The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

A Guide to the Rules for Appeals to the Illinois Appellate Court
By Kristopher N. Classen

For the unfamiliar, the rules governing appeals can be difficult to navigate.  Here is a map. For the practitioner who is not versed in the intricacies of appellate procedure, negotiating the maze of rules laid out by the Supreme Court--and each of the five Appellate Court districts--can be a daunting, time-consuming task.  To avoid becoming mired, or victimized, by the rules, use this step-by-step guide.

The basic rules governing appeals are very similar, regardless of the type of the appeal or the district in which it is filed.  However, there are some subtle, and occasionally significant, variations.  The below guide assumes a typical civil appeal. At each step, it notes any specialized rules, such as those relating to accelerated or interlocutory appeals.

Filing Notice of Appeal (Rules 301 – 310).  The first step in almost all appeals is the filing of a notice of appeal,[1] the document that confers jurisdiction to the Appellate Court.[2]  Normally, the notice of appeal must be filed within 30 days of the date of the order that is being appealed, or, if a timely post-judgment motion has been filed, within 30 days of its resolution.[3]  The thirty-day limit is calculated as provided in the Statute on Statutes,[4] which mandates that, if the final day is a weekend or holiday, the deadline will fall on the first working day after.[5]  Except in rare situations,[6] the notice of appeal must be filed with the Circuit Court, not the Appellate Court.[7]  In civil cases, within seven days of the filing of the notice of appeal, the appellant must serve notice on any interested parties and file with the Appellate Court a notice of filing and a proof of service.[8]  As with any materials filed in the Appellate Court, this service and proof of service must conform to Rules 11 and 12.[9]  A notice of appeal will be deemed filed on the day it is received, or, if it is mailed and received after the due date, on the date it was mailed.[10]

The Rules provide exemplar forms for civil and criminal notices of appeal.[11]  A notice of appeal must specify the order(s) to be appealed.[12]  The Appellate Court will review orders not named in the notice of appeal only if a challenge to such orders can be inferred from the orders listed or if the unnamed orders were “a step in the procedural progression leading” to the listed orders.[13]

In criminal cases, premature notices of appeal will be stricken.[14]  In civil cases, the Rules offer a reprieve for early notices of appeal: so long as such a notice is filed after an order resolving a claim, it will be deemed to be filed as of the date any later-resolved claims (or post-judgment motions) are finalized.[15]  There is, however, an important limitation on this reprieve.  As noted, a notice of appeal confers appellate jurisdiction over only orders it describes.  Thus, a premature notice of appeal cannot confer jurisdiction over later orders.  To appeal those orders, another notice of appeal is required.
The failure to file a notice of appeal within the 30-day deadline normally precludes Appellate Court jurisdiction.[16]  However, the Rules provide another chance for the would-be appellant who has missed the deadline: within the thirty days following the first thirty day deadline, a party with a reasonable excuse for the delay may move to file a late notice of appeal.[17]  In criminal cases, the Rules extend this grace period to six months if the appellant can show that the appeal has merit and that the delay was not due to culpable negligence.[18]

Permissive interlocutory appeals are initiated, still within the normal thirty day limit, by a petition to appeal as described in Rule 306(c).[19]  The opposing party receives twenty-one days to file its answer.[20]  Interlocutory appeals as of right follow the procedure for normal appeals.[21]  Interlocutory appeals from certified questions must be sought within fourteen days by application as described in Rule 308(c); the opposing party receives fourteen days to answer the application.[22]  Permissive interlocutory appeals of orders affecting child custody must be appealed by petition within fourteen days, and the notice of appeal must be served on the trial judge.[23]  If the Appellate Court accepts the appeal of an interlocutory child custody order, the case will proceed as an accelerated appeal under Rule 311(a).[24] 

Appeals from temporary restraining orders must be initiated by petition within two days, with the supporting record described in Rule 307(d).[25]  The First District requires that parties file four (4) copies of any application or petition to appeal and specify on the cover page the Supreme Court Rule under which appeal is sought.[26]

A party may file a cross-appeal within thirty days of the final order being directly appealed or ten days of the notice of appeal, whichever is later.[27]

Appeals involving child custody (and, in the Second District, orders granting or denying petitions for removal[28]) are automatically accelerated under Rule 311.[29]  Rule 311 provides a special caption that must be included on all filings in the case, including the notice of appeal.[30]

