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August 24, 2015 Articles

The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(b)(3)

The rule requires affiants to state under penalty of perjury that they have personal knowledge of events that have not yet occurred.

By Wm. Dennis Huber

Illinois Supreme Court Rule 12(b)(3) has what can only be called “curious, perjurious requirements.” They are curious because they require affiants to state under penalty of perjury that they have personal knowledge of events that have not yet occurred. They are perjurious because they require affiants to state under penalty of perjury that they already performed an act when in fact they did not and could not have performed the act at the time the affidavit was executed.

Illinois Supreme Court Rule 12(b)(3) states that service is proved

(3) in case of service by mail or by delivery to a third-party commercial carrier, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail or delivered the document to a third-party commercial carrier, stating the time and place of mailing or delivery, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid. . . .

Rule 12(b)(3) must be read in conjunction with the related Illinois Supreme Court Rule 373, which states:

Unless received after the due date, the time of filing records, briefs or other papers required to be filed within a specified time will be the date on which they are actually received by the clerk of the reviewing court. If received after the due date, the time of mailing, or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days, shall be deemed the time of filing. Proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). This rule also applies to a motion directed against the judgment and to the notice of appeal filed in the trial court.

Thus, under these rules, a pleading may be deemed filed at the time of mailing, but, as discussed below, that time may be established only by an affidavit meeting the requirements of Rule 12(b)(3). This can have significant practical import.

Consider Secura Insurance Co. v. Illinois Farmers Insurance Co., 902 N.E.2d 662 (Ill. 2009). After the circuit court granted Farmers’ motion for summary judgment, Secura filed a notice of appeal. Farmers moved to dismiss the appeal for lack of jurisdiction because the notice was received by the court clerk after the applicable deadline and it was not accompanied by an affidavit of service stating the date and time of mailing. The appellate court initially granted Farmers’ motion.

However, when Secura moved for leave to respond and for rehearing of Farmers’ motion to dismiss, the appellate court vacated its dismissal order and allowed Secura to supplement the record with a cover letter that had been sent to the circuit court with the notice of appeal and bore the date of the filing deadline. On the basis of the letter, the appellate court found jurisdiction because, it held, the failure to file an affidavit of service was “harmless error” and there was no showing of prejudice to Farmers. The appellate court then ruled in Secura’s favor on the merits of the case.

Farmers appealed to the Illinois Supreme Court, which held that the timely filing of a notice of appeal is both “jurisdictional and mandatory.” Id. at 213. Because there was no dispute that the appellate court did not receive the notice of appeal within 30 days, Rule 373 required the court to consider Rule 12(b)(3). The court explained that

a party can only take advantage of Rule 373 if it files proper proof of mailing as required by Rule 12(b)(3). The reason for such a requirement is elementary. If there is no proof of mailing on file, there is nothing in the record to establish the date the document was timely mailed to confer jurisdiction on the appellate court.

Secura, 902 N.E.2d at 666.

Because Secura’s cover letter “contains only a date, which, at best, indicates that it may have been mailed on that date,” Secura could not “provide ‘proof of mailing’ such that it is competent evidence under the rule.” Id. On this basis, the Supreme Court held that there was no appellate jurisdiction over the case and vacated the appellate court’s decision. See id. at 668.

People v. Lugo, 910 N.E.2d 767 (Ill. App. Ct. 2009), reached a similar outcome, even with arguably stronger proof of mailing. There, Lugo pled guilty to soliciting murder for hire. After the trial court denied his motion to withdraw his plea and dismissed his post-conviction petition, Lugo appealed. The appellate court sua sponte raised the question of jurisdiction, which arose because the notice of appeal was file-stamped nearly two weeks after the filing deadline. However, an envelope taped to the back of the notice of appeal, addressed to the circuit court, and bearing a return address with Lugo’s name was postmarked three days before the filing deadline. The envelope was not file-stamped, and no affidavit of service of the notice of appeal was included in the record on appeal. The court noted that, if the postmark was sufficient proof of mailing, then Lugo’s notice of appeal was timely filed. See id. at 768–70.

To determine whether the postmark serves as proof of mailing under Rule 373, the court considered what it believed to be the intent of the rule’s drafters. The court reasoned that

under the plain language of Rule 373, proof of mailing must be as provided in Rule 12(b)(3). Rule 12(b)(3) provides that proof is by certificate or affidavit of mailing. It does not provide for proof in any other form. Thus, the language of Rule 373 is in providing that proof of mailing must be by certificate or affidavit of mailing. Accordingly, if proof of mailing must be by certificate or affidavit of mailing, then it cannot be by postmark, as a postmark is neither a certificate nor an affidavit of mailing.

Id. at 769 (emphasis in original).

