In early February, Rick Tulsky reported on a dissenting opinion by Illinois Appellate Court Justice Hyman, criticizing the court rules concerning publication of opinions. Appellate and Supreme Court opinions are published when the majority of the court decide they should be published, but non-published opinions may not generally be cited by attorneys for use in future cases. Therefore, non-published opinions don’t affect the larger body of law because attorneys cannot rely on them as precedent. The majority rule is common in many states. In Illinois, it’s Supreme Court Rule 23. Rule 23 considers a decision suitable for publication when a majority of the panel determines the decision “establishes a new rule of law or modifies, explains, or criticizes an existing rule of law” and Rule 23 explicitly limits when and how attorneys may cite unpublished opinions. An attorney may use an unpublished opinion only to support various types of claims that an issue between specific parties has already been decided and may not be pursued further by those people.
Justice Hyman, in a recent dissent, advocated for adoption of a publication rule that permits publication when any one judge believes the issues and opinions are important enough for publication. This rule is in use in California, Texas and some federal courts. His analysis of Rule discusses the subjective nature of the rule and what it means when a decision “modifies, explains of criticizes an existing rule of law.” He focuses on how it illuminates the law to memorialize when justices cannot agree and how it signals to the higher court that an issue might need further attention. If the issue arises in a future case, attorneys can cite to the dissent in arguing for a writ of certiorari.
Justice Hyman writes: “Dissents and special concurrences serve a number of purposes that benefit the law— clarifying and amplifying it, questioning and probing it, articulating and developing it.” (para 30) and argues that it may be more important when the three judges on the appellate panel don’t agree than when they do. The Justice proposes amending the rule for publication, permitting a single judge to submit an opinion for publication and precedent when there is a dissent or special concurrence. Given how frequently the Supreme Court considered Rule 23 cases for further proceedings, he believes that unpublished cases are often more important than their unpublished status indicates.
The Joint Criminal Advisory Committee of Chicago Appleseed and the Chicago Council of Lawyers has been considering this issue for the reasons which Justice Hyman lays out. Unpublished cases have meaningful value for other judges and offer attorneys valuable information in formulating their arguments. However, citation to unpublished opinions is not without pitfalls and a new rule permitting publication of more opinions could benefit the body of law. Our committee hopes to draft a proposed rule in the coming year. If you’re interested in helping the committee, contact us.