dissenting:
I cannot agree with the majority on the issue of jurisdiction. I believe that the majority’s resolution of this issue not only overrules our own precedent and misconstrues our constitution, but establishes a policy of Rule 315(b) enforcement which is profoundly unfair. Accordingly, I respectfully dissent.
The facts in this case are straightforward. The appellate court filed its opinion in this matter on October 2, 2003. Twenty days thereafter, the County filed in the appellate court a document entitled “Affidavit of Intent to File Petition for Leave to Appeal to the Illinois Supreme Court.” On November 6, exactly 35 days after the appellate court issued its opinion, the County filed with this court its petition for leave to appeal (PLA). Normally, the County’s PLA would have been timely, because filing an affidavit of intent allows a party to file its PLA up to 35 days after the date the appellate court issues its opinion. 177 Ill. 2d R. 315(b). However, the County’s affidavit had not been sworn and subscribed to by a notary public, a fact which serves as the genesis of today’s jurisdictional debate.
On the day the County filed its PLA, a clerk in our clerk’s office noticed the faulty affidavit and contacted an assistant State’s Attorney for the County by telephone. Citing this court’s decision in Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490 (2002), the clerk informed the assistant that the PLA was untimely because the improper affidavit did not extend the original 21-day period for PLA filing and, as a result, the PLA could not be accepted for filing. According to the affidavit of that assistant, the County sent a motion to this court by overnight courier on Friday, November 7, seeking leave to file its PLA instanter. The motion was filed with this court on Monday, November 10. In the motion, the county asked this court to allow it to file the PLA because the County had (i) attempted to comply with this court’s rules in good faith, (ii) attempted to rectify promptly its error once the court called it to attention, and (iii) extended considerable time and resources in preparing the PLA. The County stated that although its purported affidavit “admittedly” failed to “include a jurat executed by a notary public” that failure was “inadvertent.” The motion, heard by a single justice on behalf of the entire court, was granted on November 19.3
In its brief, the District argues that we should follow Roth and dismiss the appeal as improvidently granted because the County’s PLA did not suffice to confer jurisdiction on this court. The District points out that because the affidavit of intent was not sworn before a notary public, it was ineffective to extend the time for filing the PLA, and thus, the PLA failed to comply with the mandatory time requirements established by the rules of this court. In response, the County concedes that its affidavit was of no effect, but contends that this court’s order granting the motion to file the PLA instanter extended the time for filing a PLA, as provided in Rule 315, effectively waiving the time limits for the instant appeal.
The majority decides this issue in favor of the County, but on grounds other than the County argued. The majority holds that compliance with the rules for appeals to this court is not a jurisdictional requirement, because this court is free to excuse noncompliance with its own rules. The majority states that our rules “do not place limitations upon” our jurisdiction. 214 Ill. 2d at 428. I disagree with the majority’s analysis and conclusion for several reasons.
First, the majority is clearly overruling Roth. That case involved a situation identical to the case at bar. There, as here, a litigant filed a purported affidavit of intent with the appellate court, then filed a PLA with this court within 35 days but more than 21 days after the appellate court filed its opinion. Roth, 202 Ill. 2d at 492-93. There, as here, no notary public witnessed the purported affidavit. And there, as it should be here, we dismissed the appeal even though we had already granted leave to appeal. The reason we did so was that the lack of notarization rendered the first document a nonaffidavit, which meant the PLA was late.4 Therefore we dismissed the appeal because “ ‘[0]ur rules demand strict compliance in the timely filing of appeals or affidavits of intent as a matter of jurisdiction.’ ” (Emphasis added.) Roth, 202 Ill. 2d at 496-97, quoting A.J. Maggio Co. v. Willis, 197 Ill. 2d 397, 403 (2001).
