Articles Posted in Rehearing

Neringa Valkiunas and Jeffrey Olsen were in a protracted custody battle. Neringa first appealed from a custody modification order that made Jeffrey residential custodian. That first appeal was dismissed by the Second District Illinois Appellate Court because, when the appeal was filed, two civil contempt petitions were pending in the trial court. The pending contempt petitions rendered the notice of appeal premature.

Before the dismissal of the appeal, Jeffrey filed a motion in the trial court to disqualify Neringa’s lawyer. After the trial court ruled on the contempt petitions, Neringa moved for rehearing of the dismissal in the appellate court. The request for a rehearing was granted. But unknown to the appellate court at that time, the motion to disqualify still was pending in the trial court.

So the question was: Did Neringa’s notice of appeal give the appellate court jurisdiction, or did the pending motion to disqualify Neringa’s lawyer deprive the appellate court of jurisdiction?

The appellate court ruled that the motion to disqualify was a “pending claim,” so Neringa’s notice of appeal was premature and there was no appellate jurisdiction. Here’s how the court explained it:

“If an order does not resolve every right, liability or matter raised, it must contain an express finding that there is no just reason for delaying an appeal.” The June 24, 2008, order disposing of the contempt petitions did not dispose of all the claims, and the February 8, 2008 [making Jeffrey residential custodian], order from which petitioner appealed did not contain Rule 304(a) language; thus, the notice of appeal is still premature and is ineffective to confer jurisdiction on this court.

The dispute was complicated further because Illinois Supreme Court Rule 367 limited a party to one petition for rehearing. As the matter stood, Neringa had used that option and was not entitled to do so again. In apparent deference to the convoluted state of the law in this area, the appellate court vacated “that part of our order of July 28, 2008, granting the petition for rehearing. Thus, the petition for rehearing is still pending. Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter and then supplement the record with the appropriate order or orders. Upon petitioner’s demonstrating to this court that we have jurisdiction, we will rule on the petition for rehearing.”

Read the whole opinion, IRMO Valkiunas, No. 2-08-0279(12/18/08), by clicking here.

After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U.S. Supreme Court; or (2) that the appeal involves a question of “exceptional importance.”

Ms. Easley’s petition did neither, so the court considered it as a petition for rehearing by the original panel. But the motion only raised an issue that was not argued in the original appellate proceeding. Nor did it otherwise comply with Federal Rule of Appellate Procedure 40, which governs panel rehearings. FRAP 40 requires a petition for rehearing to “state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.”

The appellate court denied the petition for panel rehearing because: “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it. Panel rehearing is not a vehicle for presenting new arguments, and, absent extraordinary
circumstances, we shall not entertain arguments raised for the first time in a petition for rehearing.”

All brief writers should read this opinion because it explicitly states the 7th Circuit’s expectations for rehearing petitions. Get the whole case, Easley v. Reuss, No. 06-1646 (7/3/08), by clicking here.

Just for fun, I’m going to keep track of the won-lost record for motions for rehearing in the Illinois Supreme Court. I’ll start with the rulings issued on March 26, 2007. So far, Denials 5, Grants nothing.

Unfit to stand trial for telephone harassment, Leslie H. was admitted to the Elgin Mental Health Center. Her psychiatrist petitioned to involuntarily administer psychotropic medication to her. A public defender represented her on the petition to administer the drugs. Leslie’s attorney in the criminal defense matter was not given notice of the psychiatrist’s petition.

The trial court granted the petition, and Leslie appealed. The Second District Illinois Appellate Court ruled that the dispute was not moot, even though the waiting period after the order authorizing administration of the drugs passed. The court invoked the public interest exception to the mootness doctrine. (Question of a public nature; authoritative ruling could help guide public officers; issue likely to recur.)

Because the public defender did not challenge the lack of notice to Leslie’s criminal defense lawyer at the hearing on the petition, the State argued waiver. The appellate court overlooked the waiver “in order to achieve a just result … especially in a case where the State seeks to involuntarily administer psychotropic medication.”

The State tried to supplement the record on rehearing to show that Leslie’s criminal defense attorney did receive notice of the petition. But the court “simply cannot consider such evidence.” Supreme Court Rule 367 requires a party to state the points the appellate court “overlooked or misapprehended.” The rule does not provide a mechanism for using new evidence that was available at trial and during the appeal.

The order allowing the petition to administer the drugs was reversed. The whole case, In re Leslie H., No. 2-05-0648 (1/5/07), is available right here.