This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in December, 2004
This topic addresses a widespread and fundamental misunderstanding of the intricacies of appellate jurisdiction in Illinois, which can be summed up in this fictitious quotation: "The court cannot take any further action because the plaintiff (or defendant) has filed a notice of appeal. This is an issue that the Appellate Court must address. Call the next case."
In my next series of articles, I will review the general rules pertaining to vesting jurisdiction in the Appellate Court and the residual authority that remains in the trial court following the filing of a notice of appeal. In addition to these general rules, I will cite specific examples explaining when the jurisdiction of the trial and reviewing courts diverge and overlap in criminal and civil cases. The final articles discuss the doctrine of re-vestment that can restore the jurisdiction of the circuit court, even after the entry of final judgment and the expiration of the deadline for filing an appeal. I hope that this information will clarify why the fictitious quotation above is only partially true, with a myriad of important exceptions.
II. GENERAL RULES APPLICABLE TO CRIMINAL & CIVIL CASES
"For the trial advocate, appellate jurisdiction is akin to strolling through a minefield."
Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 446 (1st Dist., 2000)
The reviewing court might have added that the nuances of appellate jurisdiction can be difficult to master even for an experienced appellate advocate. In previous articles, I have explained various aspects of appellate jurisdiction.1 This topic attempts to give you some heavy armor to avoid serious injury as you traverse this minefield. Consider the following fallacies regarding appellate jurisdiction:
FALLACY #1: ONLY THE APPELLATE COURT CAN DISMISS A NOTICE OF APPEAL
Supreme Court Rules 303 (for civil cases) and 606 (for criminal cases) contain virtually identical provisions regarding the impact of filing notices of appeal prematurely. By clarifying the time when appellate jurisdiction attaches, the rules specify when the trial court can still act on post-judgment matters, despite the filing of a notice of appeal.
In civil jury and non-jury cases, the filing of a notice of appeal has no effect if the trial court has not yet ruled on all timely filed post-judgment motions. This rule applies regardless of whether the post-judgment motions are filed before or after the notice. Rule 303 directs the party who filed the notice to move for its dismissal and Rule 309 grants the trial court the authority to act on the motion by dismissing the appeal.2
The same parameters apply in criminal cases. A notice of appeal has no effect if the trial court has not yet ruled on timely filed post-trial or post-sentencing motions, regardless of whether the motions are filed before or after the notice. The rule directs the trial court to strike the notice of appeal under these circumstances.3
In addition to these rules preserving trial court jurisdiction, the lower court retains the authority to dismiss appeals prior to the filing of the record in the reviewing court. This rule applies with equal force to civil and criminal proceedings.4 Since the rules do not require the filing of the record for a period of nine weeks after the filing of the notice of appeal,5 the parties have an extended window in which to abandon the appeal. The trial court may enter a dismissal order either on motion of the appealing party or based on a stipulation of the parties.
FALLACY #2: THE CIRCUIT COURT CANNOT INQUIRE INTO THE ADEQUACY OF THE NOTICE OF APPEAL
In general, appellate jurisdiction attaches upon the filing of a notice of appeal. In addition, the filing of a notice of appeal generally deprives the circuit court of jurisdiction.6 But circuit and associate judges are not rendered helpless by the filing of an untimely notice of appeal. In fact, they are empowered to disregard an untimely filed notice of appeal because the document does not vest subject matter jurisdiction in the Appellate Court.7 Moreover, the trial court may disregard the notice and proceed with the case if the judge determines that the notice lacks essential recitals or refers to an order that is not appealable. In other words, a deficient notice does not transfer jurisdiction to the reviewing court.8
In some circumstances, a litigant wants to bring the wheels of justice to a halt by filing a notice of appeal and the opposing party seeks to remove this obstacle to a prompt resolution of the case. In these latter situations, the case law cited above permits the trial court to consider whether it retains jurisdiction of the litigation and thereby avoid lengthy delay in resolution of a phantom appeal. Why shouldn't the trial judge possess the authority to make an initial determination that a notice was filed prematurely because no final, appealable order has been entered?
