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?

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

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.”

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