specially concurring:
I concur in the judgment reached by the court today. Nevertheless, I, like Justice McMorrow, believe that the court’s opinion “fails to adequately explain the basis for its judgment.” See 192 Ill. 2d at 17 (McMorrow, J., specially concurring). I base my decision in this case on the reasons set forth in Justice McMorrow’s special concurrence, in which I fully join.
I write separately, however, to provide a more complete picture of the State’s briefing deficiencies as identified in the court’s opinion and in the dissents. I agree with the court that the brief adequately allows this court to decide the substantive merits of this appeal. See 192 Ill. 2d at 4-5. In contrast, both Chief Justice Harrison and Justice Rathje believe that the State has violated Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)). Indeed, both take the court to task for, among other things, “advocating” for the State (see 192 Ill. 2d at 28-29 (Rathje, J., dissenting)) and being “an apologist for the State” (see 192 Ill. 2d at 22 (Harrison, C.J., dissenting). In light of these criticisms, I offer the following observations.
Both Chief Justice Harrison and Justice Rathje refer to Supreme Court Rule 341(e)(7). That provision of the rule provides that an appellant’s brief must contain an
“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. Evidence shall not be copied at length, but reference shall be made to the pages of the record on appeal or abstract, if any, where evidence may be found. Citation of numerous authorities in support of the same point is not favored. Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.” 177 Ill. 2d R. 341(e)(7).
According to Justice Rathje, the State’s opening brief speaks only to section 11 — 501.4 and, as a result, the State has waived its challenge to section 11 — 501.4—1 because points not argued are waived. Chief Justice Harrison believes that because the wrong statute was argued, the State’s brief is in violation of Rule 341(e)(7). Both justices appear to take the view that arguments that do not satisfy Rule 341(e)(7) do not merit consideration on appeal.
Rule 341 was promulgated to require parties to an appeal to present the court of review with clear and orderly arguments. See 47th & State Currency Exchange, Inc. v. B. Coleman Corp., 56 Ill. App. 3d 229, 232 (1977), citing Biggs v. Spader, 411 Ill. 42 (1951). Our appellate rules of procedure have the force of law, and this court has observed that “some logical order for the presentment of the issues to be reviewed must be observed, and the bar, or others appearing before us, are presumed to be aware of the rules prescribed.” Biggs, 411 Ill. at 44. A party’s failure to state properly or informatively the errors relied upon for reversal renders it impossible for a court of review to determine the issues sought to be raised and, as such, justifies dismissal of the appeal. Biggs, 411 Ill. at 44-45. Moreover, it is not the duty of this court or any other court of review “to search the record to determine what the real issues in a contest are, nor to seek for material for the disposition of such issues.” Biggs, 411 Ill. at 44.
I believe that this court’s decision in Biggs is especially helpful to today’s discussion because it provides insight into the type of brief that fails to meet the standard envisioned by our rules.1 The court in Biggs began by noting that the appeal came to the court from several orders entered by the trial court in the course of preliminary hearings,
“yet none of such orders are complained of in the errors relied upon for reversal. The errors assigned, rather, range from argumentative statements charging judges of the trial court and of the Appellate Court with prejudice and libel, to extremely vague allegations that certain court rules and provisions of the Civil Practice Act have been violated. A reading of the brief fails to bring enlightenment as to whether there was a final and appealable order in this cause, whether there are any grounds which give this court jurisdiction on direct appeal, or whether appellant is seeking a review of the issues in [a previous case], in which this court previously denied his petition for leave to appeal. The entire brief is presented in a manner that is ambiguous and arduous and does not present the issues sought to be determined in the orderly manner required to expedite and facilitate the administration of justice.” Biggs, 411 Ill. at 43-44.
The court struck the brief and dismissed the appeal, notwithstanding the fact that it had “serious doubts” as to the propriety of the judgment order in the case.
