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 A large number of Illinois Appellate Court decisions are issued not as published opinions, but as unpublished written orders (frequently known as “Rule 23 orders”), which are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.”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.