Two Great ISBA Member Benefits Sponsored by
A Value of $1,344, Included with Membership

Is it time to get rid of Rule 23 orders?

With the public domain citation system firmly in place in Illinois, there's no reason for Rule 23(e) nonprecedential, noncitable orders to exist - and plenty of reasons for them to go, argues Mount Vernon lawyer Morris Lane Harvey in the January Illinois Bar Journal.

Rule 23 allows a reviewing court to issue a decision as an unpublished order if the ruling does not make law. The Illinois Supreme Court adopted Rule 23 decades ago as part of a move to reduce the number of appellate opinions when shelves were groaning under the many volumes of print reporters. But now that the official opinions appear on the supreme court's website, not in print - and Rule 23 orders are archived and publicly available there as well - the principal rationale for allowing unpublished orders has vanished, Harvey argues. 

And a look at supreme court stats reveals that many Rule 23 orders are hardly routine dispositions, he writes. "According to statistics published in Kirk Jenkins' Illinois Supreme Court Review blog in March 2015, 42.31 percent of the cases reviewed by the Illinois Supreme Court in the year 2014 were Rule 23(b) orders," he says. "If a central rationale for limiting Rule 23(b) is to 'curtail the publication of unnecessary opinions,' why have so many of them found their way onto the supreme court's docket?" Read Harvey's IBJ article to find out more.

Posted on Jan 12, 2017 by Mark Mathewson | Comments (9)
Filed under

Topic:

Member Comments

I agree and would add, that there are times when a rule 23 order decides a matter of first impression and there is no other citation that can be used. I have had this occur in an issue on S. Ct. Rule 213(f). I have also at times found rulings I would like to cite but could not. It may not have been the only case but it further clarified an earlier case but still I could not cite it in argument to the trial court.
Possibly an approach to making opinions more flexible and usable would be to modify the Rule to a two part approach. Hard cases, like great cases, make bad law was the observation of Justice Holmes. Possibly, if no new law is made by a case instead of the present Rule 23, I agree it would be better to say "in this fact situation we follow the opinion in the XYZ case." Allow it to be cited but not make it a 20 page opinion, whether it is printed or electronically published. However, in a situation where because of factors that make it a "great" or "heater" case, allow an unpublished opinion with just a short abstract of the facts, the law and the ruling. On leave to appeal to the Supreme Court the record, briefs and arguments in favor of the appeal are available without the rationale for the ruling.
I agree. I practice Juvenile Abuse and Neglect law mainly and there are not that many cases and among those cases not that many novel issues. So, it is very disheartening to do research on a case, only to find that the closest cases factually to mine are unpublished opinions.
Yes please let's dispense with the Rule 23 opinions. Lately in my research I am finding 80 to 90 percent of the opinions are Rule 23 opinions which, though they may be illuminating for me personally, are ultimately no help in resolving the legal issue or solving the client's problem. If the Court won't allow its opinion to be serve as precedent what is the point of issuing a written opinion at all?
Steven, Sometimes these Rule 23 Opinions point to cases that are helpful.
Absolutely agree. The only two cases that I have argued before the Illinois Supreme Court were both disposed of as Rule 23 opinions in the Appellate Court. (People v. Lavariega, (Ill. 1997) 676 N.E.2d 643, 175 Ill.2d 153; and People v. Quigley, (Ill. 1998) 697 N.E.2d 735, 183 Ill.2d 1. I am of the strong opinion that Rule 23 Opinions are/were frequently used to bury bad decisions that the Appellate Court was not proud of. Additionally I believe that Rule 23 decisions are used to avoid encouraging certain types of cases. I won a case finding a tavern guilty of common law negligence in failing to protect a patron from a stabbing where the only undisputed evidence against the tavern was that the assailant was shouting at the victim for an extended period of time. Shelton v. Gourley, Rule 23 opinion ($700 in specials received a $350K negligence verdict barroom stabbing case upheld versus tavern Ill.App 2d 87 L 17 & 18). See also Dodge v. Grafton Zipline Adventures, LLC, 2015 IL App (5th) 140124-U (Ill. App., 2015) where there was an issue of whether a zip line operator was a common carrier therefore voiding exculpatory clauses. Surely this was a legal issue of first impression.
After receiving requests for a change from several Illinois bar associations, including the ISBA, and comments from appellate court justices, the Supreme Court voted in early December 2016 not to make any change in Rule 23. The Court’s decision not to change Rule 23 is disappointing and frustrating. There is no good reason why parties should be prohibited from citing appellate court orders, a prohibition that applies to no other document, speech, web page, etc. Even if not precedential, their decisions ought to have higher standing than a federal judge’s ruling in Utah or an article written by a law student. In Brown v. Board of Education, 347 U.S. 483, 494, fn. 11 (1954), the court cited non-legal books and articles regarding the effects of segregation. These sources were undoubtedly first cited in the parties’ briefs. More recently, judges have turned to the internet for information incorporated into their decisions. In a 2002 article (http://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1057&context=appellatepracticeprocess) the author noted: "There are at least 361 distinct citations to web sites by federal appellate courts in their opinions from 1996 to 2001.” This practice has greatly increased in the last 15 years. In its 2015 term, the U.S. Supreme Court cited internet sources in 14 opinions. See https://www.supremecourt.gov/opinions/cited_urls/15. Illinois lawyers can cite virtually anything, regardless of its origin or reliability, in support of their arguments, except they are legally prohibited from citing Rule 23 Orders. That is ridiculous.
I agree with Mr. Rouleau. The 2nd District reversed Judge Richard Larson outright with directions to enter judgment for my client. In order not to embarrass Judge Larson, the Appellate Court buried the opinion in the Rule 23 sarcophagus.
I have long maintained that Rule 23 Orders often hide bad reviewing court decisions. I do accept the fact that they can sometimes be a good research mechanism. I would simply suggest that in a number of cases where there are no important legal issues involved and the facts are very basic, that courts simply issue one page decisions affirming the decision of the trial court. Trial courts could help this process be making more detailed findings. The reviewing court could mention and adopt these findings. I never understood the logic behind 40 page Rule 23 orders with dissents or concurring opinions.

ISBA Members login to post comments