## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

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

Appellate Court Caption I n re JOHN DOE INVESTIGATION (Sheila B rown and Mariss a Brown, Appellants).

District & No. Second District Docket No. 2-09-1355

Filed July 11, 2011

Held ( N ote: This s yllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions for the conv en ience of the reader. ) An appeal fr om the trial court’s denial of appellants’ emerg ency pe tition
to continue the grand jury subpoenas requiring them to appear before a grand jury reg arding a shooting they witnessed was dismissed for lack of jurisdiction, since the denial of the petition was a nonfinalorder and there was no final order

in the contempt proceedings aga inst them based on their failure to appear.

Decision Under Review Appeal from the Circuit Cou rt of Winn ebago C ounty, No. 09-MR-1028; the Ho n. Jo seph G . McGr aw, J udge, p resid ing.

Judgment Appeal dismissed.-2-

Counsel on Appeal KeenanJ. Saulter, of Saulter Law Group, and Samuel E. Adam, of Law Office s of Samuel E. Adam, both of Chic ago, f or appellants.

Joseph P. Bruscato, State’s Attorney , of Rockford (Lawr ence M. Bauer and Marshall M. Steven s, both of St ate’s At to rney s A ppellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE HUTCHI

NSON deli v ered t he judg ment of the court, w ith opinion. Justices McLaren and Birke tt concurred in the judgment and opinion.

OPINION

¶ 1 Appella

nts, Sheila Bro wn and Marissa Brown, appeal an orde r from the trial court denying their emergency

petition to c o ntinue grand jury subpoenas. Appellants raise two issues on appeal: (1) whether the t rial court failed to properly consider their constitutional rights wh en it denied their emergency petition; and (2) whether the filing of this appeal negated any criminal

or civil contempt

charges aga

inst them. For the reasons set forth below, we dismiss for lack of jurisdiction. ¶ 2 The rele

vant facts for the purpose of this appe al are n ot in dispute. On August 24, 2009, appella nts witnessed the shooting death of Mark Anthony Barmore by

two Rockford police off icers. On December 17, 2009, appellants receive d subpoenas to appear be fore a Winne bago County gra

nd jury reg arding the August 24, 2009, shooting. The subpoena s required appellants to testify before the grand jury

on December 23, 2009. ¶ 3 On December 21, 2009, appellants filed an emer gency petition to continue the grand jury subpoena s, arguing that the subpoe nas viola ted their rights pursuant to the United States and Illin ois Constitution s. Specif ically , appella

nts argue d that, asthey

were given only

six day s’ notice, the subpoenas were oppressive and unreaso nable be cause th

ey did not hav e time

to effec tively

obtain and communicate with counsel, and because they had previously made arrangements to travel out of town for Christmas. Appellan

ts requested that the subpoenas be continued until January 6, 2010, at which t ime they

would be p

repare d to give

their
te st im on y. On that same day, a fter entertaining oral arg

uments, the trial co urt denied the petition, finding

that it wa s “not an u

rgent matter wh

ich would require the [trial c ourt] to continue grand jury

subpoenas for [appellants].” ¶ 4 On December 22, 2009, app ellants f iled their notice of appeal. On December 28, 2009, the State filed petitions for rule s to show c ause ag ainst app ellants f or failin g to appear at the December

23, 2009, grand

jury proceedings. On January 11, 2010, appellants filed motions
to stay the contempt proc eedings in the trial court pending app ella te review. The motions-3-

argued that the tr

ial cour t lacked jurisdict ion to ente

rtain the State’s p et itions for

rules to show cause because appellants’ Dec ember 22, 2009, notice of appeal divested the trial court of jurisdiction until the court was revested with jurisd

iction. Ap pellants a lso 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 Fe bruary 17, 2010, appella nts filed an emer gen cy

motion to sta

y th e trial c ourt proc eeding s pending appella te review, pursuant

to Illinois Supre

me Court Rule 305(d) (eff. July 1, 2004). On Fe bruary 19, 2010, the trial cou rt stay ed the pr oceedings. ¶ 5 The first i ssu e raised on appeal is whether the trial court fa iled to consider

appella nts’ constitutional rights w

hen it den

ied th eir emer gency

petition to continue the grand jury subpoena s. With respect to jurisdiction, appellants assert that we have jurisdiction pursuant
to Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) a nd 303 (eff. May