Biggs was decided in 1951. Since that time, courts of review have been less detailed in describing the manner in which a brief violates the appellate rules. To an extent, the question is a subjective one. Obviously, whether a brief is of poor quality depends largely upon the perceptions of the reader. Nevertheless, some deficiencies are uniformly recognized. Few judges would dispute, for example, that a court may decline to address an argument that speaks in conclusory fashion without citation to legal authority because, without legal support, it is nothing more than an opinion. See Spinelli v. Immanuel Lutheran Evangelical Congregation, Inc., 118 Ill. 2d 389, 401 (1987) (noting that failure to support conclusory statement with legal authority results in waiver of the issue). The question is more difficult, however, when an argument is supported by legal authority, but the argument itself is obtuse, poorly written, or badly structured. This sometimes occurs when a court is faced with a pro se litigant who is without legal training, but it can also occur when a party is represented by licensed counsel. Our case law provides objective guidance in such situations. We have held that the rules of appellate procedure are not jurisdictional and the appeal will not be “arbitrarily dismissed for noncompliance if a reading of the entire brief makes it possible for the court to determine the questions or issues sought to be raised.” People ex rel. Carter v. Touchette, 5 Ill. 2d 303, 305 (1955). Courts have also used other sanctions, short of dismissal, when confronted with Rule 341(e)(7) violations, including striking the brief or declining consideration of the argument. See, e.g., Cottrill v. Russell, 253 Ill. App. 3d 934, 939 (1993); People v. Trimble, 181 Ill. App. 3d 355, 357 (1989). Other courts have admonished the responsible party, but nevertheless reviewed the merits in the interests of justice. Taake v. WHGK, Inc., 228 Ill. App. 3d 692, 714 (1992). Therefore, the court of review must determine whether its rules have been substantially complied with (see Biggs, 411 Ill. at 45), which means that the question ultimately becomes one of discretion for the reviewing court once jurisdiction is found to exist. See Luttrell v. Panozzo, 252 Ill. App. 3d 597 (1993) (and cases cited therein). See also Ill. Ann. Stat., ch. 110A, par. 341, Historical & Practice Notes, at 478 (Smith-Hurd 1985) (noting that what action a court of review will take when a party is in noncompliance with the appellate rules “is a matter entirely in its discretion, a discretion usually exercised by reference to the effect of the case on the public and on the parties”).
In light of the foregoing principles, I cannot agree with those in dissent who believe that the State’s brief contains so inadequately presented an argument vis á vis section 11 — 501.4—1 that consideration of the merits by this court is precluded. Justice Rathje grossly misrepresents the State’s brief in asserting that the State only referred to the incorrect statute. A careful reading of the State’s brief reveals that, contrary to the views expressed in the dissents, the State did speak in terms of section 11 — 501.4—1. For example, the argument section of the State’s brief begins with a heading that reads, “The trial court erred when it declared 625 ILCS 5/11 — 501.4—1 unconstitutional.” This heading corresponds with the first heading of the State’s “Points and Authorities” section. The first sentence of the State’s argument reads, “On October 29, 1998, the Circuit Court of La Salle County entered a written order declaring 625 ILCS 5/11 — 501.4—1 unconstitutional and granting Defendant’s motion in limine.” The problem with the State’s brief is that it also speaks to section 11 — 501.4 (625 ILCS 5/11 — 501.4 (West 1996)).2 At certain points in the State’s argument, the State speaks of section 11 — 501.4 when it should be speaking of section 11 — 501.4—1. The erroneous reference to section 11 — 501.4 occurs on page 9 of the State’s brief. It also occurs elsewhere in the argument. I acknowledge that the references to both provisions are confusing. However, any confusion about which particular statute is at issue in this appeal can easily be resolved by referring to the circuit court’s written order, which can be found in the record and which is contained in the appendix to the State’s brief. In that order, the circuit court expressly ruled that
“Section 11 — 501.4—1 of the Illinois Motor Vehicle Code is unconstitutional, based on the decision of the Illinois Supreme Court in Best v. Taylor (1997). The privacy interest of a patient as to medical information and records is a right under the Illinois Constitution and can be overcome only by waiver or after a due process hearing as already in place in the Motor Vehicle Code.”
