiff michel's claims and it was not because he found the existence of some question or issue of material fact it was because he said each of those doctors were in apple because of legal reasons the city did not challenge the legality of the practice of flyby violations the voluntary payment doctrine did not apply because the taxicab drivers had to pay in or compulsion to renew their medallion licenses the point is these determinations while he denied summary judgment the substance of his order was these offenses don't apply and that's it he didn't do for a ruling or say we need a further factual record to decide whether they do or do not apply he said they don't and again that's a determination on the merits and if anything as we argued it's a final judgment it's a final judgment as to those defenses the statute section to address you know to says the class action stat certification is conditional and can be amended before a decision on the merits as decision made clear a decision on the merits is something less than a final judgment and that's based upon the text of the statute it is based upon the patterning of today as you know to the term decision on the merits after the counterpart in the federal rules of civil procedure and his base as russell as he noted and the fact that the federal rule was changed from decision on the merits to final judgment but the general assembly here did that make the corresponding change to section two does she go to and as a law you noted that means that decision on the merits under our statute is not the same thing as a final judgment when you break down for us what you believe is the difference between a decision on the merits and a final judgment and that's the larger question my specific question to you is you said that the rejection of affirmative defenses were and then i'm not sure if you say  said that was a final judgment or did you say that was a decision on the merits no it's these terms certainly sound are similar i'm senate probably a little bit more and ask you to try to drive distinction between the definition of one from the other ok i did say that judge cbers rejection of the cities or from the census was a final judgment i did say that i said that the appeal if there was a three or four a finding certainly but there was not a rejection of the defense could be appealed to some to three claims you're saying a defense is a claim well maybe i should backtrack the the way he did is he ruled that these claims did not apply i do think that's a final judgment because he said your ability to raise them is effectively extinguished you can that he foreclose any possibility that they could be applied in the future that's what he did he said these offenses you're raising as a matter of law don't cut it and they do not defeat the plaintiffs claims so what he did is he i think he said he entered a judgment to that effect that these defenses don't apply if he ruled on the substance of those claims he didn't say there's a question of fact that they need to decide or that precludes me from saying or collateral attack doesn't apply he said based on the facts i have i can tell you these defenses don't count that is that is a claim in the sense that it's a firm defense or is it a claim said perhaps not but he entered a ruling that for close the application of that defense that has to be was the difference between a final judgment and very nuanced term of art which is obviously what you're discussing  no class action he files a lawsuit and there was a trial and the court says you received ten flyby violations improperly there are three dollars each judgment entered for you for three hundred dollars plus whatever cause you may have incurred in defending against them that is the traditional final judgment relief was ordered a determination of improper conduct is made in some sort of remedied be it monetary or injunctive is is issue that's the you know the common definition of the term a decision on the merits is different as russell was you know did it doesn't need to be final and two to use example i've been making so far the example would be what judge siebel did when he said the issuance of flyby violations violates the law but that's a decision on the merits because he considered the facts as they were at the time that the city's admission that it did this the evidence submitted in the third amended complaint alleging that this practice occurred to various taxi drivers the affidavits of counsel and some of taxidermist that were submitted in support of the motion those things were considered so the judge made a factual determination as to what the city did was doing whether it was right or wrong he did that take the second step of saying ok now what happened to you know class plaintiff ten and thirty but not to the others but that doesn't but that is how i would differentiate between a decision and a merits and a final judgment does it make a difference that the motion before the court was in motion for a partial summary motion that was drafted by counsel explicitly said we're not seeking a determination or a finding as to how many times this practice happened were we just want to get a determination that it was illegal determination of liability yes what they did was wrong  again under loman and i think under our definition of the term if someone court says what your conduct your conduct is wrong it violates those both the law that's a determination of liability you know i've done something wrong the question well that's a good point your honor because the city admits it did it it's not as if the city came in and took a position in responding to the motion for partial summary judgment saying we don't do this we don't know what you're talking about the city admits it did it they've admitted it in  consistently in the responses filed in the circuit court and their papers an appellate court lieutenant man's deposition that's in the supplemental supporting record and this court they have always said we do do this but what they say is we don't do it a lot and we only do it because he's taxi drivers fle the scene or become abusive but they say we do it so this is not an abstract determination do they do it or not they admit they do it the only question really is who did you do it to and it's our complaint sets forth they've done it to taxi drivers their liability extends through this class what needs to be determined is how many members of the class worse were victims of this misconduct and that's what the ancillary proceedings and that's what i think the purpose of the