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Monday, October 14, 2019

Appellate Lawyers Association proposes Illinois Supreme Court rule changes to expedite appeals

By Carrie Salls | Jun 22, 2016

CHICAGO – The Illinois Supreme Court Rules Committee will hear comments July 8 at a public hearing on three proposals, including one submitted by the Appellate Lawyers Association (ALA) that would make changes to a Supreme Court rule dealing with interlocutory rights to authorize the filing of supporting records instead of full records on appeal. 

The court said in a release that the ALA’s proposed amendments would also require that notice of appeal be filed in the circuit court for appeals authorized under Rule 307, and would allow relevant documents to be sent by overnight delivery. 

Attorney John Fitzgerald, an ALA director and a partner at Tabet DiVito & Rothstein LLC said the association’s proposal is intended to make it easier and faster for parties to move Rule 307 appeals through the process. 

“We would like to expedite the process,” Fitzgerald told the Record

Fitzgerald said that Illinois Supreme Court Rule 328 already allows a supplemental record to be used for appeals. Through this process, the most relevant documents can be put together without needing to go through the court clerk’s office. A supplemental record can be created by both sides, and all of the documents are certified by a lawyer, he said.  

“The Rule 328 process is a lot quicker and easier,” Fitzgerald said. “It’s a fair process.” 

Fitzgerald said another component of the ALA’s proposal was inspired by a ruling made in a 2013 case entitled Nizamuddin v. Community Education in Excellence, Inc. 

He said this Rule 307 D appeal was dismissed because it was filed in the trial court, rather than the appellate court. However, Fitzgerald said Supreme Court Rule 303(a)(1) states that the notice of appeal must be filed in the trial court. 

"The Nizamuddin case imposed a different rule for appeals under Rule 307(d); namely, that in appeals filed under that rule, the notice of appeal must be filed in the appellate court," Fitzgerald said. "We disagree with the Nizamuddin decision and believe that notices of appeal in Rule 307(d) appeals, as in other types of civil appeals, should be filed in the trial court."

Also, Fitzgerald said documents cannot currently be mailed in Rule 307 D appeals because of the emergency nature of those cases. As a result, the ALA proposal would allow the documents to be mailed using overnight delivery to accommodate pro se litigants and those who are farther away from the court. 

In addition to the ALA proposal, the rules committee will consider a proposal calling for the creation of a Supreme Court rule to govern the use of restraints on minors during court proceedings and will consider proposed changes to Supreme Court rules involving proof of service. 

Specifically, a proposal submitted by the Juvenile Justice Committee of the Illinois Judicial Conference would prohibit the use of restraints on a minor in a delinquency proceeding unless the court finds, after a hearing, that the use of restraints is necessary for one or more specified reasons, including to prevent physical harm to the minor or another person, if the minor has a history of disruptive behavior that has put others in potentially harmful situations or presents a substantial risk of inflicting harm on himself/herself or others or there is a well-founded belief that the minor presents a substantial risk of flight. 

The proposal would establish that restraints can only be used on minors when the court determines they are necessary and there are no less restrictive alternatives to restraints to prevent the minor from flight or inflicting physical harm on himself/herself or others, including the presence of court personnel, law enforcement officers or bailiffs, the release said. 

The proposal would also require that any restraints authorized under the rule allow the minor limited movement of the hands to handle court documents and prohibit the minor from being restrained to another minor, a wall, the floor or furniture while in the courtroom. The proposed rule would also give the minor’s attorney an opportunity to be heard before the court orders restraints and require the court to enter an order detailing its findings if restraints are ordered. 

Under a proposal submitted by the Illinois Supreme Court Commission on Access to Justice, Supreme Court Rule 12 would be amended. Rule 12 governs proof of service in the trial and reviewing courts. The proposed amendment would replace the word “affidavit” in Rule 12 with “certificate” and would include reference to section 1-109 of the Code of Civil Procedure. 

All of the proposals must be approved by the Illinois Supreme Court before they could take effect.

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