With the public domain citation system firmly in place in Illinois, there is no reason for Rule 23(e) nonprecedential, noncitable orders to exist - and plenty of reasons for them to go.

As of May 31, 2011, any justification for the continued existence of Supreme Court Rule 23(e) disappeared. On that day the Illinois Supreme Court changed Supreme Court Rules 6 and 23 to eliminate the requirement of printing the opinions of the Illinois Supreme and Appellate Courts in the official reporters.

Thanks to those rule changes, the official repository of Illinois court opinions became the Illinois Supreme Court website. The new rule required that the districts of the Illinois Appellate Court assign a public domain case designator to decisions filed after July 1, 2011, and directed that all opinions and orders under subparts (a) and (b) of Supreme Court Rule 23 be transmitted to the courts' webmaster for publication on the day of filing.¹

As the supreme court's press release of May 31, 2011 noted, the new rule marked the end of an era dating from 1831 when the first official volume of Illinois Reports was published. In noting the rationale for moving to the public domain citation system, Chief Justice Kilbride wrote as follows:

This is simply an acknowledgment that electronic research dominates in the practice of law today. Today an attorney can search the name of the 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.²

Solving a problem that no longer exists

A comparison of the changes instituted on May 31, 2011, to the amendments to Rule 23 effective June 27, 1994, underscores the extent to which Rule 23(e)³ is obsolete. In Administrative Order M.R. No. 10343⁴ entered June 27, 1994, the supreme court specifically limited the number of opinions that each of the appellate court districts could publish in a particular year.

The first district was limited to 750. The second district was allowed 250, and the third, fourth, and fifth districts were limited to 150 each. That Order required that opinions not exceed 20 pages excluding concurring or dissenting opinions, and specified that those could not exceed five pages. In support of that position and Order M.R. No. 10343, Justice Heiple wrote as follows:

In 1993 the Appellate Court of Illinois published 2,195 opinions. Many of those published opinions were redundant and lacking in precedential value. The problem here, it should be noted, is greater than merely filling up book shelves and the loss of forests. The more serious problem is that legal research is being rendered unnecessarily burdensome, difficult and costly by the publication of multiple opinions expounding the same point of law.⁵

That amendment created a presumption against disposing of appellate court cases by full published opinion. That the appellate districts took the presumption to heart is apparent. For example, between 1998 and 2000 the number of published opinions represented 15 percent of the total decisions in the appellate court.⁶ In that same period the appellate court actually published an aggregate of only 62 percent of the allowed limit of published opinions.⁷

What is apparent is that the supreme court, at the time of the adoption of that rule, believed the number appellate court decisions had become so large that the output should be substantially curtailed. This huge output was caused in large part by the requirement that opinions be printed and published in the official state reporter.

As a result of the 1994 rule change, a large part of the jurisprudence of our appellate court was no longer public in any real sense. Rule 23(b) orders were typically circulated only to the parties to the appeal and the courts for the cases to which the judgment applied.

Rule 23 orders make up much of the supreme court docket

The result was a reduction in the transparency of the decision-making function of our appellate courts. As this and other publications have written, the loss of transparency occasioned by the adoption of Rule 23(e) limited discussion and debate and hampered development of the law.

While Rule 23(a) purports to establish grounds to help a court determine whether its decision should be an "order" or an "opinion," experience has shown them to be inadequate, if not useless. One indicator is the number of Rule 23(b) orders reviewed by the supreme court in the exercise of its discretion.

According to statistics published in Kirk Jenkins' Illinois Supreme Court Review blog in March 2015, 42.31 percent of the cases reviewed by the Illinois Supreme Court in the year 2014 were Rule 23(b) orders.⁸ If a central rationale for limiting Rule 23(b) is to "curtail the publication of unnecessary opinions,"⁹ why have so many of them found their way onto the supreme court's docket?¹⁰

Also, from January 1 through September 10 of 2015, more than 30 Rule 23(b) orders were published on motion of one of the parties. Obviously, the criteria for distinguishing an "opinion" from an "order" are subjective and imperfect.

'Unpublished' orders are available to all

The public-domain case designation also makes Rule 23(b) "orders" as public as a court's opinions. On the left side of the screen of the Illinois court system's website, at "Quick Links" under the heading "Appellate Court," the second entry is "Rule 23 orders."¹¹ A review of that site indicates that each Rule 23 order issued by any appellate district or division is as accessible as any "opinion."

Also, nearly any Westlaw or similar search returns at least some Rule 23(b) orders. Indeed, in many cases the only distinction between a citable "opinion" and a Rule 23(b) "order" is the letter "U" at the end of the public domain citation.

What must be contained in a Rule 23 order? Rule 23(b) requires a separate introductory paragraph with a concise syllabus of the court's holding in the case. The Rule also requires that the order set forth the germane facts and the issues and contentions of the parties. A Rule 23(b) order must also contain a reason for the court's decision and the court's judgment. Frankly, it is hard to distinguish between the requirements for a properly drawn order on the one hand and opinion on the other.