1, 2007) b ecause the trial cou

rt’s orde r deny in g thei r emerg ency

petition c onstituted

a final a nd appea lable order. ¶ 6 Article

VI, section 6, of the

1970 Illinois Constitution provides a right to appeal a final judgment from a c ircuit co

urt to the a

ppellate court. I ll. Const. 1970, art. VI, § 6. A judgme nt is final if it finally determines the litig ation on the merits so that, if the judgment is affirmed, the only thing re maining is to proceed with the execution of the judgment. In re the Living Trust of Miller , 396 Ill. App. 3d 910, 915 (2009). T here is n o constitu

tional rig ht to appeal

a nonfinal, i n terlocu

tory order; r ather, our supre

me court is vested with the a

uthority to provide for such

appealsby r

ule as it sees fit. Almgren v. Rush-Presbyterian-St. Luke’s Medical Center
, 162 Ill. 2d 205, 210 (1994). As a reviewing court, we “r eview de novo the purely leg al issue of jurisdiction.” In re De tention of H ardin , 238 Ill. 2d 33, 39 (2010). ¶ 7 Before

addressing the merits of appellants’ arg ument, we note that

Illin ois law is unclear withrespec t t o which sup reme court rules, if any , apply to appea ls from grand jury
procee dings. In In re October 1985 Grand Jury No. 746 , 124 I

ll. 2d 466 ( 1988), ou

r suprem e 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 investig ation to a scerta

in whethe r a crime

was committed and a

criminal proceeding should be commenced. Thus, the State c ould not appeal through Rule 604(a)(1) (eff. Jan. 1, 1970) o r Rule 301 (eff. F

eb. 1, 199 4), but co

uld seek review through some other method, such as a wr i t of m andamus

. In re October 1985 Grand Jury , 124 Ill. 2d at 473. Subsequently
, in In re May 1991 W ill County G rand Jury
, 152 Ill. 2 d 381 (199 2), our su preme c ourt, without discussing jurisdiction, granted a petition for leave to appeal by

targets of a grand

jury procee ding af

ter their motion to qu ash

the grand jury subpoena was deni ed. Thus, our supreme court’s holding in In re May 1991 W ill County Grand Jury creates an inference that a n appeal from a grand jury proceeding could be maintained through

the supre

me court rules p ertaini ng to appeals. Nonetheless, any determination of whi ch rul e appl ies to grand j ury procee dings is irrelevant to our resolution of this case, because, as outlined below, there was no f inal orde r and we, therefore, lack jurisdiction. As a r eview ing c ourt, we “will not issue advisory opinions mere ly to set precedent or guide future litigation.” Segers v. Industrial Comm’n , 191 Ill. 2d 421, 428 (2000).-4-

¶ 8 Appe llants pr imarily rely on People v. Doe , 211 Ill. App. 3d 962 (1991), in support of their contention that

we have jurisdiction over this appeal. I n Doe , a third party was issued

a subpoena commanding her to produce information to a g rand jury relating to a homicide. Id

. at 964. The third party f iled a m oti on to quash, alleging that the subpoena violated an Illin ois law and constitutional rights, which the trial court denied. Thereaf ter, the third party failedto comply with the subpoena and f iled an appeal, which the State sought to dismiss for lack of jurisdiction. Id . The App ellate Court, First District, held that the trial court’s denial of the motion to quash constituted a final and appealable order, as the mot ion to quas h initiated a separate, independent action from the g rand jury proc eeding. Id . at 965. ¶ 9 In reaching its determination, the court in Doe said that the matter before it was “clear ly analog ous” to Laurent v. Brelji , 74 Ill. App. 3d 214 (1979). In Laurent , the defendant likewise refuse d to comply

