The Battle Over Rule 23: Authority v. Precedent

Articles & Publications

DCBA Brief - The Journal of The DuPage County Bar Association 
December 2017

Richard Petty was arrested and charged with a DUI due to an anonymous 911 call, which was recorded by the police.1 Prior to discovery however, the recording was inadvertently destroyed by the police. As any clever lawyer would do, Petty’s attorney honed in on this issue, diving into case law and uncovering another, recently decided case: People v. Karl.2 This was Petty’s ace in the hole and his ticket to freedom: a case concerning an almost identical fact pattern that saw the arresting officer’s testimony suppressed due to a lost recording. Yet while the trial court agreed with Petty, the appellate court refused to apply Karl to the case. Why might you ask? The appellate court did not disagree with Petty’s analysis, nor did it find a distinguishing factor which separated Petty’s case from Karl; rather, Karl was an Illinois Supreme Court Rule 23(e) unpublished order with no precedential value, even as persuasive authority. As a result, Petty could not rely on Karl, and the appellate court was forced to rule against him because he “cite[d] to no case with similar facts that support[ed] his contention.”3 So how could two defendants such as Karl and Petty, faced with the same discovery issue, find different treatment by the court? How could Karl be walking away as a free man, while Petty was left to face a jury of his peers without even hearing the recorded conversation that led to his arrest? The answer counselors, is Rule 23, which ultimately begs a few questions: why do we have Rule 23, and is it worth the burden it places on litigants?

I. The Origin of Rule 23: An Expanding Directive to Meet Expanding Precedent 

Rule 23 was adopted in 1972 to address the ever-growing body of authoritative decisions composing Illinois law. In 1935, Illinois District Appellate Court decisions became binding on lower courts for the first time,4 leading to an unprecedented expansion of precedential opinions. As Illinois attorneys were ill prepared for such a rapid expansion of written authority, Rule 23 was devised as a means of tapering off the growth of written opinions to those that would have an impact on established precedent. The Rule thus allowed the Appellate Courts to dispose of cases with non-precedential orders only where there was no error of law, no precedential value to the opinion, and the underlying decision was supported by the manifest weight of the evidence.5 At the time of its inception, the Rule seemed to provide a viable compromise limiting the workload of attorneys, while creating a presumption in favor of precedential opinions so that the law could grow and develop to meet the challenges of the ever changing world of litigation.

Though fashioned with good intention however, the Rule failed to stem the tide of precedential opinions as drafted, and each subsequent amendment made to expand its reach and impact continually shifted the court’s preference toward nonprecedential opinions and orders. In 1994, the Rule was amended to include both written and summary order options for disposition. At that time, Chief Justice Bilandic indicated that not only was the shift to shorter, non-precedential orders consistent with trends across the nation in both State and Federal intermediary appellate courts, but that it was prudent for members of the bar:

The avalanche of opinions emanating from our Appellate Court has taxed the capacity of the members of that court to read the opinions filed in all of the appellate districts. If the Justices who author these opinions are burdened, then consider the plight of the members of the bar. With their busy practices, it is almost impossible to keep up with the Appellate Court output.6

Chief Justice Bilandic viewed the move to non-precedential orders as “the only...alternative to return[ing] to the pre-1935 practice when Appellate Court opinions were not binding authority [and] [t]he only binding authority were the opinions of the Supreme Court of this State.”7 Justice Heiple echoed these concerns, indicating that the volume and length of the published opinions were rendering legal research “unnecessarily burdensome, difficult and costly” while failing to offer useful guidance to practitioners.8 The concern over the practical difficulties associated with the ever-growing body of law was so great that even numerical limits were imposed as to how many published opinions each District could issue in a given year.9

The most recent version of Rule 23 requires Illinois Appellate Court to decide a case in one of three ways: through an opinion, an order, or a summary order – with only opinions of the court being published.10 By the rule, an opinion should only be issued “when...the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of law; or the decision resolves, creates, or avoid an apparent conflict of authority within the Appellate Court.”11 If these limited criteria are not met, the appellate court must issue an order or summary order, with Rule 23(e) establishing the caveat that orders and summary orders are “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel, or the law of the case.”12 Thus, Rule 23 has made a 180 degree turn from a rule that attempted to limit unnecessary opinions in favor of valuable precedent to a rule that quashes all but the most dramatic of changes to precedent.

