Trial Judge Gets Hammered for Not Accommodating a Probable Disability of Trial Counsel and the ADA Not Even Involved

I started writing this blog on election day, which turned out to be very interesting by the end of it with President Trump winning both the popular and electoral votes. Of course, the next question is what does that election mean for persons with disabilities. We don’t know, but a few immediate thoughts come to mind. First, if President Trump’s first term is any indication, don’t expect to see web accessibility rules for private entities. Second, the Department of Justice under President Biden has been very supportive of persons with disabilities. I would expect a President Trump administration, if his first term is any indication, to have the Department of Justice turn to other priorities. Third, there is at least one EEOC Commissioner he will need to appoint, and you may see a new EEOC General Counsel as well. Fourth, one wonders if you won’t see a rush to finalize various regulations previously proposed and for which comments have been received, before the first week of January, assuming rushing that process is even possible. Finally, it is entirely possible that President Trump will be able to appoint new Justices to the Supreme Court thereby quite possibly putting a stamp on a majority of the Court for decades in the future. Of course, one never knows how a Supreme Court Justice will evolve, and when it comes to disabilities, how a judge views disability is not partisan.

Today’s blog entry concerns a case out of the State of Illinois that easily could have been an association discrimination claim under the ADA but turns out to have gone in a different direction. The case is Loyola University of Chicago v. Onward MSO, LLC, here, decided by the Illinois Appellate Court, First District, on October 30, 2024. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning reversing the trial court’s judgment; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

The case arises from a forcible entry and detainer lawsuit filed by plaintiff Loyola University of Chicago against defendant Onward MSO, LLC, a company which operated a restaurant on the premises owned by plaintiff. Defendant’s counsel had health issues during the proceedings, resulting in two continuances; after the second one, the trial court indicated that it would grant no further continuances and suggested that defendant retain additional or alternate counsel. Shortly before trial, defendant’s counsel had a health emergency which was unrelated to his prior condition, which resulted in his hospitalization. The trial court, however, denied defendant’s requests for a continuance despite strenuous objections and willingness to offer proof of the attorney’s medical situation, and the matter proceeded to a jury trial. At trial, defendant was unable to present its case, as it was not represented by an attorney, and the trial court ultimately entered a directed verdict at the end of plaintiff’s case. At trial, the owner of the restaurant was not permitted to speak nor present any evidence nor challenge plaintiff’s evidence. Accordingly, after plaintiff’s case in chief, plaintiff moved for a directed verdict, which was granted and was also granted a substantial monetary award. Defendant appealed. Eventually, the eviction was effectuated so the defendant no longer had possession of the property. As a corporate entity, a defendant is required to be represented by a licensed attorney at all times and does not have the ability to proceed pro se.

