Supreme Court fine-tunes a number of rules

Updated June 8, 2018

Most of the amended Supreme Court Rules issued by the Supreme Court at the end of May are fairly technical and uncontroversial.

But two of the changes are more interesting than the others.

On May 25, the Illinois Supreme Court issued amendments to Supreme Court Rules 341, 352, and 756. Then, on May 31, the Court issued an amendment to Rule 39.

The change to Rule 341 is one of the noncontroversial ones.

The last sentence of Rule 341(h)(7) has been changed from "Points not argued are waived..." to "Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing."

I attended a CLE seminar a few years ago at which the distinction between "waiver" and "forfeiture" was made exquisitely clear. (I've spent the last week looking for the materials from that presentation, without success.) Unfortunately, the distinction between the words can become blurred as soon as one begins reviewing the cases. This minor change may allow the distinction between the words to become more clear in case law. Essentially, however, there is an element of voluntariness in waiver. The "classic" formulation of waiver is that it is "the intentional relinquishment of a known right" -- but, in the law of insurance, for example, waiver need not be express, but may be implied from conduct (see, for example, Allstate Insurance Co. v. National Tea Co., 25 Ill.App.3d 449, 461 (1975)). Forfeiture also concerns someone failing to do something, but the reason for the failure is irrelevant: Either something (like raising a particular argument) was done or not done, and if it was not done, the right to do it thereafter is forfeited. See, Maniez v. Citibank, F.S.B., 404 Ill.App.3d 941, 947-48 (2010)("[f]orfeiture occurs when a party seeks to raise an issue on appeal it failed to raise in the lower court").

However the rule is formulated, one can only hope that it remains clear that the rule is a limitation on the parties, not on a reviewing court, which, in the interest of properly resolving a matter and doing justice to the parties, may choose to consider an issue that was otherwise "forfeited."

The amendment to Supreme Court Rule 756 also appears to be an attempt to impose a more objective standard, this time in the area of attorney discipline.

Rule 756(a)(8) concerns an attorney's right to seek permanent retirement status. The key provision of this rule is 756(a)(8)(C) which provides that disciplinary actions will be dropped against an attorney granted permission to permanently retire. Not surprisingly, Rule 756(a)(8)(A) requires the consent of the ARDC Administrator before the Supreme Court will grant permanent retirement.

The new change to Rule 756 concerns Rule 756(a)(8)(B), addressing when permanent retirement status will be not be granted. Previously, permanent retirement was to be denied when the attorney's conduct was likely to result in actual prejudice to a client or third party unless restitution is made. Now, however, Rule 756(a)(8)(B)(3) provides that permanent retirement will be denied where "the attorney's conduct resulted in an actual loss to a client or other person and the Court's rules or precedent would allow for a restitution order for that type of loss in a disciplinary case, reinstatement case, or Client Protection Program award, unless restitution has been made" (emphasis mine).

The amendment to Rule 352 is likely to be more controversial, at least with some sitting justices of the Appellate Court.

Effective July 1, the last paragraph of Rule 352(a) has been amended so as to require oral arguments in many more appeals.

This paragraph used to provide, "After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented but this power should be exercised sparingly."

Now, however, this paragraph of Rule 352(a) begins (emphasis supplied), "After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented but this power shall be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case."

But that's not all. A second sentence has been added to this paragraph by the May 25 amendment: "Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it."

From what I've been told, when an appellate justice asks his or her colleagues to conduct oral argument in a given case, that request has usually been honored.

But, obviously, these requests have not always been honored.

While there may be some grumbling on the appellate bench in the short term, this rule, in my opinion, will be a benefit to the court in the long run: Courts need to conduct their public business in public. In every case in which oral argument is conducted there can be no doubt that the elected (or assigned) justices were actually involved in the decision-making process. Increasing the frequency of oral arguments will necessarily enhance the confidence of the public generally and the bar in particular in the appellate process.

That said, I'm sure every appellate lawyer has had a case or three that they were just as happy to see decided on the briefs, and under Rule 23. I know I've had some over the years -- and, yes, like everyone else, I've dutifully requested oral argument in those cases, too -- but, presumably, these cases would not be called for argument even under this new Rule 352.

The Supreme Court also amended Rule 39, concerning the election of associate judges. There is one stylistic change as well, but the substantive change is to Rule 39(b)(5), concerning balloting for associate judge.

The first sentence of this rule formerly began, "Each circuit judge shall complete his or her ballot by voting for one candidate for each vacancy to be filled...." As amended, however, the sentence reads (emphasis mine), "Each circuit judge shall complete his or her ballot by voting for not more than one candidate for each vacancy to be filled...."

As FWIW readers well know, we did just have a controversial associate judge selection here in the County of Cook -- a ballot of 34 names, with 17 vacancies to be filled (16 have been selected; there was a tie for the 17th spot and a runoff is underway). So it is only natural to consider the change to the rule in the context of recent Cook County events.

Initially I thought the change might be a codification of the practice of some judges deliberately undervoting -- the only means available for a judge to maximize the support he or she can give to favored candidates -- and one that I believe many judges have employed in prior associate judge elections. The more I thought about it, though, the more it seemed to me that this language represented a caution against overvotes. Why would that be necessary?

Surely, no one with a vote would vote for more than half the candidates -- thereby spoiling the ballot and actually voting for no one -- right?

However, I have confirmed with court personnel that the rule was amended as a caution against overvoting. Unsurprisingly, I have not learned why this amendment was deemed necessary, and at this time, just after a controversial Cook County associate judge selection -- and I don't expect to.

But I will say this: coincidence alone does necessarily establish causation. So the timing of this amendment is merely coincidental. I hope.