CBA Nov.-Dec. 2020

Jurisdiction Should Be Addressed at the Threshold of Appeals By Libby S. Deshaies, Michael T. Reagan, and Matthew R. Carter U nlike other jurisdictions, Illinois does not currently require appel- lants to address appellate juris-

diction before filing their opening brief. Amending the Illinois Supreme Court Rules to require parties to state the basis of appellate jurisdiction up front will save lawyers, clients, and courts valuable time and resources. “A reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action.” People v. Smith , 228 Ill. 2d 95, 106 (2008) (quoting R.W. Dunteman Co. v. C/G Enters., Inc. , 191 Ill. 2d 153, 159 (1998)). But unlike in some jurisdictions, the Illinois Rules do not require litigants to address jurisdiction in advance of briefing. As a result, courts and litigants may waste time and resources briefing, and even arguing, appeals that end up dismissed for lack of jurisdiction. Other courts have adopted rules to help to avoid such circumstances. The authors propose a simple rules change that would require identifying and explaining the claimed basis of appellate jurisdiction much earlier in the process—which benefits the parties and the reviewing court. Jurisdiction and the Illinois Supreme Court Rules Appellate jurisdiction in Illinois is gov- erned by the state constitution and the Illinois Supreme Court Rules. Appeals from final circuit court judgments are a matter of right to the appellate court in the judicial district where the circuit court is located, except in cases appealable directly to the Supreme Court and except that after a trial on the merits in a criminal case, there is no appeal from a judgment of acquittal. See Ill. Const. art. VI, § 2. The appellate court also has powers of direct review of administrative action as provided by law. The Illinois Supreme Court has discretion- ary appellate jurisdiction over any appeal from the Court of Appeals. Ill. Const. art.

VI, § 4(c); see Ill. S. Ct. R. 315(a). Appeals from the appellate court to the Supreme Court are heard as a matter of right if a question under the constitution of the United States or of Illinois arises for the first time in and as a result of the action of the appellate court or if a divi- sion of the appellate court certifies that a case it decided involves a question of such importance that the case should be decided by the Supreme Court. Ill. Const. art. VI, §§ 4(b), (c); Ill. S. Ct. R. 317. The Illinois Supreme Court also has original jurisdiction in cases relating to revenue, mandamus, prohibition, or habeas corpus. Ill. Const. art. VI, § 4(a). During 2018, there were 2,011 cases filed in the Illinois Supreme Court, includ- ing 1,175 petitions for leave to appeal (53 of which were allowed), and three direct appeals by right. Ill. Cts. Statistical Sum- mary 2018, at 160, available at https:// courts.illinois.gov/SupremeCourt/Annual- Report/2019/2018_Statistical_Summary. pdf. Also in 2018, there were 5,676 cases filed, in total, in the five appellate dis-

tricts. Together, the five appellate districts decided 6,165 cases. That year, at least 57 appeals were dismissed for lack of jurisdic- tion after briefing was complete. The Illinois Supreme Court Rules do not require any analysis of appellate juris- diction until the opening appellant’s brief. Neither the rule prescribing the contents of a notice of appeal (Rule 303(b)) nor the rule delineating the required contents of the docketing statement (Rule 312) require a statement of the claimed basis of appel- late jurisdiction. The docketing statement form that appellants are required to file asks the filer to identify in the caption of the form the “Supreme Court Rule which confers jurisdiction upon the reviewing court,” but there is no requirement that the filer explain why or how that rule confers jurisdiction. Ill. S. Ct. R. Art. III App., R. 312. Rule 341(h)(4) requires that the appellant’s opening brief include a “precise statement or explanation” of the basis for the appeal, including the Supreme Court rule or other law which confers jurisdic- tion, and the facts which bring it within

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