Rule 23 in the news this week -- and an illustration of the 'be careful what you ask for' rule

It had to be coincidence, right?

Justice Michael Hyman's partial concurrence and dissent in Snow & Ice, Inc. v. MPR Management, Inc., 2017 IL App (1st) 151706-U, was front page news in Wednesday evening's Law Bulletin. In my email Wednesday afternoon was an update from the Appellate Lawyers Association. Both concerned suggested changes to Illinois Supreme Court Rule 23.

The ALA chose Wednesday to report that the Supreme Court had "voted during its November 2016 Term to make no changes to" Rule 23 at this time.

The ALA, Chicago Bar Association, and the Illinois State Bar Association had written a joint letter back in 2014 to then-Chief Justice Rita B. Garman proposing that Rule 23 orders be citable as persuasive authority. (Currently, Rule 23(e)(1) provides that Rule 23 orders are "not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.")

The Supreme Court chose not to act on the 2014 request but, according to the ALA, "invited the Associations to undertake a comprehensive review and 'consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.'"

Joined by representatives of the Executive Committee of the Illinois Judges Association, the ALA, CBA and ISBA set up a Special Committee on Rule 23 and, this past August, "submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority." But the Court again said no.

Currently, the majority of a panel deciding a case determines whether a case will be disposed of by a published opinion or under Rule 23. In Snow & Ice, Inc., Justice Hyman advocates for what he calls "the one justice rule": "in cases with a dissent or special concurrence, the preference of a single justice, rather than a majority of the panel, [should be] sufficient to publish the decision as an opinion" 2017 IL App (1st) 151706-U, ¶28.

Hyman notes, 2017 IL App (1st) 151706-U, ¶¶51-52, that the First, Fifth, Sixth and Ninth Circuits of the U.S. Courts of Appeal have a publication rule in place similar to the one he suggests, as do state courts in Alabama, Arizona, California, Indiana, Missouri, North Dakota, and Texas.

Illinois used to be on this list, too. My research over the past couple of days leads me to believe that the 'panel majority' rule came into effect in 1994. I am virtually certain that, in 1991, the filing of a dissent automatically made what had been a Rule 23 order into a published opinion.

I choose not to name the case here, but let me explain the facts.

Plaintiff discharged her lawyer at some point after filing suit. I don't know why. New counsel was engaged and ready to take the case over, but the first attorney was unwilling to relinquish the file until there was an agreement reached on a division of fees and costs.

This is a bad idea of many levels, not least of which is the fact that the fee can not be properly allocated at such an early stage: The first attorney is entitled to a quantum meruit recovery but, until the case was resolved, no one could fairly say how much or how little the first attorney contributed to the eventual result. The second attorney should have tendered the first attorney's costs and promised to protect the first attorney's lien rights and the first attorney should have handed over the file.

I don't know whether the failure to respond to defendant's initial written discovery requests prompted the dismissal of the first attorney or whether the first attorney refused to answer the discovery because he'd been discharged. I do know, however, that the discovery went unanswered for roughly six months. A sanctions motion was eventually filed. About five months after the motion was filed (11 months after the discovery was served), Attorney #1 withdrew and Attorney #2 entered an appearance. About a month after that the sanctions motion was granted. In the published opinion, the Appellate Court said the sanctions motion was granted ex parte, but the motion had been pending, at that point, for roughly six months and presumably both attorneys, the one who withdrew while the motion was pending, and the one who appeared while the motion was pending, knew or should have known about the pending hearing date. In this case, therefore, I believe ex parte merely means that no one showed up to oppose the entry of the dismissal.

Three more months dragged by before Attorney #2 decided to do something about the dismissal.

A §2-1401 petition was filed, with supporting affidavits. Section 2-1401, then and now, requires that a §2-1401 "petition must be supported by affidavit or other appropriate showing as to matters not of record." The affidavits are necessary to establish a party's due diligence; a §2-1401 can not be granted unless the movant can show due diligence and a meritorious claim (or defense).