II. Criticism of Rule 23: Uncertainty at the Bar and the Bench 

While Rule 23 was intended to makes the lives of practicing attorneys easier, it has been frequently criticized by members of the Illinois Bar due to its bright-line limitation on precedent. In a nutshell, Rule 23(e) creates an apparent catch-22, forcing litigants and their lawyers to support their arguments with precedent while artificially barring them from using favorable, precedent-altering opinions. The inflexible approach to appellate decisions crafted by Rule 23(e) raises questions as to its rationality and value for litigators. What is the purpose and value of an opinion if it cannot be cited? In fact, what is the purpose of taking the time to draft an opinion explaining the rationality of a decision when it will have no bearing on future litigation?

In application, Rule 23(e) fosters confusion instead of creating certainty. This confusion stems from the established value and purpose of precedent in Illinois. The Illinois Constitution vests Illinois courts with the power to interpret and apply the law to a case,13 with the inherent limitation of “precedent” requiring judges to either follow or overturn recognized rules of law established through previous decisions.14 Precedent exists to create confidence and efficiency in law by giving litigants guidance as to how their potential legal conflicts will be viewed before the courts. In granting courts the freedom to bury decisions under a non-precedential label however, Rule 23(e) tempts the judiciary to venture from precedent as its sees fit and thereby undermine the certainty of law by producing unfair and uneven results among similarly situated litigants like those seen in Petty and Karl above.

Moreover, Rule 23(a) requires the appellate courts to make non-precedential rulings unless a decision “modifies, explains, or criticizes an existing rule of law,” leaving the ultimate determination on a ruling’s precedential value to the deciding court. However, precedent limits judicial power by “permit[ting] society to presume that fundamental principles are established in the law rather than the proclivities of individuals”15 Under Rule 23, precedential value is not determined by a ruling’s ultimate effect on the law; rather, it is determined by whether an appellate judge believes that the ruling should have an effect on the law. This undermines the very purpose of precedent by allowing individual preference to arbitrarily conclude when law is sufficiently new or different to warrant a change in precedent. The irrationality of this arbitrary assessment becomes apparent when considering the reason for opinions, their concurrences, and their dissents. After all, for what purpose does a written decision serve other than to “modif[y], explain[], or criticize[] an existing rule of law”? How can an order with an accompanying dissent expressing disagreement with the majority opinion possibly lack precedential value? Is a dissent not a criticism of an existing rule of law, a symbol of conflicting authority, or a judge’s opinion that may in fact provide useful guidance to practitioners?

Ultimately, an argument will succeed or fail based upon precedent, and the U.S. Constitution prohibits the government from limiting the right of individuals to freely speak and seek redress of grievances from the government.16 Yet even so, Rule 23(e) limits this right by preventing a litigant from citing to relevant opinions strictly because they have been arbitrarily defined as non-precedential.17 This limitation does not distinguish between citations to binding and persuasive authority. Instead, it creates an odd circumstance where an Illinois litigant may cite to an interpretation of Illinois law by another state’s court as persuasive, but may not offer a relevant Rule 23 decision drafted by an Illinois appellate court.

While Rule 23 has been challenged, the appellate courts have avoided the issue of its constitutionality through reaching their decisions on other grounds.18 As such, Rule 23(e) continues to create a rift between the rights of litigants and the rules of precedent in Illinois that has created difficulties for Illinois’ courts as much as it has for its attorneys. Over time, the application of Rule 23 has varied among trial courts, creating further confusion as to whether non-precedential opinions can be relied upon by litigators. In one case, the Third District Appellate Court had to dedicate part of its opinion to informing its trial courts on the proper use of Rule 23 decisions, as some of its lower courts were allowing litigants to rely upon Rule 23(e) decisions out of a fear of being overturned.19 In fact, even the appellate courts have had difficulty with the application of Rule 23, as the Second District Appellate Court has relied upon Rule 23 opinions as “illustrative” even though they may not be cited. 20

III. Looking Ahead: The Future of Rule 23

In the past thirty years, litigation has entered a digital age. If Rule 23 was instilled to save the high costs of publishing numerous lengthy opinions, it has had no effect on the practice of law today. Gone are expensive libraries filling the halls of law firms, and here are expensive WestLaw and Lexis accounts filling the computer screens of attorneys’ desktops. As the volume of precedential and non-precedential opinions grows, so too does the average lawyer’s ability to effectively and efficiently use electronic research to find and sort through relevant, current case law. Now, the problem is not one of having too much case law to review, but one of finding case law on-point with the factual-scenario at hand. For many, the process of searching for the right case is impeded by the presence of Illinois’ voluminous record of Rule 23(e) decisions, which provide in-depth factual analysis of often complex litigation topics, but are completely without precedential value.