class action step it's all about once you decide they did something wrong now we've got to figure out who suffered from it and you should not splinter a class action should not define decision on the merits in a way that allows a defendant to come it would be a decision on the merits or is the nature of these it's the nature of these your honor because again the what the city did is filed a motion for summary judgment regarding its affirmative defense and generically speaking today of a motion for summary judgment is usually based on the presence of an issue of material fact in the abstract so there i would say no but here judge people went through in detail in his order about three or four pages in the record and explaining why none of these defenses ever could apply not just that they didn't or that he wasn't sure they'd could not ever apply is what he said and that makes that ruling a decision on the merits he city was coming forward with some further theories as to why it could do what he did or why the complaint did not have merit and judge people said no none of this counts that's why we submit that those decisions are those that ruling is and it is a decision on the the last question then running out of time the last sort of a question concerns the statue limitations issue that also was a decision on the merits because what the judge did what judge probably did no justice farmer did is he ruled that the five year statute applied versus the one you're and dismissed claims that is a final judgment thank you thank you mr schroeder counsel for the apple e please good morning i'm suzanne most assistant corporation counsel who represent the city of chicago may please the court this case presents for certified questions the first of with which asks what is a decision on the merits and the remaining three asking court to apply that definition to three specific partial summary judgment rulings in order to determine whether each was a decision on the merits that cut off the time for the court to entertain an amendment to the class this morning i will explain that a decision on the merits requires a determination of liability based on the ultimate facts and that none of the three partial summary judgment rulings amounts to a decision on the merits and also how alternatively even if they were those decisions to not cut off the time for  decertification with respect to the main issues beginning with the definition and the appellate court defined a decision on the merits to do to be a decision in which there must be a complete determination of liability on a claim based on the facts disclosed by the evidence we submit this is not really much different than plaintiff's formulation at least when you look at the verbiage mr mitchell would use would define decision on the merits he did as a decision that decides the rights and liabilities of the parties based on the ultimate facts upon which recovery depends and regardless of whether a decision is final or non final to be clear we do not disagree with the assertion that finality is not required for that to be a decision on the on the merits and nor did  court cannot be more clear that it was separating decision on the merits and finality when it explained on page eight of its opinion that a decision on the merits requires a determination of why ability while while a final judgment will include that committee was changing from the term decision on the merits to a final judgment in order to make clear in federal court that a decertification amendment to sort of patient could occur all the way up until final judgment even during the damages phase illinois statu does not make that final doesn't the cut off but it does allow amendment all the way up till a determination of liability and as a practical matter it seems clear that the point of setting the cutoff at decision on the merits is so that occasion will be settled before all the litigation that could be saved or properly managed by such a ruling has already occurred and so that a many sort of occasion won't take away rights that have already been established and that was the point in the appellate court's decision ross allow ski where there had been a whole jury trial and a verdict and judgment entered on that verdict when the decertification motion was filed and granting it meant a do over after y billet had been established as i will next explain in addressing each of the partial summary judgment rulings that's not the situation here there was no liability determination that would be undone because there still needed to be a specific trial with respect to each of the tickets before the city's liability anyone the court decided the legal issue and announce that it makes no declaration as to the remaining issues including the number of fly by tickets there was no liability set in stone by that ruling mr mitchell combines two things otherwise the city's admissions about when it is issued flying tickets and that this court determined that issuing flying and find tickets under any circumstances is illegal under the vehicle code  is important to stop and examine what that those admissions were or what lieutenant make may and testimony was and what it was not to understand why it did not necessitate and in fact did not lead a finding of liability lieutenant may and testimony included testimony that traffic control aids its policy of the city to serve tickets by hand or on the vehicle unless the driver becomes confrontational or when a motorist leaves before the traffic control aid can affix a ticket she was not testifying about any particular ticket when she discussed that policy and this is not a class a fleeing or confrontational motorists it's a class of taxi drivers who said they received flying tickets that the plaintiff would still need to show evidence of taxi drivers who were fleeing or confrontational in order to show that they were in the group that lieutenant manned acknowledged ticketing and they didn't show that at summary judgment at summary judgment none of the taxi driver said in their affidavit that they were confrontational or when they were issued has to be some motorists in general and the general population this is a class of taxi drivers who say that they were issued flying tickets and also in their affidavit said that they weren't fleeing they didn't mention whether confrontational but they certainly have not put together evidence that the taxi drivers did not link themselves to this group of flinging confrontational motorists that the city acknowledged it would in rare circumstances issue