In this case, though, the affidavits were defective. They were stricken. An amended §2-1401 petition was then filed, supported by different affidavits. The published opinion does not so state but, as I recall, the second set of affidavits were not only deficient technically, they contradicted the first set of affidavits factually, setting up the always-awkward question of were you lying then or are you lying now?

The trial court agreed, and struck the affidavits once again -- stating expressly that the attorneys were negligent and not diligent -- but, this time, the trial court granted the petition.

I don't remember with certainty when I got involved in the case. It wasn't mine from the beginning. I know I was involved in the appeal. I may have gotten involved at the §2-1401 stage, but my memory, over 25 years later, is fuzzy. I do remember roping in a new associate to work on the appeal with me. After all, I told her, this case presented a typical bar exam question and she was much closer to the bar exam than I was. (When I took the bar, §2-1401 was called §72, but it was basically the same statute, and the affidavit and due diligence requirements were unchanged.)

You probably saw where this was going long since: The Appellate Court affirmed, in what was initially a Rule 23 order, on the basis of "fairness." Both the trial court and the Appellate Court were reluctant to punish the plaintiff because her attorneys could not "cooperate."

There was no associate assisting me on the petition for rehearing. I was almost certainly a tad intemperate. I'm sure I brought up the standard-bar-exam-question angle.

My screed caught the attention of one of the panelists---but only one---and she filed a dissent agreeing that it was error to grant a §2-1401 petition without supporting affidavits and where due diligence was not established. The filing of that dissent, under Rule 23 as it existed in 1991, caused the order, which would otherwise have never been heard from again, to automatically become an opinion. My temper tantrum caused an unfortunate result to become a knot in the otherwise smooth fabric of §2-1401 precedent. I got snarky thank-you notes from more than one plaintiff's attorney when that case hit the advance sheets. I remember one note said, You lowered my malpractice premiums with this case. Thanks!

Be careful what you ask for indeed.

At some point the nice insurance company that was paying our fees decided it would be best to move on. I don't know if this was before or after the PLA (which was denied) but it was certainly before the Motion for Leave to File Instanter a Motion for Reconsideration of the Denial of the Petition for Leave to Appeal that I filed anyway, missing a good part of our Christmas party that year, eating my time instead of whatever meal the others were having.

(And, of course, this motion, too, was denied -- although, ironically, several years later, also at Christmastime, I drew on my experience in drafting that awkwardly named motion to draft another such motion in another case which was actually granted.)

I'm no fan of Rule 23. I used to say, with some bitterness, that all my appellate victories were buried in Rule 23 orders -- and all my losses were in published opinions. But (a) this is not true and (b) with the passage of time, I've come to realize that it's the result that counts, not whether a disposition is published. And, besides, there have been a few occasions, over the years, when I was glad for the cloak of Rule 23. Anybody who's done this kind of work can recount instances of making good arguments in not-so-good cases.

But the problem with Rule 23 probably lies in its application, not so much in the concept. Despite the experience recounted above, I'm inclined to agree with Justice Hyman's suggested "one justice rule" for publication. And there was one other point that Justice Hyman made about a circumstance where Rule 23 should not apply (2017 IL App (1st) 151706-U, ¶38), namely, "reaffirming a rule of law's viability despite its age."

Justice Hyman illustrated this principle by positing an opinion written in 1977 that plainly states a rule of law. The rule hasn't changed in 40 years and, therefore, according to Rule 23, a new case expressing that rule need not be published. "But," suggests Justice Hyman, "a 2017 opinion restating that rule, and analyzing a modern factual scenario, can be helpful to today’s lawyers in understanding the rule’s continued applicability. (And reassure lawyers that they have found the most recent, accurate statement of the law.)" (2017 IL App (1st) 151706-U, ¶38.) To this, I would add that a reaffirmation of long-standing principles now and again would also provide comfort to trial judges increasingly skittish about relying on non-public domain authority....