Articles Posted in Appellate Jurisdiction

Which deadline for filing a Notice of Appeal applies when the supreme court rules differ from the General Assembly’s statute? And what happens to the appeal when the Notice of Appeal meets the General Assembly’s deadline but not the supreme court’s?

The Illinois Supreme Court ruled that the General Assembly’s deadline applies.

In People v Illinois Commerce Commission, 2014 IL 116642 (11/20/14), the State of Illinois appealed an adverse ruling in a financial reconciliation matter that was filed under the Illinois Public Utilities Act. The Act allows 35 days to file an appeal; the Illinois Supreme Court Rules permits 30 days. The State met the General Assembly’s 35-day deadline, but missed the 30-day deadline.

The Illinois Appellate Court had ruled that the separation of powers doctrine required the courts to embrace the supreme court’s filing deadline. But the supreme court rejected that idea. Here’s what the supreme court said:

It is true our court has concurrent constitutional authority with the General Assembly to promulgate rules concerning direct appellate court review of administrative decisions. It is also the case that the rules of our court control appellate court review of administrative decisions in the absence of an explicit exercise of rulemaking authority by the legislature or in those situations were a rule enacted by the legislature is in direct conflict with a rule promulgated by our court. … We have never suggested, however, that Supreme Court Rule 335 requires courts to give controlling effect to the 30-day appeal period in Supreme Court Rule 303(a) whenever review of administrative orders lies with the appellate court.

Supreme Court Rule 335(i)(1) provides simply that certain Supreme Court rules, including Rule 303(a)’s 30-day filing period … apply to administrative review by the appellate court “[i]nsofar as appropriate.” … We have found it appropriate for courts to apply the 30-day deadline set forth in Rule 303(a) when the legislature has failed to explicitly state a time within which administrative review in the appellate court must be commenced. … At the same time, however, we have made clear that if the legislature wished to enact its own time period for seeking appeal of administrative decisions by the appellate court, it had the authority to do so. … We could not conclude otherwise without running afoul of the principles of special statutory jurisdiction.

The State met the General Assembly’s 35-day deadline, so the supreme court reversed the appellate court and ruled there was appellate jurisdiction.

William Huber filed a lawsuit to dissolve the American Accounting Association. The Association asked the trial court to dismiss the lawsuit, which it did.

Huber appealed. He mailed his Notice of Appeal to the court, but it arrived two days after the 30-day deadline.

That would have been okay had Huber included an affidavit (required of a non-lawyer) or certificate (required of a lawyer) of mailing with the Notice of Appeal. But Huber did not. He argued that a postmark on the envelope, dated two days before the 30-day deadline expired, was sufficient proof of mailing within the time required.

But the Illinois Supreme Court ruled that Huber’s so-called postmark was not a postmark at all. This is what the supreme court said:

What plaintiff identifies as a “postmark,” appearing in the upper right hand corner of the envelope, is actually a postage label from an Automated Postal Center (APC). An APC is a self-service kiosk, generally located in post office lobbies, that allows customers to mail letters and packages, buy postage, look up ZIP Codes, and access other postal services, such as “USPS Tracking,” and certified mail. …  The postage label at issue here reveals on its face that it was dispensed at an “APC.” An “APC label does not constitute an official U.S. postmark.”

The APC label shows only a “Date of sale” of “04/03/13.” [Two days before the deadline.) The date of sale is not necessarily the date plaintiff placed the envelope in the mail and the post office took custody of it. … Thus … the APC label at best indicates that plaintiff may have mailed his notice of appeal on April 3, 2013. The APC label does not establish that plaintiff, in fact, did so.

The late Notice of Appeal deprived the appellate court of jurisdiction, so the supreme court affirmed dismissal of Huber’s appeal.  Here’s the link to the supreme court’s opinion in Huber v. American Accounting Association, 2014 IL 117293 (11/20/14).

The Illinois Supreme Court did not decide whether a postmark would suffice in lieu of an affidavit or a certificate. But take a look at IRMO Sheth, an appellate court opinion explained three postings below. The Sheth court certainly falls in the camp that a postmark alone does not meet the Illinois Supreme Court Rules.

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here. 

More than 58 percent of the voters in Country Club Hills, Illinois passed a referendum that reduced the number of city aldermen from 10 to five. About three weeks later, a group of unhappy aldermen sued the county clerk. They asked the trial court for a preliminary injunction to void the referendum because, they argued, the clerk exceeded her authority by not including certain language on the ballot.

Two weeks later, the trial court denied the injunction request because the discontented aldermen still had time to file as independent candidates for one of the five alderman positions.

Instead, the aldermen appealed. They asked the appellate court to void the referendum result and to place the question, with the disputed language, on the next ballot. That election, at which the voters elected five aldermen, was held about four months later, while the appeal was still pending.

