Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

The trial court granted David’s request to disqualify Komie. Komie asked the appellate court for leave to appeal on behalf of Markrack, as next friend of I.M. David asked the appellate court to dismiss the appeal for lack of jurisdiction. The Second District Illinois Appellate Court allowed Markrack to appeal, and denied David’s request to dismiss.

In his brief to the appellate court, David again asked for dismissal. David argued that the Illinois Supreme Court Rules only allowed a “party” to request leave to appeal. Because I.M. was not a “party” to Elizabeth’s petition for a protective order, David asserted, she could not appeal the trial court’s ruling that disqualified Komie.

The court of appeals disagreed again, and ruled that it had jurisdiction to consider I.M.’s appeal. “Party,” under the Illinois Supreme Court Rules, was not limited to the petitioner (Elizabeth) or the respondent (David). This is how the appellate court explained it:

Respondent contends … that I.M. is not a “party” within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so restrictively. The rule does not designate that a “party” must be a plaintiff, defendant, or third party to the action in order to petition for leave to appeal. Rather, the rule simply provides that a “party” may petition for leave to appeal from an order granting a motion to disqualify “the attorney for any party.” … I.M., as a protected person under an order of protection, is a “party” to that proceeding. I.M. is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction under [Illinois Supreme Court] Rule 306(a)(7).

In the end, the appellate court reversed Komie’s disqualification. Read the whole case, Macknin v. Macknin, No. 2-10-0221 (9/23/10), by clicking here.