By John M. Fitzgerald (left), Partner, Tabet DiVito & Rothstein LLC Garrett L. Boehm, Jr., Shareholder, Johnson & Bell, Ltd.
Supreme Court Rule 23 is a topic of
frequent discussion among Illinois lawyers.
A large number of Illinois Appellate Court decisions are issued not as
published opinions, but as unpublished written orders (frequently known as
“Rule 23 orders”), which are “not precedential and may not be cited by any
party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” See
Ill. Sup. Ct. R. 23(e)(1). Many Illinois
lawyers may not be aware that multiple bar associations have proposed a
significant change to Rule 23, or that the Illinois Supreme Court has rendered
a decision on that proposal.
On January 10, 2014, the presidents of
the Appellate Lawyers Association, the Chicago Bar Association and the Illinois
State Bar Association wrote a joint letter to then-Chief Justice Rita B. Garman
of the Illinois Supreme Court to propose an amendment to Rule 23 that would
permit Rule 23 orders to be cited as persuasive authority if they were filed on
or after January 1, 2011. The Supreme
Court deferred adoption of the proposal at that time but invited the
Associations to undertake a comprehensive review and “consider whether there is
continued value to distinguishing between published and nonpublished
dispositions since they are all available electronically and no longer bound in
paper form.”
The bar associations accepted this
invitation and formed a Special Committee on Supreme Court Rule 23, chaired by former
ALA Presidents J. Timothy Eaton and Michael T. Reagan and consisting of representatives
of the ALA, CBA, ISBA and the Executive Committee of the Illinois Judges
Association. The ALA was represented by
John M. Fitzgerald and Garrett L. Boehm, Jr., its Rules Committee co-chairs. In August 2016, the Special Committee submitted
a revised proposed amendment to Rule 23 that would permit the citation of Rule
23 orders issued after the amendment would take effect as persuasive
authority.
After seeking input from the Illinois
Appellate Court justices, the Supreme Court voted during its November 2016 Term
to make no changes to Supreme Court Rule 23 at this time.
DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.