As of May 31, 2011, the Illinois Supreme Court eliminated the need to contractually publish and purchase official Illinois court opinions in bound volumes to be printed in the official reporters.21 Instead, published opinions would become available online, on the Illinois Supreme Court’s website, shortly after their release. “The changes are reflective of the way the practice of law is changing,” noted Chief Justice Thomas L. Kilbride, because “[t]oday an attorney can search the name of a case on a computer and read that opinion in a matter of seconds, even from a smartphone, e-reader or e-pad. A lack of printed law reports is no longer a hindrance to legal research.”22 The same also goes for unpublished orders as Rule 23(b) orders are now published and accessible to the public on the Illinois court system’s website.23 Legal search engines such as Westlaw also provide search returns with Rule 23(b) orders. Yet even so, Justice Michael B. Hyman of the First District Appellate Court notes that these uncitable Rule 23 orders “get little notice from the bar, the judiciary, the media, or the public.”24 This poses an interesting question as to why Rule 23 orders lack authority and consideration when attorneys can cite to decisions from out-of-state courts, federal courts that address issues of Illinois law, treatises, restatements, law review articles, journals, and even blogs in their pleadings or briefs?25

The lack of precedential value and attention given to Rule 23(e) decisions is especially concerning given their relative portion of the overall amount of written opinions decided each year. Since 2001, over 70% of appellate decisions in each of Illinois’ five Appellate District Courts have been made as non-precedential decisions under Rule 23(e).26 Is it not shocking to imagine that over 70% of cases heard by our appellate courts offered nothing of precedential value to the field of law? Rule 23’s express purpose is to limit the filing of appellate opinions; however, in its current state, it appears to be limiting not just the filing of opinions, but the development of precedent itself. Appellate courts hear cases, in part, to ensure that established rules of statutory and common law advance with the march of time and the progression of technology. But stringent rules limiting the filing of opinions have a stifling effect on the maturation of precedent and the ability to apply law to changing circumstances.

According to the Fourth District Appellate Court, the clear intent of Rule 23 was to avoid the publication of a morass of dispositions which add nothing to the available body of substantive law or of legal precedence.27 So where do the courts draw the line? Does not every written appellate decision offer some insight into how the courts should apply the law to a certain set of facts? This creates an important issue for members of the Illinois Bar regardless of which side of the bench on which they find themselves.

However, Rule 23 was created to prevent the body of law from growing and developing too rapidly for the legal community to process, and, even with our modern technology and research tools, there is no way to know if we will be able to process the fluid change of precedent which may come from an outright abolition of Rule 23 in a digital era. Increased workloads and publication requirements for Illinois Appellate Courts may lead to a body of law that fosters greater confusion and conflict among our appellate courts as the different appellate jurisdictions simultaneously decide precedential cases involving similar and overlapping topics of law. As such, a directive such as Rule 23 may still serve some purpose.

This conflict between the need for publication and the need for precedent has also affected jurisdictions outside of Illinois. The federal judiciary has attempted to resolve this issue through a truly centerline approach: changing its rules so that non-precedential opinions exist, but can still be cited as persuasive, non-binding authority.28 A similar attempt at a hybrid solution was offered in Illinois in early 2014, when the presidents of the Appellate Lawyers Association, the Chicago Bar Association, and the Illinois State Bar Association delivered a letter to Illinois Supreme Court Chief Justice Rita B. Garman proposing a new Rule 23(e)(3).29 This new rule proposed that orders and summary orders may be cited as persuasive authority if that order was filed on or after January 1, 2011.”30 This proposal was rejected. Nonetheless, this approach does not necessarily establish a perfect balance between these competing elements, as even Federal Rule of Civil Procedure 32.1 has received criticism from our nation’s highest court for its limitation on precedent.31

Rule 23 places an interesting issue before attorneys of the Illinois Bar; and, as we move forward into an increasingly digitized field, we will need to assess how best to handle the apparent conflict between established authority and the need for an ever growing body of precedent. The fact of the matter is that there should be no artificial distinction between “order” and “opinions” used to detail decisions from the same the judicial authority. Our judiciary should not be imposed with limitations on discussion and debate, which reduces the transparency of decision making and buries our courts’ decisions. Instead, we should be encouraging our judges to draft opinions in a more concise manner which cites controlling facts that compel their decisions. We should fight against any rule that withholds a litigant’s ability to use case law that is readily available, as such a rule unjustly produces inequality in the legal system. Could the solution be in another amendment or in a hybrid system like those used by other federal courts? Should we get rid of Rule 23 altogether accepting the fact that it has outlived its usefulness? Regardless of which approach we each may prefer, it is clear that we will have to develop a system which helps us meet the burdens of litigation in the years to come.

