I write on the concept of withdrawing an Appearance as the attorney of record for a client in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois. The procedure that the Judges wish to follow is that unless and until either the green card from return receipt certified mail may be presented in court or the return envelope that the addressee did not retrieve the envelope, there can be no withdrawal.
Illinois Supreme Court Rule 13 is entitled Appearances-Time to Plead-Withdrawal. Sub-paragraph (c)(2) requires that notice of withdrawal be given “by personal service, certified mail, or a third-party carrier, directed to the party represented at the party’s last known business or residence address. Alternatively, the attorney may give such notice electronically, if receipt is acknowledged by the party.”
Illinois Supreme Court Rule 12 is entitled Proof of Service in the Trial and Reviewing Courts; Effective Date of Service. Sub-paragraph (b) is entitled Manner of Proof. Paragraph (5) says that “in case of service by mail, or by delivery to a third-party commercial carrier, by certification under Section 1-109 of the Code of Civil Procedure of the person who deposited the document in the mail or delivered the document to a third-party commercial carrier or courier, stating the time and place of mailing or delivery, the complete address that appeared on the envelope or package, and the fact that the proper postage or delivery charge was pre-paid;”.
Sub-paragraph (c) of Rule 12 is entitled Effective Date of Service. By delivery to a third-party commercial carrier or courier, the service “is complete on the third court day after delivery of the package to the third-party carrier.”
If the U.S. Mail is used, service is complete “four days after mailing.”
Notice that there is no requirement that service is only effective upon presentation of certified mail card or the return of the certified mail envelope or proof from the third-party courier that notice was actually given.
Illinois is a notice by mail state. Mailing is effective and service completed if Rule 12 is obeyed.
In People ex Rel. Devine vs. $30,700.00, the Illinois Supreme Court, at 199 Ill. 2d. 142 (2002) held that when the State’s Attorney of Cook County gave notice of a forfeiture attempt by certified mail and provided a certificate signed by an Assistant State’s Attorney that the items had been mailed listing the address to which, when, where deposited, and that postage was pre-paid, it was not necessary for the State’s Attorney of Cook County to provide the certified mail receipt signed by the addressee. The Court distinguished this case, People ex Rel. Devine from an eviction case, Avdich vs. Kleinert, 69 Ill. 2d. 1 (1977). In that case, the Court said that a certified mail receipt was required because of the Landlord and Tenant Act which says “by sending a copy of said notice to the tenant by certified or registered mail, with a returned receipt from the addressee.” Since the forfeiture statute in People ex Rel. did not contain that language, it was not necessary for there to be a certified mail receipt.
Similarly, since Illinois Supreme Court Rule 13 does not contain the language about a certified mail receipt, service pursuant to Rule 12 is legally sufficient.
The Illinois Supreme Court said in Bright vs. Dickey, 166 Ill.2d 204 (1995), the last three sentences, that court rules hold the full force of the law, are not mere suggestions, and are to be obeyed. It is respectfully submitted that there is no authority for the courts in Lake County, Illinois to require the green card or the return envelope before the withdrawal order may be granted if notice has been certified by the attorney in compliance with Illinois Supreme Court Rule 12.
By Gary L. Schlesinger, Letter to the Editor, Lake County Bar Association Docket, March 18, 2020