Direct Appeal of Final Judgments to the Illinois Supreme Court

Transcription

1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 21, Number 1 ( ) Appellate Practice Corner By: Brad A. Elward Heyl, Royster, Voelker & Allen Direct Appeal of Final Judgments to the Illinois Supreme Court Direct appeal to the Illinois Supreme Court from final judgments of the circuit courts are permitted in certain situations as set forth in the Illinois Constitution of 1970 and the Illinois Supreme Court Rules. According to Article VI, Section 4 (a) of the Illinois Constitution of 1970: The Supreme Court may exercise original jurisdiction in cases relating to revenue, mandamus, prohibition or habeas corpus and as may be necessary to the complete determination of any case on review. Ill. Const. Art. VI, 4(a). Section 4(b) states further: Appeals from judgments of Circuit Courts imposing a sentence of death shall be directly to the Supreme Court as a matter of right. Ill. Const. Art. VI, 4(b). Article VI then empowers the Supreme Court to provide by rule for direct appeal in other cases. Ill. Const. Art. 6, 4(b). Direct appeals to the Supreme Court should be considered along with other means to obtain high court consideration, including Rule 381 actions for mandamus, Rule 383 motions for the exercise of supervisory authority, and Rule 315 petitions for leave to appeal. Historical Perspective Prior to these changes, the scope of cases that fell within the Court s mandatory jurisdiction was much broader. Under the Illinois Constitution of 1870, the Court was afforded original jurisdiction in three types of cases: revenue, mandamus, and habeas corpus. Ill. Const. 1870, Art. VI, 2. Per Section 75 of the Civil Practice Act, the Court permitted direct jurisdiction as follows: Appeals shall be taken directly to the Supreme Court in all cases in which a franchise or freehold or the validity of a statute or the validity of a county zoning ordinance or resolution or a construction of the constitution is involved, and in cases in which the validity of a municipal ordinance is involved and in which the trial judge shall certify that in his opinion the public interest so requires, and in all cases relating to revenue, or in which the State is interested as a party or otherwise. 110 Ill. Rev. Stat. sec. 199(1) (1949). Article VI was amended in 1964 to specifically permit direct appeals from final judgments of the circuit courts in four classes of cases: revenue, habeas corpus, capital cases, and those involving a question arising under the Page 1 of 6

