Heyl Royster


Heyl Royster


Previous Non-Precedential 23(b) Decisions Can be Cited as Persuasive Source Beginning in 2021

By: Lu Harmening, lharmening@heylroyster.com

Many times in researching issues or preparing legal memorandums, we find an appellate court case referred to as a Rule 23(b) order right on point only to realize that it is not binding on the forum. Even worse, we are forbidden to cite it even for informative value. Says who? Supreme Court Rule 23(e).

Rule 23 Then…

Illinois Supreme Court Rule 23(e), enacted in 1994, mandated that case dispositions under Rule 23(b) were “not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel, or law of the case.”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 rationale was three-fold: (1) lengthy opinions from the state appellate court, making legal researchers read through many opinions and many pages of opinions through the case books in order to locate the essence of a single point of law, ultimately driving up the cost of the litigation expenses of the client; (2) many of the “avalanche of opinions” were redundant, making legal research unnecessarily burdensome, difficult, and costly by the publication of multiple opinions expounding the same point of law; and (3) many of the opinions published lacked precedential value when they were merely settling a controversy between the parties without offering guidance for a future conduct.

A recent change to Illinois Supreme Court Rule 23 will now allow citation to unpublished Rule 23 (b) orders entered on or after January 1, 2021, for persuasive purposes.

Rule 23 Now…

Much has changed since 1994, and the rationale that once supported Rule 23(e) has become obsolete.

First, text-searchable electronic research databases that typically include both published opinion and Rule 23(b) orders are available in Illinois case law, making it much easier to search a point of law relatively quickly. Second, many parties, lawyers, and judges started to recognize that many Rule 23(b) orders are NOT redundant nor lacking precedential value. Actually, many of them are directly on point to their cases. Third, forbidding citation to non-precedential decisions deprives parties of gaining benefit from a substantial, relevant body of case law in support of their arguments.

Accordingly, the Illinois Supreme Court Rules Committee made a proposal to repeal Supreme Court Rule 23 (Disposition of Cases in the Appellate Court) in its entirety, requiring all written opinions by the appellate court to be published. After receiving the public comments and conducting a public hearing, the Supreme Court amended Rule 23, which took effect on November 20, 2020.

But instead of taking a dramatic approach as the Rule Committee suggested, it only changed the subsection (e), allowing a non-precedential Rule 23(b) order, entered on or after January 1, 2021, to be cited for persuasive purposes. This mirrors the current practice of the federal judiciary as reflected in Federal Rule of Appellate Procedure 32.1.

Indeed, before this amendment, some appellate courts observed that a party can use an unpublished opinion to support the reasoning and logic of an argument as long as it is not cited as “authority.” Osman v. Ford Motor Co., 359 Ill. App. 3d 367, 374 (4th Dist. 2005); People v. Matous, 381 Ill. App. 3d 918, 926 (3d Dist. 2008) (Carter, J. concurring); Midwest Medical Records Ass’n, Inc. v. Brown, 2018 IL App (1st) 163230, ¶ 29.

Although citation of the Rule 23(b) order is only persuasive, not binding, because the current Rule 23(e) permits parties to cite Rule 23(b) on or after January 1, 2021, we, as practitioners, have a bigger bank to research case law for our client, finding the strength and weakness of the case we are handling, and predicting the patterns and points of distinction that influence future decision-making.