ISBA Bar News, October 15, 2001

Various Illinois State Bar Association presidents have designated their tenures as years of Pride and of Professionalism, or a Year of the Child, another of being United for Justice, and even one simply of "Continuity."

Judging from the breadth of focus advocated by President Tim Eaton, this may be remembered as the ISBA's year for enhancement of the court systems that serve Illinois residents.

Already at work are Special Committees on Appellate Practice and on Federal Practice, and Eaton himself will co-chair the Special Committee on Funding the Courts. The keystone of these arching intentions will be a Future of the Courts Conference in April.

Two meetings already have been held by the Appellate Practice Committee, chaired by Justice Mary Jane W. Theis of the Illinois Appellate Court and Ottawa attorney Michael T. Reagan, a past president of the Appellate Lawyers Association (see photo on page 3).

Included in committee objectives is a complete review of the Illinois Supreme Court rules, line by line, to develop and submit practical proposals for changes to the Supreme Court Rules Committee.

Due for special consideration is Rule 23 on unpublished opinions, a controversial matter Reagan finds of sufficient concern to both the bench and bar (see related story on this page).

Touching on this issue during a speech at the Sept. 28 meeting of the Appellate Lawyers Association in Chicago, Tim Eaton added that he opposes the limit of 20 on the number of pages in published opinions. The result is many opinions are incomplete and redacted.

Eaton also told the ALA his feeling that the Appellate Court should have more supervisory authority over the trial courts in ruling on orders, something the Supreme Court often lacks the time to do.

The Appellate Practice Committee plans to conduct at least two seminars early next year one on appellate practice skills and one on technology in the appellate process.

The technology seminar will involve court officials and practitioners from other states, who will share their perspectives on how the Illinois courts look to the rest of the country in terms of electronic advancements.

Reagan said this program will provide opportunities to gather foundational material that will feed into the agenda for the Future of the Courts Conference.

Members of the Appellate Practice Committee include Justices Michael J. Gallagher, Richard P. Goldenhersh, Susan F. Hutchinson and Kent F. Slater, along with Steven M. Ravid, chief clerk of the 1st Appellate District.

Assistant Illinois attorney general A. Bejamin Goldgar, president of the Appellate Lawyers Association, serves on the committee with past presidents Rosalyn B. Kaplan of the Attorney Registration and Disciplinary Commission, Cook County Judge Nancy J. Arnold, James A. Geis, Karen L. Kendall, Michael A. Pollard and Michael W. Rathsack.

Other members are Law Prof. Keith H. Beyler, Michael F. Dahlen, former justice Gino L. DiVito, David J. Epstein, state appellate defender Theodore A. Gottfried, Leslie A. Hairston, Darryl D. Pratscher, Jean M. Prendergast and Gregory C. Ray.

The Federal Practice Committee, chaired by Joseph G. Bisceglia of Jenner & Block, Chicago, similarly has begun its year-long study of ways the federal courts can better serve the needs of bench, bar and public.

Judge Michael P. McCuskey of U.S. District Court for the Central District is vice chair of the committee, and Carbondale attorney Shari R. Rhode is secretary. Jurists include U.S. Judge J. Phil Gilbert of the Southern District and Magistrate Judge Morton Denlow of the Northern District.

Other committee members are William J. Brinkmann, Stephen L. Corn, Joseph M. Gagliardo, Mary Lee Leahy, Lara L. Quivey, A. James Shafter, L. Lee Smith and Jack A. Strellis.

Tim Eaton shares the chairmanship of the Funding the Courts Committee with Chief Judge James M. Wexstten of the 2nd Circuit. Jack C. Carey of the ISBA Board of Governors serves, along with former board members R. Michael Henderson and State Sen. James F. Clayborne Jr.

Other committee members are ISBA legislative counsel Daniel L. Houlihan, 18th Circuit Associate Judge Brian R. McKillip, James B. Durkin, Anne Conzelman Linn, Robert T. Oleszkiewiscz, Dixie Lee Peterson and April Gowdy Troemper.