That the State’s brief could have been better structured (or proofread) is without question,3 but I disagree that this court must now consider the issue waived as a result of the violation of Rule 341(e)(7). A waiver occurs when the argument consists of conclusory sentences which are not supported by any legal authority. See Spinelli, 118 Ill. 2d at 401 (stating that failure to support conclusory statement with legal authority results in waiver of the issue). In such instances, the “waiver” results not from the party’s failure to raise the issue (to which the doctrine of “waiver,” or more properly procedural default, normally applies), but from the party’s violation of the appellate rules. In its opening brief, the State contends that, contrary to the circuit court’s conclusion, defendant does not have a protected privacy right to medical information and records under the Illinois Constitution. This contention is supported with citations to both Illinois and United States Supreme Court decisions. The State’s argument also contains a discussion concerning the inapplicability of our decision in Best to the facts of this case. The State further cites decisions from other jurisdictions as persuasive authority. There is no reason why this court cannot respond definitively to these assertions. Clearly, the State has supplied this court with an argument supported by authority such that Rule 341(e)(7) has been substantially complied with. To hold otherwise would be to elevate form over substance.
Apart from the confusing reference to section 11— 501.4, neither Chief Justice Harrison nor Justice Rathje identifies what it is about this brief that causes them to react to it so harshly when briefs that are just as bad, if not worse, have been accepted and the merits of the appeal have been reached. See, e.g., People ex rel. Carter v. Touchette, 5 Ill. 2d 303 (1955); People v. Stork, 305 Ill. App. 3d 714 (1999); Eickmeyer v. Blietz Organization, Inc., 284 Ill. App. 3d 134 (1996); Luttrell v. Panozzo, 252 Ill. App. 3d 597 (1993); In re Marriage of Forbes, 251 Ill. App. 3d 133 (1993); Geers v. Brichta, 248 Ill. App. 3d 398 (1993); Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253 (1993); First National Bank v. Loffelmacher, 236 Ill. App. 3d 690 (1992); Zadrozny v. City Colleges, 220 Ill. App. 3d 290 (1991); Gallo v. Henke, 107 Ill. App. 3d 21 (1982); People v. Willett, 44 Ill. App. 2d 545 (1976). After reviewing the State’s brief and the relevant case law in this area, I believe that it is “possible for the court to determine the questions or issues sought to be raised.” Touchette, 5 Ill. 2d at 305.
I must also stress that the four members of this court who reach the merits of this appeal today are not the only ones who could discern the State’s argument. As the court’s opinion correctly notes, the appellee in this case has never asked this court to take any punitive action with regard to the State’s opening brief. The appellee has not sought to have the State’s brief stricken nor has he sought sanctions for noncompliance with our rules. Instead, the appellee has filed a brief that contains a reasoned and lucid response to the State’s opening brief. This, in my view, further strengthens the notion that this is not a case in which the appellant’s argument is unintelligible. See People v. Willett, 44 Ill. App. 3d 545, 547 (1976) (noting that appellate court would be perfectly justified in striking appellant’s brief that contained many unintelligible arguments, but choosing instead to address the merits of the appeal).
In view of the foregoing, I cannot agree with my dissenting colleagues that the court today is advocating, as well as adjudicating, the points the State seeks to raise. As noted, the State’s position can be easily deduced by reading its brief. To address the argument does not require this court to “advocate” in any way. Rather, the court is responding to an inartfully presented argument, something, I might add, this court unfortunately has to do in many cases. As Chief Judge Posner of the Seventh Circuit Court of Appeals has pointed out, “if failure to make one’s grounds of appeal perspicuous were a ground for waiver, we would have very few issues to decide.” Kopec v. City of Elmhurst, 193 F.3d 894, 905 (7th Cir. 1999) (Posner, C.J., dissenting). Given the fact that the constitutionality of a statute is at issue here, the court is perfectly justified in exercising the discretion that we have in this matter so as not to punish the party for “the sins of [its] attorney.” Roberts v. Dow Chemical Co., 244 Ill. App. 3d 253, 256 (1993). See also Ill. Ann. Stat., ch. 110A, par. 341, Historical & Practice Notes, at 478 (Smith-Hurd 1985) (stating that when there is noncompliance with the appellate rules, the court of review “does not necessarily have to visit the consequences *** on the litigant but may vindicate the rule by enforcement proceedings against the attorney responsible [citation] or by referring the matter to the Attorney Registration and Disciplinary Commission”).