Of course, the final say rests with the reviewing court if the party filing the notice seeks a stay of lower court proceedings. But the point remains that the mere filing of a notice of appeal that is (1) untimely, or (2) omits required recitals (such as the date of final judgment), or (3) seeks appellate review of an order that is not appealable (such as an order compelling disclosure of discoverable information), does not deprive the circuit court of the power to continue its proceedings. Only our notion that appellate jurisdiction is automatically and irreversibly invoked by the filing of a notice stands in the way of this common sense approach to dealing with deficient notices.
The untimeliness of a notice usually is resolved by counting thirty days from the entry of final judgment (example (1) above) and the omission of required recitals is known by eye-balling the document (example (2)). However, the party claiming that an order is not appealable (example (3)) needs to consider the substantive law of appealability. The final judgment in a criminal case is the imposition of the sentence, which is extended by the filing of a post-sentencing motion.9 In civil cases, the issue can be more complex due to the substantive law of appealability pertaining to particular actions. For example, separate determinations of child custody, support, maintenance and the division of property in divorce actions are considered interlocutory in character and not final judgments.10 Other examples include paternity cases, which are appealable despite the reservation of the mother's right to pregnancy expenses,11 and orders establishing goals of permanent placement in juvenile cases, which are not appealable as of right.12
Petitions to modify child custody present good examples of the complications that can arise as to the appealability of court orders. In the case of In re Custody of Purdy, 112 Ill.2d 1, 3-5 (1986), the Supreme Court ruled that a post-dissolution order changing custody was a final, appealable order, even though it reserved the issue of the mother's summer visitation rights. The summer visitation rights were considered "incidental" to the judgment and always subject to revision.13 By contrast, Shermach v. Brunory, 333 Ill.App.3d 313, 316-320 (1st Dist., 2002), held that the failure to determine the exact dollar amount of child support in a petition to modify custody rendered the order non-appealable. The order was not considered appealable even though the court decided that one party should pay 20% of net income for current support, as well as resolving questions of permanent custody and visitation.
Thus, when a litigant lobbies the trial court to proceed with the action in the face of opposing counsel's filing of a notice of appeal, research needs to be performed regarding the appealability of the specific order named in the notice.
FALLACY #3: THE TRIAL COURT CANNOT TAKE ANY ACTION AFTER THE FILING OF THE NOTICE OF APPEAL
Assume that you have litigated a case in the trial court in which a timely, adequately drafted notice of appeal has been filed specifying a final, appealable order. But you think that problems may have arisen with the accuracy of the record or you want to file a motion to post bond to stay execution of the judgment. Can you even walk into the trial court to request further relief?
Whether the circuit court can hear your petition depends upon the type of relief you are seeking. The filing of the notice of appeal divests the trial court of jurisdiction, but only as to matters of substance. In other words, trial courts may not modify the judgment substantively or interfere with review of the judgment after the filing of the notice. However, the lower court retains jurisdiction to decide matters arising independent of and collateral to the judgment.14 An alternative formulation of this rule is that the court retains jurisdiction to perform ministerial functions.15
In Parts Two and Three, I will provide specific examples of actions that the circuit court can take following the filing of the notice of appeal. For now, suffice it to say that the trial judge can act on requests concerning the contents of the record on appeal, issues regarding stays pending appeal, and similar matters. In addition, the circuit court is re-vested with jurisdiction over the case in the event of a dismissal of the appeal.16 The concept of re-vestment will be addressed in greater detail in Parts Four and Five. In brief, if the parties continue to litigate the case on the merits following the entry of a dismissal order or a final judgment, then the previous loss of appellate jurisdiction can be remedied.
FALLACY #4: ONCE THE APPELLATE COURT RENDERS A DECISION, THE TRIAL COURT MAY ACT AGAIN
Jurisdiction is not revived in the lower court upon the rendering of a decision on appeal. Rules of finality apply to cases on appeal just as they do to litigation in the trial court. Parties adversely affected by an appellate decision can request rehearing in the Appellate Court and/or seek leave to appeal to the state's highest tribunal in Springfield. The appellate decision is not final until (1) the losing party has failed to seek further review, or (2) further review has been denied, or (3) all appeals have been exhausted and (4) the circuit clerk has received and filed the magic document (called the mandate) confirming the conclusion of appellate review.
