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Bench and BarThe newsletter of the ISBA’s Bench & Bar Section Council

April 2012, vol. 42, no. 4

Recent Supreme Court Rule changes

The past year has been a particularly busy one in terms of court administration. The Illinois Supreme Court has adopted a number of significant administrative and rule changes designed to improve the efficiency of the courts, reduce costs, and make the work of the judicial branch more accessible to the public. It has also approved important measures related to criminal and juvenile delinquency cases, the prosecution of ordinance violations, and the practice of law. Here are some highlights.

Publication of Opinions. The “advance sheet” is going the way of legal-size paper. In 2011, the Court discontinued the practice of publishing decisions in printed reporters. Instead, all opinions are being made available online, at no charge, through the Court’s Web site, <http://state.il.us/court>. As before, decisions can still also be obtained through commercial services such Lexis and Westlaw. In addition, effective January 1, 2011, the Court authorized publication of Rule 23 orders. Although Rule 23 orders still have no precedential effect except under the limited circumstances set forth in Rule 23(e)(1), access to those orders no longer requires a trip to the courthouse to see the case file. They are now available to anyone, anywhere with internet access. Moreover, because the opinions and Rule 23 orders are published in pdf format, they can be downloaded and read using a broad range of devices, including iPads and other tablets.

When the Court implemented foregoing changes, it overhauled the format used for case citations. The familiar references to “Ill.App.3d” and “Ill.2d” are gone. Effective July 1, 2011, all decisions by Illinois courts of review are assigned what is called a “public domain designator” based on the court which issued the decision, the docket number of the case, and the year in which the decision was entered. In addition, each paragraph of each decision is now numbered, and the numbered paragraphs, rather than the old page numbers, are to be used when citing specific parts of a decision. The details may be found in Supreme Court Rule 6, as amended effective July 1, 2011, and the accompanying Commentary.

Electronic Filing. The federal courts and a growing number of state jurisdictions have adopted systems for electronic filing of court documents. Illinois took its first steps in that direction in 2003, when DuPage County received approval to serve as a pilot site for e-filing in the circuit courts. Will County followed in 2007 as did Cook County. The Third Judicial Circuit in Madison County became the fourth approved pilot site in 2008 and was second, only to Du Page County in actually getting its program up and running. St Clair County followed with approval for chancery cases in 2010. Additional applications are in process from DeKalb, Lake, McHenry and Sangamon Counties, and St. Clair County is working hard to obtain approval to extend e-filing to L and AR cases.

When the Court initially approved the policy for electronic filing in the circuit courts, it expressly stated that the policy did not apply to the Supreme and Appellate Courts. That is now changing. As part of an e-business initiative announced by Chief Justice Kilbride, the Court recently adopted a pilot project for electronic filing of documents. Initially, the pilot project will be limited to documents filed in cases on the Court’s general docket when filed by the Office of Attorney General, Office of the State’s Attorney Appellate Prosecutor or Office of State Appellate Defender when those offices represent adverse parties in the case. Eventually, it will be expanded to other cases before us and to cases filed in the appellate court.

As a prelude to electronic filing in the appellate court, the Supreme Court has already approved pilot projects to permit records from certain counties to be transmitted electronically to the appellate courts in their respective districts. The first such project was approved last August to allow electronic transmission of records from DuPage and Ogle Counties to the Second District. Since then, our court has authorized additional pilot programs for Adams County in the Fourth District, Rock Island County in the Third District, and most recently, Clinton County in the Fifth District. Putting records in electronic form and allowing them to be filed that way will not only save shipping and labor costs in handling the records, it will substantially improve our ability to search the transcripts and exhibits and locate and retrieve relevant information and, for the first time, will enable multiple users to view the record at the same time regardless of their physical location.

Cameras in the Courtroom. The Supreme Court has recorded its oral arguments for many years and has also implemented a system for videotaping those arguments. Until recently, the tapes and video were available only for internal court use. Now, however, videos of all oral arguments are freely available to the public on the court’s web page. The archive contains videos dating back to early 2008. The quality of the video is high (though not HD high) and our technical people post the videos online very quickly. Our system also offers the option of downloading only the audio of the arguments in podcast form.

The new system is a boon to practitioners who are following a case or who want to get a sense of the Court and court procedure before arguing their own cases. It is valuable to law students who are trying to develop oral advocacy skills. It helps the public understand what we do and how we do it, and it’s also surprisingly useful to the court itself when preparing dispositions. We no longer have to rely on our notes or recollection. If there is a question as to the position a party took during the argument, we can simply pull it up online and replay it.

An area of greater interest to the public at large has been the court’s recent announcement of its intention to permit extended media coverage of circuit court proceedings on an experimental basis. The court entered an order approving the project this past January, and the first court proceedings where the new policy was put into effect were held in Rock Island at the beginning of February. The court chose Rock Island because the 14th Judicial Circuit, where Rock Island is located, is in a television market that includes parts of Iowa, where television coverage of court sessions has been allowed for years and the local media is familiar with the special constraints that pertain to covering court cases.

