Friday, June 30, 2017

The Illinois Appellate Court moves to sanction pro se litigant

After numerous frivolous appeals following various frivolous filings in the trial court, the Appellate Court in Oruta v. Biomat USA, Inc., 2017 IL App (1st) 152789, issued a rule to show cause why it should not impose sanctions on the pro se litigant.

Friday, May 12, 2017

No immediate review of order granting psychological examination of juveniles relating to the government’s request to transfer for adult prosecution under 18 U.S.C. §5032

In United States v. Defendant Juvenile Male, 855 F.3d 769 (7th Cir. 2017), the Seventh Circuit found that it had no jurisdiction to review the district court’s order that the juvenile defendants must submit to a psychological examination to gather information on factors relevant to the government’s request to transfer for adult prosecution under 18 U.S.C. §5032. The order was not final and the collateral order doctrine did not supply jurisdiction because the defendants could challenge the order later, if the district court eventually granted the motion to transfer. Appeal dismissed.

Friday, April 7, 2017

No timely post-trial motion and no timely notice of appeal leads to a “harsh result” that may not be the end of the line

In People v. Hall, 2017 IL App (1st) 150918, the defendant was found to be a sexually violent person after a jury trial. The trial court entered judgment on the jury verdict on May 14, 2014. Thereafter (just when is not clear from the record), the defendant filed a motion for a new trial. The court denied the motion on February 6, 2015. The defendant filed his notice of appeal on March 6, 2015.

The defendant contended that his post-trial motion was timely filed because the State waived the requirement that the motion be filed within 30 days after entry of the judgment and that the trial court granted several continuances with respect to a hearing that amounted to extensions of time. The Appellate Court found that it lacked jurisdiction to consider the appeal.

First, the State’s purported "waiver" of the 30-day time period had no effect. Time periods affecting the courts’ subject matter jurisdiction cannot be "waived" by the parties.

Second, it is not clear from the record whether the trial court actually extended the time to file the post-trial motion, as it was permitted to do under the rules.

Third, even assuming that the court’s continuances amounted to an extension of time to file to motion, the ultimately fatal impediment to finding appellate jurisdiction was that the record contained only a post-trial motion that was not file-stamped. Therefore, it was impossible to know when the motion was actually filed for jurisdictional purposes. Because the appellant (the defendant in this case) bears the burden of providing a "sufficiently complete" record to allow review, the absence from the record of necessary materials is construed against the appellant.

The court also noted that the revestment doctrine would not apply, notwithstanding the parties’ and the circuit court’s continuing involvement with the case well after the time when the court’s jurisdiction would have ended. The revestment doctrine applies when both parties (1) actively participate in the proceedings; (2) fail to object to the timeliness of a late filing; and (3) assert positions inconsistent with the merits of the prior judgment that support the setting aside of at least part of that judgment. Although the first two factors were present, the court noted that the third factor was clearly absent, considering that the State had actively defended the judgment throughout.

Because there was no timely post-trial motion filed (as far as the Appellate Court could discern from the record), no timely notice of appeal filed, and the trial court (probably) did not extend the time for filing, the trial court lost jurisdiction after 30 days passed from the time of the judgment. The Appellate Court therefore vacated the trial court’s denial of the untimely post-trial motion because the court had lost jurisdiction to rule on that motion.

Interestingly, the Appellate Court noted that "our finding that we cannot access the merits of defendant’s appeal leads to a harsh result. We urge defense counsel to consider other options for pursuing defendant’s claims, whether in the circuit court or the Illinois Supreme Court."

Note that the defendant filed a petition for leave to appeal to the Illinois Supreme Court, which is pending as of the time of this post.

Friday, March 31, 2017

The Illinois Supreme Court explores Rule 304(a), the declaratory judgment statute, and more, but finds no appellate jurisdiction

The Illinois Supreme Court’s decision in Carle Foundation v. Cunningham Township, 2017 IL 120427, arises from longstanding litigation over hospital tax exemptions. But the court didn’t get anywhere close to resolving any tax exemption issues. Instead, the 19-page decision addresses preliminary matters of appellate jurisdiction, ultimately finding that the Appellate Court had no jurisdiction to decide the matters brought before it and declining to exercise its own supervisory authority. As an added bonus, the court also explained that the declaratory judgment claim on appeal wasn’t even a proper declaratory judgment action at all.

At issue was a summary judgment entered as to a single count of a multi-count amended complaint. The circuit court entered summary judgment on a declaratory judgment count seeking to establish what law is to be applied to the case and the court made a Rule 304(a) finding. On appeal, the Appellate Court found, among other things, that the statute found to be controlling in the circuit court was unenforceable because it violated the Illinois Constitution. Both sides filed petitions for leave to appeal to the Supreme Court, which the court granted.