2 United States or Illinois Constitution. See J. Timothy Eaton & William R. Quinlan, DIRECT APPEALS FROM THE CIRCUIT COURT TO THE ILLINOIS SUPREME COURT AFTER FINAL JUDGMENT, IICLE CIVIL APPELLATE PRACTICE, (2008). The Court s mandatory direct appeals were narrowed even further in the 1970 Constitution, which yields the procedures we have in place today. The Supreme Court Delineates Other Areas for Direct Appeal by Rule Pursuant to the discretionary power afforded to the Supreme Court by Section 4, Supreme Court Rule 302 was revised effective July 1, 1971, to delineate the categories of matters for which it would entertain direct appeal. Rule 302(a) addresses those cases, other than those specifically enumerated in Article 6 of the Constitution, where direct appeal is possible: Appeals from final judgments of circuit courts shall be taken directly to the Supreme Court (1) in cases in which a statute of the United States or of this state has been held invalid, and (2) in proceedings commenced under Rule 21(c) of this court. For purposes of this rule, invalidity does not include a determination that a statute of this state is preempted by federal law. 210 Ill. 2d 302(a). The latter sentence of Rule 302(a) was added by a July 27, 2006 amendment, effective September 1, Ill. 2d R. 302(a). The two pressing questions when presented with a potential Rule 302(a) scenario are: (1) whether the underlying circuit court order is final and (2) whether the finding of unconstitutionality was a necessary part of the circuit court s ruling. Requirement of a Final Order Foremost, the Illinois Supreme Court has stated that as a general rule, it will only consider direct appeals from final judgments of the circuit court. Treece v. Shawnee Comm. Unit School Dist. No. 84, 39 Ill. 2d 136, 233 N.E.2d 549 (1968). Illinois considers a final judgment one that terminates the litigation on the merits and leaves nothing to be done but to proceed to execution. Kirwan v. Welch, 133 Ill. 2d 163, 167, 549 N.E.2d 348 (1989). To determine what constitutes a final order, the Court instructs parties to consult Rule 303, and further acknowledges that an otherwise final order in a multi-party or multi-issue litigation may be made appealable under Rule 304(a). Treece, 39 Ill. 2d at 139; see also Village of Niles v. Szczesny, 13 Ill. 2d 45, 48, 147 N.E.2d 371 (1958). At least two reported cases demonstrate that even a non-final order which fails to warrant review under Rule 302(a) may nevertheless be reviewed under the Court s discretionary power pursuant to Rule 302(b). In re H.G., 197 Ill. 2d 317, 757 N.E.2d 864 (2001); Berk v. Will County, 34 Ill. 2d 588, 592, 218 N.E.2d 98 (1966). Also, an interlocutory order arising under Supreme Court Rule 307 concerning injunctions may be appealable under Rule 302(a) if it involves a ruling that a state or federal statute is unconstitutional. Garcia v. Tully, 72 Ill. 2d 1, 7, 377 N.E.2d 10 (1978) (order dissolving injunction was founded upon the circuit court s ruling that provisions of the Illinois Revenue Act of 1939 were unconstitutional). See also Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 665 N.E.2d 1346 (1996). Proper jurisdiction should be considered in any potential Rule 302(a) scenario. Moreover, jurisdiction can be found lacking despite the parties consent or stipulation to jurisdiction. People ex rel Board of School Inspectors v. City Council of Peoria, 229 Ill. 225, 226, 82 N.E. 225 (1907). The Court may also visit the jurisdictional issue on its own motion. Berber v. Hass, 30 Ill. 2d 263, 195 N.E.2d 622 (1964). And on one occasion, the Court has sua sponte agreed to hear a case that it found otherwise lacked jurisdiction under Rule 302(a) for lack of a final order, on the ground that the case involved a significant public interest and should be heard under the provisions of Rule 302(b). Page 2 of 6

