3392024746_4c4f08c87f_bYesterday, we looked at the prevalence of Rule 23 orders (unpublished decisions) as a fraction of the Appellate Court’s workload. Now we turn to the data – how much of the Illinois Supreme Court’s civil caseload consists of Rule 23 orders?

Given that a Rule 23 order should in theory break no new legal ground and is not citable in the trial courts as precedent, one would expect Rule 23 orders to be quite rare on the Supreme Court’s civil docket. But for most of our fifteen-year study period, they were not. Although published opinions make up three quarters to four-fifths of the Court’s civil docket in most years, Rule 23 orders are by no means a disqualifier for Supreme Court review:

Table_12

 

Next time, we turn to our central questions: the Illinois Supreme Court’s decision-making process.

Image courtesy of Flickr by Johann Dreo (no changes).

13334080323_641e55ab35_zLast week, we looked at the question of how often the Illinois Supreme Court considers unanimous civil decisions from the Appellate Court. Now we turn to a related question: how often does the Court review unpublished decisions?According to Illinois Supreme Court Rule 23, the Appellate Courts are to issue formal opinions under only two circumstances: (1) when the proposed decision “establishes a new rule of law or modifies, explains or criticizes an existing rule of law,” or (2) when “the decision resolves, creates, or avoids an apparently conflict of authority within the Appellate Court.” All other cases fall under Rule 23(b) and are decided by non-precedential orders. Because the Appellate Court has a mandatory civil docket – meaning that the Court must hear nearly all of the appeals brought before it – a large majority of its cases are decided by Rule 23 orders:

Table_11

Tomorrow, we turn to the data: how often does the Illinois Supreme Court grant leave to appeal from Rule 23 orders?

Image courtesy of Flickr by Yuri Samoilov (no changes).

1388658196_42cbd8134e_zThis week, we’re attempting to answer the question: does a dissent at the Appellate Court help in getting Supreme Court review? And if so – how much?

Yesterday, we considered the prevalence of dissent in Appellate Court opinions. Now we turn to the data.

As it turns out, this is one bit of conventional wisdom that appears to be true. In most years, less than one in five published opinions in the Appellate Court draw a dissent (and in many years, far less than that), but cases with one dissenter at the Appellate Court typically make up anywhere from twenty-five to forty percent of the Supreme Court’s civil docket:

Table_9

So a dissent helps – but note the obvious corollary of this data. In any given year, anywhere from sixty to seventy-five percent of the Court’s civil docket consists of cases decided unanimously by the Appellate Court.

Not surprisingly, in most years a dissenting opinion before the Appellate Court is a reasonably good predictor of whether or not one or more members of the Supreme Court will dissent from the Court’s eventual decision. The data below are cases with at least one Appellate Court dissent as a fraction of the Supreme Court’s unanimous and non-unanimous civil decisions:

Table_10

Next time, we’ll turn to a related question – how often does the Supreme Court agree to review unpublished Rule 23 orders?

Image courtesy of Flickr by Katherine Johnson (no changes).

 

5247097960_3c2361c8ed_zIn our last several posts, we’ve been following the Supreme Court’s evolving interests over the past fifteen years, charting the areas of law considered by the Court in its civil docket.

Now we turn to a somewhat different question. It has long been part of the conventional wisdom in the appellate bar that a dissent at the Appellate Court helps considerably in getting the Court’s attention for a petition for leave to appeal.

But is it true?

We approach the question in two steps. Because a large portion of the Illinois Appellate Court’s mandatory docket is highly determinate as a legal matter, with the result a largely foregone conclusion based upon established precedent, the Appellate Court issues published opinions in only a small fraction of its cases. Nevertheless, although published opinions arise from the more legally debatable questions, dissent is relatively uncommon in most Districts:

Table_8_A

Not surprisingly, with the exception of the Third District, dissent in cases decided by non-precedential Rule 23 orders is exceeding rare:

Table_8_B

Tomorrow morning, we’ll turn to the data itself and answer the question – how important are dissents at the Appellate Court in getting a PLA granted?

Image courtesy of Flickr by Jon Collier (no changes).

——————————————————-

[1]           Data reported is dissenting opinions as a fraction of total written opinions. Data is from the Statistical Report of the Illinois Courts, 2001-2012.