Filing and Responding to Motions (Rules 11, 12, and 361).  With the exception of motions for extension of time (discussed below), motions in criminal and civil appeals are governed by the same rules.[31]  Motions must be accompanied by proof of service as described in Rule 12.  Parties must file two copies of each motion, except in the First District, which requires four copies,[32] and the motion must include a proposed order.[33]  The First and Fourth Districts require that the motion title reflect the relief sought.[34]  The Second District requires that motions contain an attorney’s (or pro se party’s) address and signature and follow the formatting guidelines of Rule 341(a).[35]  In the Third District, motions (and responses) may not exceed eight pages.[36]

If the opposing party has no objection to a motion, the motion should so state.[37]  Otherwise, the time an opposing party receives to respond to a motion depends on the method by which the motion was served: a party receives ten days for motions filed by mail or five days for motions served by facsimile or in person.[38]  Absent “extraordinary circumstances,” the Court may not rule on a contested motion until the time for response has passed.[39]  Motions should be served (and filed) with this limitation in mind: if a party files a motion seeking relief within seven days but serves the motion by mail, it may not receive a timely ruling.  As with notices of appeal, motions and responses will be deemed to be filed as of the date they are received, or, if received after the due date, on the date of mailing.[40]  Replies to responses are not allowed without leave.[41]

In any appeal in which time is of the essence (if, for example, the appeal may soon become moot), a party may file a motion to accelerate pursuant to Rule 311(b).

Emergency motions are governed by local rule in all five districts.  All but the Third District do not allow emergency motions to be filed unless the case has been docketed.[42]  However, the First and Fifth Districts allow an appeal to be docketed upon receipt of an emergency motion if it is accompanied by a copy of the notice of appeal and relevant trial court documents.[43]  All districts require emergency motions to include the words “Emergency Motion” in their titles. The First, Fourth, and Fifth Districts require emergency motions to be served personally, by overnight mail, or by facsimile; the Second District requires personal or facsimile service; and the Third District requires personal or overnight mail service.  The Third District also requires that the moving party notify any other parties of the motion by telephone.  The First, Second, and Fourth Districts require that emergency motions set forth any deadlines for a ruling as well as the nature of the emergency and the grounds for relief.  Those districts also require that relevant documents be attached to the motion.

Motions for extension of time in criminal cases must be supported by an affidavit listing the date counsel was appointed, the date the record was filed, and the reason for the extension.[44]  In the First District, motions for extension in civil and criminal cases must ask for a specific due date at least fourteen days after the original due date.[45]  In the Second District, motions for extension in civil and criminal cases must describe the length of any extensions already granted, the total number of days that will have elapsed since the notice of appeal if the extension is allowed, and the date on which the appeal may become moot (or, in a criminal case, the status of the defendant’s sentence).[46]
 Motions in accelerated child custody appeals must include the special caption from Rule 311(a).  In the Second and Fourth Districts, all motions in accelerated appeals should be served in person or by facsimile;[47] the Fifth District suggests as much for motions for extensions.[48]  Requests for extensions in such cases are disfavored.[49]   Requests for extensions based on delays in obtaining the record must be served on the trial judge and chief circuit judge and be accompanied by an affidavit from court reporting personnel.[50]  The Second District also requires such motions for extension to detail the proceedings at the status hearing required by Rule 311(a)(3).

Filing a Docketing Statement (Rule 312).  The form of a proper docketing statement is provided in Rule 312.  It must be accompanied by any filing fees due and copies of requests for the record from Circuit Court personnel.[51]  In a normal appeal, the docketing statement must be filed within fourteen days of the notice of appeal; in interlocutory appeals as of right, it must be filed within seven days; in permissive interlocutory appeals and appeals from temporary restraining orders, it must be filed with the petition or application to appeal.