The majority purports to reaffirm our decisions in Roth and A.J. Maggio Co. v. Willis, 197 Ill. 2d 397, 403 (2001). See 214 Ill. 2d at 428-29. But the majority’s statement that our rules “are not a jurisdictional bar” (214 Ill. 2d at 429) could hardly be more clearly inconsistent with the holding in Roth and A.J. Maggio that “ ‘[o]ur rules demand strict compliance in the timely filing of appeals or affidavits of intent as a matter of jurisdiction.’ ” Roth, 202 Ill. 2d at 496-97, quoting A.J. Maggio, 197 Ill. 2d at 403. Moreover, pardoning the County’s clear, unexcused noncompliance with our rules in this case— the County offers no justification for its failure to file a proper affidavit — flies in the face of our previous position that “our rules would have little force if the legal community perceived that we, as a court, do not enforce the rules or tailor them to fit the exigencies of the moment.” Roth, 202 Ill. 2d at 494. The majority’s statement that we “do not, in any way, retreat from” the above statement in Roth (214 Ill. 2d at 429) rings startlingly hollow.
But more troubling than the majority’s utter disregard for our precedent is its flawed constitutional analysis. The majority touches on a number of constitutional provisions in its segue away from the clear precedent of Roth and A.J. Maggio. Indeed, the majority mentions nearly every provision having to do with the jurisdiction of Illinois courts, even those which clearly have nothing to do with this case. The majority notes the provisions relating to the original jurisdiction of the circuit court, the appellate court, and the supreme court. 214 Ill. 2d at 426. The majority notes the constitutional provisions for appeals from the circuit court to the appellate court and from the circuit court to the supreme court. 214 Ill. 2d at 426-27. The majority also notes the circumstances — none of which are present in this case — in which there is an appeal as of right from the appellate court to the supreme court. See 214 Ill. 2d at 427. Yet, in remarkable defiance of the law of averages, the majority never focuses its attention upon the single constitutional provision relevant to our jurisdiction in this case, namely, appeals from the appellate court to this court other than appeals of right.
Instead, the majority veers off into a discussion of this court’s supervisory and general rulemaking authority. 214 Ill. 2d at 427. Only in this context, in passing, does the majority offhandedly mention that the constitution “enables” this court “to create rules governing appeals from the appellate court.” 214 Ill. 2d at 427, citing Ill. Const. 1970, art. VI, §§ 4(c), 6. But section 4 of article VI is the only possible source of appellate jurisdiction in the instant case.
This court’s jurisdiction is defined by section 4 of article VI of the Illinois Constitution, which is helpfully entitled “Supreme Court — Jurisdiction.” Ill. Const. 1970, art. VI, § 4. Subsection (a) defines our original jurisdiction, subsection (b) defines our jurisdiction over direct appeals from the circuit court, and subsection (c) establishes our jurisdiction to hear appeals from the appellate court. See Ill. Const. 1970, art. VI, §§ 4(a), (b), (c). Therefore, because the instant case involves an appeal from the appellate court, subsection (c) is the only relevant provision. Accordingly, I believe it is worth setting out in its entirety:
“Appeals from the Appellate Court to the Supreme Court are a matter of right if a question under the Constitution of the United States or of this State arises for the first time in and as a result of the action of the Appellate Court, or if a division of the Appellate Court certifies that a case decided by it involves a question of such importance that the case should be decided by the Supreme Court. The Supreme Court may provide by rule for appeals from the Appellate Court in other cases.” (Emphasis added.) Ill. Const. 1970, art. VI, § 4(c).
The above provision is quite clear. “In other cases” than appeals as of right, we have “jurisdiction” over appeals as we “provide by rule.” Thus, contrary to the majority’s assertion (see 214 Ill. 2d at 428), our rules are, in fact, inextricably bound up with our jurisdiction over appeals from the appellate court. Indeed, the constitutional commentary specifically states, in the comments on a similar provision in section 4(b), that our “jurisdiction” is “subject” to our “rule making powers.” See Ill. Const. 1970, art. VI, § 4(b), Constitutional Commentary, at 369 (Smith-Hurd 1993) (“the authority over the Supreme Court’s jurisdiction is subject only to the Court’s rule making powers and not to legislation”).