Referred to, not cited

It would seem, then, that there's no rationale for the continued existence of Rule 23(e). This is illustrated in the appellate court's opinion in In re Estate of LaPlume.¹²

In LaPlume the second district interpreted a statutory provision. The court referred to (did not "cite") the case of In re Estate of Jump,¹³ which is a Rule 23(b) order.

In making reference to (as opposed to citing) Jump, the LaPlume court noted that although In re Estate of Jump was not "a precedential decision,"¹⁴ the Jump court nevertheless interpreted the statute in question exactly as did the second district in LaPlume. The court then quoted, verbatim, paragraph 8 of the Jump order that supported its holding in LaPlume. The LaPlume court then noted (perhaps with tongue in cheek) as follows:

Obviously, we cannot cite a non precedential decision as authority for our analysis. Rather we cite it as an example of a court's reasoning and as a reasonability check. Insofar as Jump goes, then, our analysis and conclusion are neither novel nor unwarranted. Moreover, the court was analyzing precisely the same statute that is at issue in this case. Accordingly, our analysis is strengthened by knowing that another court, covering exactly the same ground, reached the same conclusion as we do....¹⁵

The irony of LaPlume is that the court went to great lengths to explain how it had not "cited" the order that it had just clearly cited. The LaPlume "opinion's" reference to the Jump "order" clearly indicates the lack of a coherent rationale for the continued enforcement of Rule 23(e). Not that the LaPlume court was wrong to rely on Jump case, though it took pains to explain that it had not done so. The Rule 23(b) order in Jump was directly on point and clearly persuasive to the LaPlume court that its decision was correct.¹⁶

One of the great paradoxes of Rule 23(e) is that lawyers and judges may cite a decision of any other state court, any federal court, or any legal treatise addressing any issue - or any other source which the advocate may deem to be authority for or persuasive toward the issue in question - except a decision of an Illinois court of review which, as in the Jump case, may have decided the exact issue confronting the court.

Note that the United States Supreme Court, by enacting Federal Rule of Appellate Procedure ("FRAP") 32.1, did away with all prohibitions in the citation of "unpublished," "not for publication," "non-precedential," or "non-precedent" cases in the federal system. The Supreme Court recognized almost a decade ago that such limitations made no sense.

The LaPlume case is a classic illustration of why Rule 23(e) is an impediment, not an aid, to the proper functioning of our court system.

Let's say goodbye to Rule 23 orders

What to do? To start with, Rule 23(e) should be rescinded in total. Second, any Rule 23(b) orders that have been entered since the adoption of the public domain procedures should be allowed to be cited as, at a minimum, "persuasive authority," as are cases from any other court in the United States. As the title of this article indicates, particularly with the adoption of the public domain citation system and the elimination of the official printed reports, the time has come for the strictures of Rule 23(e) to go.

Morris Lane Harvey is the principal in the Law Office of Morris Lane Harvey in Mount Vernon and chair of the ISBA Family Law Section Council.

LHarvey@mlh-law.net

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1. Ill. S.Ct. R. 23(g) (adopted May 31, 2011).
2. 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.
3. Rule 23(e) relates to the effect of orders under subparts (b) and (c). It provides that such are not precedent and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case.
4. That Order was rescinded by the court effective January 1, 2007.
5. Illinois Supreme Court Administrative Order, M.R. No. 10343 (1994) (Heiple, J., writing in support).
6. Michael T. Regan, Supreme Court Rule 23: The Terrain of the Debate and a Proposed Revision, 90 Ill. B.J. 180 (Apr. 2002), https://www.isba.org/ibj/2002/04/supremecourtrule23theterrainofthede.
7. Id.
8. Kirk Jenkins, How Often Does the Illinois Supreme Court Review Unpublished Decisions (Part II), Illinois Supreme Court Review (Mar. 18, 2015),http://www.illinoissupremecourtreview.com/page/18/.
9. Illinois Supreme Court Administrative Order, M.R. No. 10343 (1994) (Heiple, J., writing in support).
10. For the 15 years beginning with 2000, Rule 23(b) orders have averaged 17.33% of the supreme court's docket.
11. http://www.illinoiscourts.gov/quicklinks.asp.
12. In re Estate of LaPlume, 2014 IL App (2d) 130945.
13. In re Estate of Jump, 2011 IL App (5th) 100466-U.
14. LaPlume, 2014 IL App (2d) 130945, ¶ 23.
15. Id. at ¶ 24.
16. This example was initially pointed out by Robert T. Park in the ISBA Civil Practice and Procedure Section's newsletter. Robert T. Park, Abolish Rule 23 Non-Precedential Orders, Trial Briefs (Dec. 2014),https://www.isba.org/sections/civilpractice/newsletter/2014/12/abolishrule23non-precedentialorders.