Illinois Supreme Court Rule 308: Certified Questions and Procedure

Illinois Supreme Court Rule 308 is the mechanism for asking an appellate court to review a trial court order before final judgment. It works only when the trial court certifies, in writing, that its order involves a question of law with substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The appellate court then decides, at its discretion, whether to take the appeal.

The rule is meant to be used sparingly. Filing an application, and even winning leave to appeal, does not stop the case below; a stay has to be requested and granted separately. That is a deliberate feature, intended to keep the rule from becoming a delay tactic.¹

The Three Findings a Trial Court Must Make

Rule 308 has a specific eligibility test, and all three parts must be satisfied. If any one is missing, the appellate court may lack jurisdiction to hear the appeal.²

First, the order has to be an interlocutory order that isn’t already appealable under another rule. Rule 306 covers a defined list of orders (forum non conveniens, personal jurisdiction, disqualification of counsel, custody, and others), and Rule 307 gives an automatic right to appeal certain orders such as those granting or denying injunctions. Rule 308 is the route when those don’t fit.³

Second, the order must involve a genuine question of law on which there is substantial ground for difference of opinion. Routine application of settled law to case-specific facts does not qualify. In Thomas v. Page, 361 Ill. App. 3d 484 (2d Dist. 2005), the court held Rule 308 was never intended for that kind of order.⁴ Under In re Marriage of Akula, 404 Ill. App. 3d 350 (1st Dist. 2010), the certified question must present a legal issue reviewable de novo.⁵ Illinois caselaw treats cases of first impression, conflicts among appellate districts, and ambiguous statutory language as the kinds of situations where the “substantial ground for difference of opinion” element is typically met.²

Third, an immediate appeal must be capable of materially advancing the case toward its end. The answer to the question should be dispositive, or at least eliminate a meaningful part of the litigation. If the defendant would still face liability on other grounds regardless of the answer, this element is likely not met. In Rozsavolgyi v. City of Aurora, 2017 IL 121048, the Illinois Supreme Court vacated an appellate judgment in part because one certified question was overbroad and would not have resolved the case.⁶

The trial court states these findings in writing and identifies the specific question. Certification can happen when the order is entered or later, either on the court’s own initiative or on a party’s motion.¹

How the Procedure Works, Step by Step

Step 1: Ask the Trial Court to Certify

The party seeking review files a motion asking the trial court to certify a question of law. The moving party usually drafts the proposed question, and the court can modify it. If the court agrees the three criteria are met, it issues a written order identifying the specific question.⁴

Step 2: File an Application for Leave to Appeal Within 30 Days

Once the question is certified, the party has 30 days to file an application for leave to appeal with the clerk of the Appellate Court. The 30 days run from the later of the entry of the interlocutory order or the trial court’s written certification. This deadline is jurisdictional; missing it ends the appeal.¹⁷

The application must contain:

A statement of the facts necessary to understand the question of law.
The certified question itself, as identified by the trial court.
Argument explaining why substantial ground for difference of opinion exists and why an immediate appeal will advance the litigation’s termination.
An original supporting record under Rule 328, containing the order being appealed and the relevant parts of the trial court record.

Step 3: The Other Side Answers

The opposing party has 21 days after the application’s due date to file an answer in opposition, along with any supplementary supporting record.¹

Step 4: The Appellate Court Decides Whether to Take It

The appellate court has full discretion. Under a 2019 amendment effective October 1, 2019, the court must rule on the application within 30 days after the answer period expires unless good cause is shown for a longer timeline. Applications are decided without oral argument unless the court orders otherwise.⁸

Step 5: If Leave Is Granted, Brief in 35 Days

The appellant must file a brief within 35 days of the grant of leave. The court may also order the appellant to file a complete record on appeal within that same period. From there, standard appellate briefing rules take over.¹

