One thing that I have learned over the years is that there is always something new to learn in the law. My latest legal enlightenment was found in Cinkus v. Village of Stickney Municipal Officers Electoral Board, No. 1-07-0700 (1st Dist., May 21, 2007). The case discusses election law, which had nothing to do with my “ah-ha” moment. Although my office provides legal advice on election law, it is not one of my areas of concentration. Thus, I perused the case, although not too closely.
I read “this case is not binding on this court and has no precedential value as it was decided prior to 1935.” Cinkus, at 6 (referring to People v. Hamilton, 24 Ill. App. 609 (1886) citingSklodowski v. Countrywide Home Loans, Inc., 358 Ill. App. 3d 696, 701 (2005); Graham v. White-Phillips Co., 296 U.S. 27, 31, 80 L. Ed. 2d 20, 24, 56 S. Ct. 21, 22 (1935)). My first reaction was “Did I read that correctly? I have never heard this before.”
I got curious and did a little research. The research was prompted by a couple of interests: (1) the statement was simply intriguing; and (2) I practice in the area of land use law and platting issues come up every once in a while, where I’ve relied upon cases from the early 1900s so it may be good to have an understanding of this axiom.
As applicable to the Illinois Appellate Court, the 1933 Illinois Revised Statutes specifically required that all opinions and decisions shall be in writing, briefly giving the reasons for the opinion, and filed in the case in which it was rendered. Ill. Rev. Stat. ch. 37, par. 41 (Smith-Hurd 1933). This paragraph continues “Provided, that such opinion shall not be of binding authority in any cause or proceeding, other than in that in which they may be filed.” Id. (emphasis added). This is the authority upon which the Cinkus court relied. Cinkus, at 6. This only applies to Illinois Appellate Court opinions entered prior to 1935. On April 25, 1935, the Illinois General Assembly amended this section and completely deleted the language stating that Illinois Appellate Court decisions are not precedential. 1935 Laws 696; Ill. Rev. Stat. ch. 37, par. 41 (Smith-Hurd 1935).
In case you were wondering, this rule is not applicable to Illinois Supreme Court cases. The 1933 Illinois Revised Statutes does not specifically state that Illinois Supreme Court decisions are precedential but it does provide that opinions shall be delivered in writing and shall be “spread at large upon the records of the court.” Further, the 1933 Illinois Revised Statutes provides for the distribution of the reports of decisions of the Supreme Court. See Ill. Rev. Stat. ch. 37, pars. 21, 24 (Smith-Hurd 1933).
This begs the question: what is an attorney to do when the only on-point authority located is an Illinois Appellate Court decision prior to 1935? Obviously, you can continue your research and look for a Supreme Court opinion or an appellate court opinion after 1935. A second option is to use your creative skills and argue that although not binding pursuant to this particular statute, the authority cited may be considered by the court as persuasive authority and the court should follow it. See First Midwest Bank/Danville v. Hoagland, 244 Ill. App. 3d 596, 604, 613 N.E.2d 277, 283 (4th Dist. 1993). And, for those who practice land use and platting law, a final argument could be that as the plat was created in the 1890s (or whatever year you have prior to 1935), the cases to consider in interpreting the provisions of the statutes with respect to the plat are those that applied at the time of platting. While still arguing its persuasive authority application, it may give the court more comfort in using this very old case as authority. One final point to consider: if you cannot find anything directly on point, opposing counsel will probably be in the same position.