PRACTICAL APPEALS ADVICE

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in November, 2012

Part Thirteen - Petitions for Rehearing & Petitions for Leave to Appeal

I. INTRODUCTION

My previous articles in this series provided advice to the occasional appellate advocate regarding the steps required to successfully prosecute an appeal. This advice commenced with the factors to consider in deciding whether to appeal and continued through the briefing process of a direct appeal to the Appellate Court. This last article in the series summarizes options for further appellate review following an adverse result in the Appellate Court.

II. FURTHER APPELLATE OPTIONS FOLLOWING AN ADVERSE RESULT

If you wind up on the losing end of a direct appeal, you have four options remaining following issuance of the formal opinion or unpublished order of the Appellate Court, namely:

A. Take no action;
B. File a petition for rehearing with the Appellate Court;
C. File a petition for leave to appeal (PLA) with the Supreme Court; or
D. File a petition for rehearing with the Appellate Court followed by a PLA.

A. TAKE NO ACTION

If your client does not want to proceed with another appellate effort, the judgment of the Appellate Court will become final upon issuance of the mandate and its filing in the trial court. The mandate is a document directing the lower court to proceed in accordance with the appellate decision. Pursuant to Supreme Court Rule 368(a), the mandate does not issue for at least 35 days following the date of the appellate opinion or order in a civil case. Rule 612(p) adopts Rule 368 by reference so as to apply to criminal cases. Why 35 days? Because this is the deadline for filing a petition for leave to appeal to the Supreme Court under Rule 315(b).

B. FILE A PETITION FOR REHEARING WITH THE APPELLATE COURT

Rules 367 and 612(o) governing civil and criminal cases respectively require the filing of a petition for rehearing within 21 days after issuance of the Appellate Court decision. Although the rule permits a request for an extension of this deadline, you would need an extraordinary reason to expect a favorable ruling on such a motion. In addition, due to the time delays built into motion practice , your deadline could well pass before you receive the ruling on the motion.

In most cases, the filing of a petition for rehearing is a futile act. The Appellate Court is rarely inclined to reverse itself and will not do so simply to humor your interpretation of the application of well-settled law to the facts of your case. You can take your chances if you believe the Court has seriously misquoted the facts in the record or newly-decided case law has affected the legal analysis. You also need to keep an eye on whether you are decreasing your chances for acceptance of a Supreme Court petition if the Appellate Court takes this opportunity to "improve" the wording or reasoning of a poorly written opinion. In other words, if you think there is some glaring error in the judgment, you should leave it alone and save your thunder for a pitch to Springfield to right your legal wrong.

However, the filing of this petition is not completely bereft of some strategic advantages. The timely filing of the document automatically stays the issuance of the mandate , which means that the judgment will not become final until resolution of this option and expiration of the deadline(s) for any remaining options. Though these petitions are typically ruled on expeditiously, Rule 315(b) grants you another 35 days to petition the Supreme Court following the denial of rehearing. In my experience, the Supreme Court is more likely to grant an extension of time for filing the PLA than is the Appellate Court to file for rehearing. This additional time permits the client an extended opportunity to consider his or her options in seeking further review, not to mention time to raise the necessary funds to proceed.

The petition needs to focus on the reason(s) that the Court decided the case incorrectly and should argue your point(s) concisely. Though the rule allows for a brief of 27 pages in length, grabbing the attention of the justices normally calls for a considerably shorter tome. In fact, the rule specifically tells practitioners not to re-argue the case already presented in the previously-filed brief. In other respects, the petition should conform to the same requirements stated in Rule 341 for the contents of an initial brief. And you can certainly file this document to appeal either a ruling contained in a published opinion or an unpublished order.

If you were the successful party on appeal, you are required to take no action! No answer may be filed to a petition for rehearing unless the Court directs you to do so or the petition has been granted. The granting of a petition simply means that the successful party has an opportunity to respond, not that the Court will necessarily reverse itself in a reconsidered opinion. In many instances, a grant of rehearing results in a modification of the wording of the previous decision without changing the outcome of the appeal. Once the Appellate Court has granted or denied the petition, the only appellate option remaining for the losing party is to request Supreme Court review because no other petitions for rehearing are allowed.

You may have noticed by reading Rule 315(c) that petitions for rehearing are allowed from an adverse ruling by the Supreme Court. Good luck with that one unless Washington, D.C. has intervened in the 35 days between issuance of the decision and the filing of your petition!

C. FILE A PLA WITH THE SUPREME COURT

The rules do not require that you file a petition for rehearing before filing a petition in Springfield. You can go straight to the top within 35 days of issuance of the Appellate Court decision. In fact, I find that this is usually the better option for the client, unless a month or two of delay is imperative for some reason. You need to advise your client that the Supreme Court is not required to accept his or her case in most situations. Normally, cases are only accepted for a second round of appellate review if they affect the entire Land of Lincoln and not to correct a perceived injustice to an individual litigant. I have actually counted the number of cases accepted and rejected for further discretionary review from time to time. I learned that the statistics give your client less than a 5% chance for a hearing in Springfield. Of course, statistics alone do not tell the whole story, so the objectively-identified importance of the case may change these odds dramatically.

If you were the successful party in the Appellate Court, you may (but normally should not) file an answer to a PLA. Unless your opponent misstates the record, the law or the decision below by changing "black" to "white", you are simply calling the Court's attention to this case that you really want it to ignore. Also, please note that the acceptance of another party's PLA permits you to raise your own legal issues in the Supreme Court without the necessity of filing your own petition or cross-appeal.

