November 2010 • Volume 98 • Number 100 • Page 558
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Lifting the veil on rule 23 orders
Heretofore unpublished orders will see the light of day and appellate court opinions will appear on the web more quickly thanks to a supreme court rule change.
Grab your smartphones and hold onto your briefs: the practice of law has just gotten faster.
Since the Illinois Supreme Court inaugurated its website, it has posted its opinions the very morning they're issued. But practitioners who crave the latest pronouncements from the courts will have noticed that the posting time for appellate court opinions often lags by some days after their issuance.
Effective January 1, 2011, the Illinois Supreme Court has amended Illinois Supreme Court Rule 23 to provide that the clerks of the various districts of the Illinois Appellate Court are to transmit the court's opinions and orders to the courts' webmaster the same day that they are filed. Additionally, SCR 23 as amended now eliminates the prohibition against publication of orders entered under subparts (b) and (c) and directs that they are now to be made publicly available on the court's website.
SCR 23 governs the disposition of cases in the Illinois appellate court. The rule permits the court to dispose of cases by entering opinions or orders. Opinions are to be issued when the decision establishes a new rule of law or modifies, explains, or criticizes an existing rule of law, or when it resolves, creates, or avoids an apparent conflict of authority within the appellate court. SCR 23(a). Orders are to be issued in all other cases. SCR 23(b) and (c).
The court adopted the rule at the urging of Chief Justice Thomas Kilbride, an advocate for transparency in the courts. Kilbride explained that in 2009, he met with a representative of the Peoria Journal-Star who argued that appellate court opinions should be made publicly available in a more timely fashion. The newspaper representative also advocated that orders of the appellate court be made available to the press and the public when issued, without the requirement of a special request.
Kilbride found the newspaper's case convincing. "I thought it showed a legitimate interest on the part of the press and the public. So, I brought the matter back to the court for its consideration. We examined what other court systems do and decided that, since appellate court opinions are already produced electronically, it would just be a matter of transmitting them from one computer to another and uploading onto the website, which wouldn't entail any significant additional expense."
Cases of first impression
Ottawa lawyer Michael T. Reagan and Chicago lawyer and past ISBA president J. Timothy Eaton, both familiar faces before the high court, praise the court's action. Reagan says, "It used to be that an attorney who read the published advance sheets was ahead of most on the diligence curve. Then we made the transition to reading the slip opinions from the appellate and supreme courts, if we had ready access to them. Now, the most diligent attorneys read the opinions as they're posted on the court's website. The court's newest order fine tunes the velocity curve even more."
Eaton says, "It will be very helpful to know what issues are being decided by our appellate court in orders that have historically not been published. Lawyers need to know whether an issue has been decided once or 10 times by the same court.
"I would approach my argument differently depending on whether the court is dealing with this issue frequently or rarely," he says. "If I know it's been up there a number of times, I'm not going to lay it out in my brief as thoroughly as if I know they only deal with the issue rarely.
"It's also helpful for me to see in each order what the court's reasoning is on the issue," he says. "It may vary."
It's a misconception that orders under SCR 23 never express any new reasoning, Eaton continues. "It's not true that
Rule 23 issues are repeatedly hashed over and rehashed. In some orders that have been issued under the rule, the court has even said it's an issue of first impression. It's important for lawyers to be able to have the same base of knowledge as the court does as to whether and how often issues have been before the court."
Still not precedential
The rule's historical provisions that only opinions, not orders, may be published, and that unpublished orders not only are not precedential but may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case, have caused some lawyers to feel a disconnect. Why, they ask, should it be permissible to cite an article in the local newspaper, the Bible, a learned treatise, or a novel by Stephen King, but absolutely prohibited to cite certain words of the justices of the appellate court?
The amendment doesn't change the latter provision. But some hope that its change in the former policy, on the publication of orders, could be a harbinger of further action from the court.
Reagan says, "This rule change, taken as a whole, is a logical precursor to a further amendment to the rule to permit citation for persuasive purposes. In fact, when I look at the trends around the country, including in all federal courts, making decisions electronically available has gone hand in hand with the right to cite them for persuasive purposes."