This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in February, 2006
I. WAUCONDA AND LYLES
I interrupt my multi-part series on practical appeals advice to discuss the impact of two recent Supreme Court decisions on the jurisdictional aspect of appellate practice. In Wauconda Fire Protection Dist. v. Stonewall Orchards, LLP, 214 Ill.2d 417 (2005), the Supreme Court excused the filing of a deficient affidavit of intent to seek leave to appeal, which would normally result in dismissal of the litigation. Instead, the Court ignored the unsworn nature of the affidavit and accepted the late filing of the petition seeking Supreme Court review. In People v. Lyles, (docket #98357, December 1, 2005), the high court excused the failure to challenge the dismissal of an appeal within the time required for the Appellate Court to retain jurisdiction of the case. Despite the resulting loss of jurisdiction, the Supreme Court reinstated the appeal for consideration on the merits.
Thus, both rulings determined that the Supreme Court can excuse compliance with its own rules of appellate procedure and thereby reinstate appellate jurisdiction. The magic phrase permitting this departure from the Supreme Court Rules is "supervisory authority." Both Wauconda and Lyles invoke the constitutional grant of this authority1 as justification for excusing compliance with the rules of appellate jurisdiction. Citing McDunn v. Williams, 156 Ill.2d 288 (1993), Lyles described the supervisory authority of the Supreme Court as "unlimited in extent" and as a legal source that "grants jurisdiction."
Wauconda explicitly retreated from previous rulings that strictly applied the concept of jurisdiction to the Supreme Court, as well as to the lower courts.2 The opinion re-affirmed that the jurisdiction of the Appellate Court attaches only upon compliance with the rules governing appeals. Neither circuit courts nor the Appellate Court may excuse compliance with these rules. Similarly, in Lyles, the Appellate Court could not reconsider its dismissal of an appeal following the passage of the deadline for filing a petition for rehearing or a motion requesting an extension of that deadline. However, the Supreme Court (and only the Supreme Court) can give or take away by excusing compliance with the rules.
II. IS JURISDICTION STILL JURISDICTIONAL?
Prior to these decisions, I would have advised my clients that appellate litigation definitely ended given the factual scenarios presented by Wauconda and Lyles. As all good appellate lawyers used to know, the failure to abide by the rules for filing affidavits3 or requesting post-judgment appellate relief4 deprived the Supreme Court or the Appellate Court of jurisdiction. Conventional wisdom would have dictated that the lack of jurisdiction prohibits an examination of the case on its merits.
However, these 2005 rulings now create an escape hatch in those situations where the appellant has failed to comply with the rules of appellate procedure. How should we characterize this modification of our understanding of the concept of jurisdiction? The Court worded it in this fashion:
"[O]ur rules regarding the filing of appeals and affidavits require compliance 'as a matter of jurisdiction' merely in the sense that we will, within our discretion, enforce the consequences of noncompliance to preserve the orderly exercise of our constitutionally defined jurisdiction. They are not a jurisdictional bar in the sense that a litigant's noncompliance automatically deprives us of the power to adjudicate a matter brought before us." 214 Ill.2d at 429
I suppose we could say that Wauconda and Lyles have created a two-tiered concept of jurisdiction, that is, compliance with rules of appellate procedure only governs the actions of the circuit courts and the Appellate Court. Or, perhaps the Supreme Court possesses a kind of super-jurisdictional authority over the exercise of jurisdiction because it can resurrect the right of the Appellate Court to hear an appeal on its merits. Alternatively, we could simply recognize that compliance with the rules is a matter of procedure and drop the jurisdictional label altogether.
III. ARE THESE NEW DEVELOPMENTS?
An inquiring lawyer might ask whether the Supreme Court may modify our traditional understanding of the concept of jurisdiction even further. For example, what if the notice of appeal was not timely filed and the appellant did not diligently seek a remedy for its inattention to the rules of appellate procedure? After all, one of the reasons used to justify the result in Wauconda was the appellant's diligence in seeking leave to file its petition late once the clerk noted the deficiency in the affidavit. Or, for that matter, what if no one filed any notice of appeal? Do these decisions extend so far as to excuse all compliance with the rules?
Contrary to what you might think, previous decisions have excused complete non-compliance with appeals rules. For example, in the McDunn opinion cited above, the Supreme Court assumed jurisdiction of a case and rendered a decision on the merits where no party appealed the ruling of the Appellate Court! The Court invoked its supervisory authority because of the importance of determining which person properly qualified for a judgeship.5
Also, in a decision pre-dating Wauconda and Lyles by nearly 30 years, the high court ruled that sentences of supervision were not authorized absent a finding of guilt.6 The dispute in People v. Breen entered the courtroom in Springfield despite dismissal of the case by the Appellate Court due to a lack of jurisdiction in the absence of a judgment of conviction. Further, in People v. Williams, 124 Ill.2d 300 (1988), the Court explicitly declined to address whether the State could invoke its rules to appeal an interlocutory decision holding a statute unconstitutional. Since the justices exercised their supervisory authority to hear the case directly from the trial court, the application of the rule in question was not worth considering.
The appeals decided in 2005 also fail to break new ground with respect to reinstatement of cases in the Appellate Court. Thus, in the case of In re Custody of Purdy, 112 Ill.2d 1 (1986), the Supreme Court directed the Appellate Court to apply a rule governing interlocutory appeals of child custody determinations in cases where the appellant invokes a different rule that does not permit appellate review. Rather than countenance the dismissal of an appeal invoking the wrong rule, the Court emphasized the importance of timely review of such cases to override appellate counsel's error. Thus, as a result of Purdy, the Appellate Court has been directed to "fix" the appealability of child custody decisions where the notice of appeal fails to cite the correct Supreme Court Rule conferring jurisdiction.
