Prohibition Writ Not a Substitute for an Appeal

May 09, 2019 12:59 PM | Anonymous member (Administrator)

By Don Sampen
Clausen Miller, P.C.

The Illinois Supreme Court, over dissent, recently reaffirmed the principle that an original action for a writ of prohibition is not to be used as a substitute for an appeal in pending litigation. Edwards v. Atterberry, 2019 IL 123370.

A jury found the petitioner, Edwards, guilty of two misdemeanor violations of the Timber Buyers Licensing Act, 225 ILCS 735/1 et seq. Specifically, he was charged with the offense of unlawfully acting as a timber-buying agent for multiple licensed timber buyers.

Following conviction he filed a motion with the Supreme Court for a supervisory order and for leave to file a complaint for a writ of prohibition. Essentially he sought to establish that he was charged with violating regulations and not a statute defining a criminal offense. He claimed, therefore, that the trial court lacked subject-matter jurisdiction. The relief he sought was directed against the trial court judge, Judge Michael L. Atterberry, of the Menard County Circuit Court.

As an initial matter, the Supreme Court denied the motion for a supervisory order but granted Edwards leave to file a complaint for a writ of prohibition with the Court. Pending disposition of the complaint, the Court stayed the circuit court proceedings, including the conducting of a sentencing hearing.


Following briefing, Justice Rita B. Garman, writing for the Court, denied the writ. She began by noting that a writ of prohibition lies to prevent a judge from acting where he or she has no jurisdiction to act or to prevent a judicial act beyond the scope of a judge's legitimate jurisdictional authority.

The four requirements for the writ, according to Garman, are that (a) that the action to be prohibited be of a judicial or quasi-judicial nature; (b) the writ be directed against a tribunal of inferior jurisdiction; (c) the action being prohibited be outside the tribunal's jurisdiction, or if within its jurisdiction, beyond its legitimate authority; and (d) no other adequate remedy be available to the petitioner.

Garman focused just on the fourth requirement, concerning the available of an alternative remedy. She noted Edwards’ argument that the circuit court had already ruled that it had jurisdiction and, over his objection proceeded to trial. 

Edwards claimed that he now could be sentenced to jail and that, based on his conviction, the Department of Natural Resources had already initiated proceedings against his license. He thus contended that he would be subject to irremediable harm if he were required to press his claim through the normal appellate process.

Garman observed, however, that Edwards' time to appeal had not expired, that the normal appellate process was fully available to him, and that original actions of prohibition could not be used to circumvent the normal appellate process. Rather, the remedy was available only in rare instances where none of the ordinary remedies were available or adequate.

As for Edwards' complaints that his timber buyer's license could be adversely affected and his livelihood harmed, Garman found that he was essentially complaining of collateral consequences that may occur pending appeal, and that such consequences can attend any normal appellate process. 

The trial court, in any event, had not ordered that his license be revoked, he offered only a vague portrayal of the situation surrounding his timber buyer's license, and he provided no documentation of the license revocation proceedings. Under these circumstances, Garman said that Edwards had not demonstrated irremediable harm.

In sum, the Court found that Edwards had failed to demonstrate the requirement that an appeal of his conviction did not provide him an adequate alternative remedy. Hence, the Court denied issuance of the writ.

Justice Thomas L. Kilbride dissented. He argued that Edwards had been convicted of a regulatory offense that does not exist and that he had not even violated the regulation relied on by the state. Kilbride therefore argued that the Court should exercise its supervisory authority to direct the circuit court to vacate Edwards' convictions.

Key Point:

A petitioner seeking issuance of a writ of prohibition must meet all four traditional requirements for issuance of the writ, including the requirement that no other adequate remedy is available to the petitioner. Pursuing an appeal in the underlying litigation normally will constitute an adequate alternative remedy.

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