It is uncontroverted that there is no appeal as of right in the instant case. Therefore, we have jurisdiction over this appeal only as we have provided by rule. And our rules do not provide for appeals when PLAs are filed late because of a faulty affidavit of intent. See Roth, 202 Ill. 2d at 497. Thus, we do not have jurisdiction over such appeals, as this court correctly held in Roth, following A.J. Maggio. And, therefore, we ought to dismiss the instant appeal.
I do agree with the majority that noncompliance with our rules is not a jurisdictional defect in the context of appeals as of right. Our constitution has directly granted us jurisdiction to hear those appeals without any reference to our rules. Ill. Const. 1970, art. VI, § 4(c). But in all other appeals from the appellate court — including, of course, the instant case — our constitutional grant of jurisdiction explicitly references only those appeals for which we have “by rule” provided.
As I mentioned previously, instead of looking to that portion of the constitution which defines our jurisdiction to hear cases, the majority turns to section 16 of article VI, which grants this court “[g]eneral administrative and supervisory authority over all courts.” Ill. Const. 1970, art. VI, § 16. The majority notes that our general rulemaking authority is derived from this section. The majority then posits that because our rules are enacted pursuant to our supervisory authority, that same supervisory authority must allow us to break them. 214 Ill. 2d at 428.
I believe this is an erroneous line of reasoning. First of all, our authority to craft rules regarding appeals from the appellate court to this court other than appeals as of right derives from section 4, not section 16.5 The constitutional commentary specifically notes that “[section 16 was not intended to alter the powers of the judicial and legislative branches with respect to the rule making powers.” Ill. Const. 1970, art. VI, § 16, Constitutional Commentary, at 480 (Smith-Hurd 1993). As this court has previously recognized, our power to hear and decide cases is separate and distinct from our supervisory power. See Administrative Office of the Illinois Courts v. State & Municipal Teamsters, Chauffeurs & Helpers Union, Local 726, 167 Ill. 2d 180, 192 (1995) (distinguishing supreme court’s “authority to hear and decide cases” from our “general administrative and supervisory authority over the courts of this State”). Thus, even if the majority were correct in its conjecture that our supervisory authority permits us to break at will any rules we make pursuant to our supervisory authority, that would not permit our action here, where the rules in question were not established pursuant to our supervisory authority. Moreover, even if this position were defensible, I would strongly urge my colleagues to reject it for the reasons this court endorsed in Roth and which the majority avows still to believe: “ ‘our rules would have little force if the legal community perceived that we, as a court, do not enforce the rules or tailor them to fit the exigencies of the moment.’ ” 214 Ill. 2d at 429, quoting Roth, 202 Ill. 2d at 494-95. Here, indeed, the majority is directly stating that we can — and showing by our actions in this case that we will — tailor enforcement of our rules to the exigencies or whims of the moment.
It is true that we have previously issued opinions pursuant to our supervisory authority. See, e.g., McDunn v. Williams, 156 Ill. 2d 288 (1993). However, until today, this step has only been taken in the most extraordinary circumstances requiring our supervision over the court system. In McDunn, for example, two candidates were vying for a single judgeship. The appellate court resolved this situation via the somewhat surprising remedy of making them both judges. Both parties having gotten what they wished, neither appealed. We addressed the case nevertheless, because the appellate court’s order created an unacceptable situation in the circuit court, which it was entirely appropriate — indeed, necessary— for this court to resolve through our supervisory authority over the courts of this state. See McDunn, 156 Ill. 2d at 302. The few other occasions on which we have exercised this power have involved similarly compelling circumstances.
By contrast, the instant case involves no matter which might be said even remotely to require exercise of our supervisory authority. It is a straightforward appeal involving a matter of statutory construction, in a dispute having nothing to do with any Illinois court. Our “general administrative and supervisory authority” over all Illinois courts ought not to be construed as a license to ignore our rules whenever we like. See 214 Ill. 2d at 428-29. It is an unusual and broad grant of power, but it ought to be invoked with restraint, only when action is required to maintain the integrity of the court system, not to decide cases on a whim when litigants have flubbed our rules regarding appeals. See Ill. Const. 1970, art. VI, § 16, Constitutional Commentary, at 480 (Smith-Hurd 1993) (the addition of the words “and supervisory” to section 16 “were intended to strengthen the concept of central supervision of the judicial system” (emphasis added)).
