The topic of this essay is an examination of stays of proceedings in the trial court pending an interlocutory appeal. I shall not discuss stays involving appeals of final judgments (see 155 Ill. 2d Rules 301, 302, 303, 304, 305, 335). Further, this examination is limited to civil rather than criminal proceedings.
The Illinois Supreme Court has addressed the issue of stays of trial court proceedings in the context of interlocutory appeals by permission (Supreme Court Rules 306 and 308, 166 Ill. 2d Rules 306, 308). However, the rules are silent regarding stays of trial court proceedings during interlocutory appeals as of right. 167 Ill. 2d R. 307.
This topic coalesced in my mind when the Appellate Court entertained a recent appeal pursuant to Supreme Court Rule 307. A preliminary injunction was granted to the plaintiff by the trial court. The defendant appealed and requested a stay of the preliminary injunction order in the Appellate Court. The stay was granted, effectively dissolving the injunction subject to the appeal. The plaintiff then attempted to set the matter for a trial on the merits, and the defendant requested that the Appellate Court stay the proceedings in the trial court pending the outcome of its appeal of the injunction that was stayed. Time was apparently of the essence, and the defendant was effectively precluding the plaintiff from seeking speedy relief on the merits by appealing a preliminary injunction which was effectively dissolved. To allegedly make matters worse the Appellate Court did not require bond when it stayed the preliminary injunction order.
Supreme Court Rule 307 is silent regarding stays of trial court proceedings. However, in the end, the Appellate Court refused to stay the proceedings in the trial court so that a disposition on the merits would not be affected by any delay pertaining to the appeal. This case illustrates that, although stays of proceedings in the trial court are usually sought for legitimate reasons such as decreasing time and expense on matters which might be clarified or mooted by appeal, they can also be used as a procedural weapon to obtain relief other than upon the merits.
Although Supreme Court Rule 307 is silent regarding stays, the two other rules regarding appeals of non-final orders in civil cases (Supreme Court Rules 306 and 308) provide specific authority regarding stays.
Rule 306. Appeals from Orders of the Circuit Court Granting or Denying Certain Motions.
"(f) Stay; Notice of Allowance of Petition. If the petition is granted, the proceedings in the trial court are stayed. Upon good cause shown, the Appellate Court or a judge thereof may require the petitioner to file an appropriate bond." (Emphasis added.) 166 Ill. 2d R. 306.
Thus, if an appeal is allowed under rule 306, the proceedings in the trial court are stayed automatically. The Appellate Court may, on motion or sua sponte based upon good cause, require the filing of an appropriate bond pending the appeal. To my knowledge no party has ever attempted to dissolve the stay in whole or in part in an appeal pursuant to Supreme Court Rule 306. Although the rule does not authorize the lifting of a stay, it does not preclude it. The rule merely states that the stay is effective immediately. It would seem that, were the stay to be lifted, our supreme court would review this issue either as an abuse of an exercise of discretion or as outside the scope of the rule and, therefore, outside the jurisdiction of the Appellate Court.
Rule 308. Interlocutory Appeals by Permission.
"(e) Stay. The application for permission to appeal or the granting thereof shall not stay proceedings in the trial court unless the trial court or the Appellate Court or a judge thereof shall so order." (Emphases added.) 155 Ill. 2d R. 308.
Thus, a stay is not an automatic stay but may be ordered by either the trial court or the Appellate Court. Query: If the trial court denies or grants a stay must the opponent appeal that decision? Probably not. The simple solution would be to file a motion pursuant to Supreme Court Rule 308(e) in the Appellate Court to either stay the proceedings or to stay the stay of proceedings. Whether or not there should be a stay would be determined as an abuse of an exercise of discretion.
Rule 307. Interlocutory Appeals as of Right.
There is nothing in Supreme Court Rule 307 regarding the stay of proceedings in the trial court. There is also nothing in Supreme Court Rule 307 regarding a stay of the order appealed from or a stay of proceedings in the trial court. Supreme Court Rule 305(b) allows the Appellate Court to stay the order appealed under Supreme Court Rule 307 but does not specifically address stays of proceedings in the trial court. Rule 305(b) provides in part:
"(b) Other Stays of Enforcements of Judgment and Appealable Orders. On notice and motion, and an opportunity for opposing parties to be heard, the court may stay the enforcement of any judgment, or the enforcement, force and effect of interlocutory orders or any other judicial or administrative order. The stay shall be conditioned upon such terms as are just. A bond may be required in any case, and shall be required in money judgments or to protect an appellee’s interest in property." 155 Ill. 2d R. 308.
Thus, 305(b) appears to be the only authority for the Appellate Court to stay proceedings in the trial court in interlocutory appeals as of right. The question then is raised as to how the Appellate Court would obtain jurisdiction to stay a judicial or administrative order which would not otherwise be appealable under Supreme Court Rule 307.
There is some case law that allows the Appellate Court to stay proceedings in the trial court pending appeal of an interlocutory order pursuant to Supreme Court Rule 307. A trial court may not readjudicate or collaterally attack an issue that has been appealed. See In re Marriage of Holem, 153 Ill. App. 3d 1095, 1099 (1987); see also Carriage Way Apartments v. Pojman, 172 Ill. App. 3d 827, 834 (1988).
Final Comment: The legal maxim "inclusio unious exclusio alterious" would suggest that, while propounding rules 306(f) and 308(e), our supreme court considered what authority the Appellate Court should have regarding the stay of proceedings in the trial court. By failing to include any language whatsoever in Rule 307 regarding this issue, our supreme court may have decided that the Appellate Court should have no authority to stay further proceedings connected to appeals under Supreme Court Rule 307. This ambiguity could be clarified by the mere inclusion of the language in Supreme Court Rule 308(e). 155 Ill. 2d R. 308(e).
Honorable Robert D. McLaren is a Justice of the Illinois Appellate Court, Second District. He received his Undergraduate Degree in 1966 from Monmonth College and his Law Degree in 1969 from Drake University.