It is important to note that media access under the new protocol is not unrestricted. Provision has been made for witnesses or parties to object to extended coverage. In prosecutions for sexual abuse, extended media coverage of the victim’s testimony will not be permitted unless the testifying victim consents. Testimony by victims of other forcible felonies as well as by police informants, undercover police officers and relocated witnesses is also subject to special protections. In juvenile, dissolution, adoption, child custody, evidence suppression, or trade secret cases, or where Illinois law requires a proceeding to be held in private, extended media coverage is prohibited. Also prohibited is coverage of jury selection.

When the policy was formally announced it came as a surprise to a number of chief judges, but we have since tried to reassure everyone that the new program is in no sense mandatory. To the contrary, as already indicated, it is only being tested on a trial basis, and only where a circuit has itself asked for and received approval. Moreover, and this is very important, the decision as to whether a media request for extended coverage will be granted in a particular case lies within the exclusive discretion of the judge presiding over the case. If the judge says no, it is no. The decision by a judge to deny, limit or terminate extended media coverage is absolute and cannot be appealed.

So far, it appears that the idea is being received favorably. Requests for approval of extended media coverage have been submitted by a number of additional counties in the past few months. Requests by Kankakee and Madison Counties and the 15th Judicial Circuit have already been approved, and applications from Cook County and the Tenth Circuit are under review.

Protecting Personal Information. As court documents become more accessible, there has been increased awareness of the need to shield confidential personal information from routine disclosure to the public at large. One step the Court has taken to address the issue is adoption of the new Supreme Court Rule 138. That new rule, which is a judicial counterpart to the Identity Protection Act, 5 ILCS 179/ 1 et seq. (West 2012), bars parties from including Social Security numbers in court documents unless required by law or ordered by the court to do so. Where inclusion of Social Security numbers is necessary and permissible, the documents themselves can only include the last four digits of the number and the filing must be accompanied by a separate form, marked confidential, identifying the full number. Under the rule, the information containing the full number must be kept in a location separate from the court file.

The new Rule 138 took effect Jan. 1 of this year. Please note, however, that it will soon be migrating to a different part of the rule book. Article III, the section where it is now located, deals with civil proceedings. Because it is the Court’s intention that the rule apply to criminal as well as civil matters, it will soon be placed in Article I of the Supreme Court Rules, the general rules section, and renumbered as Rule 15.

Criminal Discovery Rules Extended to Delinquency Cases. Effective December 9, 2011, the Supreme Court amended Rule 411 to provide that the discovery rules applicable to serious criminal cases now apply to juvenile delinquency cases as well. The amendment also changed the description of the type of criminal cases subject to the discovery rules from offenses for which the accused “might be imprisoned in the penitentiary” to felonies. In addition, because the legislature has now abolished the death penalty, the amendment eliminated reference to applicability of the discovery rules to the sentencing phase of capital cases.

Posting of Bond. Rule 553(a), which specifies by whom and where bail may be taken, has now been expanded to provide that bail may now be taken at weigh stations or portable scale units established to enforce truck violations, in addition to police stations, sheriff’s offices, county and municipal buildings and other specified locations. In addition, Rule 553(e) has been changed to provide that, except for citations written by local law enforcement officers in Cook County, sworn law enforcement officers may accept cash to cover the bond in cases where the bond does not exceed $200 and the defendant is not required to be fingerprinted.

Prosecution of Ordinance Violations. New rules 570 through 579 have been adopted to govern the prosecution of ordinance violations “not punishable by a jail term and other than traffic and conservation offenses.” The new rules also apply to parking offenses. The rules provide, among other things, that such prosecutions are subject to the Code of Civil Procedure, with limited exception; provide for the right to be represented by an attorney (though no right to appointed counsel) and the right to trial by jury; and specify that the prosecution must prove the ordinance violation by a preponderance of the evidence. The new rules also provide that in addition to fines, the court may impose other penalties or conditions authorized by ordinance and that, following judgment, either party may appeal.

Unauthorized Practice of Law. Rules 751 and 752 have been amended to permit the ARDC to investigate allegations of unauthorized practice of law by disbarred lawyers and by persons, entities or associations not authorized to practice law by the Supreme Court, and, where warranted, to prosecute unauthorized practice cases. Under new Rule 779, such proceedings may be brought by the Administrator of ARDC as a civil and/or contempt action in circuit court. Where the unauthorized practice is being carried out by a suspended Illinois lawyer or by a lawyer licensed to practice in another jurisdiction, the conventional disciplinary process will be followed.

Bar Application Fees Raised. Finally, the cost to take the Illinois bar exam has gone up. Under Jan. 2012 amendments to Rule 706, it now costs $400 (up from $250) to take the exam if you sign up before the first deadline (Sept. 1 for the Feb. exam, Feb. 15 for the July exam) and $600 (up from $500) if you don’t get your application in until the second deadline (Nov. 1 for the Feb. exam and April 1 for the July exam). For the third and final deadline, the fee remains unchanged at $1,000. Fees to retake the bar exam have also increased, a development which may take on increased significance if and when a pending proposal to raise the passing score on the bar exam takes effect. But more on that in a future article. ■


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