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The second district explains the requirements to appeal a tro

January 7, 2014 by in General

The circuit court issued a temporary restraining order on November 22, 2013, against the defendant, the operator of a private school, barring the expulsion of a student. On November 25, 2013, the defendant filed a notice of appeal in the circuit court and mailed to the appellate court and the plaintiff copies of the notice of appeal, petition for review, memorandum of law in support of the petition, and a proof of service showing that all of those documents had been served on the plaintiff by regular mail. The appellate court dismissed the appeal on December 2, 2013, and issued this decision on December 23, 2013, to explain why.

Appeals of TROs are governed by Illinois Supreme Court Rule 307(d) and are subject to the most expedited schedule of any type of appeal, which requires the appellant’s full submission to be before the court within two days after entry of the TRO. According to the appellate court, the defendant’s appeal was jurisdictionally deficient because it filed its notice of interlocutory appeal in the circuit court (which is the usual procedure) even though the appellate court found that the rule requires the appellant to file the notice in the appellate court. In reaching that conclusion, the court noted that, although “the rule does not state point blank that the notice of interlocutory appeal must be filed in the appellate court, for decades the rule has been interpreted to mean this.” More about that point later. However, that finding doomed the appeal because the court said that filing of a notice of appeal, in the correct court, is what confers jurisdiction over the appeal. Because the notice was filed, the appellate court concluded, in the wrong court, there was no jurisdiction and the appeal had to be dismissed.

The court also identified several other failures to comply with Rule 307(d) in the defendant’s filings that support the dismissal. In essence, the court held that the mailbox rule reflected in Rule 373 has no application in the context of a TRO appeal in light of the very short deadlines involved. Because the defendant simply mailed its filings to the appellate court, they were not received within the required two-day time period and, therefore, there was no proper petition before the court. Moreover, the defendant served its filings on the plaintiff by regular mail, rather than personal or facsimile service as required by the rule, thereby depriving the plaintiff of much of its allotted two days to respond. Due to the jurisdictional defect detailed earlier and the additional violations of Rule 307(d), the appellate court dismissed the appeal.

Because of several violations of Rule 307(d) that caused prejudice to the plaintiff, dismissal of the appeal was justified. However, that is a different thing from lack of jurisdiction and, in that respect, the court’s reasoning is questionable.

The court’s basic premise is that Rule 307(d) requires that the notice of appeal be filed in the appellate court and not in the circuit court, although the appellate court conceded that “the rule does not state point blank that the notice” must be filed in the appellate court. In support of its statement that the rule has been interpreted “for decades” to require filing in the appellate court, the court cited two cases – one from 1994 and one from 2010, neither of which states clearly that the notice (as distinguished from the petition) must be filed in the appellate court.

Contrary to the appellate court’s holding, a plain reading of Rule 307(d) compels the conclusion that the notice must be filed in the circuit court, not in the appellate court. The operative language of the rule is: “Unless another form is ordered by the Appellate Court, review of the granting or denial of a temporary restraining order or an order modifying, dissolving, or refusing to dissolve or modify a temporary restraining order as authorized in paragraph (a) shall be by petition filed in the Appellate Court, but notice of interlocutory appeal as provided in paragraph (a) shall also be filed, within the same time for filing the petition.” So Rule 307(d) refers to Rule 307(a) to find out how to file the notice because the notice is to be “as provided in paragraph (a).” Rule 307(a) states, in pertinent part, “Except as provided in paragraph (b) and (d), the appeal must be perfected within 30 days from the entry of the interlocutory order by filing a notice of appeal designated “Notice of Interlocutory Appeal” conforming substantially to the notice of appeal in other cases.” Thus, Rule 307(a) refers to the rules governing “the notice of appeal in other cases.” The filing of notices of appeal in other cases is governed by Rule 303(a)(1), which provides that the “notice of appeal must be filed with the clerk of the circuit court . . .” No where in any of that does the plain language of any of the rules support the conclusion that the notice should be filed in the appellate court.

The appellate court cited Rule 301 for the proposition that “filing of a notice of appeal, in the correct court, is what confers jurisdiction over the appeal.” However, Rule 301 says nothing at all about filing “in the correct court” or filing in any particular court at all. As noted, to determine in what court the notice must be filed, one looks to Rule 303(a)(1), not Rule 301. Indeed, there appears to be no provision of the supreme court rules that clearly provides for a notice of appeal (as distinguished from a petition for review) to be filed directly with the appellate court, except for Rule 303(d), which addresses extensions of time to file the notice.

Although the other violations of Rule 307(d) justify the dismissal, it is not at all clear that jurisdiction was lacking. Nevertheless, the court chose to issue a published opinion explaining its view of practice under Rule 307(d). So what is a practitioner to do in the wake of the Second District’s holding in this case? The safe route may be to file a notice of interlocutory appeal in the circuit court AND in the appellate court. Then the other required filings should be made in the appellate court pursuant to Rule 307(d). Of course, all of that must be properly filed and served within the time provided by Rule 307(d).

Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230.

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