The End of Unpublished Decisions?

Don't Count on It!

by Paul J. Glaser

The innate need for attention ("Hey, Mommy, look at me!") runs strong in humans (and Golden Retrievers, too, for that matter). It's just a theory, but maybe that's a reason why a lot of humans (unlike Golden Retrievers) are drawn to the practice of law. And for those of us drawn to the practice of appellate law, nothing satisfies that need for attention better than a published decision (in which we're on the prevailing side, of course).

It should also need no further explanation that even apart from the need to satisfy one's ego, a published opinion supporting one's legal argument is the cornerstone of any effective brief or motion. Thus, for years the bane of appellate practitioners has been Supreme Court Rule 23, which since 1972 has permitted Appellate Courts to dispose of cases by nonprecedential orders. (By virtue of a 1994 amendment, the Rule creates a "presumption against disposing of Appellate Court cases by full, published opinions." Supreme Court Rule 23, Commentary (Jun. 27, 1994).) Not only does Rule 23 impose limits on the Appellate Courts' publication of full opinions, but it also provides that an unpublished order, however lengthy, detailed, or well-written, and regardless of whether the issue discussed is of first impression, "is not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case." Rule 23(f). In other words, when a decision is unpublished, it might as well be sealed in a jar and buried in the backyard.

The "clear intent" of Rule 23 "is merely to avoid the publication of a morass of dispositions which add nothing to the available body of substantive law or legal precedence." Bradley v. Howard Hembrough Volkswagen, 89 Ill.App.3d 121, 124, 411 N.E.2d 535 (3d Dist. 1980). Lest anyone think that the no-citation warning in the Rule is merely advisory, consider these unequivocal words offered only recently by our Appellate Court in a case where one of the parties urged the applicability of an unpublished federal district court decision:

We strike [the unpublished decision] from both parties' briefs because it is unpublished and therefore nonprecedential. We admonish plaintiffs and defendant for citing [the unpublished decision] in derogation of Supreme Court Rule 23(e) . . . and Rules 53(b)(2)(iv) and Rule 53(e) of the United States Court of Appeals for the Seventh Circuit (7th Cir. Rs. 53(b)(2)(iv) & 53 (e)).

Wallis v. Country Mutual Insurance Company, 309 Ill.App.3d 566, 572 , 723 N.E.2d 376 (2d Dist. 2000). You have to know that the Court is really mad when it cites state and federal rules in admonishing counsel.

Since the Court called our attention to federal rules, let's see what's happening in that jurisdiction. Like, for instance, the Eighth Circuit, (the Great Plains to our west), where their Circuit Rule 28A(i) bears some similarities to our Rule 23:

Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion. Parties may cite an unpublished opinion of this court if the opinion has persuasive value on a material issue and no published opinion of this or another court would serve as well. . . .

There are of course some real distinctions between the Eighth Circuit's Rule 28A(i) and Illinois' Rule 23. The former says that parties "generally should not cite" unpublished opinions but allows their citation "if the opinion has persuasive value on a material issue and no published opinion . . . would serve as well," whereas our Rule 23 prohibits, without exception, citing unpublished opinions. So despite the relatively more forgiving tone of Rule 28A(i), it came as something more than a shock, this past August, that the Eighth Circuit (in a published decision, of course) found the non-precedential provisions in Rule 28A(i) unconstitutional.

In Anastasoff v. United States, No. 99-3917EM (8th Cir. Aug. 22, 2000), a woman was seeking a refund of overpaid federal income tax. When the Internal Revenue Service denied her claim, she took the issue to the district court, and lost, and then went to the Court of Appeals. She lost again, but the opinion is more notable for Ms. Anastasoff's attempt to argue that an eight-year-old decision from the Eighth Circuit, squarely on point, was not controlling because it happened to be an unpublished opinion and, under Rule 28A(i), not precedent. The Court of Appeals disagreed.

In an opinion authored by Circuit Judge Richard S. Arnold, the Court held "the portion of Rule 28A(i) that declares that unpublished opinions are not precedent is unconstitutional under Article III [of the United States Constitution], because it purports to confer on the federal courts a power that goes beyond the `judicial.' " Slip op. at 3. How so? Demonstrating "original intent" reasoning which would make Antonin Scalia proud, Judge Arnold explained that every judicial decision inherently interprets a general principle or rule of law which must be applied in later cases to similarly situated parties. "The Framers of the Constitution considered these principles to derive from the nature of judicial power, and intended that they would limit the judicial power delegated to the courts by Article III. . . ." Slip op. at 3. Since the non-precedential aspect of Rule 28A(i) allowed courts to avoid the precedential effect of prior decisions and expand the judicial power beyond the limits of Article III, Judge Arnold concluded, that portion of Rule 28A(i) is unconstitutional. Slip op. at 4.

Judge Arnold developed the basis for his "original intent" thesis in an exhaustive review of historical sources and summarized:

In the late eighteenth century, the doctrine of precedent was well-established in legal practice (despite the absence of a reporting system), regarded as an immemorial custom, and valued for its role in past struggles for liberty. The duty of courts to follow their prior decisions was understood to derive from the nature of the judicial power itself and to separate it from a dangerous union with the legislative power. The statements of the Framers indicate an understanding and acceptance of these principles. Slip op. at 10.

Before concluding, the court also took pains to make clear what it was not saying. First, the court did not mean to say that all reviewing court opinions needed to be published. The question presented was whether unpublished opinions were authoritative, not whether some cases might be deemed unimportant enough to occupy space in a printed volume. "`Unpublished' in this context has never meant `secret.' " Slip op. at 11-12. Second, by eliminating the concept of a nonprecedential decision, the Court intended to prevent "an underground body of law for one place and time only." Here, the Court's comment stands as a strong criticism of our Rule 23:

Some forms of the non-publication rule even forbid citation. Those courts are saying to the bar: "We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday." As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat. Slip op. at 12.

Third and last, the Court did not intend to create "some rigid doctrine of eternal adherence to precedents." Precedents can and sometimes should be overruled, as long as the reasons for doing so are be made clear. "In this way, the law grows and changes, but it does so incrementally, in response to the dictates of reason, and not because judges have simply changed their minds." Slip op. at 12-13.

Does Anastasoff herald the end of Rule 23 in Illinois? It is way too early to tell. A petition for en banc rehearing was filed in that case on September 23, and more learned experts than your humble author predict "only a slim chance of [it] being upheld." 68 CRIM. L. REP. 54 (Oct. 18, 2000). As someone who has been on both sides of unpublished decisions, I only caution that one should be careful what one wishes for, because sometimes it may come true.