By Melody Gaal
Tabet DiVito & Rothstein LLC

In Byrne v. Hayes Beer Distrib. Co., 2018 IL App (1st) 172612, Justice Hyman relied heavily on an unpublished Rule 23 order, suggesting that, while Rule 23 binds parties, the trial courts and the appellate courts are not prohibited from “adopting the reasoning of an unpublished order.”Id. ¶ 22. Justice Mason, while concurring in the result of the case, disagreed with the majority’s reliance on a Rule 23 order.
   
In Byrne, a delivery driver filed a complaint with the Illinois Department of Labor arguing that his employer, a beer distribution company, violated section 9 of the Illinois Wage Payment and Collection Act, 820 ILCS 115/9, by deducting money from his commissions, without the required written consent, for beer that he did not remove from the shelves before it became stale. Id. ¶ 1. The Department of Labor found that the underlying issue arose out of an interpretation of the parties’ collective bargaining agreement (“CBA”) and was thus preempted by section 301 of the federal Labor Management Relations Act, 29 U.S.C. § 185. On administrative review, the circuit court disagreed, finding that the Department’s decision to dismiss Byrne’s claim was erroneous because the underlying issue involved the “legality of the wage reduction under the Wage Act, which did not require interpreting the CBA, and thus, was not preempted by section 301.” Id. ¶ 2.   

The appellate court agreed with the circuit court and ruled that section 301 did not preempt Byrne’s claim. In so holding, the majority relied heavily on a Rule 23 order—an order that was cited by both parties and the circuit court: Carletto v. Quantum Foods, Inc., No. 1-05-3163 (2006). The court cited Carletto for the proposition that “only when a claim is directly founded on the rights created by the CBA and the resolution of the state law claim requires an interpretation of the CBA” will the state law claim be preempted. Id. ¶ 24 (internal quotation omitted). Because Byrne’s claim did “not require reference to or interpretation of the CBA,” his claims were not preempted and instead arose solely out of section 9 of the Wage Act. Id. ¶ 32. 

Rule 23 provides that an unpublished order “is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e). Yet, in contrast to other appellate court decisions, the First District in Bryne appeared to approve of citation to an unpublished order by the circuit courts and the appellate courts. The court reasoned that, while Rule 23 may not be cited by any party except for the purposes specified in the rule, “nothing in the rule expressly prohibits a trial court or the appellate court from adopting the reasoning of an unpublished order.” Id. ¶ 22 (emphasis added). 

While concurring with the result, Justice Mason wrote to express her disagreement with the majority’s “citation and extensive discussion of a Rule 23 order.” Id. ¶ 45. Justice Mason described the majority’s interpretation as “at odds with our court’s longstanding refusal to consider orders entered under Rule 23(b) whether cited by parties or by trial courts.” Id. ¶ 47 (emphasis added). The concurrence identified a key fairness problem with the majority’s interpretation of Rule 23, which would “allow[] a court to cite ‘persuasive’ Rule 23 orders, while prohibiting the parties from doing the same.” Id. ¶ 48. “How can we,” noted the concurrence, “criticize parties who in the future, following the court’s lead, discuss Rule 23 orders for their ‘persuasive’ reasoning when we do it ourselves?” Id. ¶ 49. The concurrence concluded that, unless and until the Illinois Supreme Court amends Rule 23 to abolish the distinction between precedential opinions and nonprecedential Rule 23 orders, courts should “honor that decision by enforcing the rule as written.” Id. ¶ 50. 

What should litigants take away from the Byrne decision? On the one hand, Byrne renders it even more tempting for litigants who find a Rule 23 order on all fours with their own case to cite it in their pleadings, despite the clear language in Rule 23 to the contrary. On the other hand, given the weight of authority refusing to consider Rule 23 orders, that decision may not prove to be favorable to litigants in the way that it was for the plaintiff in Byrne. Unless Rule 23 is amended, the best approach may be to do what the concurrence recommended courts do, or simply “rely on the same authorities and employ the same reasoning as [the Rule 23 order] without referencing that case at all.” Id. ¶ 48.