The court first found that the circuit court erred by making the Rule 304(a) finding. Such a finding may be proper upon the resolution of an entire "claim" in litigation, but is never proper with respect to the resolution of a single "issue." The determination of the law that will govern a dispute is not a claim, but only an issue. Therefore, the resolution of that issue is not final and may not be made immediately appealable by the addition of Rule 304(a) language. That is true even where, as in this case, the issue is presented by itself as a separate count of a pleading.

Speaking of which, the court also stated that a count seeking a declaration of which law applies to a particular claim is not a proper claim under the declaratory judgment statute. A declaratory judgment is proper only if it would terminate the controversy or some part of it. It is clear that a determination as to what law to apply was only a preliminary step toward terminating the controversy and would not, in itself, resolve the ultimate controversy between the parties or any part of it.

Finally, the court noted that all of the parties agreed that the court should review the choice-of-law decision pursuant to its supervisory authority, even if the issue were not otherwise properly before the court. While noting that its supervisory authority is "unlimited in extent and hampered by no specific rules or means for its exercise," the court declined to proceed on that basis in this case. For one thing, the policy of the Illinois judiciary is to discourage piecemeal appeals. Exercising supervisory authority under the circumstances to resolve a single issue in a multi-claim case would have the opposite effect. Second, the court noted that it would reach constitutional questions only as a last resort and, because other counts of the complaint might lead to the resolution of the case without involving constitutional issues, "we have hardly reached the point of ‘last resort.’"

Finding that the Appellate Court lacked jurisdiction to consider the appeal and declining to exercise its own supervisory authority, the Supreme Court vacated the Appellate Court decision and remanded the case to the circuit court for further proceedings.

The Illinois Appellate Court rules there is no interlocutory appeal of a temporary attorney fee award in marital dissolution cases

The Second District Appellate Court in In re Marriage of Arjmand, 2017 IL App (2d) 160631, held that an award of interim attorneys’ fees under §501(c-1) of the Illinois Marriage and Dissolution of Marriage Act – the "level the playing field" provision – is not immediately appealable, even if the appeal challenges the enforcement of the award. The court reached that conclusion because there is no Illinois Supreme Court rule that authorizes the Appellate Court to review such orders and the legislative intent behind authorizing interim attorneys’ fee awards is to provide for immediate but temporary relief to the financially disadvantaged spouse while waiting until near the end of the case to finalize the property division.

Friday, March 3, 2017

Illinois Supreme Court Rule 306(a)(5) does not permit petitions for leave to appeal from temporary support and maintenance orders

In re Marriage of Dougherty, 2017 IL App (1st) 161893, involved a petition before the First District Illinois Appellate Court brought under Illinois Supreme Court Rule 306(a)(5) for interlocutory review of the trial court’s temporary orders setting child support and maintenance. Rule 306(a)(5) provides for immediate review by petition for leave to appeal from "interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors[.]"

The petitioner asserted that the phrase "orders affecting care and custody" should be understood to include support orders in addition to orders relating to the custody of minor children. The respondent argued that the court was without jurisdiction because the rule encompasses only custodial orders, not support orders.

Citing the history of the rule and the rule’s provision that proceedings are to be conducted under the expedited procedures for child custody appeals set forth in Rule 311(a), the court determined that the phrase "orders affecting care and custody" is intended to apply only to appeals involving custody and allocation of parental responsibilities and does not provide for petitions for leave to appeal from temporary support and maintenance orders. Accordingly, the court dismissed the appeal for lack of jurisdiction.

Friday, February 3, 2017

The federal collateral order doctrine applies to discovery orders only when two conditions are met

The Seventh Circuit in P.H. Glatfelter Co. v. Windward Prospects, Ltd., 847 F.3d 452 (7th Cir. 2017), dismissed two appeals from orders denying a discovery motion. Ordinarily, a discovery motion is an interlocutory order appealable only at the conclusion of the entire litigation. An exception to the rule known as the collateral order doctrine provides that an interlocutory ruling by a federal district court may be immediately appealable where the order conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. The appellant asserted that the discovery order in question satisfied those requirements.

The Glatfelter court pointed out that in the Seventh Circuit, pretrial discovery orders are appealable under the collateral order doctrine only where they were issued by a district court in an ancillary proceeding and the district court is not within the jurisdiction of the circuit court having appellate jurisdiction to review the final adjudication of the main action. The order in Glatfelter was issued in an ancillary proceeding, so that the first requirement was met. However, although the ancillary proceeding began in the District of Massachusetts, it was transferred to the Eastern District of Wisconsin, where the underlying main dispute was pending.

The federal judge in Wisconsin issued the order on appeal. Accordingly, the Seventh Circuit had jurisdiction to review both the final adjudication of the main action and the outcome of ancillary proceedings.

The collateral order doctrine did not operate as an exception to the rule against immediate appeals of interlocutory discovery orders because the Seventh Circuit would acquire jurisdiction to review both the final adjudication of the main action and the ancillary discovery order only after the main action was concluded. The court dismissed the appeal for lack of jurisdiction.