ILLINOIS OFFICIAL REPORTS

Appellate Court

In re John Doe Investigation, 2011 IL App (2d) 091355

Appellate Court

Caption

In re JOHN DOE INVESTIGATION (Sheila Brown and Marissa

Brown, Appellants).

 District & No. Second District

Docket No. 2-09-1355

Filed July 11, 2011

Held

(Note: This syllabus

constitutes no part of the

opinion of the court but

has been prepared by the

Reporter of Decisions for

the convenience of the

reader.)

An appeal from the trial court’s denial of appellants’ emergency petition

to continue the grand jury subpoenas requiring them to appear before a

grand jury regarding a shooting they witnessed was dismissed for lack

of jurisdiction, since the denial of the petition was a nonfinal order and

there was no final order in the contempt proceedings against them based

on their failure to appear.

Decision Under 

Review

Appeal from the Circuit Court ofWinnebagoCounty, No. 09-MR-1028;

the Hon. Joseph G. McGraw, Judge, presiding.

Judgment Appeal dismissed.
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Counsel on

Appeal

Keenan J. Saulter, of Saulter Law Group, and Samuel E. Adam, of Law

Offices of Samuel E. Adam, both of Chicago, for appellants.

Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer

and Marshall M. Stevens, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with

opinion.

Justices McLaren and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Appellants, Sheila Brown and Marissa Brown, appeal an order from the trial court

denying their emergency petition to continue grand jury subpoenas. Appellants raise two

issues on appeal: (1) whether the trial court failed to properly consider their constitutional

rights when it denied their emergency petition; and (2) whether the filing of this appeal

negated any criminal or civil contempt charges against them. For the reasons set forth below,

we dismiss for lack of jurisdiction.

¶ 2 The relevant facts for the purpose of this appeal are not in dispute. On August 24, 2009,

appellants witnessed the shooting death of Mark Anthony Barmore by two Rockford police

officers. On December 17, 2009, appellants received subpoenas to appear before a

Winnebago County grand jury regarding the August 24, 2009, shooting. The subpoenas

required appellants to testify before the grand jury on December 23, 2009.

¶ 3 On December 21, 2009, appellants filed an emergency petition to continue the grand jury

subpoenas, arguing that the subpoenas violated their rights pursuant to the United States and

Illinois Constitutions. Specifically, appellants argued that, as they were given only six days’

notice, the subpoenas were oppressive and unreasonable because they did not have time to

effectively obtain and communicate with counsel, and because they had previously made

arrangements to travel out of town for Christmas. Appellants requested that the subpoenas

be continued until January 6, 2010, at which time they would be prepared to give their

testimony. On that same day, after entertaining oral arguments, the trial court denied the

petition, finding that it was “not an urgent matter which would require the [trial court] to

continue grand jury subpoenas for [appellants].”

¶ 4 On December 22, 2009, appellants filed their notice of appeal. On December 28, 2009,

the State filed petitions for rules to show cause against appellants for failing to appear at the

December 23, 2009, grand jury proceedings. On January 11, 2010, appellants filed motions

to stay the contempt proceedings in the trial court pending appellate review. The motions
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argued that the trial court lacked jurisdiction to entertain the State’s petitions for rules to

show cause because appellants’ December 22, 2009, notice of appeal divested the trial court

of jurisdiction until the court was revested with jurisdiction. Appellants also filed motions

to substitute the trial court judge and raised other jurisdictional challenges. On January 20,

2010, the trial court denied each of appellants’ then-pending motions. On February 17, 2010,

appellants filed an emergency motion to stay the trial court proceedings pending appellate

review, pursuant to Illinois Supreme Court Rule 305(d) (eff. July 1, 2004). On February 19,

2010, the trial court stayed the proceedings.