5989414114_995a0a4dc6_zI thought we’d interrupt our ongoing discussion of the Illinois Supreme Court’s modern history across the whole of its docket to focus on a major event at the Court coming up this week: Wednesday afternoon’s oral argument in In re Pension Reform Litigation.

First, a bit of background for anyone who hasn’t been following the story. For decades, the State of Illinois has failed to adequately fund its five public pension systems – even as the state employees continued to make their required contributions, year in and year out, through payroll deductions. The result has been a massive debt of unfunded obligations – made worse during the 2008-09 recession, although the parties dispute exactly how much of the problem is traceable to the recession, and how much to the State legislature’s failure to fund adequately.

On December 3, 2013, the State adopted a comprehensive reform package estimated to save the State around $160 billion over 30 years. The Act has at least five different features which everyone agreed amounted to a reduction in pension benefits. And that’s a problem, because Illinois has a Pension Protection Clause written into the state constitution: “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

In the days and weeks following the enactment of the reform package, five lawsuits were filed challenging the Act. All five were consolidated in Sangamon County Circuit Court, and the Circuit Court ultimately struck down the statute in its entirety as a violation of the Pension Protection Clause.

So what can the data tell us about what we can expect at the oral argument on Wednesday?

Because the Circuit Court struck down a state statute, In re Pension Reform comes to the Supreme Court as a direct appeal. The Court has been quite skeptical of direct appeals since 2000. Although year-by-year data isn’t especially informative, since there are seldom more than three to six directs on the civil docket per year, the three-year floating average reversal rate on such cases by 2002 (in other words, data from 2000, 2001 and 2002) was 70% – much higher than the Court’s reversal rate on cases from the Appellate Court. After a one-year dip, that number went even higher later in the decade. By 2008, the Court’s three-year floating average reversal rate was 87.5%. Directs have become somewhat less common on the Court’s civil docket in recent years, but between 2010 and the end of 2014, the Court reversed in whole or in part in three of the four civil direct appeals it heard.

The Court has tended to be relatively skeptical of civil-law constitutional claims as well. Many of such claims come to the Court as direct appeals, so there is a certain amount of overlap between the data we’re now turning to and the data above, but the overlap isn’t perfect; the Court hears constitutional issues which arise from the Appellate Court as well. For most of the past fifteen years, constitutional cases have comprised between 7.5 and 10 percent of the Court’s civil docket.

The Court has taken cases roughly equally from both sides. Between 2000 and 2004, 45% of the constitutional law cases on the Court’s civil docket were defense wins at the Appellate Court, 55% were plaintiff’s wins. The reversal rate on defense wins was 44.4%, while 54.5% of plaintiff’s wins were reversed.

Between 2005 and 2009, 47.82% of the Court’s constitutional cases were defense wins, 52.18% plaintiff’s wins. 54.5% of defense wins were reversed at the Supreme Court, while 75% of plaintiff’s wins during those five years were.

For the final five years of our study period between 2010 and 2014, the constitutional docket was split half and half between defense and plaintiff’s wins. During this most recent period, only 14.3% of defense wins have been reversed, while 71.4% of plaintiff’s wins were reversed.

So what can we learn from the Court’s recent history with cases in this area of the law? The Court has decided eighteen cases in the last fifteen years relating to public employee pensions and benefits, beginning with Devoney v. The Retirement Board of the Policemen’s Annuity & Benefit Fund for the City of Chicago in April 2002. Half of those eighteen cases were won by the employer or pension/benefit board before the Appellate Court; half were won by the employee. The Court has reversed the employee wins in 55.6% of cases, but has reversed employer/pension board wins 66.7% of the time. Since this line of authorities began in 2002, a number of Justices voting on earlier cases have left the Court. But among the current seven members, only Justice Theis (71.4%) and Justice Kilbride (73.3%) have voted for the employee side more than fifty percent of the time. On the other hand, Justice Burke (63.6%) and Chief Justice Garman (52.9%) have voted for the employer/pension board side more than half the time. One might argue, then, that the ultimate result in In re Pension Reform will depend upon the three Justices – Justices Freeman, Thomas and Karmeier – who have split their votes evenly in previous cases between employees and employer/boards. Given that the Chief Justice is only slightly over a fifty-fifty split, this conclusion is consistent with our analysis of the Court’s civil caseload in general – the three Republican Justices often hold the balance of power.

