Articles Posted in Supervisory Orders

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

The Illinois Supreme Court took Price’s appeal. While the case was pending, the supreme court ruled that the statute containing the 90-day restriction was unconstitutional. The ruling of unconstitutionality had nothing to do with 90-day requirement.

When an amended statute is declared unconstitutional, “The effect … is to revert to the statute as it existed before the amendment.” In this case, because the pertinent statute had been voided as unconstitutional, the Illinois Supreme Court ruled that “the reasons upon which this court relied in granting leave to appeal no longer exist.” So the supreme court “decline[d] to address the merits of the substantive issue raised … and dismiss[ed] this appeal.”

The supreme court sent the case back to the trial court to “determine whether plaintiff’s [Cookson] pleadings meet the current requirements of [the statute].” Read the whole case, Cookson v. Price, No. 109321 (12/23/10), by clicking here.

This lawsuit grows from a political fight in Knox County, Illinois. After he took office as Knox County State’s Attorney, John Pepmeyer began an investigation into “improprieties” by current and former county employees of the county state’s attorney’s and sheriff’s offices. Two Assistant State’s Attorneys, Dean Stone and Michael Kraycinovich, were targets of Pepmeyer’s investigation. Stone and Kraycinovich in turn started their own investigation of Pepmeyer concerning allegations that he was guilty of sexual harassment.

Stone and Kraycinovich asked the trial court for appointment of a special counsel for their investigation into Pepmeyer. Pepmeyer asked the court for a special prosecutor for his investigation into Stone and Kraycinovich. The trial court appointed the Illinois Attorney General as special prosecutor of both investigations.

The trial court later modified the appointments. The Attorney General was left to investigate Pepmeyer. A former State’s Attorney for another county, William Poncin, was named special prosecutor to investigate “other Knox County public officials,” including Stone and Kraycinovich.

Pepmeyer appealed. He claimed that Poncin’s powers were too broad and infringed on Pepmeyer’ authority. While the appeal was pending, the Attorney General found there was no basis to investigate Pepmeyer − so the trial court terminated the Attorney General’s appointment.

Further complicating the case, Pepmeyer and Poncin brought the State’s Attorneys Appellate Prosecutor into the act. All three reached an agreement to divide their investigatory powers. Pepmeyer and Poncin then asked the appellate court for a “conditional remand” to direct the trial court to issue an order in accord with the agreement among Pepmeyer, Poncin, and the Appellate Prosecutor.

Stone and Kraycinovich objected to Pepmeyer’s and Poncin’s request. In response, Pepmeyer argued that Stone and Kraycinovich did not have standing in the appellate court to raise an objection or to participate in the appeal. Pepmeyer’s theory was that Stone and Kraycinovich lost standing when the trial court terminated the Attorney General’s appointment to investigate Pepmeyer.

The Third District Illinois Appellate Court ruled that Stone and Kraycinovich did not have standing in the appellate court “because they have failed to show an injury to a legally cognizable interest.” Nor did they have a sufficient “direct, immediate, and substantial interest in the subject matter” to give them standing as non-parties under the Illinois Supreme Court Rules.

The appellate court also denied Pepmeyer’s request for conditional remand “because a remand to the circuit court with directions to enter the proposed order would amount to an exercise of supervisory authority, which the appellate court lacks.”

Read the entire case, In re Appointment of Special Prosecutor, No. 3-07-0553 (1/29/09), by clicking here.

In twin cases, former aldermen Virgil Jones and Ambrosio Medrano, both convicted of federal felonies for misconduct in office, filed nomination papers to run for alderman again. Challenges were made to their nomination papers on the basis that the Illinois Municipal Code prohibited convicted felons from serving in an “elective municipal office.”

In both cases, the Chicago Election Board’s hearing examiner concluded that Jones and Medrano were ineligible to serve, and recommended that they not appear on the election ballot. Appeals were made to the Chicago Election Board. In both cases, the Board rejected the challenges because, it said, the statute prohibiting convicted felons from serving in an elective municipal office was unconstitutional. The challengers sought review in the Circuit Court of Cook County, Illinois. In both cases, the circuit court affirmed the ruling of the Board.

The challengers sought direct review in the Illinois Supreme Court. The Supreme Court dismissed the appeals, stating that the cases were more appropriately handled by supervisory orders than by direct appeal.

The supreme court ruled that the Chicago Board of Elections did not have authority to consider the constitutionality of the Illinois statute. The orders by the Board rejecting the challenges to Jones and Medrano therefore were void.

The Illinois Supreme Court then ruled that the circuit court improperly affirmed the Board. The supreme court stated that the circuit court should have vacated the Board’s ruling and sent the case back the Board to rule in conformance with the statute that prohibits convicted felons from holding office. “Had the done that here, it [circuit court] would have had no need to address the merits of the Election Board’s constitutional analysis. Without a ruling of the constitutionality of the statute, there would in turn, have been no basis for seeking direct review by our court under Rule 302(a).”

For good measure, the Illinois Supreme Court found two more reasons that the circuit court’s “resolution of this case is fatally infirm.”

• First, the circuit court did not comply with Supreme Court Rule 18, which requires “that the circuit court state in writing that the finding of unconstitutionality is necessary to the decision or judgment rendered and that such decision or judgment cannot rest upon an alternate ground.” The supreme court stated that the non-constitutional flaw was not mentioned in the circuit court’s ruling.

• The Supreme Court was miffed that the Circuit Court of Cook County ignored controlling precedent from the Fifth District Court of Appeals. Using colorful language, the supreme court made it clear that the circuit court was not at liberty to ignore the Fifth District. “Although Hofer was decided by a panel of the appellate from the Fifth District, not the First District, where the Circuit Court of Cook County is located, that is of no consequence . . . The notion that the circuit courts are bound only by the appellate court decisions from their own district is a relic of the pre-1964 Illinois Constitution of 1870 and has been expressly disavowed by our court . . . Until this court says otherwise, an appellate court’s decision must therefore be followed regardless of the appellate court’s district.”

The Illinois Supreme Court chose to rule by supervisory order rather than issue an opinion through the normal course. Although supervisory orders are disfavored, it was appropriate in this case because “the manner in which this case was handled presents important issues regarding the administration of justice, and direct and immediate action is necessary to insure that the Election Board adheres to the law and that any challenge to its decision in the circuit court comports with controlling principles of judicial review.”

Both of these cases were decided by four justices. Justices Thomas, Freeman, and Burke took no part in the consideration or decision of the cases. You can have the full opinions in each case by clicking on the case citation links: Bryant v. Board of Election Commissioners of the City of Chicago, No. 104105 (2/23/07); Delgado v. Board of Election Commissioners of the City of Chicago, No. 104112 (2/23/07).