                          ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court           In re JOHN DOE INVESTIGATION (Sheila Brown and Marissa
Caption                   Brown, Appellants).



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


Filed                     July 11, 2011


Held                       An appeal from the trial court’s denial of appellants’ emergency petition
(Note: This syllabus to continue the grand jury subpoenas requiring them to appear before a
constitutes no part of the grand jury regarding a shooting they witnessed was dismissed for lack
opinion of the court but of jurisdiction, since the denial of the petition was a nonfinal order and
has been prepared by the there was no final order in the contempt proceedings against them based
Reporter of Decisions for on their failure to appear.
the convenience of the
reader.)


Decision Under            Appeal from the Circuit Court of Winnebago County, No. 09-MR-1028;
Review                    the Hon. Joseph G. McGraw, Judge, presiding.



Judgment                  Appeal dismissed.
Counsel on                  Keenan J. Saulter, of Saulter Law Group, and Samuel E. Adam, of Law
Appeal                      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’s motion 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.




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