This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2008

Late in 2006, I received a referral from a local attorney to defend his victory in Kendall County on a suppression motion that the State was seeking to overturn on appeal. At that time, I thought my work in People v. Brent Marker would be restricted to the unexceptional task of upholding the discretion of the trial judge to grant the motion to suppress. As you know, it is the Appellant (here the prosecution) that carries the laboring oar to overturn a decision of the circuit court. Little did I suspect that the Appellate Court would issue a lengthy opinion concerning a jurisdictional point that would overturn over 30 years of precedent.

After the prosecution filed its brief and I received the record, I noted that the State filed its notice of appeal more than 30 days following the ruling of the trial judge suppressing most of the State's evidence. I knew of the long custom and case law permitting the State to file motions to reconsider rulings of trial judges, then awaiting decisions on those motions before filing a notice of appeal. But as I considered this hallowed procedure, the question of how to calculate the 30-day deadline for filing a notice of appeal made me think of the 2nd District case of People v. King, 349 Ill.App.3d 877 (2004). King ruled that the defense had to comply with a 30-day deadline for filing an interlocutory appeal from denial of a motion to dismiss on grounds of double jeopardy. Even though King's criminal prosecution remained pending in circuit court after denial of the motion, the 2nd District determined that the failure to file the appeal within 30 days of denial of the motion precluded appellate review until the imposition of a conviction and sentence. Moreover, when Supreme Court Rules allow for interlocutory appeal in civil cases, the filing of a motion to reconsider does not toll the running of the 30-day deadline. (See Law Offices of Jeffery M. Leving, Ltd. v. Cotting, 345 Ill.App. 495 (1st Dist., 2003) and Trophytime, Inc. v. Graham, 73 Ill.App.3d 335 (4th Dist., 1979)) Something just didn't seem right.

Of course, the arcane rules of appellate procedure need not treat civil and criminal appeals with perfect symmetry. Different rules govern the same aspects of civil versus criminal appeals without any requirement of consistency. Nevertheless, I wondered why the State should have a different deadline for filing an interlocutory appeal in a criminal case than the defense or why different deadlines would apply to State criminal interlocutory appeals as compared to civil interlocutory appeals.

My curiosity aroused, I researched the case law allowing the State to toll the deadline for filing a notice of interlocutory appeal by presenting a motion for reconsideration to the trial court. I discovered that the pertinent case law stretching back for more than 30 years could be traced to a decision in a civil case, namely Childress v. State Farm Mutual Automobile Insurance Co., 97 Ill.App.2d 112 (4th Dist., 1968). In fact, the opinions appeared to piggy back from one ruling to another, each relying on the preceding decision. Apparently, everyone took for granted that these decisions rested on valid legal principles, since none of the opinions contained language indicating any party had challenged this "reconsideration mentality."

Based on this research, I filed a motion to dismiss the appeal pursuant to Supreme Court Rule 361(h). This rule directs the Appellate Court to decide certain jurisdictional motions at an early stage of the case in order to dispose of some appeals before reaching their merits unnecessarily. However, the Court denied the motion without comment. Not to be deterred, some months later I filed a request that the Court consider the motion again along with the other issues raised in the briefs. (You might say that I asked the justices to "reconsider" their earlier summary denial of the motion to dismiss.) Because reviewing courts are required to consider their jurisdiction even if the question is not raised by the parties, I did not face any procedural obstacle to this request to revisit the defense claim. In the event the Court denied the motion again, I could still hope that the opinion or Rule 23 order would address the justices' reasons for granting or denying relief, which were not articulated in the first order denying the motion.

Several months later, the 2nd District issued a lengthy published opinion granting the renewed motion to dismiss the State's appeal. (382 Ill.App.3d 464 - May 1, 2008) Basically, the Court determined that the nearly 40-year-old civil case that was the font of all subsequent rulings on this jurisdictional issue was not a valid basis for retaining the old tolling rule. Instead, the reviewing court adopted the same interpretation of Supreme Court Rule 606(b) to calculate the appellate deadline here as it applied in People v. King to an interlocutory appeal by the defense. In other words, the State must now make a decision on whether to appeal an interlocutory order within 30 days of the ruling and cannot extend the deadline by filing a motion to reconsider. Although motions to reconsider are allowed, they must be filed and ruled on promptly so that the 30-day deadline for filing the notice of appeal does not expire before the court reconsiders. One justice dissented from the ruling, emphasizing that public policy and the principle of stare decisis favored the application of settled law on this subject.

Just to keep the pot boiling, on the same date as the entry of the opinion dismissing the State appeal, the Appellate Court issued a certificate of importance under Rule 316. This rule permits the intermediate reviewing court to send its own decision to Springfield for further review because the case "involves a question of such importance that it should be decided by the Supreme Court." The State has filed its initial brief in the case, but further briefing and argument await us.

In a separate appeal, my brief argues that appellate jurisdiction is lacking where the prosecution purported to take a direct appeal to the Supreme Court from a trial court declaration of the unconstitutionality of a criminal statute. Because this type of decision is also interlocutory in nature, I argue that the filing of a motion to reconsider the finding of unconstitutionality does not extend the 30-day appeal deadline. Acceptance of my argument would mean that the Marker rationale applies to State appeals from other types of interlocutory orders, not just suppression rulings.

The moral of this story is that sometimes your instincts can prompt enough digging to disclose a weakness in the foundation for a legal doctrine. Persistence paid off -- at least for now!

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.