fine take it i mean those are the re the point you need a trial to determine they come based of course they have a large number of taxi drivers who say that's exactly what happened but but our position is that well we need to have them testify and be cross examined that you know a trier of fact might not find them credible  there are plenty of reasons to to question the credibility of these taxi drivers and we do know that the city's policy does not extend to to that but more misuse how do you address plaintiff's argument that there were what we argued was that those affidavits were not admissible because they were self serving statements and we pointed out also pointed out a host of reason to call into question of witness credibility the witnesses simply sign boilerplate affidavits without specifics referring to their own deposition testimony that you know all of them were deposed of course but of there were reasons within you know some twenty of the taxi drivers who were opposed to question of credibility when they couldn't remember what happened on the date  in one instance one of the taxi drivers couldn't explain why many of the tickets were issued in front of his house those sorts of things and so we submit a fact finder would would not be required except their testimony  if they were cross examine and deemed not credible well we saw a second notice is usually sent by mail as well even when the taxi drivers are hand served but of course whatever evidence of course we don't dispute that the taxi drivers would have some evidence on the table to show they were issue fine ticket but we but we could we would be free to cross examine perhaps put on a traffic control they did it for any particular ticket to determine whether or not that this is a big divide between what the taxi driver say happened here a common practice widespread and what we say happened very rarely when the traffic controller was riding out the ticket and the motorist flee and we need those individual trials to determine exactly what happened and most important for present purposes at this juncture the issue is the scope of the circuit court's ruling and not whether it was correct on these issues and the court agreed with the city the judge declined to rule that any of the more than two on the merits of the individual proofs sometimes do bar classification under the statute when they predominate over the common questions and individual proof may or may not be necessary to establish liability in a given class action there may be a liability before individual evidence is taken for example when it is in fact uncontested that the defendant engaged in certain conduct that injured an identifiable alleged misrepresentation the court did you know the court could determine the fee or the same in a letter is illegal and there may be a finding of liability and that leaves identification for later but here to show liability at all and that's exactly when is a good time to take a step back and examine whether the class certification standards are met because you're looking forward to hundreds or by plaintiffs estimation potentially thousands of trials that would be  we know whether there's been a decision on the merits it cuts off the court's ability to even to assess whether or not this should properly proceed as a class action so whether the judge was right or wrong in the summary judgment ruling the key inquiry here is what did the judge leave open for trial and did he decide liability and the answer to that question is no he left open whether the city would be liable to any of these taxi drivers and so there is no decision on the merits by that ruling collateral stop or involuntary payment that ruling of course meant those defenses were foreclosed to the city but it did not eliminate all defenses and so it did not accept its liability the city still had the same basic defense left for every plane that the flying tickets were not in fact issued to the particular drivers so the rejection of the city's affirmative defenses did not decide the party's rights and liabilities either  the statute of limitation grounds is not considered on the merits because the merits of the action are never examined in fact in the context of class action litigation and the section of limitations ruling was in effect simply itself a redefinition of the class not reaching the merits of the alleged illegal misconduct but shaping who can be in the class and the ideas that sometimes are technical a procedural barriers to live below the which are not based on the evidence or elements of the claim about the wrongful conduct in the case in other words this court has placed a statute of limitations ruling in the category of decisions based on formal technical or dilatory objections excluded from the us freedom and certification for issues not yet resolved section two eight zero two should be interpreted in light of the statute as a whole considering its purpose and to prevent absurd results under section  two we know that a case can be certified as to some issues and not certified as the others and section two a two is a rule that allows for flexibility when you have a mixed bag some issues appropriate for class treatment while others may not be plaintiff's reading on the other hand that would mean a judge cannot even issue anything but routine rulings on procedural matters in the tween a certification order and a motion to amend certification not on purely legal questions not on partial summary judgment judgments that eliminate claims or narrow the class any type of ruling on some of judgment motions according to the plaintiff takes amending certification off the table no matter how informed of the evidence do you store the rulings on those  on those matters on those motions inform the classroom patient question and no matter how clear it becomes that individual questions predominate a common one and this makes sense as a practical matter it's because it's the rulings along the way that shape and define the issues for trial and shed light on where there are and are not disputed issues individual questions of fact a judge has a lot more information after some discovery and summary judgment proceedings than and the early stages of the have to but it must respect the fact that that's what the general assembly wants and unless until the general assembly changes the definition and changes section to dish it out to that's where the line is drawn that's what legislatures do they d on the city's argument that reading that you're espousing would eliminate the court's ability to