D. FILE A PETITION FOR REHEARING, FOLLOWED BY FILING A PLA

Obviously, more than one filing provides the most opportunities for further review. But, as noted above, this can be a facile analysis if the intermediate appellate court has botched the facts, the law or both in its decision. Make sure that you consult Rule 615(b) to determine the correct deadline for filing the PLA. Although the time limit is always 35 days after a certain event, the grant or denial of rehearing and the filing of a motion to publish a Rule 23 order can alter the calculation calendar.
Just as in the case of a petition for rehearing, your PLA should focus on the reason(s) that your case is so unique or so wrongly decided below that the Supreme Court should allow you to defy the Vegas-like odds for acceptance of the case. The required contents of the PLA set forth in Rule 315(c) closely resemble the requirements for filing a brief.

If you succeed in gaining admission to the ivory tower, I recommend against allowing your PLA to stand as your brief on appeal, even though it is allowed by Rule 315(h). The purposes of the two documents differ sufficiently to require preparation of a separate brief. Remember that the PLA must grab the attention of the justices with a brief, pithy, focused plea to correct error below. By contrast, the brief in the Supreme Court needs to thoroughly argue your legal issues as applied to the facts of the case, often with far more detail and authority than you would normally include in the PLA. While you can use your Appellate Court brief as a starting point in some cases, you should not just cut and paste it into a newly-captioned Springfield review. Your thorough analysis must discuss the error in the Appellate Court, which has occurred after you filed your template-brief in Elgin or elsewhere. In fact, if you just copy your old arguments into your new brief, you are probably wasting your time and your client's money. After all, why would the Supreme Court focus exclusively on whether the circuit court ruled on the case erroneously, as you argued previously, when a decision of the Appellate Court has intervened?

III. LOSING IN THE SUPREME COURT - NOW WHAT?

As we all learned in law school, the Supreme Court of the United States sits higher than state supreme courts. However, we also know that Roberts et al. will not hear cases unless they deal with federal questions. And even if we haven't counted the exact numbers of cases in which petitions for certiorari have been requested and accepted, we sense in our guts that the odds are incredibly poor to proceed further. This is an area that lies outside the scope of my experience and expertise, so I leave you to examine the rules of the U.S. Supreme Court and to consult with more knowledgeable counsel regarding filing deadlines and other matters pertaining to federal appeals. I am aware that certain law firms out east concentrate in advocacy of such cases upon referral by counsel in state court.

Yes, there are potential remedies for criminal defendants beyond direct appeal. But cases such as post-conviction petitions pose some of the most daunting obstacles to success, not to mention the herculean effort to find meritorious constitutional claims that have not been waived or raised on direct appeal by one or more previous counsel. In civil cases, you may have the opportunity to contest certain collection methods or to present your own dollar calculations of the amount due differing from those of your opponent. But these issues lie outside the scope of my article.

IV. MANDATES AND REMANDMENT

Sometimes an otherwise final appellate decision requires further action in the trial court or the Appellate Court. Returning the case to the Appellate Court a second time may or may not require further briefing depending on the way the issues have been framed and/or resolved in previous appellate litigation. In that instance, the decision will not become final until the intermediate level of review ends and perhaps another round has been fought in the Supreme Court.

Once all those appellate options have been exhausted, the Supreme Court and the Appellate Court issue their final orders to eventually return the case to the trial judge. Remandment may require a new hearing, a new trial and/or vacation of a previous order in the circuit court and/or the Appellate Court. In those instances where a circuit court ruling has been reversed, I urge consideration of whether one more order should be entered to write the appellate decision in stone. As an example, one of my successful appeals involved reversal of an injunctive order entered in the trial court. Although the Appellate Court ruled in my client's favor, I took the extra step to make sure that the trial court record contained an order in conformity with the decision of the Appellate Court vacating the injunction. Similarly, even after a reviewing court reverses a criminal conviction, you want an order entered formalizing that victory. Absent the hammering of the last nail in the coffin, it may not be immediately apparent to someone who relies on the record that the ultimate result you've been fighting to attain for years past has really occurred.

One last detail needs to be considered regarding the issuance of final orders to the circuit court following the conclusion of all appeals. Case law holds that the jurisdiction of the circuit court is not reinstated from its previous vesting in the Appellate or Supreme Courts until the mandate has been filed in the local jurisdiction. Despite the lengthy process of appellate review, the prevailing party needs to be patient a while longer to avoid taking any action outside the scope of the lower court's jurisdiction. In addition, Rule 369(c) builds in one last delay in civil cases because your opponent is entitled to 10 days' notice before the circuit court can take any action on the remandment. Finally, believe it or not, after all your appellate efforts, you can lose the right to reinstate your case if you fail to take action on the mandate within "a reasonable time."

This article ends this series on practical appeals advice. After all, once the mandate issues, there is nowhere else to go. But there's always another case around the corner.

See Rules 361(b)(2), (c)(2), (d) and 610.
See People v. Clendenin, 395 Ill.App.3d 412 (2nd Dist., 2009) for an excellent example of an Appellate Court opinion whose publication was stayed by Justice Thomas until the Supreme Court overruled it on the merits because the intermediate reviewing court had defied Supreme Court precedent. (238 Ill.2d 302 (2010))
See Rule 368(a)
See my last article published in Bar Briefs this past January.
See Rule 367(e)
See Rule 315(b)
See Rules 316 and 317 for exceptions.
See Rule 318.
If you go to Vegas, you can reduce your losses by playing penny slots. But watch out for the $50+ hamburgers for dinner.
Wheatley v. International Harvester Co., 166 Ill.App.3d 775, 776-777 (5th Dist., 1988)
Rule 613 governing reinstatement in criminal cases contains no such provision.
People v. NL Industries, Inc., 297 Ill.App.3d 297, 300-303 (1st Dist., 1998) The mystery here is to determine why litigants would neglect to take the simple step of filing a notice to appear in court after so much effort has been expended on appeal.