1. People v. Petty, 311 Ill. App. 3d 301, 303, 724 N.E.2d 1059, 1061 (2d Dist. 2000).
2. People v. Karl, 294 Ill. App. 3d 1099, 721 N.E.2d 851 (1st Dist. 1998) (Rule 23 opinion).
3. Petty, 311 Ill. App. 3d at 303.
4. Act of April 25, 1935 to Amend § 17 of the Act to Establish Appellate Courts, Il. Rev. Stat. Ch 37.
5. IL S. Ct. R. 23(e) Committee Notes.
6. IL S. Ct. R. 23(e) Advisory Committee Notes.
7. Illinois Supreme Court Administrative Order, M.R. No. 10343 (1994) (Bilandic, J., writing in support).
8. Id. (Heiple, J., writing in support).
9. Id.
10. IL. S. Ct. R. 23.
11. IL S. Ct. R. 23(a).
12. IL S. CT. R. 23(e).
13. Ill. Const.1970, art. VI, § 1 (granting the courts “judicial power”), People v. Miller, 314 Ill. 474, 145 N.E.2d 685 (1925) (defining judicial power).
14. State Farm Fire & Cas. Co. v. Yapejian, 152 Ill.2d 533, 605 N.E.2d 539, 542 (1992).
15. Chicago Bar Ass’n v. Illinois State Bd. Of Elections, 161 Ill.2d 502, 641 N.E.2d 525, 529 (1994), citing Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986).
16. U.S.Const. amend. I, see also Ill. Const. 1970, art. I, §§ 4.
17. Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d 969, 972, 773 N.E.2d 1199, 1202 (1st Dist. 2002).
18. Lara v. Hyundai Motor America, 331 Ill. App.3d 53, 63-64, 770 N.E.2d 721, 729 (2d Dist. 2002), Valenti, 332 Ill. App. 3d at 971-972, 773 N.E.2d at 1202.
19. See In re Donald R., 343 Ill. App. 3d 237, 244-245, 796 N.E.2d 670, 676 (3d Dist. 2003) (discussing the application of Rule 23 in detail due to the fact that circuit court judges were routinely considering Rule 23(e) opinions as precedential out of a fear of being overturned).
20. Capital One, N.A. v. Chhabria, 2014 IL App (2d) 130262-U ¶ 5, n. 2, Not Reported in N.E.3d
21. Press Release, Illinois Supreme Court, Illinois Supreme Court Announces New Public Domain Citation System, Ending Era of Printed Volumes (May 31, 2011), available at http://www.illinoiscourts.gov/Media/PressRel/2011/053111.pdf
22. Id.
23. Illinois Courts Website, Recent Appellate Court Written Orders Under Supreme Court Rule 23, http://www.illinoiscourts.gov/R23_Orders/recent_R23_appellate.asp (last visited June 9, 2017).
24. Snow & Ice, Inc. v. MPR Mgmt., Inc., 2017 IL App (1st) 151706-U, ¶ 45.
25. Matthew Hector, The incredible, unciteable Rule 23 order, Illinois Bar Journal (June 9, 2017), https:// www.isba.org/ibj/2014/10/lawpulse/incredibleunciteablerule23order
26. Kirk Jenkins, How Often Does the Illinois Supreme Court Review Unpublished Decisions, Illinois Supreme Court Review, Sedgwick, LLP (March 17, 2015), http://www.illinoissupremecourtreview.com/2015/03/how-often-does-the-illinois-supreme-court-review-unpublished-decisions-part-i/
27. Bradley v. Howard Hembrough Volkswagen, Inc., 89 Ill. App. 3d 121, 124, 411 N.E.2d 535, 537 (4th Dist., 1980).
28. Fed. R. Civ. P. 32.1.
29. Matthew Hector, The incredible, unciteable Rule 23 order, Illinois Bar Journal (June 9, 2017), https://www.isba.org/ibj/2014/10/lawpulse/incredibleunciteablerule23order
30. Id.
31. Plumley v. Austin, 135 S.Ct. 828, 831 (Mem) (2015) (Thomas, J. dissenting).

Reprinted with permission from the December 2017 edition of the DCBA BRIEF - The Journal of the DuPage County Bar Association (“DCBA”). Further duplication without permission is prohibited. Opinions and positions expressed in articles appearing in the DCBA BRIEF are those of the author(s) and not necessarily those of the DCBA or any of its members.