Posted February 1, 2017 2:24 PM
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Hyman calls for changes to Rule 23

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Michael B. Hyman
By David Thomas
Law Bulletin staff writer

A justice on the 1st District Appellate Court on Tuesday said that divided panel decisions should have an easier path to publication as citeable case law.

Illinois Supreme Court Rule 23 outlines when justices may publish their decisions as opinions when a majority of the panel determines the ruling establishes a new precedent.

Decisions with less precedential value in the justices’ eyes are issued as written orders, which include the same format and detail as opinions but contain a notice that the order may not be cited as precedent in legal proceedings.

In a nine-page special concurrence to a Rule 23 order, Justice Michael B. Hyman asked the state Supreme Court to change the current threshold in decisions that include special concurrences or dissent so that a single justice’s determination is enough publish an opinion.

“In allowing two justices to dictate whether the decision warrants publication, the majority viewpoint can silence the minority viewpoint, even when the dissent or special concurrence satisfies the criteria of Rule 23,” Hyman wrote. “This leaves no recourse for minority voices, because we are not asked to justify why a particular decision was not an opinion.”

Under Rule 23, a majority of an appellate panel can choose to publish a decision as a ruling if one of two criteria are met: Either the ruling “establishes a new rule of law or modifies, explains or criticizes an existing rule of law,” or the ruling “resolves, creates or avoids an apparent conflict of authority within the appellate court.”

Parties are limited in how they may cite Rule 23 decisions, restricted to “support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.”

Hyman’s concurrence comes at the end of a decision in a contract dispute over snow-removal services. Snow & Ice Inc., sued MPR Management for not paying at least $90,214.50 in services, alleging a series of breach of contract and quantum meruit claims against the defendant.

Hyman agreed with Justices Daniel J. Pierce and Mary Anne Mason, who found Cook County Circuit Judge Joyce M. Murphy Gorman properly dismissed Snow & Ice’s contract claims at the trial level.

But Hyman split with his colleagues and found that Snow & Ice alleged enough facts to state a quantum meruit claim.

Hyman indicated he asked Pierce and Mason to publish Snow & Ice v. MPR Management, et al., 2017 IL App (1st) 151706-U, as an opinion. But they didn’t agree, so Snow & Ice was published as a Rule 23 order.

Hyman wrote that Rule 23 orders get less exposure than published opinions, even though both of them are available on the court’s website. For instance, published 1st District opinions are circulated to all 24 justices, but Rule 23 orders stay within the division.

“In other words, only four justices are even aware of the entry of a Rule 23 order, let alone that a particular Rule 23 order contains a dissent or a special concurrence,” Hyman wrote.

Hyman cited a March 2015 article from Sedgwick LLP’s Illinois Supreme Court Review which found that, between 2001 and 2012, less than 3 percent of the 1st District’s Rule 23 orders included a dissent. The number of special concurrences in the 1st District was also very low — just 31 in more than 1,800 orders in 2015.

“Publishing these rare cases would not place a noticeable burden on the bench or bar,” Hyman argued.

Hyman portrayed the current Rule 23 language as ambiguous: “There’s a lot of wiggle room in the words ‘modifies,’ ‘explains,’ … For example, what does ‘explain’ an existing rule of law mean?”

He argued his dissent in Snow & Ice showed he had criticisms of the underlying law. As a result, the decision meets one of the criteria for publication, but requiring a majority of the panel to sign on for publication is arbitrary.

Publishing divided decisions as Rule 23 orders downplays the disagreement within the court, Hyman argued. As a result, the state Supreme Court is less likely to notice if courts are issuing inconsistent decisions.

“If these contrary decisions simply float around as unciteable Rule 23 orders, it is harder for litigants for resolution of inconsistencies,” Hyman wrote. “This erodes the growth and consistency of the law in a district and among the districts — an outcome to be avoided.”

The appellate court’s use of Rule 23 has long been a point of contention between appellate lawyers and justices.

Snow & Ice was represented by Arnold H. Landis of the Law Offices of Arnold H. Landis P.C. He did not return a request for comment.

Ronald A. Stearney Jr. of the Law Offices of Ronald A. Stearney represented the defendants in the case. He noted his own concerns about the use of Rule 23 orders.

Stearney said in an interview that he believes too many decisions are relegated to Rule 23 orders. He claimed that all of the appeals he has brought before the court have been disposed as Rule 23 orders except for one.

“If the decision would aid in the development of the law, I don’t see the harm in publishing that opinion,” Stearney said.

He said he considered filing a motion requesting the court to publish Snow & Ice as an opinion, but he figured it would be a lost cause considering Hyman and his colleagues have already indicated their positions on the matter.

Hyman’s own proposal has roots that stretch back to at least 2002, when a Supreme Court-organized committee proposed publishing decisions whenever a dissent was present.

“In my opinion, there is logic for that proposal,” said J. Timothy Eaton, a partner at Taft Stettinius & Hollister LLP who co-chaired that committee. “Obviously, today’s dissent could become tomorrow’s majority, but no one’s ever going to see it if it is tucked away in an order that can’t be cited.”

The committee’s proposal went nowhere, Eaton said, although he noted that one element of the proposal — publishing Rule 23 orders on the court’s website — was eventually adopted in 2010.

In January 2014, a coalition of bar groups including the Appellate Lawyers Association petitioned the high court to modify Rule 23 so that unpublished orders could be cited as persuasive authority.

Such a policy would allow parties to cite Rule 23 orders to bolster their arguments short of a binding authority. Eaton said the change would put Rule 23 orders on par with citations of rulings from jurisdictions outside Illinois.

Eaton also co-chaired the special committee formed to work on that proposal, but the Supreme Court decided not to adopt it during its November 2016 term.

Retired 1st District justice James R. Epstein said he was initially supportive of the idea of Rule 23 when he first joined the appellate bench in 2010 but has soured on it over time.

“I think the whole basis of Rule 23 is gone,” Epstein said. “It’s used sometimes by judges who just want to get rid of a case without really doing the grinding that should be out there. ‘If it’s only a Rule 23, we’ll do it this way.’”

Epstein’s comments came during a Q&A session at an event hosted on Tuesday by the Appellate Lawyers Association and the Cook County Bar Association at the Chicago offices of Hinshaw & Culbertson LLP a few hours after the Snow & Ice decision was released.

Epstein recalled how he had to fight once with a bench colleague to get a ruling published as an opinion.

Although he declined to give specifics, Epstein said that all the parties involved in the case widely recognized there was no prior case law governing the decision. But Epstein described his colleague as wanting to dispose of the matter with a non-citeable Rule 23 order.

“It took a lot of time and a 2-1 decision of judges to get the case published,” Epstein said. “And it wasn’t about the merits of the case, it was what I was talking about before, it becomes a way to dispose of a case, and I think it’s disingenuous to do it in that way.”

At the ALA event, 2nd District Appellate Justice Joseph E. Birkett expressed support for allowing Rule 23 orders to carry persuasive authority, but said the parties should seek judicial approval before citing them.

Birkett repeatedly emphasized that this was his personal viewpoint, and not the viewpoint of his colleagues or the 2nd District.

He noted that increasing the number of opinions justices have to read increases their workload. He said it’s difficult to read all of the proposed opinions justices currently get.

Epstein said he initially thought a motion to publish acted as a cure to the issues surrounding Rule 23. But he argued that it would not be in the interest of his client if he prevailed on appeal, and he sought publication of the Rule 23 order.

By raising the profile of his victory to a published opinion, it would increase the chances of the state Supreme Court taking up the appeal and reversing his appellate victory, Epstein said. However, Birkett voiced his disagreement with this argument.

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