Last week we concluded our examination of the question of how much of the Illinois Supreme Court’s civil and criminal dockets comes from cases which sparked a dissent at the Appellate Court. Today, we turn to a similar question: how much of the Court’s docket involves review of unpublished (and non-precedential ) Rule 23 orders?
The answer is – more than one might expect. In Table 229 below, we report the year-by-year data for the civil and criminal dockets. Clearly, publication is less crucial on the criminal side of the docket than it is on the civil side; the fraction of the criminal docket arising from published opinions has exceeded the civil docket number in only one of the past sixteen years. On the civil side, the published percentage has dipped below 60% only twice, in 2001 (59.18%) and 2014 (55.56%). The percentage was under 70% only one additional year – 2005 (67.75%). Published opinions were between seventy and eighty percent of the docket six years of the period – 2000 (73.68%), 2002-2004 (72%, 75%, 75.93%), 2007 (70.73%) and 2015 (79.55%), in the eighties four years – 2006 (87.76%), 2009-2010 (80.49%, 87.88%) and 2012 (85%), and above ninety percent only three times – 2008 (95.24%), 2011 (94.74%) and 2013 (91.18%).
On the other hand, publication appears to be comparatively unimportant on the criminal side. Although the numbers are depressed in the early years by the volume of death penalty litigation (death penalty appeals were taken directly to the Supreme Court – since they were tried by a single trial judge, there was by definition no dissent below), the Court’s published fraction of criminal cases has exceeded 70% in only one year – 2004 (70.18%). Between sixty and seventy percent of the criminal, quasi-criminal and disciplinary docket arose from published decisions below in six years – 2005-2006 (63.79%, 64.71%), 2010 (60%) and 2013-2015 (60.53%, 67.65%, 61.29%). The number was between fifty and sixty percent three times, between 2007 and 2009 (53.57%, 50.98%, 55.77%). Between forty and fifty percent of the criminal docket arose from published opinions in 2002 (44.29%), 2011 (47.92%) and 2012 (44.19%). In 2001 and 2003, between thirty and forty percent of the criminal docket involved published opinions (32.76%, 35.38%). The published percentage reached its sixteen-year low in 2000, when only 22.09% of the criminal docket involved published opinions.
Next week, we’ll divide the data by unanimous and non-unanimous Supreme Court decisions and look at publication again. How often do unpublished Appellate Court decisions result in dissents before the Supreme Court?