consider whether they should turn your complete dominate over an individual even when they're making hundreds o number of other questions that might arise or viability is actually established there is obviously a need for some flexibility in the class action device but there's a got to be cut off point that the general stanley has drawn the judge said just questions of fact about this or that that would have not be a decision on the merits there is flexibility i understand the need for that to the class plaintiffs do the council do we understand that but at some point it has to stop because that's what the purpose of today's show you go to the defense confound motions before certification if it winds through this motion regarding the gallery is that his practice they could have filed their own motion before the class was certified the point is somewhere you have her into broken the law if that isn't liability i mean again i'm going circuit i don't know what is what would you call it if it's not a dirty terminations of liability it's not an abstract hypothetical fighting because the city has admitted it does this on the bottom of appellants we quote from the city's response to the summary judgment motion that was filed in the circuit court and it says quote enforcement personnel are directed to make every effort to hand serve these notices and in the rare case when they do it when in the rare case when it can't be done it's not but then it says this written practice has been communicated to all police personnel by a written order that's not a rare occurrence at least where the plaintiffs sit and with all due respect with timing man we don't have to take her testimony face value either the plaintiffs are free to say you know what this is a revenue generating device and these traffic control eight are sent out with quotas and they're told to do what needs to be done so to say it's rare isn't germane necessarily to this proceeding but you know the pressure reality is the plaintiffs in this is a lot more extensive than the city is willing to admit and we don't have to take lieutenant mcmahon at face value individual determinations will need to be made but again as your honour's of pointed out as we have argued that's that happens it's inherent in every class action somewhere someone has to decide if it happened if there's two hundred class plaintiffs did it happen all two hundred if there's two thousand did it happen any or all or some of the two thousand that's nothing remarkable so for the city to say we want to challenge their cross we want to challenge our credibility want to cross examine them they're going to do that anyway and they would do that they'd they were going to do that for the data suit was filed that hasn't changed there are no new circumstances that make this any different the desire for flexibility goin admirable and to an extent the plaintiffs agree with that but again there must be a point where it stops and that's what to address you know to is all about that's what decision on the merits is all about it's the decision and the definition we are advocating is consistent with this cour rulings it's consistent with ross allows you to consistent with how the general assembly did that act after rule twenty three was amended federal civil procedure twenty three was amended it's consistent with all those all that authority and all top of the other illinois cases we cited about insider proceedings and how the the purpose of class action is to bring in plaintiffs who don't have an individual cognizable cause of action that practically can be advanced i said this in the appellate court i'll say here even if you take the average of fifteen hundred dollars how many attorneys are going to take a fifteen hundred dollar case and when they get it against the city of chicago when we know we're going to have all these are from the fences raised and it's going to be a long drawn out ordeal it practically speaking these plaintiffs are going to have no recourse at all itself should not drive the outcome of whether this is or is not a decision on the merits but it has to be part of the analysis at this court considers in deciding what is a decision on the merits it is consistent with the purpose of the statute is consistent with the case law and the federal counterpart to say that it's a determination that your conduct is wrong is a decision on the merits more broadly speaking how do we define the term be ended that particular circumstance which is present in this case the definition we propose we believe does that is patterned after the reason we got into account the fact that there are some individual plaintiffs that if they have to proceed forward they proceed on a fifteen hundred case against the city of chicago when what this court rules with respect to the decision on the merits will only affect this case and one and most probably will be used in other cases outside of the clas are you asking what happens if the nucleus you said to take into account the fact that a number of cases won't be brought most likely because of the expense involved the ultimate outcome of that is correct if the class is and you said we should take that into account maybe to a lesser extent in deciding what a decision on the merits of whatever we say with respect to the certified question what with respect to water this isn't on the merits it's going to affect a lot of other  most likely will be used outside of the context of a class action cases and whether to decertify classroom i don't know if it be used outside the cash it's a class action cases if you answer the certified questions you're defining just term under the class action statute i think raise in front of would say ok well there's some subtle differences between class action cases and read through the kind of cases that dead while i can pattern and look for similarities i don't have to do this in some sort of blind lockstep fashion and say what the supreme court in the shall define other cases down the line but i don't think that should be something that should be an impediment to this court saying in the way of the purposes of the class action statute this is how we define the term here and if the general somebody doesn't like it they'll change it that and that's something that should be considered remembered as definition facts disclosed by the ultimate facts or state a facet closed by the evidence whether it be the pleadings or evidence submitted in motions is proper to consider and therefore these people are in the class the city alleges it issued flybys