Obtaining the Record (Rules 321 – 335).  In criminal cases, the record on appeal is prepared as a matter of course.[52]  In civil cases, within the time for filing a docketing statement, the appellant in a civil case must make a written request for preparation of the report of proceedings, which should include all information pertinent to the appeal.[53]  The record, or a certificate in lieu of record pursuant to Rule 325, must be filed within 63 days of the notice of appeal.[54] 

As the party that bears the burden to provide a record sufficient to support a claim of error, the appellant must ensure that the record contains all needed material.[55]  In criminal and civil cases, physical evidence is not normally included in the record on appeal,[56] and all but the Fifth District by default do not accept such evidence as part of the record.[57]  Thus, where such evidence is relevant, a party should move for its inclusion in the record.  If no verbatim transcript is available, the appellant may substitute a certified bystander’s report or an agreed statement of facts.[58]  Omissions and inaccuracies in the record may be corrected by agreement, or, where there is dispute, by decree of the trial court.[59] 

In permissive interlocutory appeals, appeals of temporary restraining orders, and appeals from certified questions, a supporting record (as described in Rule 328) must be filed with the petition or application to appeal.[60]  The First District asks that parties submit four copies of supporting records, unless the supporting record is certified.[61]  If the petition for a permissive interlocutory appeal is granted, or an application to present certified questions is allowed, the parties may file an additional record.[62]

The record in accelerated appeals must be filed within thirty-five days of the notice of appeal.[63]

Filing Briefs (Rules 341 and 342).  After the record is filed, the appellant receives 35 days to file its white opening brief, the appellee thirty-five days to respond with its blue brief, and the appellant fourteen days to file a yellow reply brief;[64] these deadlines may be changed on motion.[65]  If the parties opt to file briefs, the same schedule applies for appeals from certified questions[66] and from permissive interlocutory appeals not involving child custody.[67]  The formatting guidelines for briefs in civil and criminal appeals are contained in Rule 341.[68]  Along with typeface and other formal mandates, Rule 341 limits main briefs to fifty pages (and reply briefs to twenty pages), states that parties must file nine copies of each brief, and requires that briefs cite to the official reporters.  Rule 341(h) describes the required sections of an appellant’s brief; Rules 341(i) and (j) describe the less extensive requirements for response and reply briefs.  If either party seeks oral argument, it should so indicate on the cover page of its briefs.[69]  Rule 342 describes the materials that must be included in the appendix to the appellant’s brief. [70]

The Third District does not allow statements of facts to exceed fifteen pages,[71] and it requires that the standard of review be discussed in a separate heading under each argument.[72]  It also encourages parties to file five electronic copies of briefs on compact disc.[73] 

In the First and Second Districts, after a brief is filed, parties may seek leave by motion to correct typographical errors, but parties may make substantive corrections only by filing a motion to withdraw the brief and substitute a new one.[74]

The appellee pursuing a cross-appeal should file a single response brief containing both response to the opening brief and argument supporting the cross-appeal.[75]  The appellant receives thirty-five days to file a combined reply (on the appellant’s appeal) and response (to the cross-appeal).  The appellee then receives fourteen days to file a red cross-reply brief.

In interlocutory appeals as of right, the opening brief must be filed within seven days of the filing of the record; the response must be filed within seven days thereafter, and the reply seven days after that.[76]

In appeals of temporary restraining orders, the Appellate Court will accept memoranda in lieu of briefs no longer than fifteen pages.[77]  A respondent has two days after the filing of the petition for appeal to file a responsive memorandum, and no reply is allowed without leave.[78]

In accelerated child custody appeals, the Second District allows memoranda in lieu of briefs in accelerated child custody appeals.[79]  In the First District, the appellant must file his or her opening brief within twenty-one days of the filing of the record on appeal; the appellee must respond within twenty-one days; and the appellant has fourteen days to reply.[80]  The Second, Fourth, and Fifth Districts follow a 21-21-7 schedule;[81] the Third follows a 14-14-7 schedule.[82]

Oral Argument (Rules 351 and 352).  If the Appellate Court grants oral argument, unless given leave of court, each side will receive no more than twenty minutes for its main argument, and the appellant will receive no more than ten minutes for rebuttal.[83]  The Second District normally allows fifteen minutes for each main argument and five minutes for rebuttal;[84] the Fourth District allows twenty minutes and five minutes.[85]  Recordings of oral arguments are posted on the Supreme Court’s website soon after the arguments are held.

