Articles Posted in Appellate Jurisdiction

A mother was found to be an unfit parent. In the best interest of her child, the mother’s parental rights were terminated. The mother appealed the unfitness finding. The State argued lack of appellate jurisdiction.

The Illinois First District appellate court agreed it did not have jurisdiction. Here’s the court’s thinking:

In juvenile cases, subject to Supreme Court Rule662(a) … an adjudicatory order is generally not considered a final appealable order … Rather, it is the dispositional order from which an appeal properly lies …

Dawn Marjetko obtained a default judgment in her divorce case. The trial court entered a judgment of dissolution, divided property, granted custody of the children, set child support, and barred maintenance. At the same time, the trial court “reserved” on child visitation, post-high school education expenses, and maintenance.

Frank Marjetko appealed. Although Dawn did not dispute appellate jurisdiction, the court dismissed the appeal for lack of jurisdiction. The court stated: “Orders resolving individual issues are not appealable … until the court resolves the entire dissolution claim.” The trial court’s “reserves” resulted in a bifurcated judgment, which was not appealable.

The appellate court acknowledged that trial courts often “reserve” on issues they have decided but want to re-visit in divorce cases. “Such a use of the word ‘reserved’ nearly guarantees confusion. The [Illinois Marriage and Dissolution of Marriage] Act uses the word ‘reserves’ specifically for instances where the court is bifurcating judgment.”

The Seventh Circuit Court of Appeals dismissed an appeal by defendant prison guards for lack of jurisdiction. The guards first moved to dismiss the complaint based on official immunity. That motion was denied. Despite being interlocutory in character, denial of an immunity claim is appealable. But instead of appealing, defendants took discovery and then moved for summary judgment, also based on official immunity.

Defendants did appeal the denial of their summary judgment motion. But that appeal was dismissed because “public officials cannot use a motion for summary judgment in order to reopen the time to take an interlocutory appeal from an order declining to dismiss the complaint.”

The court discussed the propriety of Garvin v. Wheeler, 304 F.3d 628 (7th Cir. 1986), disallowing appeal from a summary judgment motion based on immunity that mimicked a prior motion “because the maneuver is nothing but an effort to get around the time limit” to appeal the order denying the earlier motion. The court’s majority questioned the wisdom of Garvin, but declined to decide whether it should be overruled.

Dismissal of a complaint without prejudice is not appealable. It’s a common nonfinal interlocutory order. “However, the State may appeal an order dismissing an indictment for prosecutorial misconduct … even if the dismissal is without prejudice.” People v. Mattis, 854 N.E.2d 1149, No. 2-05-0586 (2006).

Appeal from orders on post-dissolution of marriage petitions raises precarious problems. Suppose the court rules on a post-dis petition to modify maintenance, but leaves the child support-modification petition pending. Must you file your Notice of Appeal within 30 days of the maintenance ruling, or wait for a ruling on the support matter? If a ruling on support takes more than 30 days from the time of the maintenance ruling, will you lose the right to appeal maintenance?

The answer is “perhaps.” It depends on which district you’re in. The 2nd and 4th Districts say wait. But if you’re in the 1st, you better get your Notice of Appeal on file pronto.

IRMO Gaudio out of the 4th District recently broke the tie. Gaudio ruled that “Even if the order dismissing respondent’s petition [for modification of maintenance] constituted a final order, it was not immediately appealable without the required Rule 304(a) finding.”

Judge Posner wonders whether the 7th Circuit is these for requiring complete jurisdictional statements in a diversity case. He doesn’t think so, because:

. . . the fact that limits on subject matter jurisdiction are not waivable or forfeitable — that federal courts are required to police their jurisdiction — imposes a duty of care that we are not at liberty to shirk. And since we are not investigative bodies, we need and must assure compliance with procedures designed to compel parties to federal litigation to assist us in keeping within bounds.

So don’t short FRAP 28 if you don’t want to be called on the carpet, and maybe ordered to take a class on federal jurisdiction.