Opinion
No. 97526.
July 10, 2003.
Appeal from Miscellaneous Order No. 2-03-0056.
Leave to appeal denied with order.
In the exercise of this court's supervisory authority, the Appellate Court, Second District, is directed to vacate its judgment in Casimiro v. Arceo, No. 2-03-0056, dismissing the appeal. The appellate court is further directed to permit the late filing of appellant's brief and, after briefing, to consider the merits of the appeal.
The issuing of a supervisory order in this case is wholly inappropriate for two reasons.
First, the appellant's failure either to comply with the appellate court's final extension order or to seek a modification thereof justifies the dismissal of this appeal. Indeed, when it became clear that compliance with the appellate court's second and final extension order would not be possible, the appellant did not file a motion with the appellate court seeking an additional extension or in any way notify the appellate court that timely compliance would not be possible. Instead, the appellant simply proceeded on its own schedule, expecting the appellate court to accept the brief for filing on the appellant's — rather than the court's — timeline. I simply cannot agree with my colleagues' conclusion that the appellate court abused its discretion in refusing to accept a brief that was submitted for filing almost two weeks after the expiration of a second and final extension of time, without any prior notice having been given to the court concerning the appellant's inability to comply. The issue in this case is not whether the appellant had a good excuse; rather, the issue is who has the power to control the appellate court's docketing schedule — the appellate court or the litigants.
Second, the dismissal of an appeal for the failure to file a timely brief is a matter for the appellate court's discretion. See 155 Ill. 2d R. 343. The dismissal of the appeal in this case was not an arbitrary exercise — indeed, the dismissal became final only after the appellate court entertained full briefing on appellant's motion to reconsider. By issuing today's supervisory order, we are sending the following message to the appellate court: The enforcement of a second and final court-ordered filing deadline, two weeks after the expiration of that deadline and in the absence of a timely-filed motion for extension of time, is an abuse of discretion so severe as to justify summary reversal by this court. In other words, today's order tells the appellate court that its docketing orders are not worth the paper they are printed on and that litigants — rather than the court — ultimately control the court's docket.
The appellate court did absolutely nothing wrong in this case, and I strongly oppose the issuing of today's order.
JUSTICES FITZGERALD and GARMAN join in this dissent.