The court noted that the Supreme Court had removed from Rule 373 earlier language that specifically allowed postmarks to serve as proof of mailing. The court concluded that the Supreme Court chose to eliminate the use of postmarks as proof of mailing and replace it with a certificate or affidavit of mailing, as provided in Rule 12(b)(3). The majority believed that the amendments to Rule 373 “indicate[d] an intent on the part of the rule’s drafters to narrow the permissible forms of proof of mailing” by changing the rule’s wording from an allowance that proof of mailing “‘may be evidenced by a post mark’” to a requirement that such proof “‘shall be’ in the form of a certificate or affidavit of mailing.” Id. at 771 (emphases in original). The court determined that the language of Rule 373 was “unambiguous in requiring, by reference to Rule 12(b)(3), proof of mailing of a notice of appeal by certificate or affidavit of mailing,” such that

we do not believe that the reliability of postmarks has any bearing on the question of what constitutes sufficient proof of mailing under Rule 373. Our decision is not based on a determination of what form of proof of mailing is most reliable, but instead is based on the language of Rule 373. Where the supreme court has chosen to require a certificate or affidavit of mailing instead of the dissent’s arguably more reliable postmark, we are not in a position to disregard that decision.

Id. at 772.

Justice McLaren dissented, stating that “[t]he paramount rule of our interpretation is to glean the intent of Rule 12(b)(3) and then follow it.” Id. at 774 (McLaren, J., dissenting). He observed that “nothing in the comments [to the rules] affirmatively disavows, proscribes, or contradicts the use of a postmark as proof of mailing if the postmark is timely.” Id. at 777. He reasoned that a timely postmark renders an affidavit of mailing “immaterial” because “before a postmark can be stamped on an envelope, the envelope [containing the affidavit] must be placed in the mail. If the postmark is timely, then it is immaterial when the envelope was actually placed in the mail.” “[T]o conclude that a certificate or affidavit must be the only means to establish a timely mailing,” Justice McLaren argued, “defies the purpose” of a rule allowing a document to be deemed filed at the time it was mailed. Id.

Justice McLaren’s dissenting argument in Lugo became the majority opinion in People v. Hansen, 952 N.E.2d 82 (Ill. App. Ct. 2011), just two years later. After Hansen was convicted of first-degree murder, the trial court denied his petition for post-conviction relief. Hansen filed a pro se notice of appeal. The State argued that the appellate court lacked jurisdiction because the notice of appeal was file-stamped two days after the deadline. Hansen had included with his notice a certificate of service reflecting that he placed the notice of appeal and service copies in the prison mail system two days prior to the filing deadline. The envelope that the court received with the notice of appeal and certificate of service bore a clear postmark for the date of the filing deadline. The court reviewed the majority decision in Lugo but rejected it in favor of the dissent:

We conclude, as did the dissent in Lugo, that Lugo is too literal and narrow in its reading and interpretation of Rules 373 and 12(b)(3). . . . It is axiomatic that, if there is a timely and legible postmark, an affidavit or a certification of mailing is a corroborative redundancy. Requiring a court to overlook a clearly legible postmark showing that a document was processed by a disinterested third party, such as the post office, on or before the date by which the document was required to be mailed is to disregard the best, most competent evidence of the latest date of mailing.

Hansen, 952 N.E.2d at 86–87.

The majority then concluded that, because the clearly legible postmark was sufficient proof of mailing under Rule 373, Hansen’s notice of appeal was timely filed. Here, too, however, the majority holding was contested. Presiding Justice Jorgenson dissented on the jurisdictional point, arguing that the Supreme Court Rules do not allow the use of a postmark to establish proof of mailing and that Hansen’s certificate of service could not suffice because it was not sworn before a notary. See id. at 89–90.

Affidavits and Perjury
Given the text of Rule 12(b)(3) and the disagreements among appellate judges about the utility of legible postmarks under the rule, it seems advisable to file an affidavit of service with any pleading submitted by mail. Thus, what constitutes an affidavit is necessary to consider.

Supreme Court Rule 191 sets forth the requirements for an affidavit. An affidavit

(1) shall be made on the personal knowledge of the affiants;
(2) shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based;
(3) shall have attached thereto sworn or certified copies of all documents upon which the affiant relies;
(4) shall not consist of conclusions but of facts admissible in evidence; and
(5) shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.

As the Illinois Supreme Court ruled in Outboard Marine Corp. v. Liberty Mutual Insurance Co., 607 N.E.2d 1204, 1223 (Ill. 1992), “[s]tatements in an affidavit which are based on . . . speculationare insufficient.” And even statements based on personal knowledge and expressly asserted to be accurate are insufficient if the document is not notarized. People v. Tlatenchi, 909 N.E.2d 198, 208 (Ill. App. Ct. 2009); accord Roth v. Ill. Farmers Ins. Co., 782 N.E.2d 212, 214 (Ill. 2002) (“an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits”).

A false affidavit can be a basis for a perjury charge. In Illinois, perjury is a Class 3 felony. “A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law the oath or affirmation is required, he or she makes a false statement, material to the issue or point in question, knowing the statement is false.” 720 Ill. Comp. Stat. 5/32(a). Where a notarized affidavit contains false information, sanctions for perjury or contempt of court may attach. See, e.g., People v. Perkins 636 N.E.2d 780, 782 (Ill. App. Ct. 1994) (explicitly recognizing that the filing of a false affidavit could give rise to a prosecution for perjury or a court imposed sanction for contempt of court).