The committee will explore ways of balancing disparities in funding the Illinois court system. Eaton already has advocated that the state shoulder more of the overall cost of operating courts, rather than steadily increasing filing fees for those who most need access to the system (ISBA Bar News, September 17, page 4).

PTAB exec makes case for curbing Rule 23

By James W. Chipman

The biblical account of David and Goliath finds a pious young shepherd facing a fearless, nine-foot-tall giant. Armed only with a slingshot, the future king slays his adversary with seeming ease.

In a more contemporary version of the ancient battle, many bar members wonder whether a Rule 23 order, like Goliath, is an adversary that only a chosen "David" can defeat. There is good reason for the skepticism.

For years, much has been said and written about the growing number of unpublished opinions that become non-precedential under Rule 23. When it comes to admonishing the Illinois Supreme Court for its refusal to even consider repealing the rule, some critics have left nothing to chance.

Thomas H. Fegan wrote in the Chicago Daily Law Bulletin (Jan. 7, 1998) that the court "has exceeded its authority in declaring certain of the Appellate Court's decisions or portions thereof, as lacking precedent. It has infringed upon the judicial power delegated to the Appellate Court by the (State) Constitution."

Much of the criticism, however, has fallen on deaf ears. The Supreme Court has the final say on any rule change, and the last one it made involving Rule 23 was in 1994.

In 1999, I was author of an article that addressed adverse effects of the rule in just one small area of jurisprudence: administrative law. ("The Impact of Rule 23 on Administrative Law: One Agency's Perspective," 87 Illinois Bar Journal 428).

I opined that leaving all or part of an appellate opinion on the drafting room floor has often been detrimental to my agency, the Property Tax Appeal Board (PTAB), and to the scores of lawyers who practice before it.

I examined just four cases that originally were declared Rule 23 opinions but were subsequently published only after my agency filed motions. In its present form, Rule 23 allows any party to request publication of an order by filing a motion with the court.

Even today, the precedential battle is still being fought. The latest example of what I consider to be a significant decision that originally went unpublished under Rule 23 is Tazewell County Board of Review v. Property Tax Appeal Board, No. 3-00-0273 (April 27, 2001).

The case provides the first explanation of a Property Tax Code provision that allows for direct taxpayer appeals to the PTAB in the context of settlement. Thanks to PTAB, the order is now a published opinion (751 N.E.2d 570, 322 Ill.App.3d 949 (2001)) and may be cited as precedent.

Over the years, the PTAB has been fairly successful in turning unpublished orders into precedential opinions. Often, experience is the best teacher. Here is a top-ten list of strategies to avoid and ideas to consider if you receive a Rule 23 order and decide to seek publication:

1. A matter of time. You have 21 days from the entry of the order to file a motion to publish with the court. Count on the time limit being strictly enforced, so don't blow the deadline.

2. One size fits all. A motion to publish should be in the form of a notarized affidavit. Although Rule 23 is silent as to form, Rule 361(a) states that when a "motion is based on facts that do not appear of record it shall be supported by affidavit."

3. A novel approach. If the order simply reiterates well-established principles of law, but involves a novel issue of first impression, make the court aware of it. Stress the novelty of the case and the need for litigants to be aware of it.

4. Constructive criticism. Look to see if the order criticizes, modifies or explains an existing rule of law. If it does, advise the court of this fact.

5. Muddied waters. Many times, a Rule 23 order creates, resolves or avoids an apparent conflict in a given area of practice. Emphasize that publication would provide needed guidance to round out the bar's knowledge and understanding.

6. Play the public policy card. Most legislative enactments and some judicial decisions are driven by public policy. There may be a public interest in having the decision published.

7. What's in it for the court? If publication of the order might negate further appellate review on the subject matter, explain why. Nobody wants to litigate the same issue a second time, and the court doesn't want to hear it again.

8. Short and sweet. Make three or four brief arguments in support of your motion and do so in two pages or less. Your brevity will be greatly appreciated.

9. Two (or more) heads are better than one. Inform the other attorney(s) of record of your desire to file a motion to publish. Ask whether they would consider signing on with your motion or filing a separate one. Should the court see that the decision affects the interests of several parties, this may increase the likelihood of the motion being granted.