There was a simple, well-established procedure by which the County could have invoked this court’s jurisdiction in an appeal from the appellate court’s decision. One step in that procedure had to be taken within 21 days after the appellate court’s decision: file either a PLA in this court or an affidavit of intent in the appellate court. Rather than filing a PLA, the County chose to file an affidavit of intent. The affidavit requirement of Rule 315(b) is neither unclear nor onerous. Any claim that the rule is unclear on its face would be irrelevant, moreover, as this court issued its opinion in Roth in December of 2002, nearly a year before the County filed its “affidavit” in this case. Our decision in Roth made it quite clear that this court’s “jurisdiction” turns on compliance with this court’s rules, specifically the affidavit requirement of Rule 315(b). Indeed, even more specifically, we made clear that there were jurisdictional implications when a Rule 315(b) affidavit of intent is not sworn before a notary public. Roth, 202 Ill. 2d at 497. This court had held with crystal clarity that the precise transgression the County committed in this case was a jurisdictional fault less than a year before the County committed its error.
The majority champions the County’s actions as a basis for the result in this case. The majority characterizes the County’s motion to file its PLA instanter as a “measure[ ] to inform this court its affidavit of intent was defective” (214 Ill. 2d at 429), and lauds the County because “immediately upon discovering the defect in its ‘affidavit,’ the County notified this court of its situation and requested relief’ (214 Ill. 2d at 430). This interpretation of events is bizarre at best. It seems a bit odd, frankly, that I would even have to point out the entirely obvious fact that this court informed the County of the situation, not the reverse. The County did not somehow abstractly “become aware” of the defect in the affidavit and take it upon itself to inform this court of a potential jurisdictional problem of the County’s own making. Rather, the County simply filed a motion asking this court to excuse its defective affidavit several days after the County received a telephone call from this court which informed the County that its affidavit was defective. It is logic worthy of Lewis Carroll to suggest that this filing — in the wake of this court’s notification to the County that the affidavit was defective — was an effort to “inform this court that its affidavit was defective” or to “notify] this court of its situation.” The County did not file its motion to file its PLA instanter until after the time for filing the PLA had already passed, and then only because an employee of this court took affirmative action to inform the County of its error.
I acknowledge that dismissing an appeal because of a defective affidavit is a harsh result. However, just two years ago, a majority of this court in Roth agreed that dismissal was, in fact, the proper result in such cases in light of our decision in A.J. Maggio. In both Roth and A.J. Maggio, we spoke in terms which left no doubt that our rules regarding appellate procedure had jurisdictional implications. If a majority of my colleagues have changed their minds, and now believes that such a result is indeed too harsh, then the solution, to me at least, is obvious — we should amend Rule 315(b). There are a number of ways in which we could go about amending the rule so as to avoid the result from which the majority now recoils.
Initially, I note that the onus of enforcing Rule 315’s affidavit requirement ought not to be on this court, but on the appellate court, where the rule requires the document to be filed. In light of this, I believe the initial problem in all of these cases is that the appellate court is not paying sufficiently close attention to the purported “affidavits” filed therein. As we pointed out in Roth, the affidavit of intent not only gives notice to the opposing litigant, but also automatically stays the appellate court mandate. Roth, 202 Ill. 2d at 495, citing 155 Ill. 2d R. 368. In the aftermath of our decision in Roth, the appellate court should have become more vigilant with respect to the propriety of the affidavits of intent filed with it— and refused to accept purported affidavits which fail to satisfy the requirements we there made clear. Thus, if my colleagues wish to ameliorate the harshness of the dismissal of appeals for affidavit defects, one way to go about it would be to amend the rule to make explicit that the appellate court must refuse to accept nonconforming affidavits in the first instance. In conjunction, we could also amend Rule 315(b) to permit litigants who file a faulty affidavit in the appellate court to seek leave from the appellate court or a justice thereof to extend the time for filing an affidavit of intent, in order that disputes over faulty affidavits might be dealt with in the court in which they are filed.