Furthermore, Jones v. Dettro, 720 N.E.2d 343, 347 (Ill. App. Ct. 1999), held that affidavits containing self-serving statements do not comply with Rule 191(a). Statements in an affidavit of service concerning the date and time of mailing cannot be considered anything other than self-serving because those statements determine whether an appellate court has jurisdiction under Rule 12(b)(3).

Because those statements can be self-serving, courts acknowledge that there may be a temptation to falsify proofs of mailing. In People v. Saunders, 633 N.E.2d 1340, 1340 (Ill. App. Ct. 1994), after the defendant’s murder conviction was affirmed by the Supreme Court, he filed a post-conviction petition. The circuit court granted the State’s motion to dismiss the petition on the grounds that the petition was not timely filed. If the appellate court worked from the date Saunders’s petition was file-stamped at the court, the petition would be untimely; if it worked from the date of Saunders’s notarized proof of service enclosed with the petition, the filing would be timely. The State argued that accepting the proof of service would “encourage and provide an opportunity for the falsification of certificates and affidavits.” Id. at 1343. Although the court minimized the risk of false affidavits, stating the risk of fraud is slight, the court explicitly recognized that the risk of false affidavits is in fact present “in any context in which the date of mailing determines the filing of a document.” Id. Similarly, the dissent in Lugo stated that “[t]he fact that a party declares under oath to have placed the paper in the mail does not make it so.” 910 N.E.2d at 775 n.3 (McLaren, J., dissenting). The dissent cited Baca v. Trejo, 902 N.E.2d 1108 (Ill. 2009), in which the affidavit of service stated the document was placed in the United States Postal Service (USPS), when it was actually placed in the United Parcel Service (UPS). That was enough to deny a timely filing because the rule for delivering the affidavit to a private delivery service such as UPS differs significantly from the rule for delivering it to the USPS.

Even if an affidavit of mailing is not manipulated, an affiant knows that the text of the affidavit is false at the time of execution because he or she has not yet performed the act the affidavit swears has been completed. And, at least in the context of a notice of appeal, the time of filing is clearly material to the issue or point in question—it determines the appellate court’s jurisdiction to hear the appeal. Thus, not only is there no way that an affidavit of service can meet the requirements of Rule 191, but also all the elements of perjury are met in the execution and filing of an affidavit of service to accompany a notice of appeal.

It follows that an affidavit of service under Rules 12(b)(3) and 373 should not be accepted as proof of service because it does not comply with Rule 191. When Illinois courts interpret their procedural rules, they use their standard tools of statutory interpretation. See, e.g., Robidoux v. Oliphant, 775 N.E.2d 987, 992 (Ill. 2002). And where the text “admits of two constructions, one of which would make the enactment absurd and illogical, while the other renders it reasonable and sensible, the construction which leads to an absurd result must be avoided.” Mulligan v. Joliet Reg’l Port Dist., 527 N.E.2d 1264, 1269 (Ill. 1988). The inherent contradiction of Rules 12(b)(3), 191, and 373 renders an affidavit of service “absurd and illogical” and leads to an “absurd result.” It is an open invitation for misuse and abuse.

Logical Impossibility and Circumventing the Rule
Complying with Rule 12(b)(3) first requires the affiant to execute an affidavit stating the date and time the notice was mailed. Then the affiant must place the notice and the affidavit in an envelope. Then the affiant must go to the post office. Then the affiant must apply postage to the envelope. Then the affiant must either place the envelope in a mailbox or deliver the envelope to the postal clerk in order for the envelope to be postmarked.

This necessary sequence of events makes it logically impossible to comply with the rule—and means that manipulating and circumventing the rule is easily accomplished. It is simple for an appellant to notarize an affidavit stating that he or she placed the notice of appeal in the mail by the deadline, but then not actually place it in the mail until days or weeks later, perhaps even after the jurisdictional deadline had passed. While the postmark might clearly prove that the notice was not mailed prior to the deadline, it may well be that the postmark would be disregarded and the self-serving affidavit would prevail.

Unless and until Rule 12(b)(3) is revised, parties should be aware of two relevant concerns: (1) Affidavits are the only proof of mailing guaranteed to be considered by Illinois courts; and (2) under the applicable rules, such affidavits can be manipulated easily and with the possibility of significant prejudice to the opposing party.

Keywords: Illinois Supreme Court Rule 12(b)(3), notice of appeal, proof of service, affidavit, perjury

Wm. Dennis Huber is a professor of forensic accounting and business law at Capella University and an LLM candidate in homeland and national security law, Western Michigan University, Thomas M. Cooley School of Law.

This article has been condensed and adapted from Wm. Dennis Huber, "The Curious, Perjurious Requirements of Illinois Supreme Court Rule 12(B)(3)," 39 S. Ill. Univ. L.J., 451–73 (2015), with permission.

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