The magical quality of the mandate is its power to re-vest the lower court with jurisdiction by directing further action in accordance with the appellate decision. If both the Supreme Court and the Appellate Court have been involved in the case, then the offices of the clerks of both courts will issue mandates. Jurisdiction is not re-vested in the trial court until after the mandate from the Appellate Court has been filed with the circuit clerk's office. Any action taken by the circuit court before the filing of that document is void.17 Supreme Court Rule 369 requires that the party seeking to reinstate the case give ten days' notice to the opposing litigant before proceedings may commence.
The rules also provide that a mandate may be recalled.18 Mandates are rarely recalled because the appealing parties have already had the opportunity to seek further review of a decision. But, when this occurs, the recall again deprives the circuit court of jurisdiction until issuance of another mandate.
The recall of a mandate has a different effect from the issuance of a stay. Where a stay is ordered pending resolution of an underlying motion, a ruling on that motion releases the stay and the circuit court may act. By contrast, if a reviewing court has stayed the mandate, adverse rulings on motions, such as requests for supervisory orders from the Supreme Court, do not permit the lower court to take further action. Once again, it is only the filing of the mandate in the local clerk's office that enables the circuit court to take substantive action on the case.19
Part Two provides more detail concerning the actions that the trial court can take following the filing of an appeal in a criminal case.
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. See "Civil & Criminal Appeals: Timetables for Perfecting Appeal" (Bar Briefs, November 2000); "How Many Lawyers Does it Take to File a Criminal Appeal" (Bar Briefs, March 2002); "Post-Judgment Motions in Civil Non-Jury Cases: Don't Sweat the Small Stuff Any More?" (Bar Briefs, October, 2003)
2. For further information, see "Civil & Criminal Appeals: Timetables for Perfecting Appeal" (Bar Briefs, November 2000)
3. For further information, see "Civil & Criminal Appeals: Timetables for Perfecting Appeal" (Bar Briefs, November 2000) and "Post-Sentencing Motions in Criminal Cases or 'I Thought I was Finished with this Client' - Part One" (Bar Briefs, June 2004)
4. See Supreme Court Rules 309 and 612(a); People v. Baskin, 213 Ill.App.3d 477, 482-483 (1st Dist., 1991)
5. See Supreme Court Rule 326
6. Daley v. Laurie, 106 Ill.2d 33, 37-38 (1985)
7. Djikas v. Grafft, 344 Ill.App.3d 1, 7 (1st Dist., 2003)
8. People v. East-West University, Inc., 265 Ill.App.3d 557, 562-563 (1st Dist., 1994); People v. Bradley, 129 Ill.App.3d 177, 182 (1st Dist., 1984); People v. Benda, 124 Ill.App.3d 950, 953-954 (2nd Dist., 1984)
9. See "Post-Sentencing Motions in Criminal Cases or 'I Thought I was Finished with this Client' - Parts One and Two" (Bar Briefs, June and October 2004)
10. In re Marriage of Leopando, 96 Ill.2d 114, 117-120 (1983). This case does permit discretionary appeals of custody orders under Supreme Court Rule 306.
11. People ex rel. Johnson v. Payne, 127 Ill.App.3d 398, 404 (1st Dist., 1984)
12. In re Curtis B., 203 Ill.2d 53, 58-60 (2002). This case does permit discretionary appeals of permanent placement orders under Supreme Court Rule 306.
13. The terminology can be confusing, since Leopando refers to matters that are "ancillary" to the claim to describe non-appealable orders, while In re Custody of Purdy uses the term "incidental" to distinguish orders that are appealable.
14. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill.2d 153, 162-163 (1998); Marriage of Petramale, 102 Ill.App.3d 1049, 1052-1053 (2nd Dist., 1981)
15. People v. Hernandez, 296 Ill.App.3d 349, 350 (2nd Dist., 1998)
16. Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 453-454 (1st Dist., 2000)
17. Wheatley v. International Harvester Co., 166 Ill.App.3d 775, 776-777 (5th Dist., 1988)
18. Supreme Court Rule 368(c)
19. People v. Palmer, 148 Ill.2d 70, 78-82 (1992)