Another approach would be to set out specific requirements for the affidavit within the body of Rule 315(b) so that litigants will know what exactly we expect of them. See Roth, 202 Ill. 2d at 496 (contrasting specificity of Rule 191 to the lack of specificity in Rule 315(b)). This would surely temper any concerns about the “unfairness” of enforcing the rule. Or, as a final alternative, this court could wholly do away with the affidavit requirement, or further retreat from it as we did in December 2003, when we amended Rule 315 to permit parties to file with the appellate court a verification by certification (see 735 ILCS 5/1 — 109 (West 2000)), as an alternative to an affidavit of intent. See Official Reports Advance Sheet No. 26 (December 24, 2003), R. 315, eff. December 5, 2003.
Each of the options I have outlined here would achieve the same result as the majority does, ameliorating the harsh result in this case. My suggestions would change the result by changing the rule, however. This has a considerable advantage, to my mind, over the majority’s approach of interjecting uncertainty into the enforcement of our rules, abandoning precedent, and misinterpreting our constitution.
The majority, caught between the Scylla (wishing to enforce our rules) and Charybdis (the fact that our rules clearly require us to dismiss the instant appeal), resolves its dilemma by holding that this court may enforce our rules selectively, based on naught but whim. The majority’s solution is not only unwise, as I have demonstrated above, but also unjust. After all, what conceivable basis is there for excusing the County’s late appeal in this case but refusing to excuse the late appeal in Roth? Do Illinois governmental entities, such as the appellant in this case, have a greater right to be heard than the private litigant attempting to redress a perceived wrong in Roth? It would appear so. For the majority’s proffered distinction of Roth — that the County asked us to excuse its noncompliance with our rules (see 214 Ill. 2d at 429)—is a thin reed indeed. Bear in mind, Roth was the first case to interpret the “affidavit” requirement of Rule 315(b). The appellant had no reason to ask us to excuse its noncompliance, as it was not clear that it had not complied — indeed, it had every reason to believe that it had complied, given that the appellate court accepted its affidavit and this court not only accepted the PLA for filing, but actually granted leave to appeal. The only reason that the County asked us to excuse its noncompliance in this case is the obvious fact that this court took the affirmative step of contacting the County when the PLA was filed — something we did not do for the private litigant on whom the axe fell in Roth. We are clearly treating similarly situated parties in a strikingly different fashion for no good reason. Although we may fend off an equal protection challenge by retreating behind the cloak of exercising our discretion, I am not at all sanguine about the manner in which the majority has chosen to resolve this case, given the wealth of alternatives which do not flout our rules or prior precedent. The majority’s holding will, I fear, give rise to the appearance that we are exercising our jurisdiction in a manner at best arbitrary and capricious, and at worst biased.
Finally, I note that because it decides that compliance with our rules is optional, the majority fails to address the argument of the County that its PLA did, in fact, comply with our rules. This argument is based on the provision in Rule 315(b) that “The Supreme Court, or a judge thereof, on motion, may extend the time for petitioning for leave to appeal, but such motions are not favored and will be allowed only in the most extreme and compelling circumstances.” 177 Ill. 2d R. 315(b). The County argues that by granting its motion to file its PLA instanter, this court in effect extended the time that the County was allowed for petitioning.