II

Court’s Reasoning Reversing the Trial Court’s Judgment

1. While the eviction being effectuated makes the eviction dispute moot, the eviction also came with a monetary award. Accordingly, the case overall is not moot and the appellate court has jurisdiction.
2. Illness may serve as sufficient grounds for a continuance even on the eve of trial.
3. The illness of a party’s trial attorney may warrant a temporary postponement of the trial.
4. The delays caused by trial counsel’s health was not particularly lengthy, six weeks.
5. The trial court’s statements appear to hold defendant responsible for delays largely occasioned by the litigation process.
6. Examining the timeline of the litigation, defendant received two prior continuances based on counsel’s health, with the trial court denying the third. The continuances resulted in the trial date moving from September 13, 2022, to October 28, 2022, which is slightly over six weeks. A six week delay in a trial is not so egregious as to warrant proceeding to trial regardless of the circumstances.
7. The trial counsel’s illness was not foreseeable even considering his prior health issues, which were related to a completely different set of concerns. In other words, while counsel’s health was the common factor in the delays, the subsequent illness is more similar to the analogy of a car accident rather than a mere continuation of counsel’s prior problems as the trial court apparently concluded.
8. The trial court’s suggestion that defendant seek additional or substitute counsel is not relevant because there is no indication that trial counsel would have otherwise been unable to appear as scheduled. In fact, defendant indicated that counsel have received a clean bill of health from his physician shortly before he became ill.
9. The trial court’s decision to deny a continuance was not based on a finding that the request was insufficiently supported as trial court acknowledged that it is accepted that counsel was ill. Also, nothing in the record indicates that the trial court was prevented from adequately considering evidentiary support for trial counsel’s medical emergency.
10. Trial court admitted knowing that counsel had been ill and was not asking for detail necessarily, but the court insisted on trial anyway.
11. Not granting the continuance resulted in extreme prejudice because the defendant with a corporate entity that could only proceed with counsel and not pro se. In essence, the defendant was rendered powerless to defend against plaintiff’s case. In particular, the defendant did not have the ability to: (1) present any motions in limine or object to those submitted by plaintiff, (2) participate in jury selection, (3) cross-examine any of plaintiff’s witnesses or challenge any of its evidence, (4) present its own evidence in support of its defenses, or (5) participate in a jury instruction conference.
12. Given the extremely harsh result of the denial, the relatively modest length of the previous delays, and the fact that the request for a continuance was based on the sudden illness of counsel, the trial court should have granted defendant’s request and continued the trial, at a minimum, for the 21 days requested by the defendant at the pretrial hearing.

III

Thoughts/Takeaways

1. This very easily could have been a case arguing that the defendant was discriminated against because they associated with a person with a disability. Either by statute or by regulation, every title of the ADA contains a prohibition on discrimination against persons who associates with a person with a disability.
2. In a case that we discussed here, we know that the Seventh Circuit is watching the conduct of state courts with respect to how they treat individuals with disabilities in their court proceedings.
3. After the amendments to the ADA, short-term physical or mental impairments if they substantially limit a major life activity can certainly be disabilities. We don’t know much of the facts in this case, but it would appear that the trial counsel’s emergency surgery would be a disability after the amendments to the ADA.
4. We do know that personal liability, with one exception in the 11^th Circuit, here, is not a thing regardless of the title of the ADA involved. That said, official capacity suits are certainly in order.
5. If an ADA suit had been filed, issues of judicial immunity and sovereign immunity would have come up. Another issue that would’ve come up is Rooker-Feldman. As we discussed here, Rooker-Feldman might not be an issue in such a case. Also, since accessing the courts would be the right involved, sovereign immunity may also have not been a bar per Tennessee v. Lane, here. While it is possible that these defenses could have been circumvented in an ADA suit, accomplishing that may have been complicated and not easy. So, that might explain why the ADA was not involved. It is also possible that the ADA was not involved simply because it didn’t occur to trial counsel to raise it.
6. Another issue that could have been raised is whether the trial court’s actions denied the defendant the right to counsel of his choice.
7. The case illustrates nicely that there may be alternatives to ADA claims even when the ADA is violated. Those claims may in fact be easier to deal with than the ADA.
8. It would be a completely different story if this involved a federal judge whom does not work for an executive agency because such federal judges are neither subject to the ADA nor to §504 of the Rehabilitation Act. That said, one has to assume that the vast majority of federal judges, if not close to all, would not behave this way.
9. Hypothetically, if this did occur in a federal courtroom by a federal judge not working for an executive agency, one wonders if a workaround would not be going after the attorney arguing for the trial to proceed. The theory would be if the attorney works for the federal government, that attorney would be discriminating against a person associating with a person with the disability in violation of the Rehabilitation Act (the Rehabilitation Act does not contain any association discrimination provisions. However, some courts have said that such a provision must exist because the Rehabilitation Act and the ADA get interpreted the same way. However, the courts are split on this question. So if you are faced with this issue, checked your jurisdiction). If the attorney was a private attorney, the argument would be that the person was discriminating against a person associating with a person with a disability and was also interfering with the protected rights of an individual to advocate on behalf of a person with a disability in violation of 42 U.S.C. §12203(b). While this case did not happen in federal court, as readers know, I always enjoy thinking outside the box and getting people to think of possibilities they may not anticipate.