10. Chalk it up to experience. If the court denies your motion, there's no appeal. You could file a motion to reconsider, but that would be advisable only in extraordinary circumstances. Weigh the risk of alienating the court.

For many attorneys, the prospect of receiving a Rule 23 order means an exercise in futility. The hours that were spent filing the appeal, writing the brief, and preparing for oral argument only to find that the decision has no precedential value can be a source of frustration.

However, with a thorough understanding of the process and a carefully crafted motion to publish, an attorney has a better chance of slaying the Rule 23 giant.

* * *

James W. Chipman, executive director of the Illinois Property Tax Appeal Board, is vice chair of the ISBA State and Local Taxation Section Council.

ISBA throws book in with seminar registration fee

Here's an offer you shouldn't overlook if your practice in any way involves government offices and agencies. Every registrant for the ISBA administrative law seminar on Nov. 16 will receive a copy of the new "Handbook of Illinois Administrative Law."

Called "The essential field guide to administrative law," the ISBA handbook has been developed by the Administrative Law Section Council and Government Bar Association, which along with the Committee on Government Lawyers are sponsors of the seminar.

The day-long program will begin at 8:30 a.m. Friday, Nov. 16, at the Hilton Hotel in Springfield. For registration details, see pages 12 and 13.

Section council chair Edward J. Schoenbaum of Springfield, an administrative law judge for the Illinois Department of Employment Security, is moderator for the seminar, which he will open with an overview. The schedule follows.

8:35 a.m. Researching Illinois Administrative Law, with Prof. Frank J. Kopecky of the Center for Legal Studies at the University of Illinois-Springfield.

8:55 a.m. Administrative Law on the Internet, with Helen W. Gunnarsson of Northbrook.

9:20 a.m. Guide to Drafting Legislative Documents and Researching Legislative History, with Richard C. Edwards, executive director of the Legislative Reference Bureau, Springfield.

10 a.m. Freedom of Information Act, with Assistant Illinois attorney general Stephen J. Rotello of Springfield.

10:30 a.m. Illinois Pollution Control Board, with board chair Claire A. Manning of Springfield, a past chair of the section council.

10:45 a.m. Human Rights Commission, with Springfield attorneys Roma Barksdale Larson, chief administrative law judge for the Illinois Human Rights Commission, and Terry C. Shafer, hearing officer for the Illinois Property Tax Appeal Board.

11:30 a.m. Investigating and Adjudication: Hearings, Pre-hearing and Discovery, with Gerald G. Goldberg of Goldberg, Zulkie & Frankenstein, Chicago, a member of the ISBA Assembly and Health Care Section Council.

12 noon Luncheon period.

1 p.m. The Hearing from an ALJ's Perspective, with Matthew E. Franklin, chief administrative law judge for the Illinois Department of Children and Family Services, Springfield.

1:30 p.m. Evidence in Administrative Hearings, with 7th Circuit Judge Thomas R. Appleton of Springfield.

2 p.m. Administrative Review, with Cook County Judge Alexander P. White, a member of the ISBA Assembly and State and Local Taxation Section Council.

2:30 p.m. Ethics for Government Attorneys and the Administrative Judicial Ethics in an Administrative Proceeding, with Rosalyn B. Kaplan, manager of the Appellate Division of the Attorney Registration and Disciplinary Commission, Chicago.

3:15 p.m. Open Meetings Act, with Thomas T. Battista of DesPlaines, deputy director of the Illinois Property Tax Appeals Board, and member of the ISBA Assembly, Administrative Law Section Council and State and Local Taxation Section Council.

3:45 p.m. Rule and Rulemaking, with Robert John Kane, assistant vice president for legal services of the Illinois State Medical Society, Springfield.

4:15 p.m. Case Law Update, with assistant Cook County state's attorney Julie Ann Sebastian, past chair of the Administrative Law Section Council.

Nov. 1 deadline nearsfor bar to nominateLaureates of Academy

Thursday, Nov. 1, is the deadline for submitting written nominations for the 12 distinguished attorneys who will be inducted as Laureates of the Academy of Illinois Lawyers next year.