Over the past two decades, the “mailbox rule” has enjoyed expanded applicability and precedential support in Illinois courts, easing the burden on the bar, their staffs and vehicles, and the environment that sacrifices its trees so we can file papers. The mailbox rule stems from Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009), which permits the mailing of documents for filing in Illinois reviewing courts on the day they are due, instead of having to physically transport the documents to one of the six reviewing courts spread widely throughout the state, as long as the document is accompanied with the specified proof of mailing--proof that is not difficult to muster. Rule 373, entitled “Date of Filing Papers in Reviewing Court; Certificate or Affidavit of Mailing” is short enough to quote in full:

"Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court."

Decisions of those very reviewing courts have expanded the scope of the rule to include many filings in the trial court, including notices of appeal and post-judgment motions. In this author's opinion, applying the mailbox rule to post-judgment motions required some loose interpretation of the rule, which expressly applies to papers filed in the reviewing courts and notices of appeal filed in the trial court, but does not refer to post-judgment motions.

Moreover, almost all papers filed in the trial and reviewing courts in Illinois can be mailed for filing on the date they are due; even if the paper is received and filed after the deadline, proper practice renders those papers timely on general principles not expressly tied to Rule 373. The only exceptions were documents initiating an action in the trial court, such as the original complaint, or a petition for relief from a judgment after the trial court lost jurisdiction of the matter, usually after 30 days.

Now, pursuant to Nizamuddin v. Community Education in Excellence, Inc., 2013 IL App (2d) 131230, there is another exception. This new exception limits the application of the mailbox rule to certain rare filings in the appellate court. Under Nizamuddin, papers filed in the appellate court in appeals from orders dealing with requests for temporary restraining orders must arrive at the appellate court on the date they are due, and cannot benefit from the mailbox rule, even though the text of Rule 373 would seem to expressly apply to those filings. The text of Rule 373 refers to filing "records, briefs or other papers required to be filed within a specified time." (Emphasis added.)

Unlike most civil actions, papers filed in the reviewing court in appeals related to requests for temporary restraining orders have their own special requirements in another Supreme Court Rule and cannot be served by mail, but rather must be served by personal delivery or facsimile transmission. Rule 307(d) (eff. Feb. 26, 2010), entitled "Appeals of Temporary Restraining Orders; Time; Memoranda" provides that these appeals shall be by petition filed in the "appellate court" within two days" of the order being appealed. Id. The Rule further provides:

"The petition shall be in writing, state the relief requested and the grounds for the relief requested, and shall be filed in the Appellate Court, with proof of personal service or facsimile service as provided in Rule 11, within two days of the entry or denial of the order from which review is being sought." (Emphasis added.) Id.

The respondent has two days from the "filing of the petition" to file and serve (personally or by facsimile) its response. Replies are not allowed without court permission. There is to be no oral argument. Id. And the appellate court "shall consider and decide the petition within five days after the respondent's time to respond has expired." But the appellate court "may, if it deems it appropriate, order a different schedule," presumably including a different deadline for the respondent’s response or the court’s decision. Id.

Thus, the tension between Rules 307(d) and 373 was at issue in Nizamuddin. The trial court entered a temporary restraining order on a Friday. Nizamuddin, 2013 IL App (2d) 131230,  ¶ 1. The petition required by rule 307(d) was mailed to the appellate court on the following Monday. The petition was served by mail on that Monday, too. The appellate court and the respondent received the petition on the next day, Tuesday. Id. ¶ 4.

The reviewing court noted that the petitioner violated Rule 307 in various ways, including serving the petition by mail, when personal service or facsimile transmission was required. Id. ¶ 13. While the Nizamuddin court dismissed the appeal because the petitioner filed its notice of appeal in the trial court rather than the appellate court (id. ¶ 5), the takeaway is the reviewng court’s refusal to apply the mailbox rule. The court conceded that rule 307(d) does not "point blank" specify that the notice of appeal must be filed in the appellate court as opposed to the trial court, relying on its own interpretations of Rule 307(d). Nizamuddin, 2013 IL App (2d) 131230,  ¶ 6. Indeed, the reviewing court devoted the bulk of its discussion to the issue of the mailbox rule, three pages in the eight-page opinion, in a discussion that boiled down to common sense–appeals related to requests for temporary restraining orders are of a "highly expedited nature," given the two-day deadline and the requirement of personal or facsimile service. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7.

"Given the highly expedited nature" of appeals under Rule 307(d), "the 'mailbox rule' [in Rule] 373 does not apply," the reviewing court concluded. Nizamuddin, 2013 IL App (2d) 131230, ¶ 7. The court reasoned that "applying the mailbox rule" to these appeals "would lead to the practical evisceration of" the applicable two-day deadlines, "an absurd result," according to the reviewing court. Id. ¶ 9. In declining to apply the mailbox rule, the reviewing court noted the "tight deadlines and extraordinary service requirements" in appeals under Rule 307(d) distinguish them from most other civil appeals. Nizamuddin, 2013 IL App (2d) 131230, ¶ 10. The court also wrote that applying the mailbox rule would improperly subject these appeals "to the vagaries of mail delivery." Id. ¶ 11.

Ultimately, the court "read the specialized filing deadlines of Rule 307(d) to control over the general mailbox rule of Rule 373." Nizamuddin, 2013 IL App (2d) 131230, ¶ 11. The court held that the more general provisions of Rule 373 must yield to the more specific rules in ruleR307(d). Id.

Common sense prevailed. The petitioner failed to serve its petition properly. But the text of Rule 373 seemed to permit the petitioner to mail its petition on the date it was due. The appellate court rarely dismisses an appeal for improper service. Thus, Nizamuddin is a remarkable case that could rouse the supreme court into action, either by granting leave to appeal or amending one or both of the applicable rules.

Recommended Citation: Lawrence A. Stein, Illinois Appellate Court: A New Exception to the Mailbox Rule, The Brief, (February 18, 2014), http://applawyers-thebrief.blogspot.com/2014/02/illinois-appellate-court-new-exception.html.