Appellate Law

Public Defender Cannot Appeal Partial Dismissal But Wins Certified Interlocutory Appeal

By Steven R. Merican

Edwin Burnette, the Public Defender of Cook County, sued Todd Stroger, President of the Cook County Board of Commissioners. Burnette was angry because Stroger selected personnel in the Public Defender?s Office to be laid off and imposed unpaid furlough days on other employees in the office. Burnette claimed he was not consulted in the process.

Relying on the Illinois Public Defender Act [actually Sections 3-4000 through 3-4011 of the Counties Code, 55 ILCS 5/3-4008.1 ? 4011], Burnette?s lawsuit contested Stroger?s authority to take those actions. Stroger in turn asked the trial court to dismiss the case. He argued he acted within his authority and Burnette did not have standing to sue. Stroger?s request was granted and denied in part.

Burnette did two things: (1) He sought to amend his complaint to work around the aspects the trial court dismissed; (2) He asked for an interlocutory appeal. [Illinois Supreme Court Rule 308(a) allows interlocutory appeals when ?the trial court ? finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation ? The Appellate Court may thereupon in its discretion allow an appeal from the order.?]

The trial court certified four questions for the appellate court, all concerning whether Burnette had standing to sue in the first place. Burnette also appealed from the order that dismissed part of his lawsuit.

The First District Illinois Appellate Court accepted the four certified questions for review, but declined to rule on whether the order granting dismissal was proper. Here?s why: ?First, the parties in their appellate briefs did not brief the propriety of the trial judge's order. Second, plaintiffs are seeking to amend their complaint to eliminate the parts that were dismissed by the trial court.?

In the end, the appellate court ruled that Burnette did have standing to sue, and that Stroger did not have authority to designate individuals for layoff or furlough. Read the whole case, Burnette v. Stroger, No. 1-08-2908 (3/30/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on June 21, 2009 (boomark / email).