After the Court’s Decision.  The prevailing party may file a motion for costs pursuant to Rule 374.  If the Appellate Court’s decision was not published, the winning party also might consider a motion to publish pursuant to Rule 23.
Within twenty-one days of the Appellate Court’s decision, a party may file a petition for rehearing pursuant to Rule 367.[86]  Petitions for rehearing, which should have a green cover, may not exceed twenty-seven pages, and nine copies of such petitions must be filed.  The losing party also may file a petition for leave to appeal to the Illinois Supreme Court,[87] or it may ask the Appellate Court to compel Supreme Court review via Rule 316 certification.

The rules governing practice in the Illinois Appellate Court can be difficult to navigate, but this primer should provide sufficient guideposts to see you through, so you can avoid the procedural morass, and focus your energies where they belong: on your argument.

[1] Ill. Sup. Ct. R. 301 (civil cases); Ill. Sup. Ct. R. 606(a) (criminal cases); Ill. Sup. Ct. R. 660(a) (juvenile appeals follow criminal appeals rules). 

[2] In re D.D., 212 Ill. 2d. 410, 417, 819 N.E.2d 300, 304 (2004).

[3] Ill. Sup. Ct. R. 303(a) (civil); Ill. Sup. Ct. R. 606(b) (criminal).

[4] Ill. Sup. Ct. R. 2 (adopting 5 ILCS 70/0.01).

[5] 5 ILCS 70/1.11.

[6] See, for example, 35 ILCS 200/16-195 (certain property tax appeals filed directly with the Appellate Court); Ill. Sup. Ct. R. 335 (direct review of administrative orders in Appellate Court).

[7] Ill. Sup. Ct. R. 303(a); Ill. Sup. Ct. R. 606(a); First Bank v Phillips, 379 Ill. App. 3d 186, 882 N.E.2d 1265 (2nd Dist. 2008).

[8] Ill. Sup. Ct. R. 303(c).  The Circuit Court clerk will serve any needed notice in criminal cases.  Ill. Sup. Ct. R. 606(e).

[9] Ill. Sup. Ct. R. 11 (methods of service); Ill. Sup. Ct. R. 12 (proof of service).

[10] Ill. Sup. Ct. R. 373.

[11] Ill. Sup. Ct. R. 303(b) (civil); Ill. Sup. Ct. R. 606(d) (criminal).

[12] Ill. Sup. Ct. R. 303(b)(2).

[13] Nieman v Economy Preferred Insurance Co., 357 Ill. App. 3d 786, 790-91, 829 N.E.2d 907, 911 (1st Dist., 2005).

[14] Ill. Sup. Ct. R. 606(b).

[15] Ill. Sup. Ct. R. 303(a).

[16] In re Estate of K.E.J., 382 Ill. App. 3d 401, 423, 887 N.E.2d 704, 723-24 (1st Dist. 2008); People v Partee, 125 Ill. 2d. 24, 29-30, 530 N.E.2d 460, 462 (1988).

[17] Ill. Sup. Ct. R. 303(d); Ill. Sup. Ct. R. 606(c).

[18] Ill. Sup. Ct. R. 606(c).

[19] Ill. Sup. Ct. R. 306(a), 306(c).

[20] Ill. Sup. Ct. R. 306(c)(2).

[21] Ill. Sup. Ct. R. 307(a).

[22] Ill. Sup. Ct. R. 308(c).

[23] Ill. Sup. Ct. R. 306(b).

[24] Ill. Sup. Ct. R. 306(b) (invoking Ill. Sup. Ct. R. 311(a)).

[25] Ill. Sup. Ct. R. 307(d).

[26] Ill. 1st Dist. Rule 8.

[27] Ill. Sup. Ct. R. 303(a)(3).

[28] Ill. 2nd Dist. Rule 106(a).

[29] Ill. Sup. Ct. R. 311.

[30] Ill. Sup. Ct. R. 311(a)(1).

[31] Ill. Sup. Ct. R. 610.

[32] Ill. 1st Dist. Rule 4(A).

[33] Ill. Sup. Ct. R. 361(b).

[34] Ill. 1st Dist. Rule 4(C); Ill. 4th Dist. Rule 8.

[35] Ill. 2nd Dist. Rule 102.

[36] Ill. 3rd Dist. Admin. Order 43.

[37] Ill. Sup. Ct. R. 361(a).

[38] Ill. Sup. Ct. R. 361(b).

[39] Ill. Sup. Ct. R. 361(d).

[40] Ill. Sup. Ct. R. 373.

[41] Ill. Sup. Ct. R. 361(b).

