Twenty-eight years ago, just days before Law Day in 1990, a justice on the state’s top court told a group of lawyers about a concerning trend.
Illinois Supreme Court Justice Howard C. Ryan, a World War II veteran who grew up on a farm in central Illinois, had served on the court since 1970 and had been chief justice between 1981 and 1984.
He’d already announced he was stepping down from the court when he spoke to a group at the Illinois State Bar Association’s Allerton House Conference in Monticello on April 27, 1990.
His speech was transcribed in a 1991 edition of the Appellate Lawyers Association of Illinois’ Appellate Law Review.
He was candid describing what it was like to live and work at the court. He talked about how to get along with colleagues after sharp disagreements — by discussing family or hobbies. (“We may think, well, that fellow doesn’t know a hell of a lot of law but he’s a pretty good guy.”) He admitted the courts of review could be “a dull place” and “lonesome” at times. He joked about his impending retirement.
“By my calculations, I have about seven months left in my professional career, provided I live that long,” he said. “Hopefully we will not self-destruct within that period of time.”
He discussed some of his other calculations, too. The number of petitions for leave to appeal filed at the Illinois Supreme Court had increased dramatically since he began his tenure, from 300 or 400 in 1970 to around 1,500 in 1990.
And the court was, perhaps understandably, turning more of them away. Fifteen years earlier, Ryan said, the court granted 16 percent of pleas. Now, it was closer to 10 or 11 percent, he said.
“I do not know whether the decrease in the percentage of the petitions for leave to appeal that are allowed is related in any manner to the increase in the number of worthless petitions for leave to appeal that are filed,” Ryan told the group. “I am concerned, however, that some subliminal influence is causing us or might cause us to tighten the screws so to speak and thereby decrease the number of petitions that are allowed.”
Three decades later, a similar pattern has emerged. The state’s highest court is taking fewer cases. The catch now is that there are fewer appeals reaching the justices, not more.
Petitions for leave to appeal filed at the Supreme Court hit a 20-year low in 2016, according to a summary of pleas in the Annual Report of the Illinois Courts.
That year, the most recent year for which data are available, 1,361 pleas were filed at the court. Compare that to 1997, the earliest year for which the reports are available online, when there were 1,848 total petitions filed. Or, compare it to the number in 2002. That year featured the highest number of appeals filed at the high court during that 20-year window, 2,256.
The highest number of appeals allowed in a given year during that time frame was 111 pleas in 2004. Generally, the court allows between 4 percent and 6 percent of all petitions it considers each year.
The number of pleas filed in a given year and the number of pleas acted upon don’t totally align because the court may receive a filing one year and not technically dispose of it until the next. For instance, in 2016 the court allowed 62 petitions, or 4 percent of the total 1,551 pleas they considered that year, not necessarily the 1,361 that were filed in that 12-month span.
The number of petitions considered is also at a 20-year low, however. The 2016 figure is the third lowest, behind 2013, which had 65 petitions accepted out of 1,517, and 2015, in which the court accepted 56 out of 1,445 cases.
Some theories factor in the rise of arbitration and mediation in civil suits and plea bargains in criminal cases that forego a chance at a future appeal. Others account for the end to death penalty appeals following the state’s abolition of capital punishment in 2011.
Increasing costs could also be forcing civil litigants to think twice about going to court or, for those already in court, paying for a lengthy appeals process.
Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va., said there’s been a nationwide decrease in the number of cases in trial courts, intermediary courts and courts of last resort since at least 2006 — tracking pretty well with the start of the Great Recession.
In intermediate courts and courts of last resort across the country, the number of incoming cases fell from about 283,000 cases in 2007 to about 257,000 cases in 2016, according to the center’s Court Statistics Project. That’s a 9 percent drop over the decade.
But, Raftery noted, all types of cases are down, so costs “wouldn’t explain the criminal and traffic ticket cases that seem to be down, down, down,” Raftery said.
“I mean, getting into things like, what’s going on with the overall trend,” he added, “we simply don’t know.”
Whatever the cause, it’s manifested in fewer appeals granted, fewer arguments at the court and fewer decisions issued.
In the Illinois Supreme Court’s most recent term in March, there were only four cases argued.
But at least one judge suggested the pattern reflects broader changes in the system, not a direct effort by appellate judges to cut down on the load of cases.
“There is something going on in the legal arena here and elsewhere that is having an effect on the number of cases coming before appellate courts generally,” said 1st District Appellate Justice Michael B. Hyman.
The 1st District, one of five intermediate courts in Illinois, handles appeals out of the massive Cook County Circuit Court.
Hyman said he’s noticed the slowdown at his court. Chicago-based appeals panels considered hundreds of fewer cases year-to-year over the last two years, he said.
“So this is a progression. But we don’t have an explanation for it. There could be many reasons why this is happening,” Hyman said.
Even as the appellate bar and judges keep an eye on the thinning petition-acceptance rates, there may be good reason not to overcorrect.
The same year Justice Ryan wondered about appeal petitions, Southern Illinois University School of Law professor Keith H. Beyler, who served on the ISBA’s Civil Practice and Procedure Section Council, suggested the court take dramatic steps to accommodate the ballooning number of pleas before the justices.
In a paper titled “Illinois Appellate Courts: Meeting the Challenge of Heavier Caseloads,” published in the Illinois Bar Journal, Beyler noted petitions had “taken a quantum leap” since 1970.
He suggested limiting justices’ administrative work, as well as the length of appeal petitions, while increasing Rules Committee usage to help unify the law, among other tweaks, to keep up.
Those moves would help in the short term, “but eventually the day of reckoning will arrive” and “the number of petitions for leave to appeal will take another quantum leap,” Beyler wrote back then.
In an interview this March, Beyler acknowledged “the need for urgent measures is less than what it once looked like.” But he suggested part of that could be fewer civil cases going to trial, as well as the dramatic reversal of a trend that few people saw coming — long-term declines in crime.
“When you go back to the time you’re talking about, about 20 years ago, then you’re looking at a time when crime rates were higher,” he said. “Maybe not the murder rates in Chicago, but I think very likely we also had either a decline or stabilization of the rates at which criminal prosecutions were occurring, which again, would reduce the flow to the Illinois Supreme Court.”
Or, perhaps more courts and litigants are heeding Justice Ryan’s advice, which he gave in closing his speech all those years ago in Monticello. If you’re looking for policy change, the real power is with elected lawmakers, not judges.
“In a free society, that’s really where it ought to be,” Ryan said. “I would hope that one of the ways that the courts will get their dockets in shape, given the fact that we ought not want to cut back on the distribution of justice or on the rights people enjoy, would be by persuading people that the other two branches of government also can be made to work for these changes.”