Thus, the 2005 opinions cited above are supported by Supreme Court precedent. The only surprising aspect of these decisions is the new-found willingness of the Supreme Court to bend the rules in order to reach the merits of the controversies. The emphasis in this narrow range of cases has shifted from relieving the reviewing courts of a portion of their case loads, with litigants suffering the consequences for their lawyers' negligence, to reaching the merits of the controversies.
Thus, in the future, in civil cases like Wauconda, the Supreme Court may exercise its discretion to ignore mistakes in the paperwork for invoking appellate jurisdiction if the dispute is worthy of review on the merits. In criminal cases like Lyles, the Court may overlook a lawyer's neglect in order to preserve the prisoner's appeal of right and to avoid litigation of claims of ineffective assistance of counsel.
IV. THE RESULT: MORE APPEALS
In the words of the Lyles opinion, "the appropriate remedy is to reinstate the appeal under the unusual circumstances" presented. (2005 WL 3211615, p.4) But what cases are unusual enough to merit a decision on the merits? Here is where the 2005 opinions encourage litigants to believe that the Supreme Court may rescue their untimely efforts to appeal via the escape hatch of "supervisory authority." Regardless of whether Wauconda and Lyles actually break new ground, I believe the decisions will encourage more appeals and undermine the goal of imposing finality in litigation. The Appellate Court carries a heavy load of appeals and regularly dismisses cases where the appellant has failed to comply with the rules governing the timely filing of notices of appeal. I cannot cite any statistics on this practice, but I can state that the dismissal of appeals occurs on a regular basis. Even though the facts of Wauconda and Lyles may not occur every day, and even though the Supreme Court will doubtless require a showing of diligence to excuse non-compliance with some filing requirements, what litigant facing the dismissal of an appeal will forego the chance to invoke the "unlimited" supervisory authority of the high court to salvage the case? In other words, appellate counsel should now advise the client that he or she might as well file a petition in Springfield to reinstate the appeal following its dismissal in Chicago, Elgin, Ottawa or further downstate.
The regular invocation of supervisory authority would also undermine the recent efforts of the Supreme Court to clarify the rules governing the appealability of circuit court judgments. Effective January 1, 2006, Rules 303 and 304 have been amended and new Rule 274 has been adopted to clarify this aspect of appellate practice and to codify existing decisions in this area. While this is a welcome development to avoid depriving appealing parties of their right to a review of circuit court decisions, litigants standing to lose their liberty or property will not be deterred from trying to characterize their cases as worthy exceptions to strict application of the rules of appealability. If the losing party expresses the opinion, "My case is a matter of principle," should the appellate lawyer dissuade the client from giving a stab at a supervisory order?
On the contrary, on the date of the Lyles decision, the Supreme Court entered supervisory orders to resurrect a number of dismissed appeals. For example, in People v. Barcik, 838 Ill.2d 2 (December 1, 2005), a supervisory order directed the Appellate Court to vacate its decision that it lacked jurisdiction over the appeal of a post-conviction petition because the notice of appeal was admittedly filed late. The order directed the Appellate Court to assume jurisdiction and to consider the appeal on its merits, without citing any reason to contradict the case authority cited in the Appellate Court opinion. See People v. Barcik, 357 Ill.App.3d 1043 (2nd Dist., 2005). For other orders that grant leave to file late notices of appeal or extensions of time to file notices of appeal, or that direct consideration of issues on the merits, see In re Ronald K., 838 N.E.2d 4 (December 1, 2005); Commitment of Quigel, 838 N.E.2d 5 (December 1, 2005); People v. Norris, 838 N.E.2d 2 (December 1, 2005).
Moreover, the fertile area that litigates whether court decisions are "void" versus "voidable" provides yet another avenue for asserting that particular cases should be exceptions to the general rules governing timely appellate filings. Since this is a vast area of law, I cannot address the fine points of voidness and voidability here, but see the footnoted cases for a discussion of various applications of this distinction and its impact on jurisdiction.7
Finally, if you think we have heard the last word on issues of appealability, consider the recent Second District case of People v. Willoughby, docket #2-04-1077 (2nd Dist., December 20, 2005). Our district of the Appellate Court ruled that the failure to resolve or to affirmatively abandon a pending post-trial motion nullified a subsequently filed notice of appeal. Even though trial counsel never called his post-trial motion for hearing and filed the notice of appeal after sentencing, the "premature" filing of the notice resulted in dismissal of the appeal.
As I said, more appeals are on the way.
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: firstname.lastname@example.org. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.
1. 1970 Constitution of Illinois, Article VI, Section 16
2. A.J. Maggio Co. v. Willis, 197 Ill.2d 397 (2001); Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490 (2002)
3. Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490 (2002); Supreme Court Rule 315(b)
4. Supreme Court Rules 367, 368
5. The Appellate Court decision in McDunn permitted two judges to sit on the same judicial seat simultaneously! No wonder the Supreme Court took the case!
6. People v. Breen, 62 Ill.2d 323 (1976)
7. Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill.2d 325 (2002) (voidness does not apply to the failure to observe statutory requirements because jurisdiction is conferred by the Constitution); People v. Davis, 156 Ill.2d 149 (1993) (convictions improperly entered for lesser included crimes are voidable); In re Estate of Steinfeld, 158 Ill.2d 1 (1994) (contempt orders may be void if the court lacks jurisdiction to enter the order violated by the contemnor); People v. Harper, 347 Ill.App.3d 499) (courts may grant new trials more than 30 days after trial, rendering the concept of jurisdiction inapplicable); People v. Raczkowski, 834 N.E.2d 596 (1st Dist., 2005) (failure to provide an interpreter rendered a guilty plea voidable, even if the lack of the interpreter violated due process)