What the Appellate Court Will Actually Decide

As a general matter, a Rule 308 appeal is confined to the specific certified question. The appellate court answers the question rather than assessing the underlying order as a whole. Parties cannot rewrite the question on appeal or smuggle in issues the trial court didn’t include.⁵

There is some play in that boundary. In Rozsavolgyi, the Illinois Supreme Court confirmed that appellate courts can reformulate an improperly drafted certified question.⁴ And in Townsend v. Sears, Roebuck and Co., 227 Ill. 2d 147 (2007), the Court held that when it accepts a Rule 308 appeal, “interests of judicial economy and the need to reach an equitable result oblige us to go beyond the question of law presented and consider the propriety of the order that gave rise to the appeal.” That broader review has been used sparingly, mostly at the Supreme Court level.⁹

The standard of review is de novo. The appellate court examines the legal question independently and does not defer to the trial court’s conclusions of law.⁵ The answer becomes the law of the case and is treated as a final judgment for purposes of further proceedings.⁴

One boundary worth flagging: no automatic stay. Unlike some Rule 306 appeals, Rule 308 proceedings continue in the trial court unless a stay is separately requested and granted by either the trial court or the appellate court.⁴

When to Use Rule 308 Instead of Rule 306 or 307

Illinois offers three routes for pre-judgment appeals, and picking the wrong one is fatal to the timeline.

Rule 306 covers a specific, enumerated list of orders (forum non conveniens, personal jurisdiction, disqualification of counsel, custody, and others). Petitions must be filed within 14 days and go directly to the appellate court.³
Rule 307 gives an automatic right of appeal for orders granting or denying injunctions, appointing receivers, terminating parental rights, and similar matters. A notice of interlocutory appeal is filed in the circuit court within 30 days.
Rule 308 is not tied to any particular kind of order. It turns on whether the order raises a genuine legal question with substantial ground for difference of opinion. The application is filed with the appellate court within 30 days.

If the order fits within Rule 306 or 307, use that route. Rule 308 is what remains when the order does not otherwise qualify for interlocutory review but presents a legal question important enough to justify pausing to answer.

Cases That Shape How Rule 308 Is Applied

Rozsavolgyi v. City of Aurora, 2017 IL 121048. The Illinois Supreme Court vacated part of an appellate judgment because a certified question was overbroad and would have generated an advisory opinion. The case also confirmed the appellate court’s power to reformulate a poorly drafted question.⁶

Townsend v. Sears, Roebuck and Co., 227 Ill. 2d 147 (2007). Establishes that when the Supreme Court accepts a Rule 308 appeal, it may look past the certified question to evaluate the underlying order.⁹

Thomas v. Page, 361 Ill. App. 3d 484 (2d Dist. 2005), and In re Marriage of Akula, 404 Ill. App. 3d 350 (1st Dist. 2010). Together they mark the line between a pure legal question, which qualifies, and application of settled law to particular facts, which does not.⁴⁵

In re R.C., 195 Ill. 2d 291 (2001). When a trial court doubts the continued vitality of a higher court’s decision, the proper procedure is to follow existing law and certify the question under Rule 308 rather than depart from precedent on its own.²

Italia Foods, Inc. v. Sun Tours, Inc., 2011 IL 110350. A working example of certification based on ambiguous statutory language, in that case a provision of the federal Telephone Consumer Protection Act.¹⁰

1
Illinois Courts. Rule 308 Certified Questions
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IICLE. Interlocutory Appeals in Illinois
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DCBA Brief. Interlocutory Appeal Procedures in Illinois
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Clausen Miller. A Guide to Illinois Interlocutory Appeals
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IDC Quarterly. Appellate Practice Corner – Certified Questions
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FindLaw. Rozsavolgyi v. City of Aurora
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IDC Quarterly. Rule 308 Application Deadline Changes
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ISBA. Illinois Supreme Court Rule Amendments
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Justia. Townsend v. Sears, Roebuck and Co.
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ISBA. Junk Fax Statute Enforceable by Private Litigants