As of January 1, 2021, litigants will be allowed to cite unpublished Illinois Appellate Court opinions for persuasive purposes thanks to an amendment to Illinois Supreme Court Rule 23. The Supreme Court, which announced the amendment last week, cited the availability of text-searchable electronic legal research databases as an impetus for the change.
Under the earlier version of Rule 23, litigants could cite rulings from other jurisdictions as persuasive authority but couldn’t cite unpublished Illinois Appellate Court rulings. This led to confusion, as Illinois trial court rulings could be cited, but an unpublished appellate order affirming that same ruling could not, the press release said.
However, electronic databases have made legal research more efficient, alleviating concerns around the copious and lengthy appellate court rulings that judges have to read, which the previously constituted Rule 23 aimed to address.
“Changes to Rule 23 have been discussed and studied for a long time,” said Supreme Court Chief Justice Anne M. Burke in the press release. “This amendment is a welcome change and will improve the administration of justice in Illinois.”
The Road to Change
Advocates have been pressing for the modification of Illinois Supreme Court Rule 23 for some time. Beginning in January 2014, a coalition of bar groups began petitioning the Supreme Court for modification.
In 2017, Justice Michael B. Hyman of the First Appellate District issued a concurrence asking the Supreme Court “to change the threshold in decisions that include special concurrences or dissent so that a single justice’s determination is enough to publish an opinion,” according to the Chicago Daily Law Bulletin.
“In allowing two justices to dictate whether the decision warrants publication, the majority viewpoint can silence the minority viewpoint, even when the dissent or special concurrence satisfies the criteria of Rule 23,” Hyman wrote. “This leaves no recourse for minority voices because we are not asked to justify why a particular decision was not an opinion.”
Under Rule 23 as previously constituted, a majority of an appellate panel could choose to publish a decision as a ruling if one of two criteria were met: the ruling “establishes a new rule of law or modifies, explains or criticizes an existing rule of law,” or the ruling “resolves, creates or avoids an apparent conflict of authority within the appellate court,” according to the Law Bulletin.
Parties were previously limited to citing Rule 23 decisions only to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case.
A Joint Effort
The Supreme Court Rules Committee recommended the amendment to Rule 23 after a June 2020 public hearing generated significant support for allowing citation of unpublished opinions for persuasive authority.
A Special Committee on Supreme Court Rule 23 submitted written comments and testimony in support of the amendment. The committee was apprised of appointees from the Chicago Bar Association, Illinois State Bar Association (ISBA), Appellate Lawyers’ Association (ALA), and the executive committee of the Illinois Judges Association (IJA).
“Chief Justice Anne M. Burke and the Illinois Supreme Court eliminated a barrier to a great line of legal analysis by allowing the use of Rule 23 (b) orders for persuasive purposes,” said Hon. Diane M. Shelley, a judge in the Circuit Court of Cook County who also serves as IJA president and a Commissioner with the Commission on Professionalism. “With the elimination of printed opinions and the digital age of electronic storage and research, these orders are now easily stored and readily available. The opinions are directive and of such great assistance in researching the law, bearing on many legal issues and pointing to other important cases. The amendment will make so much more law available, effectively improving our legal system.”
J. Timothy Eaton, a partner at Taft who served as co-chair of the Special Committee, applauded the amendment, saying “it is a very welcomed development for both bench and bar.” The ALA and the ISBA Civil Practice and Procedure Section also issued statements in support of the change.
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