But the First District Illinois Appellate Court refused to hear the appeal because: (1) the election of the new aldermen to fill the five new positions already had been held, (2) rendering the appeal moot, and (3) an appellate ruling on the denial of the preliminary injunction would not trump the mootness doctrine. The public policy exception to the mootness doctrine did not apply because “an opinion from this court on the trial court’s denial of preliminary relief would not provide an authoritative determination of the issues at the heart lof this case … In the absence of a continuing legal controversy and finding no reason for the exception to the moootness doctrine to apply, we dismiss this appeal.”

Read the whole case, Davis v. City of Country Club Hills, 2013 IL App (1st) 123634, by clicking here.

After he was injured in an accident, Juan Zamora sued his employer, Newsboy Delivery Systems, and two individuals, Cherie and Richard Payne. Zamora claimed their negligence caused the accident.

The trial court dismissed Newsboy because Zamora’s claim against his employer was barred by the Illinois Worker’s Compensation Act. The dismissal order included a finding under Illinois Supreme Court Rule 304(a) [no just reason to delay enforcement or appeal of the order]. Zamora asked the court to reconsider the dismissal. That request for reconsideration extended the time he had to appeal [30 days from the ruling on the reconsideration request]. Zamora’s request for reconsideration was denied.

The Paynes filed a third-party complaint for contribution against Newsboy. About two years later that complaint was dismissed. Zamora got a second Rule 304(a) finding, and after the rest of the claims were dismissed, Zamora appealed the two year-old order that dismissed his claim against Newsboy.

The Second District Illinois Appellate Court dismissed Zamora’s appeal for lack of appellate jurisdiction because:

Once a court has made a Rule 304(a) finding, it is not necessary for the court to make another such finding when it denies a motion to reconsider … This is because the denial of a motion to reconsider is not a judgment and is not appealable in itself.

So Zamora had to appeal within 30 days of the denial of his reconsideration request. He blew that deadline, and the second Rule 304(a) finding was irrelevant.

Read the whole case, Zamora v Montiel, 2013 IL App (2d) 130579, by clicking here.

Witte Brothers is an intersate trucking company. After an audit, under protest, Witte paid Illinois for “pass-through” miles [distance driven in Illinois without picking up or delivering goods].

Witte sued Illinois for reimbursement of the taxes. The trial court ruled that the Illinois Income Tax Act did not allow the State to tax truckers pass-through miles. So Illinois appealed.

Among other things, Witte argued in the appellate court that taxing pass-through miles violated the Commerce Clause of the U.S. Constitution. But Witte did not raise this argument in the trial court, nor allege it as a separate count in its complaint. So the First District Illinois Appellate Court refused to consider the argument.

No need to worry if you’re concerned the State got beat out of tax revenue. The appellate court reversed, and ruled that pass-through miles are taxable. [“pass-through miles establish a physical and economic presence in Illinois which must be taxed …”]

This is the sort of ruling that annoys illinoisappellatelawyerblog.com. The appellate court would review the Commerce Clause argument de novo [no deference to the trial court]. If what the trial court says is inconsequential anyway, then the appellate court should not be allowed to avoid the issue because it was not raised in the trial court. So now we have precedent that blesses a tax that may violate the United States Constitution.

Read the whole case, Witte Brothers Exchange v. Department of Revenue, 2013 IL App (1st) 120850.

John Garrido lost an election to the Chicago City Council to John Arena. Garrido claimed he was defamed because Arena distributed campaign literature and advertisements that had “outright lies” about Garrido.

Garrido sued Arena, but the trial court dismissed the case based on the Illinois Citizen Participation Act. (The Act bars meritless lawsuits filed against citizens for their actions while exercising their First Amendment speech rights.) Within the next 30 days, Garrido asked the trial court to reconsider the dimissal. But Garrido’s request was brought under Illinois Code of Civil Procedure Section 2-1401, which is the section that applies to requests for reinstatement of cases dismissed more than 30 days before.

Garrido’s case had been dismissed for more than 30 days when he asked to amend his 2-1401 request to show it was intended to be brought under Section 2-1203, the correct statute, which does toll the time to appeal. The trial court allowed Garrido’s request to amend, but denied the request to reconsider the dismissal.

