Madison County, Ill. (November 24, 2020) - On November 20, 2020, the Illinois Supreme Court amended Supreme Court Rule 23 to allow unpublished Rule 23 orders issued on or after January 1, 2021 to be cited for persuasive purposes.
Under the current version of Supreme Court Rule 23, appellate courts may issue decisions in one of three ways: a “full opinion,” “a concise written order,” or a “summary order.” Under subpart (e) of the rule, appellate court “orders” hold no precedential effect. Further, these orders may not be cited “except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case.”
Previously, attorneys encountered the scenario where a prior appellate opinion addressed an issue on point. However, because the order was issued under Illinois Supreme Court Rule 23(e), it could not be cited or used for precedent. In the past, Illinois bar associations advocated for changes to Rule 23, and the Illinois Supreme Court Rules Committee held hearings on the subject during June 2020. Chief Justice Anne Burke commented that “[t]his amendment is a welcome change and will improve the administration of justice in Illinois.”
The new text of Rule 23 provides:
An order entered under subpart (b) or (c) of this rule is not precedential except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case. However, a nonprecedential order entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive purposes. When cited, a copy of the order shall be furnished to all other counsel and the court.
The comments to the new rule, effective January 1, 2021, specify:
Rule 23(e), in its prior form, mandated that case dispositions under Rule 23(b) were "not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case." That provision of the rule was enacted in 1994. At that time, there was an "avalanche of opinions" from our appellate court (see comments of Chief Justice Bilandic), and many were simply "too long" (see comments of Justice Heiple).
In 1994, electronic legal research databases were in their relative infant stages, and the majority of legal research was done using books. Today, book-based legal research has rapidly diminished, and with it, the justifications for the prior version of Rule 23(e) have diminished. Text-searchable electronic legal research databases typically include both published opinions and Rule 23(b) orders. The amended rule makes these cases available to litigants for persuasion without expanding the body of binding precedent.
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