Is Illinois Supreme Court Rule 23(e)'s Denial of Precedential Effect to Appellate Court ''Orders'' Constitutional?

Articles & Publications

January 1, 2004

Under Supreme Court Rule 23, the Appellate Court may express decision in one of three ways: a "full opinion" or "a concise written order," or a "summary order." Under subpart (e) of the rule, appellate court "orders" are denied precedential effect and may not be cited "except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case." Rule 23(e), a "non-citation rule," is at odds with the doctrine of precedent; impinges on the constitutional guarantees of free speech and freedom to petition for the redress of grievances; and implicates due process, equal protection, and separation of powers concerns. Additionally, the grounds underlying non-citation rules no longer exist.

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