Garrido appealed. Arena argued there was no appellate jurisdiction. He asked the appellate court to dismiss the appeal because the only request for reconsideration that was made within 30 days of the dismissal was under section 2-1401, which does not toll the 30-day deadline to appeal. But the First District Illinois Appellate Court denied Arena’s request to dismiss the appeal because:

[Arena] misconstrue[d] both the nature of plaintiff’s [Garrido’s] postjudgment filings and the standard by which the circuit [trial] court must evaluate postjudgment motions … [T]he new [2-1203] motion merely corrected the relevant statutory citations in the first [2-1401] motion. More importantly, even had plaintiff not filed an amended motion, the circuit court would in any event have been required to evaluate plaintiff’s original October 7 [2-1401] motion under the correct statute [2-1203] … The only important fact for the purpose of our jurisdiction is that plaintiff filed a postjudgment motion within 30 days of the judgment, which tolled the time for filing a notice of appeal …

For purposes of tolling the time to appeal, it did not matter that Garrido asked the court to reconsider the dismissal under authority of the wrong statute. So Garrido lost the election, but won the fight over appellate jurisdiction. He also prevailed on the substance of the appeal. The appellate court reversed the dismissal of his lawsuit.

Read the whole case, Garrido v. Arena, 2013 IL App (1st) 120466 (6/18/13), by clicking here.

Railroad employee Anthony Williams was injured at work. He sued BNSF Railway, his employer, and got a judgment for $2.6 million.

Claiming there were more than 40 errors at the trial, BNSF asked the trial court to decrease or throw out the verdict. The company also asked for a setoff “in the amount of taxes payable as a result of lost wages awarded to Williams.”

The trial court denied BNSF’s request to throw out the verdict, but reserved a ruling on the “tax issue.” A written order order was not issued; nor did the court request one; nor apparently did the parties offer to submit one.

About six weeks later BNSF made an emergency request to the trial court to file additional authority to support the earlier request to decrease [for the amount BNSF paid for Williams’s disability] or to throw out the verdict.

When the parties returned to court about four weeks after that, the trial court denied BNSF’s requests to change or dismiss the verdict, or for a setoff for the taxes payable.

BNSF appealed the denial trial court rulings – the one denying the 40-plus claims of error and the one denying the decrease or setoff. Its Notice of Appeal was filed within 30 days of the trial court’s last order, but more than 70 days after the oral ruling that denied BNSF’s 40-plus-errors request. Williams asked the appellate court to dismiss the entire appeal. Williams argued the appellate court did not have jurisdiction because BNSF appealed too late.

The First District Illinois Appellate Court agreed with Williams. The appeal from the 40-plus-errors order had to be filed within 30 days from the oral ruling. And because BNSF’s request for a setoff did not attack the judgment —“a request for a setoff seeks to satisfy, not modify, the judgment” — it did not toll the time to appeal.

Nor did BNSF’s emergency request make a difference. The trial court lost jurisdiction over the verdict-decrease issue 30 days after the initial oral ruling, and could not give itself jurisdiction again by reiterating its earlier order.

The appellate court also ruled that the lack of a written order following the trial court’s first ruling did not help BNSF. “Given that the trial court never required the submission of a written order regarding the denial of BNSF’s posttrial motion, the oral ruling on that motion was therefore final on April 18, 2012,
the date it was entered into the record.”

In the end, the appellate court dismissed the entire appeal. Read the whole opinion, Williams v. BNSF Railway Co., 2013 IL App (1st) 121901 (9/25/13), by clicking here.

The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.

You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.

Get the whole guide by clicking here.

Nadeem Nizamuddin was expelled from school. He asked for and received a temporary restraining order against Community Education in Excellence, the operator of the private school, staying the expulsion at least until after a preliminary injunction hearing.

Excellence appealed the restraining order. But its appeal was dismissed for failure to comply with Illinois Supreme Court Rule 307(d), which states the requirements for establishing appellate jurisdiction over an appeal of a temporary restraining order.

Here is what the Second District Illinois Appellate Court said Excellence did wrong.

• Filed its petition and its Notice of Appeal in the wrong court. Excellence filed in the circuit court, which in a typical case is correct. But appeals from TROs have an expedited schedule, so Rule 307 requires the petition and the Notice of Appeal to be filed in the appellate court.

• Mailed the petition and the Notice of Appeal to the appellate court on the filing deadline. Ordinarily that’s okay; the “mailbox rule” governs typical appeals and makes the date of filing the same as the date of mailing. But the “mailbox rule” did not apply to this appeal from a TRO, and the appellate court did not receive the documents until after the filing deadline. So the appellate court said Excellence’s documents were too late to establish appellate jurisdiction.

• Served Nadeem by regular mail. But Rule 307 says service on the opposing party has to be by personal delivery or fax. So Excellence’s proof of service, which showed service by mail, was insufficient.

• Prejudiced Nadeem’s lawyer because he had only one day to file a response to Excellence’s petition. Had he been served personally or by fax, he would have had double the time to prepare a response.

Click here for the whole opinion, Nizamuddin v. Community Education In Excellence, 2013 IL App (2d) 131230 (12/23/13).