witha subp oena i ssued by an admi nist rativ e agency regard ing a disch arge proceeding for a mentally ill patient. A hearing officer for the a dministrative
agency denied the defen dant’s motion to quas h. While the administr ative pr oceeding was st

ill pendi ng, the plaintiffs filed a petition in the t r ial court, seeking an order to enfor ce the subpoena. The tria

l court ordered t he defendant to comply with the subpoena, and the defendant appealed tha t order. Id . at 215. The reviewing court held that it had jurisdiction because the enforcement proceeding before the trial court constituted a separate ma tter, and

once the trial court entered the enforceme nt order, it had finally de

termined 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 cou rt’s ord er grant ing a judicial driving permit, because the Secretar y of Stat e played a substantial pa rt in such
procee dings. Id . at

99-100. In reaching

its determination, the supreme court, citing Laurent
, stated that allowing the Secretary of State to a ppeal wa s analog ous to cour ts holding that, in

an ancillary pr

oceeding, a nonparty

to the original matter could seek appellate review of

an order without fi

rst havin g to be held in contempt for refusing to obey the order. Id . at 101-02. ¶ 11 We find these cases distinguishable an d unpersuasive. Initially , we note that Doe involved a motion to q

uash a sub

poena, w hereashere ap

pellants s eek to chall enge an order denying a pet ition to continue

a subpoe na. An or der deny ing a mot ion to cont

inue is not

a final and appealable order. In re M.R. , 305 I ll. 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, a nd we do not find that

case re levant to the matte r prese ntly before us. ¶ 12 Moreover, the fac ts in Doe and the current matter are not “clear ly a nalogous” to Laurent

. As discussed above, Laurent involved two separ ate a nd distinct proceedings–the administrative proceeding in which the subpoena was issued a nd the subsequent trial court proceeding brought by the plaintiffs seeking enforc eme nt of the subpoena. The defendant appealed from the final order

in th e enfor cement procee ding, not the administrative agency ’s denial of h is motion t o quash the subpoena. Conversely , here, appellants filed their notice of appeal immediately a

fter the trial court d enied their emergency petition to continue the grand jury subpoenas, beforethe se parate and in depen dent r ule-t o-sho w-caus e proce edings commenced

on December 28, 2009. Thus, appellants filed their notice of appeal after the trial-5-

court entered a nonfinal order deny ing their emergency

petition to continue the s ubp oenas in the grand jury

proceeding, not after the trial cour t entered a final or der in a separate contempt proceeding. See Lewis v. Family Planning Management, Inc. , 306 I ll. App. 3d 918, 925-26 (1999) (noting th at a cont empt proc eeding

to enforce an order constitutes a separ ate procee ding an d dis tingu ishi ng Laurent ). Thus, the notice of appeal was premature. ¶ 13 Further, Supreme Court Rule

303(a)( 1) does not save ap pellants’ 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 pronounc es a fi nal ju dgm ent but th e wr it ten ord er f ol lo ws l ate r. If the notice of appeal is filed after the oral pronounceme nt but before the written order is entered, the notice of appea

l is treat ed as filed on the da

te of the written o rder. Th is rule is n ot applic able here, because

a final o rder ha d not been

orally pronounc ed by

the trial court when appellants filed their notice of appeal on December 22, 2009. ¶ 14 Fi na ll y, we recognize that the State brought an independent contempt proceeding agains t appella nts for fail

ing to comply

with the g

rand jur y su bpoenas . Howeve

r, the record cle arly reflec ts 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 suffic ient juris dictiona

l basis to e

ntertain this appe al. ¶ 15 In sum, we la ck jurisd iction be cause a

ppellant s did not ap

peal a final ord er. The trial court’s denial of their emergency petition to continue grand jury

subpoenas was a nonfinal order. In addit ion, the trial court has ye t to enter a final order in the contempt proceeding against appellants. Accordingly , we must dismiss this appeal for lack of jurisdiction. ¶ 16 Appeal dismissed.