Effective July 1, a supreme court rule change will remove a trap that's especially dangerous for the occasional appellate lawyer. 

Starting July 1, 2006, appellate practitioners will no longer have to file an affidavit of intent to appeal, thanks to rules amendments handed down by the Illinois Supreme Court. Instead, would-be supreme court appellants will simply have to get their petitions for leave to appeal (PLAs) filed on time. 

Solving the Roth problem

MR 3140, entered February 10, 2006, amends several rules of appellate procedure, among other matters. Most noteworthy for practitioners are the changes to SCR 315, "Leave to Appeal From the Appellate Court to the Supreme Court."

The version of SCR 315 currently in effect requires a party seeking leave to appeal either to file a PLA with the supreme court or to file with the appellate court an affidavit or verification by certification of intent to file a petition for leave to appeal with the supreme court within 21 days after entry of the judgment of the appellate court. If the party opts to file the affidavit of intent, it must then file the petition within 35 days after the entry of the appellate court's judgment. Corresponding deadlines and conditions apply to cases in which a petition for rehearing is filed with the appellate court.

The affidavit serves two purposes: First, it gives notice to the opposing party of the intention to seek leave to appeal. Second, it serves as an automatic stay of the mandate of the appellate court. Roth v Illinois Farmers Ins Co, 202 Ill 2d 490, 495, 782 NE2d 212, 215-216 (2002).

The supreme court has dealt harshly with appellants' failure to comply strictly with this rule. In Roth, after the parties had fully briefed and argued the case, the court dismissed it for want of a proper affidavit of intent.

The defendant had filed a document entitled "Affidavit of Intent to File Petition For Leave to Appeal" well within the 21-day deadline. Though the filing was signed by one of the law firm's attorneys, however, it was not sworn. The court said that under SCR 315 an affidavit must be in compliance with the traditional requirements of being sworn to before a person who has authority under the law to administer oaths and found that the document did not constitute an affidavit within the meaning of the rule.

Resolving cases on their merits

Ottawa attorney Michael Reagan, an experienced appellate practitioner, believes that the rules change will primarily benefit those who rarely do appellate work. "In this office, [filing a proper and timely affidavit] isn't a problem." But the attorney who's taking an appeal to the supreme court for the first time may overlook the requirement or fail to understand the document's administrative purpose of staying the court's mandate. As the committee comments on the amendment reflect, the change is consistent with public policy favoring resolution of cases on their merits.

To compensate for eliminating the affidavit provision, the court amended SCR 368 ("Issuance Stay, and Recall of Mandates from Reviewing Court") to require the clerk of the reviewing court to transmit to the circuit court the reviewing court's mandate not earlier than 35 days after the entry of judgment, unless the court orders otherwise. The previous timeline had been 21 days after the entry of judgment.

The court also amended SCR 315 to add a subsection, (b)(2), Rule 23 orders. New SCR 315(b)(2) provides that if a timely motion to publish an order entered under SCR 23 is filed pursuant to SCR 23(f) and granted, the nonmoving party may file a petition for leave to appeal within 35 days after the entry of the order granting the motion to publish. Reagan says this amendment was one of the products of a special committee on appellate rules formed under the leadership of former ISBA President Timothy Eaton, another seasoned appellate practitioner.

Some litigants, says Reagan, may be willing to live with a loss at the appellate level as long as the opinion is not published or precedential, but may change their minds and wish to appeal to the supreme court in the event of a published opinion. New SCR 315(b)(2) gives litigants the opportunity to reconsider their options in the event that the appellate court decides to publish an opinion that it initially issued under SCR 23.

Simultaneously with its amendments to SCR 315 and 368, the court corrected SCR 312, which governs docketing statements, and amended rules 317 and 368. The amendment to SCR 317, "Appeals from the Appellate Court to the Supreme Court as of Right," adds appellate court cases in which a federal or Illinois statute has been invalidated to those that may be taken to the supreme court as a matter of right.

The rules changes are effective July 1, 2006, with the exception of corrected rule 312, which is effective immediately.