¶ 5 The first issue raised on appeal is whether the trial court failed to consider appellants’

constitutional rights when it denied their emergency petition to continue the grand jury

subpoenas. With respect to jurisdiction, appellants assert that we have jurisdiction pursuant

to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. May 1, 2007) because

the trial court’s order denying their emergency petition constituted a final and appealable

order.

¶ 6 Article VI, section 6, of the 1970 Illinois Constitution provides a right to appeal a final

judgment from a circuit court to the appellate court. Ill. Const. 1970, art. VI, § 6. A judgment

is final if it finally determines the litigation on the merits so that, if the judgment is affirmed,

the only thing remaining is to proceed with the execution of the judgment. In re the Living

Trust of Miller, 396 Ill. App. 3d 910, 915 (2009). There is no constitutional right to appeal

a nonfinal, interlocutory order; rather, our supreme court is vested with the authority to

provide for such appeals by rule as it sees fit. Almgren v. Rush-Presbyterian-St. Luke’s

Medical Center, 162 Ill. 2d 205, 210 (1994). As a reviewing court, we “review de novo the

purely legal issue of jurisdiction.” In re Detention of Hardin, 238 Ill. 2d 33, 39 (2010).

¶ 7 Before addressing the merits of appellants’ argument, we note that Illinois law is unclear

with respect to which supreme court rules, if any, apply to appeals from grand jury

proceedings. In In re October 1985 Grand Jury No. 746, 124 Ill. 2d 466 (1988), our supreme

court stated that a grand jury proceeding is neither a criminal nor a civil case within the

meaning of its civil or criminal appellate rules. Id. at 472-73. Rather, the supreme court

stated that a grand jury proceeding is an ex parte investigation to ascertain whether a crime

was committed and a criminal proceeding should be commenced. Thus, the State could not

appeal through Rule 604(a)(1) (eff. Jan. 1, 1970) or Rule 301 (eff. Feb. 1, 1994), but could

seek review through some other method, such as a writ of mandamus. In re October 1985

Grand Jury, 124 Ill. 2d at 473. Subsequently, in In re May 1991 Will County Grand Jury,

152 Ill. 2d 381 (1992), our supreme court, without discussing jurisdiction, granted a petition

for leave to appeal by targets of a grand jury proceeding after their motion to quash the grand

jury subpoena was denied. Thus, our supreme court’s holding in In re May 1991 Will County

Grand Jury creates an inference that an appeal from a grand jury proceeding could be

maintained through the supreme court rules pertaining to appeals. Nonetheless, any

determination of which rule applies to grand jury proceedings is irrelevant to our resolution

of this case, because, as outlined below, there was no final order and we, therefore, lack

jurisdiction. As a reviewing court, we “will not issue advisory opinions merely to set

precedent or guide future litigation.” Segers v. Industrial Comm’n, 191 Ill. 2d 421, 428

(2000).
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¶ 8 Appellants primarily rely on People v. Doe, 211 Ill. App. 3d 962 (1991), in support of

their contention that we have jurisdiction over this appeal. In Doe, a third party was issued

a subpoena commanding her to produce information to a grand jury relating to a homicide.

Id. at 964. The third party filed a motion to quash, alleging that the subpoena violated an

Illinois law and constitutional rights, which the trial court denied. Thereafter, the third party

failed to comply with the subpoena and filed an appeal, which the State sought to dismiss for

lack of jurisdiction. Id. The Appellate Court, First District, held that the trial court’s denial

of the motion to quash constituted a final and appealable order, as the motion to quash

initiated a separate, independent action from the grand jury proceeding. Id. at 965.

¶ 9 In reaching its determination, the court in Doe said that the matter before it was “clearly

analogous” to Laurent v. Brelji, 74 Ill. App. 3d 214 (1979). In Laurent, the defendant

likewise refused to comply with a subpoena issued by an administrative agency regarding a

discharge proceeding for a mentally ill patient. A hearing officer for the administrative

agency denied the defendant’smotion to quash. While the administrative proceeding was still

pending, the plaintiffs filed a petition in the trial court, seeking an order to enforce the

subpoena. The trial court ordered the defendant to comply with the subpoena, and the

defendant appealed that order. Id. at 215. The reviewing court held that it had jurisdiction

because the enforcement proceeding before the trial court constituted a separate matter, and

once the trial court entered the enforcement order, it had finally determined the rights of the

parties and the litigation terminated. Id. at 216.

