CBA Nov.-Dec. 2020

that rule or other law. While that statement of jurisdiction is essential to the proper conduct of the appeal, it is not required until the appeal is well underway. Rule 361(h) provides that the appellate court should rule promptly on dispositive motions. That rule defines a dispositive motion to mean, among other things, “any motion challenging the Appellate Court’s jurisdiction.” If the appellee believes that a motion to dismiss the appeal for lack of jurisdiction is warranted prior to the filing of the appellant’s brief, the appellee is cur- rently left to speculate as to the appellant’s view of jurisdiction. The authors respectfully propose that the Supreme Court of Illinois consider amending its rules to require all appellants to include within the text of docketing statement the same jurisdictional state- ment currently required in the appellant’s brief by Rule 341(a)(4), but omitting the requirement of citations to the record. There is no need for a separate requirement that appellees also file such statements, but appellees should be required to address the appellant’s jurisdictional statement in a responsive docketing statement if the appellee regards the statement to be incomplete or incorrect. Illinois Case Law Though the rules do not require litigants to address jurisdiction before filing their briefs, Illinois courts regularly recognize the importance of determining jurisdiction before addressing the merits of a case. See R.W. Dunteman Co. v. C/G Enters., Inc. , 181 Ill. 2d 153, 159 (1998) (“A reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action.”); Almgren v. Rush-Presbyterian-St. Luke’s Med. Ctr. , 162 Ill. 2d 205, 210 (1994) (holding that the court has “[a] duty to consider its jurisdiction before proceeding to the merits of the case”). Jurisdiction is a threshold issue for the court to determine, even if the parties fail to address it. Secura Ins. Co. v. Ill. Farmers Ins. Co. , 232 Ill. 2d 209, 213 (2009) (“A reviewing court must ascertain its [own subject matter] jurisdic- tion before proceeding in a cause of action, regardless of whether either party has raised the issue.”); People v. Lewis , 234 Ill. 2d

32, 36–37 (2009) (noting that “courts of review have an independent duty to con- sider jurisdiction even if a jurisdictional issue is not raised by the parties” and that subject matter jurisdiction is a “threshold issue”). Cases require dismissal if the court lacks jurisdiction, but there is no requirement to brief jurisdiction until the appellant files his or her opening brief. See Cushing v. Greyhound Lines, Inc. , 2012 IL App (1st) 10078, ¶ 83. Cases are regularly dismissed after briefing is complete and even after oral argument. See, e.g., Greer v. Yellow Cab Co. , 221 Ill. App. 3d 908, 917 (5th Dist. 1991) (“[A]lthough we have considered and evaluated the pivotal issues raised by the parties, we find that we are precluded from disposing of this appeal on its merits because our own jurisdiction under Rule 304(a) has not been adequately estab- lished.”); City of Crystal Lake v. Metro. All. of Police , 2018 IL App (2d) 170192-U, ¶ 14 (dismissing appeal because of a “juris- dictional defect… fatal to appellate review” that the court “discovered” “[a]fter brief- ing and while considering the arguments on appeal”); see also Phelps v. Elgin, Joliet and E. Ry. Co. , 28 Ill. 2d 275, 276 (1963) (reversing, following oral argument, after determining that the petition for leave to appeal was improvidently granted because the judgment of the appellate court was not final and no constitutional question, “in the jurisdictional sense,” was present). In People v. Smith , the Supreme Court reviewed the record and “uncovered” a potential jurisdictional defect that was not raised by either party. 228 Ill. 2d at 103. By then, the State and the defendant had fully briefed the merits of the case in the appellate court, the appellate court had considered the arguments and rendered a decision, the defendant had prepared a petition for leave to appeal, the Court had considered and voted on the appellant’s petition for leave to appeal, the parties had fully briefed the merits of the case, and the Court had heard oral argument. (According to the Illinois Supreme Court Docket from the November 2007 term, oral argument in the case was sched- uled for Thursday, November 15, 2007. https://courts.illinois.gov/SupremeCourt/

Docket/2007/11-07.pdf.) The Court discovered that the defendant’s notice of appeal in the appellate court was defective, meaning that court lacked jurisdiction. Because it was unclear from the record whether the notice was ever amended to correct the defect, the Supreme Court remanded. The Court reminded the appellate court of “the importance of ascertaining whether it has jurisdiction in an appeal” and that “[a] reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action.” Id. at 106. Because the Supreme Court could not assess its own jurisdiction, it could not consider any of the defendant’s argu- ments. Id. On remand, the appellate court confirmed the defect and vacated its earlier opinion. People v. Smith , 383 Ill. App. 3d 791, 794 (2008), as modified on denial of reh’g (July 28, 2008). All told, the defendant spent two years and nine months pursuing the appeal. Had the Court required the defendant to include in his appellate docketing state- ment an explanation of jurisdiction, the appeal might have been dismissed within a month of when the notice of appeal was filed, saving the State, the defendant, and the courts considerable time, energy, and resources. This is not the only example. See supra n.1; see Patton v. Ill. State Bd. of Elections , 2018 IL App (1st) 180425-U (appeal addressing a candidate’s right to appear on the ballot dismissed 19 days before the election for lack of jurisdiction). The Rules are structured to limit appellate jurisdiction to minimize the unnecessary waste of time and money and to ensure that litigants are prevented from forcing the courts to spend resources addressing the merits of improper appeals. These cases show how requiring appellants to address jurisdiction in the docketing statement should further that effort. Appellate Jurisdiction in Other Forums Similar jurisdictions require litigants to address jurisdiction before filing the open- ing brief. Indiana, New York, and Califor- nia require litigants to provide information necessary to establish appellate jurisdiction before consideration of the parties’ briefs

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