Illinois must reject efiling 'rejections'

Here in Cook County we are adrift this month on Odyssey's wine-dark sea. Those of us who have braved the new efiling system have experienced wildly divergent results. I had one filing take three attempts over six days, another done in one shot -- but it still took 55 hours -- and another that was turned around in just under 30 minutes.

That's some wild divergence. And, from Facebook and the ISBA online discussion groups, I know my experiences are not unique.

But -- assuming progress is being made in this department -- cutting down on the extreme turnaround times will not alone be sufficient to make efiling useful, or even palatable, to the bench and bar.

We must decisively reject any notion that efiling gives our Clerks of Court new powers to "reject" efilings.

The Illinois Clerk of Courts Act, 705 ILCS 105/0.01 et seq., specifies, in great detail, the duties and responsibilities of court clerks and the fees they may charge.

And it is clear that the General Assembly has made the Circuit Clerks into more than mere warehousemen. In addition to receiving and keeping records -- the core historic function of a Clerk of the Circuit Court -- the legislature has made the clerks responsible for the creation of various sorts of records, specifying, down to the bindings, what records to create and how these must be kept.

Nowhere in the Clerk of Courts Act, however, does the legislature make a clerk into a curator of everyday court records: They do not have the power to decide for themselves what to keep and what to reject.

And efiling changes nothing in this regard.

The creation of the court record is the responsibility of judges and lawyers (and unrepresented parties). The court clerk merely keeps that record, and stores it, making it available for further use by the trial court or for appellate review.

It is true that the most recent amendment to Illinois Supreme Court Rule 131 does refer to the power of a clerk to "reject" a document submitted for filing.

As of January 1, 2018, Supreme Court Rule 131 was renamed "Form of Documents" (from "Form of Papers"). The rule now provides:

(a) Legibility. All documents for filing and service shall be legibly written, typewritten, printed, or otherwise prepared. The clerk may reject any documents which do not conform to this rule.

(b) Titles. All documents shall be entitled in the court and cause, and the plaintiff’s name shall be placed first.

(c) Multiple Parties. In cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling documents, except a summons, to name the first-named plaintiff and the first-named defendant with the usual indication of other parties, provided there be added the official number of the cause.

(d) Name, Address, Telephone Number, and E-mail Address.

(1) Attorneys. All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.

(2) Unrepresented Parties. All documents filed or served in any cause by an unrepresented party upon another party shall bear the unrepresented party’s mailing address and telephone number. Additionally, an unrepresented party may designate a single e-mail address to which service may be directed under Rule 11. If an unrepresented party does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.

According to the Supreme Court Rules, a circuit clerk may only "reject" a document which is illegible or otherwise fails to comply with the few specific requirements of Supreme Court Rule 131. And the clerk doesn't even have to do that; he or she "may" reject a non-conforming document.

Note, too, that attorneys are required to provide their name, address, telephone number and an email address on every document. No local attorney ID number is required. Therefore, no clerk has the power to reject a document because a local attorney ID number is omitted.

Yet, this was one of the bases on which the petitioner's notice of appeal was "rejected" by the Clerk of the Circuit Court of DuPage County in In re Marriage of Bordyn, 2018 IL App (2d) 180017-U (discussed more in this post).

The other asserted basis for "rejection" in Bordyn was that the notice of appeal and notice of filing of the notice of appeal were submitted as one document -- an "error" that Presiding Justice Donald C. Hudson noted, 2018 IL App (2d) 180017-U, ¶14, would probably have been rectified, in those carefree, innocent days prior to efiling, simply by pulling out the staple from the offending document and re-stapling it as two documents.

The Bordyn court agreed that the otherwise timely-filed notice of appeal was properly rejected because, under paragraph 3 of the Illinois Supreme Court's Electronic Filing Standards and Principles (as amended September 16, 2014), "Any electronic document or record submitted to the clerk of the court for filing shall be deemed filed if not rejected by the clerk." And paragraph 9(d), also relied upon, provides that, "Bulk filings of multiple cases or multiple documents combined into one PDF document... shall not be accepted." (2018 IL App (2d) 180017-U, ¶7.)

Standard 9(d) was incompletely quoted in Bordyn. The word "bulk" was omitted. Moreover, standard 9(d) further provided, "Documents with different civil or criminal case numbers must be filed individually in separate transactions." Well, of course! In the days before efiling, no attorney would hand over an undifferentiated mass of papers for the unrelated Smith, Jones, White, and Green cases and tell the counter clerk to figure it out for him- or herself. Nor would an attorney glob together her appearance, answer, and initial discovery requests all as one document. But all the attorney did in Bordyn was attempt to file his notice of appeal and proof of service of that notice as a single document.

Further, these 2014 "standards" generally refer to the voluntary efiling regime that the Illinois Supreme Court was then trying to encourage. These standards were referred to in the introductory paragraphs of the January 22, 2016 Order adopting a timetable for mandatory efiling across the state, but they were not adopted as rules. Rather, paragraph 9 of that Order provided, "The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order." Nor were these 2014 standards adopted as rules in the May 30, 2017 amendment to the mandatory efiling Order."

And, besides, nothing in these standards creates or confers any power on a clerk to reject a document; it merely states the obvious: that which is not rejected is accepted.

The Bordyn court also refers (2018 IL App (2) 180017-U, ¶7) paragraphs 7(d) and (f) of the Supreme Court's Electronic Filing Procedures and User Manual. But, of course, this is the manual for filing documents in the Supreme Court, not in DuPage County.

But let's look at the cited sections inasmuch as these may serve as templates for rules that may be adopted elsewhere. Section 7(d) provides, "An e-filed document submitted to the Clerk for filing shall be deemed filed upon review and acceptance by the Clerk. The filed document shall be endorsed with the clerk's electronic file mark setting forth, at a minimum, the identification of the Court, the Clerk, the date and the time of filing."

That provision gives no specific power to the Clerk of the Supreme Court; the objective evaluation that the Supreme Court Clerk may properly perform for, say, briefs submitted for filing in that court (e.g.left margins of 1.5", font sizes, brief cover colors, word counts) are already specified elsewhere in the Illinois Supreme Court Rules. Rather, the paragraph merely describes what consequences follow for a document that fails to conform to these objective filing requirements that the court -- not the clerk -- has set forth.

Paragraph 7(f) provides, "In the event the Clerk rejects a submitted document, the document will not be filed and the registered user will receive an electronic notification of the reason(s) for the rejection."

This provision gives no power to the Supreme Court Clerk to reject documents for any reason it wants; rather, it requires the Clerk, in the event she feels compelled to reject a document, to specify the reason -- and it is assumed, or should be, that the reason specified will be one specifically authorized by Supreme Court rule.

Now, I understand that one should not read too much into a Rule 23 Order like Bordyn. It will never be cited by any reviewing court addressing an efiling issue.

But it will have been read. As long as the case pops up in Lexis or Westlaw, at least until a body of published case law emerges, every trial or appellate court judge faced with an efiling issue, and all of their law clerks, will look at Bordyn.

And if one appellate panel was not inclined to critically examine the limitations placed on the circuit clerk's powers to "reject" documents submitted for efiling, others may be as well -- unless the bench and bar get together on this and make abundantly clear that efiling creates no new powers for circuit clerks. Circuit Clerks have limited powers to reject any proposed filings; specifically, they have only those powers granted by statute and by the Supreme Court Rules. We must reject efiling rejections.