¶ 10 Appellants also cite People v. Pine, 129 Ill. 2d 88 (1989). In Pine, our supreme court held

that the Illinois Secretary of State had standing to appeal a trial court’s order granting a

judicial driving permit, because the Secretary of State played a substantial part in such

proceedings. Id. at 99-100. In reaching its determination, the supreme court, citing Laurent,

stated that allowing the Secretary of State to appeal was analogous to courts holding that, in

an ancillary proceeding, a nonparty to the original matter could seek appellate review of an

order without first having to be held in contempt for refusing to obey the order. Id. at 101-02.

¶ 11 We find these cases distinguishable and unpersuasive. Initially, we note that Doe

involved a motion to quash a subpoena, whereas here appellants seek to challenge an order

denying a petition to continue a subpoena. An order denying a motion to continue is not a

final and appealable order. In re M.R., 305 Ill. App. 3d 1083, 1086 (1999). In addition, the

issue in Pine involved whether the Secretary of State had standing to appeal a trial court’s

grant of a judicial driving permit, and we do not find that case relevant to the matter presently

before us.

¶ 12 Moreover, the facts in Doe and the current matter are not “clearly analogous” to Laurent.

As discussed above, Laurent involved two separate and distinct proceedings–the

administrative proceeding in which the subpoena was issued and the subsequent trial court

proceeding brought by the plaintiffs seeking enforcement of the subpoena. The defendant

appealed from the final order in the enforcement proceeding, not the administrative agency’s

denial of his motion to quash the subpoena. Conversely, here, appellants filed their notice

of appeal immediately after the trial court denied their emergency petition to continue the

grand jury subpoenas, before the separate and independent rule-to-show-cause proceedings

commenced on December 28, 2009. Thus, appellants filed their notice of appeal after the trial
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court entered a nonfinal order denying their emergency petition to continue the subpoenas

in the grand jury proceeding, not after the trial court entered a final order in a separate

contempt proceeding. See Lewis v. Family Planning Management, Inc., 306 Ill. App. 3d 918,

925-26 (1999) (noting that a contempt proceeding to enforce an order constitutes a separate

proceeding and distinguishing Laurent). Thus, the notice of appeal was premature.

¶ 13 Further, Supreme Court Rule 303(a)(1) does not save appellants’ notice of appeal. See

Ill. S. Ct. R. 303(a)(1) (eff. May 1, 2007). Rule 303(a)(1) contemplates a situation where the

trial court orally pronounces a final judgment but the written order follows later. If the notice

of appeal is filed after the oral pronouncement but before the written order is entered, the

notice of appeal is treated as filed on the date of the written order. This rule is not applicable

here, because a final order had not been orally pronounced by the trial court when appellants

filed their notice of appeal on December 22, 2009.

¶ 14 Finally, we recognize that the State brought an independent contempt proceeding against

appellants for failing to comply with the grand jury subpoenas. However, the record clearly

reflects that the trial court has yet to enter a final order or an appealable interlocutory order

within that proceeding. Therefore, the independent contempt proceeding does not provide

a sufficient jurisdictional basis to entertain this appeal.

¶ 15 In sum, we lack jurisdiction because appellants did not appeal a final order. The trial

court’s denial of their emergency petition to continue grand jury subpoenas was a nonfinal

order. In addition, the trial court has yet to enter a final order in the contempt proceeding

against appellants. Accordingly, we must dismiss this appeal for lack of jurisdiction.

¶ 16 Appeal dismissed.