I do not believe that the language of the rule supports the County’s position in this case. The problem is that the County’s motion was only filed after the normal time limits had already expired. The plain language of the rule permits this court or a judge thereof to “extend” the time for petitioning, not to “recreate” it. Had the County filed its motion before the time limits had expired, matters would be different — I would stand on the County’s side on the jurisdiction issue. But this court should not upend appellate practice by resuscitating jurisdiction which has already been lost. To hold otherwise would do away with any pretense of finality of appellate court judgments, for any judge of this court could at any point in time — even years after a final appellate court judgment — enter an order “extending]” the time for filing a PLA, permitting a litigant to reopen a matter long since properly laid to rest. The better practice is that clearly contemplated by our Rule 315(b): a party may request an extension of time by filing a motion requesting it before the deadlines for filing have passed— thus putting the other parties on notice that there may be additional proceedings yet to come before this court.
In his special concurrence, Justice Kilbride agrees that the affidavit requirement is jurisdictional, but suggests that this court ought to find that the affidavit in this case satisfied the affidavit requirement because it contains the phrase “under oath.” 214 Ill. 2d at 438 (Kilbride, J., specially concurring). He believes this fact makes the instant case less like Roth and more akin to this court’s earlier decision in Robidoux v. Oliphant, 201 Ill. 2d 324, 340-43 (2002). This court distinguished Robidoux in Roth, however, noting that Rule 191, the rule at issue in Robidoux, enumerated specific requirements for affidavits submitted pursuant thereto — including that the affidavit be sworn “under oath,” but excluding any mention of notary attestation. By contrast, as Justice Kilbride notes, Rule 315(b) is wholly silent on the issue of what is required of affidavits thereunder. 214 Ill. 2d at 438 (Kilbride, J., specially concurring). Accordingly, in Roth, this court concluded that in the absence of specific affidavit requirements within the text of Rule 315(b) the traditional requirements of affidavits must apply in the context of Rule 315(b) — including the requirement that they be sworn and subscribed before a notary public. I believe this analysis was correct. However, I agree with Justice Kilbride regarding the harshness of dismissing appeals for noncompliance with Rule 315 as it stands, which is why one of the alternatives I suggested earlier in this opinion was to amend Rule 315(b) to the same level of specificity as exists in Rule 191. Therefore, although I welcome Justice Kilbride’s concurrence in my conclusion that the affidavit requirement of Rule 315 is jurisdictional, I must respectfully part company with him regarding what is currently required for a document to constitute an affidavit under Rule 315.
Our precedent dictates that we dismiss this appeal as improvidently granted due to the County’s failure to comply with Rule 315(b). If such a result is now deemed unworkable or undesirable, then this court should use this case as a vehicle to amend Rule 315 so that the problem is rectified for all future litigants. Because my colleagues take neither of the above approaches, but instead opt to allow ad hoc enforcement of this court’s rules, I cannot join in their opinion and I respectfully dissent.
CHIEF JUSTICE McMORROW joins in this dissent.As will be made clear in the text, I strongly disagree with the majority’s conclusion that it is appropriate for this court to excuse violations of our rules of appellate procedure on an ad hoc basis. But given that the majority intends to enforce our appeals “rules” on a case-by-case basis (see 214 Ill. 2d at 428-29), I would hope— and I strongly urge — that at the very least, such decisions ought to be made by the full court, not a single justice. Given the majority’s analysis, we will surely be charged with treating similarly situated parties in a different manner. (Indeed, as I shall discuss, this has already occurred, comparing the instant case to Roth.) But it would deal an even more severe blow to this court’s legitimacy if we were to continue in the practice of allowing this particular decision to be made by a single justice and a court observer were able to demonstrate disparate treatment of such motions between judicial districts, based on the different personalities of the individual justices deciding the motions.
Under Rule 315(b), if an appellant files an affidavit of intent in the appellate court within 21 days after the appellate court files its opinion, the PLA is not due in this court until 35 days after the appellate court files its opinion. Without a proper affidavit, however, the PLA must he filed in this court within 21 days after the appellate court files its opinion. 177 Ill. 2d R. 315(b).
The direction in section 16 that this court keep appeals “expeditious and inexpensive” clearly does not require this court to provide for appeals from every decision at every time. Rather, it is an admonition to this court that when an appeal can be brought, this court must do its best to clear the obstacles of time and money from its path.