[42] Ill. 1st Dist. Rule 6; Ill. 2nd Dist. Rule 108(a); Ill. 4th Dist. Rule 9; Ill. 5th Dist. Admin. Order (Jan 3, 2006).

[43] Ill. 1st Dist. Rule 5; Ill. 5th Dist. Admin. Order (Jan 3, 2006).

[44] Ill. Sup. Ct. R. 610.

[45] Ill. 1st Dist. Rule 4(D).

[46] Ill. 2nd Dist. Rule 103(a).

[47] Ill. 2nd Dist. Rule 106(e); Ill. 4th Dist. Admin. Order 47.

[48] Ill. 5th Dist. Admin. Order (April 1, 2010).

[49] Ill. Sup. Ct. R. 311(a)(7).

[50] Ill. Sup. Ct. R. 311(a)(4).

[51] Ill. Sup. Ct. R. 312(a).

[52] Ill. Sup. Ct. R. 608.

[53] Ill. Sup. Ct. R. 323(a).

[54] Ill. Sup. Ct. R. 326.

[55] Foutch v O’Bryant, 99 Ill. 2d 389, 459 N.E.2d 958 (1984).

[56] Ill. Sup. Ct. R. 321.

[57] Ill. 1st Dist. Rule 21(A); Ill. 2nd Dist. Rule 104(a); Ill. 3rd Dist. Admin. Order 1; Ill. 4th Dist. Rule 4.

[58] Ill. Sup. Ct. R. 323(c) (bystander’s report); Ill. Sup. Ct. R. 323(d) (agreed statement of facts); Ill. Sup. Ct. R. 612(c) (Rule 323 applies in criminal appeals).

[59] Ill. Sup. Ct. R. 329.

[60] Ill. Sup. Ct. R. 306(c)(1), 307(d)(1), and 308(c).

[61] Ill. 1st Dist. Rule 20.

[62] Ill. Sup. Ct. R. 306(c)(6) and 308(d).

[63] Ill. Sup. Ct. R. 311(a)(4).

[64] Ill. Sup. Ct. R. 343(a).

[65] Ill. Sup. Ct. R. 343(c).

[66] Ill. Sup. Ct. R. 308(d).

[67] Ill. Sup. Ct. R. 306(c)(7).

[68] Ill. Sup. Ct. R. 341; Ill. Sup. Ct. R. 612(i) (Rule 341 applies in criminal appeals).

[69] Ill. Sup. Ct. R. 352(a).

[70] Ill. Sup. Ct. R. 342(a); Ill. Sup. Ct. R. 612(j) (Rule 342 applies in criminal appeals).

[71] Ill. 3rd Dist. Admin. Order 39.

[72] Ill. 3d Dist. Admin. Order 48.

[73] Ill. 3rd Dist. Admin. Order 52.

[74] Ill. 1st Dist. Rule 23; Ill. 2nd Dist. Rule 101(c).

[75] Ill. Sup. Ct. R. 343(b)(1).

[76] Ill. Sup. Ct. R. 307(c).

[77] Ill. Sup. Ct. R. 307(d).

[78] Ill. Sup. Ct. R. 307(d)(2).

[79] Ill. 2nd. Dist. Rule 106(b).

[80] Ill. 1st Dist. Rule 14(B).

[81] Ill. 2nd Dist. Rule 106(c); Ill. 4th Dist. Rule 12; Ill. 5th Dist. Admin. Order (April 1, 2010).

[82] Ill. 3rd Dist. Admin. Order 47.

[83] Ill. Sup. Ct. R. 352(b); see Ill. Sup. Ct. R. 611(b) (Rule 352 applies in criminal appeals).

[84] Ill. 2nd Dist. Rule 109(a).

[85] Ill. 4th Dist. Rule 14.

[86] Ill. Sup. Ct. R. 367; Ill. Sup. Ct. R. 612(o) (Rule 367 applies in criminal appeals).

[87] Ill. Sup. Ct. R. 315; Ill. Sup. Ct. R. 317.

Kristopher N. Classen is a law clerk to Justice Jack O'Malley in the Illinois Appellate Court, Second District. He graduated cum laude from the University of Illinois College of Law in 2004, and he received his B.S. in Business Management and Administration from Bradley University in 2001.

 
 
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