3 If jurisdiction is found lacking and the Illinois Supreme Court refuses to accept the case, the appeal simply returns to the appropriate appellate court for further proceedings. Constitutional Issue Must Dominate Secondly, disposition of the case must hinge on the constitutionality question. The Court will not address constitutional issues that are unnecessary for the disposition of the case, even though the Court acquired jurisdiction because of the presence of the constitutional question. Evans v. Shannon, 201 Ill. 2d 424, , 776 N.E.2d 1184 (2002). Complicating matters are the alternative, non-constitutional reasons given for denying the requested relief. In Trent v. Winningham, 172 Ill. 2d 420, 667 N.E.2d 1317 (1996), the Illinois Supreme Court, speaking of its jurisdiction based upon the declared invalidity of a statute, warned, But courts are cautioned not to compromise that stability in the first place by declaring legislation unconstitutional when the particular case does not require it. Trent, 172 Ill. 2d at 425. There, the court found it was unnecessary to address the constitutionality of the statute in question because there were other reasons to address the retroactive support issue. One additional point, when considering whether a statute is unconstitutional, the Illinois Supreme Court will not distinguish between a circuit court order holding that a statute is facially unconstitutional from an order that a statute is unconstitutional as applied. People v. Fuller, 187 Ill. 2d 1, 8, 714 N.E.2d 501 (1999). Rule 302(a) offers little guidance to practitioners as to how the direct appeal is to be taken. Reading the various rules together, however, the most logical approach is to file a notice of appeal from the circuit court final judgment directed to the Illinois Supreme Court. This notice of appeal must be filed within the standard 30 days from entry of the final judgment and should plainly state that it is being filed under Rule 302(a). 210 Ill. 2d R If the case is later deemed not appropriate for Rule 302 consideration, Rule 365 would nevertheless afford the filing timely status and the appeal could be transferred to the appropriate appellate court. 210 Ill. 2d R Application in Criminal Cases The Illinois Supreme Court has held that the provisions of Rule 302(a) do not apply to criminal cases. People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300 (2002; People v. Truitt, 175 Ill. 2d 148, 676 N.E.2d 665 (1997). Nevertheless, criminal proceedings are subject to Rule 603, a counterpart to Rule 302(a), which specifically states that [a]ppeals in criminal cases in which a statute of the United States or of this State has been held invalid and appeals by defendants from judgments of the circuit courts imposing a sentence of death shall lie directly to the Supreme Court as a matter of right. 134 Ill. 2d R In 1997, the Illinois Supreme Court in People v. Truitt took a two-step approach to what it deemed appealable under Rule 603. While acknowledging that Rule 603 applied to findings of unconstitutionality, the court went on to limit its jurisdiction to only those cases that satisfied Illinois Supreme Court Rule 603. Speaking of Rule 603, the Court stated: The problem with reliance on this rule is that it was not intended to create an independent basis for appellate review. It merely specifies which court should hear a case that is otherwise appealable. Where, as here, the State takes issue with a nonfinal order entered by the circuit court in a criminal case, the threshold question of whether that order is appealable by the State is determined exclusively by Rule 604(a)(1). Truitt, 175 Ill. 2d at 151. According to Truitt, Rule 604(a)(1) restricts the State s right to appeal in criminal cases to four situations, namely; an order or judgment which has the substantive effect of: (1) dismissing a charge for any of the grounds enumerated in section of the Code of Criminal Procedure (725 ILCS 5/114-1); (2) arresting judgment because of a defective indictment, information or complaint; (3) quashing an arrest or search Page 3 of 6

4 warrant; or (4) suppressing evidence. The Court retreated from Truitt in People v. Miller, finding that the true litmus test was simply whether the circuit court s order declared a statutory provision unconstitutional. Miller, 202 Ill. 2d at 335. Rule 302(b) Direct Appeals In Cases In Which Public Interest Requires Expeditious Determination As noted above, the Constitution also confers power on the Illinois Supreme Court to determine what other types of cases may be considered for direct appeal. Rule 302(b) was modified in 1971 to provide a mechanism for the direct appeal of certain final judgments in which the public interest requires expeditious determination. These cases begin as a traditional appeal to the appellate court, but then may be presented to the Illinois Supreme Court for discretionary consideration. According to the Rule, after the filing of a notice of appeal in the appellate court in a case in which the public interest requires prompt adjudication by the Illinois Supreme Court, the Supreme Court or a justice thereof may order that the appeal be taken directly to it. 210 Ill. 2d R. 302(b). The parties may file a petition with the Illinois Supreme Court asking for it to accept such a case or the court may order the matter transferred on its own motion. See Roanoke Agency, Inc. v. Edgar, 101 Ill. 2d 315, 461 N.E.2d 1365 (1984) (appellant s motion for direct appeal). Once permission is granted by the Illinois Supreme Court, any documents already filed in the appellate court shall be transmitted by the clerk of that court to the clerk of the Supreme Court and from that point forward, the case shall proceed in all respects as though the appeal had been taken directly to the Supreme Court. 210 Ill. 2d R. 302(b). As with Rule 302(a), companion Rule 302(b) offers little by way of guidance as to how to draft the motion for transfer or direct appeal. However, experience suggests that a motion for direct appeal pursuant to Rule 302(b) be prepared and filed with the Illinois Supreme Court asking it to accept the case and that the motion explain in detail why the appeal involves a case in which public interest requires expeditious determination. The motion should be accompanied by a supporting record containing the order appealed from as well as a file-stamped copy of the notice of appeal (to show timeliness) and any other documents necessary to demonstrate that the judgment meets the Rule 302(b) criteria. A proposed order should also be filed. Likewise, Rule 302(b) is silent as to what types of cases might fall within its purview those in which the public interest requires prompt adjudication by the Supreme Court. A review of the cases of record, however, suggest that certain topics are more appropriate than others. The following cases give some insight into the types of cases accepted: Orders upholding a statute as constitutional (versus those appealable under Rule 302(a) that have been found unconstitutional). Friends of Parks v. Chicago Park Dist., 203 Ill. 2d 312, 786 N.E.2d 161 (2003). Matters involving elections. Maddux v. Blagojevich, 233 Ill. 2d 508, 911 N.E.2d 979 (2009). Medical or health emergencies. Curran v. Bosze, 141 Ill. 2d 473, 566 N.E.2d 1319 (1990). Challenges against local governmental action. Landmarks Preservation Council of Illinois v. City of Chicago, 125 Ill. 2d 164, 531 N.E.2d 9 (1988). Issues of taxation and revenue. In re Application of Rosewell, 127 Ill. 2d 404, 537 N.E.2d 762 (1989). Utility regulations. Commonwealth Edison Co. v. Illinois Commerce Comm n, 368 Ill. App. 3d 734, 858 N.E.2d 65 (2nd Dist. 2006); Landfill, Inc. v. Illinois Pollution Control Bd., 74 Ill. 2d 541, 387 N.E.2d 258 (1978). Insurance regulations. Hobbs v. Hartford Ins. Co. of the Midwest, 214 Ill. 2d 11, 823 N.E.2d 561 (2005). Matters of public policy affecting large numbers of litigants. Price v. Philip Morris, Inc., 219 Ill. 2d 182, 848 N.E.2d 1 (2005). While having your case fall within these sub-groups is significant, it does not guarantee acceptance of a motion for direct appeal. In re Petition to Dissolve and Discontinue Niles Park Dist., 244 Ill. App. 3d 127, 614 N.E.2d 53 (1st Dist.1993). The motions are evaluated by the court in the exercise of its discretion. Page 4 of 6