As the foregoing authority demonstrates, a court of review has the discretion to enforce the rules of appellate procedure in the manner it sees fit with an eye toward the interests of justice and concern for the parties. The cases make clear that not every infraction of Rule 341(e)(7) can or should be handled in the same way. A majority of this court has seen fit to merely admonish the attorney responsible for the violation and not visit the consequences on the litigant — in this case the People of the State of Illinois. This is an appropriate exercise of our discretion and is one that is more than amply supported by Illinois decisional law.
Had the Chief Justice and Justice Rathje been content to reproach only the four members of today’s majority, I would end this special concurrence here because we in the majority have the opportunity to respond to their charges. Unfortunately, however, both justices have chosen to lace their dissents with unnecessary aspersions directed at the State, which, at this stage in the appeal, has no real opportunity to defend or explain its actions. It is for this reason that I strongly take issue with the tone and tenor in which my colleagues have voiced their displeasure with the office of the Attorney General. For example, Chief Justice Harrison chastises the office for the “inadequacy” of its staffing and questions the competency of the attorneys employed there (see 192 Ill. 2d at 23 (Harrison, C.J., dissenting)). The Chief Justice levels these charges based upon “requests for time extensions in other cases pending before our court” and by citing to another case in which a brief was not filed. See 192 111. 2d at 23 (Harrison, C.J., dissenting). I fail to see the relevance of citations to other cases in this situation. Nor do I find this type of one-way dialogue between members of this court and the office of the Attorney General very constructive as the Attorney General is no longer in any position to respond at this time. In my opinion, the time for such discussion between the office of the Attorney General and members of this court has long passed. I must point out that the very first mention — indeed the only mention before today — of the State’s briefing problems came in the waning moments of the assistant Attorney General’s opening oral argument, which was held in Springfield nearly one year ago, on June 22, 1999. Counsel had concluded her prayer for relief and invited the court to ask any questions it might have. Justice Rathje then asked her which statute was at issue, stating that he had trouble understanding her brief. Counsel admitted that her brief contained the error and responded that section 11 — 501.4—1 was the provision at issue. Justice Rathje’s reply was simply “good enough.” This was the extent of the discussion between this court and the Attorney General’s office regarding the propriety of the State’s brief. I believe that everyone would have been better served had these justices seen fit to voice their disapproval then rather than to harangue now. In light of the exchange at oral argument, one can hardly fault the State for failing to seek leave to file a corrected brief (see 192 111. 2d at 27 (Rathje, J., dissenting)). Such a response from the bench certainly does not foreshadow the accusatory and hostile tone taken against the State in these dissenting opinions.
It is my hope that this type of rancor and incivility can be avoided in future cases by the use of a show cause order, which can be issued by the court sua sponte. I note that this is the procedure utilized by the Federal Court of Appeals for the Seventh Circuit. See, e.g., United States v. Sosa, 55 F.3d 278 (7th Cir. 1995); United States v. Ford, 806 F.3d 769 (7th Cir. 1986). This court would be well served by following the Seventh Circuit’s example. The use of a show cause order in these situations would eliminate any appearance of arbitrariness on the part of the court of review because it gives the party in question the opportunity to be heard on the matter before punitive action is taken against it, particularly in cases where the opposing party has not made an issue of the alleged infractions.
JUSTICES MILLER and McMORROW join in this special concurrence.
In Biggs, the court addressed compliance with former Rule 39 of this court. Rule 39 was the predecessor of our current Rule 341.
Section 11 — 501.4 deals with the admissibility at trial of chemical blood and urine tests conducted in the course of providing emergency treatment; section 11 — 501.4—1 permits disclosure of blood or urine tests, used to detect the presence of alcohol or drugs, to law enforcement officers.
The State is certainly guilty of several shortcomings in its brief. Rule 341(e) requires that every appellant’s brief filed in an Illinois court of review must contain certain delineated sections. The State’s brief fails to include an accurate “statement of the issue” presented for review. See 177 Ill. 2d R. 341(e)(3). In cases which involve the validity of a statute, such as here, subsection (e)(5) requires that the statute be quoted verbatim in a section that is to precede the statement of facts. The State’s brief fails to include such a section. As noted above, the argument section of the brief cites to both sections 11 — 501.4 and 11 — 501.4—1 and, as such, is confusing.