Illinois Bar Journal

October 2014Volume 102Number 10Page 466

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The incredible, unciteable Rule 23 order

Lawyers can cite magazine articles like the one you're reading in their pleadings and briefs - why can't they cite Rule 23 orders?

Any practitioner who regularly conducts case law research has experienced the following scenario: you find an opinion precisely on point, only to discover that it was issued under Illinois Supreme Court Rule 23(b) or (c). Opinions issued pursuant to Rule 23(b) or (c) have no precedential value. Although Rule 23 was amended to allow for the speedy electronic publication of appellate orders, many attorneys would like to be able to cite them as persuasive authority.

In early 2014, the presidents of the Appellate Lawyers Association, the Chicago Bar Association, and the Illinois State Bar Association delivered a letter to Illinois Supreme Court Chief Justice Rita B. Garman proposing a new Rule 23(e)(3) providing that "an order entered under subpart (b) or (c) of this rule may be cited as persuasive authority if that order was filed on or after January 1, 2011."

FIND OUT MORE ›› More on Rule 23

For more on Rule 23, see Lifting the veil on Rule 23 orders by Helen Gunnarsson in the November 2010 IBJ and Supreme Court Rule 23: the Terrain of the Debate and a Proposed Revision by Michael T. Reagan in the April 2002 IBJ.

Why should Rule 23 orders be different?

This is not the first time these Illinois bar associations have made this request. In 2002, they requested a rule change to allow both the publication of and citation to Rule 23 orders.

Chicago lawyer J. Timothy Eaton, past president of all three groups and an author of the proposal letter, feels "very strongly that being able to cite to [Rule 23 orders] is important." Not only does it allow attorneys to point to how appellate justices have ruled on an issue, it also brings Rule 23 orders in line with every other source available to attorneys, he said.

Eaton points out that attorneys are free to cite the Chicago Tribune, the ABA Journal, even blogs in their pleadings and briefs - why, he wonders, should Rule 23 orders be any different? The proposal letter notes that Illinois attorneys are also free to cite to decisions from out-of-state courts, decisions from federal courts that address issues of Illinois law, Illinois Appellate Court decisions predating 1935, and a myriad variety of treatises, restatements, and law review articles, yet they're prohibited from citing Rule 23 orders.

According to Eaton, some reform opponents argue that courts only issue Rule 23 orders for settled points of law. But, he says, 15 to 20 percent of the supreme court case load is appeals from Rule 23 orders. If they dealt exclusively with settled law, there would be no reason for the court to grant petitions for leave to appeal on those issues, he said. Moreover, Eaton says, some Rule 23 orders deal with issues of first impression, while others include dissenting opinions that would be beneficial to the "bench, bar, and public."

In contrast, "litigants' inability to cite Rule 23 orders sometimes appears to produce unfortunate blind spots in Illinois jurisprudence," the proposal letter says. It discusses two rulings emanating from the first district appellate court that reached opposite results on the same legal issue - whether section 13-214.3 of the Code of Civil Procedure applies solely to situations "where a client brings suit against his or her attorney arising out of the attorney-client relationship."

Not only did the second ruling fail to distinguish or overrule the prior ruling, it did not even mention it. See Evanston Insurance Co. v. Riseborough, 2011 IL App (1st) 102660-U at ¶28; c.f. 800 S. Wells Commercial, LLC v. Horwood Marcus & Berk Chd., 2013 IL App (1st) 123660. If Rule 23 orders could be cited as persuasive authority, such omissions might be avoided.

Available on the 'net

The proposal letter also notes that the 2011 amendments to Rule 23 mean that "Rule 23(b) orders currently are available on the internet…. [T]he ready availability of such orders significantly reduces any concerns about unfairness to litigants who lack access to the most sophisticated legal research tools."

Eaton says that allowing Rule 23 orders to be cited as persuasive authority would bring Illinois law in line with the federal courts. Federal Rule of Appellate Procedure 32.1 prevents federal courts of appeal from "prohibiting or restricting the citation of unpublished federal judicial opinions that were issued on or after January 1, 2007." According to Eaton, there has been no indication that FRAP 32.1 has been abused since its inception in 2006.

"We believe that the goal of transparency is served not only by making information about judicial decisions available to the public, but also by allowing attorneys and litigants to discuss and analyze previous judicial decisions in the course of judicial proceedings, and to explain to a court why a previous decision may or may not be applicable to the facts at hand," the proposal letter says.

Matthew Hector is a Chicago lawyer.

Member Comments (1)

Rule 23 is a patently unfair and unreasonable rule for many reasons. First, every judge that i know is given a copy of the Rule 23s that were recently decided; obviously they are aware of these rulings, and to suggest they are not influenced by them is myopic. Because these rulings are issued under Rule 23, it only gives trial judges the ability to ignore them or silently adopt them at their willy nilly.

As an attorney who has had well over 50 Rule 23 decisions (both for and against) it is unfair that the lawyers put all of the same sweat and effort into litigating these points of law, yet even though we are victorious we are stuck with a nonprecedential result. Thereafter we end up having to re-litigate and re-argue the same points over and over again simply because an appellate tribunal emaciated the value of the original ruling.

Rule 23 violates the rule of stare decisis. It allows for the unequal protections of the law. Why should the parties have to file briefs that are identical in all cases, only to receive decisions that are of varying precedential value? The idea that we should apply law uniformly and predictably is being watered down by the very existence of Rule 23.

It seems to me that there no longer exists a basis for Rule 23 - we no lnger need to 'save money' on the printers fees that were being charged to distribute these opinions. The decisions are virtually as well written as a fully published matter, and the basis for treating one ruling as binding and another as nonbinding seems illogical.

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