5 As an illustration of Rule 302(b) in a case of significant general importance, the rule was used in Atkins v. Deere & Co., 177 Ill. 2d 222, 685 N.E.2d 342 (1997), a case where the circuit court had certified a question of law under Rule 308(a) pertaining to application of the Illinois Structural Work Act and the legislation which repealed that Act. There, the Illinois Supreme Court granted the parties motion for direct appeal and consolidated the case with several other similar cases and ruled on whether the repealing legislation should be applied retroactively to terminate all pending cases, or limited to prospective application only. The issue was of significant importance, as it impacted cases across the state. As these numbers show, the total number of direct actions, whether as of right or discretionary, pale in comparison to the number of cases presented to the court on original motion per Rules 381, 382, and 383 or on leave to appeal per Rule 315, as is shown in the chart. Nevertheless, having a means to pursue direct review to the Supreme Court is a valuable tool for parties and should be utilized when it can be of assistance. Counsel should always be on the lookout for situations where Rule 302, especially subsection (b), might be applied. * The inflated numbers for 2001 and 2002 reflect 174 and 66 cases respectively filed on notices declaring unconstitutional all or part of PA sentencing enhancements for crimes committed with firearms. The total as of right column tallies columns 2, 4, and 5, which are nondiscretionary. SOURCE: Illinois Annual Reports, Supreme Court of Illinois Caseload and Statistical Records, Five-Year Trends, 2002, 2007, About the Author Brad A. Elward is a partner in the Peoria office of Heyl, Royster, Voelker & Allen. He practices in the area of appellate law, with a subconcentration in workers compensation appeals and asbestos-related appeals. He received his undergraduate degree from the University of Illinois, Champaign-Urbana, in 1986 and his law degree from Southern Illinois University School of Law in Mr. Elward is a member of the Illinois Appellate Lawyers Association, the Illinois State, Peoria County, and American Bar Associations, and a member of the ISBA Workers Compensation Section Counsel. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Page 5 of 6

6 Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 21, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL , , Page 6 of 6