Appellate Court issues Rule 23 Order in Ashonta Rice case

FWIW readers already knew that Ashonta Rice's 2024 countywide judicial campaign came to an almost certain end in the Appellate Court on February 16. Important as that disposition was for Ms. Rice and her supporters, most FWIW readers seemed to know about the Order as soon as it was issued. For FWIW readers, I thought the bigger story there might be how baffled the media seemed to be by the resultant (and brief) pause in the early voting process.

In the linked post, for the benefit of the increasing number of outsiders who come to this site as the Primary draws near, I explained that the Appellate Court would follow up the Order announcing Rice's electoral fate with an explanation of the reasons for its decision in due course.

Due course arrived last Friday. The Appellate Court's Rule 23 Order in Rice v. Cook County Officers Electoral Board, 2024 IL App (1st) 240230-U is linked in this sentence.

My initial take here is this: The court determined that whether the candidate's surname was Rice or Akiwowo was a question of fact. The hearing officer determined that the candidate's surname was Akiwowo in 2023, not Rice. The Electoral Board accepted this finding and the Appellate Court stated (¶21) that it could not find that this determination was against the manifest weight of the evidence. The standard of review (¶13) was outcome determinative here.

The court unanimously agreed that Rice's nominating papers were fatally defective under §7-10.2 of the Election Code, 10 ILCS 5/7-10.2. Justice Freddrenna Lyle filed a one-paragraph statement specially concurring in the result (¶37). She expressed concern that Rice did not engage in the sort of behavior that the Legislature was apparently concerned with, according to the legislative history of the 2007 amendment to §7-10.2. She expressed concern about the ways in which this statute is being used against female candidates, but she agreed that the factual determination of the candidate's actual surname in 2023 was not clearly erroneous and, for that reason, the result had to be affirmed.

Justice David R. Navarro, who wrote the Appellate Court's Rule 23 Order, suggested (¶32) that Rice might have had a way to successfully navigate between the Scylla and Charybdis of Oberholzer v. Cook County Electoral Board, 2020 IL App (1st) 200218-U, and Ruffin v. Feller, 2022 IL App (1st) 220692, that I wrote about in this post. The Order also invites legislative clarification of §7-10.2 (¶30) to make the statute less particularly hazardous for married (or divorcing) female candidates. I hope this may happen.

If any FWIW readers know of any such legislative attempts, send me an email, or leave a comment on this post.

*  *  *

Meanwhile... as an aside... Rice was issued as a Rule 23 Order. In reaching its decision in Rice, the Appellate Court necessarily adressed the Oberholtzer case, which was also issued as a Rule 23 Order.

Illinois Supreme Court Rule 23 provides a means by which our Appellate Court can dispose of cases "which do not qualify for disposition by opinion." We don't need 9,000,000 cases that all stand for the same proposition of well-settled law. Some cases would add only lint to the splendid tapestry of our common law. In other words, some cases really are routine and it made sense to have a means for disposing of these cases without unduly lengthening the shelves of the law library.

Published, precedential opinions are to be issued by our Appellate Court "only when," in the words of Rule 23(a), "a majority of the panel deciding the case determines that at least one of the following criteria is satisfied: (1) the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of law; or (2) the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate Court."

One might think that a case interpreting a newly-amended statute would qualify for publication. But both of the First District cases that interpret the name-change amendments to §7-10.2 of our Election Code, Oberholtzer and Rice, are unpublished.

The rule used to provide that Rule 23 Orders were not precedential and not to be cited, by any party for any purpose "except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case."

Effective January 1, 2021, however, the Supreme Court amended Rule 23(e)(1) by deleting the absolute prohibition against citing Rule 23 Orders except in the special circumstances listed above and adding this sentence:

However, a nonprecedential order entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive purposes.

For the non-lawyers in the audience: Every citation a lawyer offers is meant to be persuasive. But when a lawyer cites a published opinion, we may additionally argue that the cited case compels the result we seek in this one; we can argue that the court is constrained by our cited precedent to do as we urge. With a Rule 23, in theory, and only for Rule 23's issued after January 1, 2021, we are permitted only to argue that this wise disposition would be best followed in the case at bar. The court doesn't have to follow our cited Rule 23, we must concede, but we can still argue why, in our opinion, the court should follow it.

The Appellate Court in Rice discussed Oberholtzer extensively, as it really had to, Oberholtzer being the only available case addressing the name-change amendment to §7-10.2. But the Rule 23 in Oberholtzer was issued in February 2020 -- and is therefore supposedly not precedential, and not to be cited, even as persuasive authority, the 2021 amendment to Rule 23 notwithstanding.

Rule 23(f) allows any party to file a motion to publish -- to turn, in other words, any non-precedential order into a precedential, published opinion. I suppose it would be unwieldy to extend the privilege of seeking publication to non-parties as well as parties. But perhaps the Supreme Court, as part of its administrative function, could establish a method by which Rule 23 Orders like Oberholtzer and Rice, which address issues clearly not covered by published opinions, could be converted into published opinions. A prospective candidate seeking to understand the law concerning name changes should be left in doubt about how our courts have previously interpreted the statute in question.

(Stepping down from soapbox....)