A final comment leading up to Wednesday’s oral argument: watch carefully the number and content of the Justices’ questions. Although the Court hasn’t committed itself, the State has urged the Court to hand down a decision on or before May 31 – only eighty-one days after oral argument. Although the Court’s mean days under submission between oral argument and decision has dropped to between 100 and 110 in recent years in cases decided unanimously, cases decided with dissents have averaged 180 to 200 days under submission. Given the schedule, the Justices will likely take the bench on Wednesday afternoon with definite inclinations towards one side or the other. Although the Illinois Supreme Court tends to be what appellate lawyers call a “hot bench,” actively questioning both sides – and Wednesday afternoon’s argument is likely to be even more active than usual – a barrage of questions is typically not a good sign from the Court. Since 2008, losing appellants have received an average of 20.68 questions in civil cases to 15.58 for winning appellants. Losing appellees have averaged 15.96 questions during argument to 9.85 for winning appellees. In 2014, Chief Justice Garman and Justices Burke, Freeman and Theis each asked more questions of the appellants when they ultimately voted to affirm. Justices Burke, Thomas and Theis all averaged more questions to appellees whom they ultimately voted against.

If you’d like to catch up on the history of the In re Pension Reform litigation leading up to Wednesday’s argument, here’s a guide to our posts over at The Appellate Strategist:

The Pension Case: The State’s Reply Brief

The Illinois Pension Plaintiffs’ Brief: The Cause of State Underfunding, and The Constitutional Convention Revisited

Pensions at the Constitutional Convention, Part III: The Opponents and the Vote

Pensions at the Constitutional Convention, Part II: The Clause is Introduced

Pensions at the Constitutional Convention, Part I: The New Jersey Spina Decision

State’s Defense of Pension Reform: Constitutional Convention Couldn’t Make Pension Protection Absolute (Even If It Wanted To)

Illinois Supreme Court Denies All Ten Amici Requests in Support of State in Pension Appeal

Illinois Supreme Court Adopts Accelerated Schedule for Pension Law Appeal

What the Pension Reform Decision in Arizona May Mean for Illinois

Image courtesy of Flickr by Jim Bowen (no changes).

225249268_a1bfcd0d68_zIn our last post, we continued our examination of the legal issues appearing on the Illinois Supreme Court’s civil docket, examining the period 2005-2009.

Turning to the final five years of our study period, we see tort cases slightly down in absolute terms. Government/administrative and constitutional law cases are down on the Court’s civil docket, as are insurance and employment matters:

Table_7_C_1

For the entire period, the leading areas of law on the Court’s civil docket are:

Table_7_D_1

Broadly speaking, these findings are in line with the academic research studying court dockets around the country over the past fifty years. Tort, civil procedure, domestic relations and government cases have become a mainstay of most state Supreme Courts’ dockets. The continuing prominence of constitutional and insurance law on the Court’s docket is perhaps mildly surprising. As predicted by the academic literature, property law cases are a minor player in the Court’s civil caseload.

Next time, we’ll turn our analysis of the Court’s civil docket to another question: does getting a dissent at the Appellate Court help get the Supreme Court’s attention – or to put it another way, is seeking leave to appeal a unanimous decision of the Appellate Court a hopeless task?

Image courtesy of Flickr by Pawel Loj (no changes).

756386726_e8627c028a_zIn our last post, we began our consideration of the areas of law covered by the Illinois Supreme Court’s civil docket between 2000 and 2004. We found that torts, civil procedure and government/administrative cases led the Court’s docket, although the Court also showed a significant interest in constitutional and workers’ compensation law. We now turn to the second five years of our study period.

Between 2005 and 2009, we see a sudden spike in constitutional and employment cases on the Court’s civil docket. Civil procedure issues and cases involving governmental actors were down:

Table_7_B

In our next post, we’ll address the most recent five years of the Court’s civil docket.

Image courtesy of Flickr by William (no changes).

754400691_45a3b203ed_z

In our last three posts, we’ve been addressing where in the state the Illinois Supreme Court’s civil docket comes from. Now, we turn to another issue we addressed briefly several posts earlier – what areas of the law does the Court’s case load come from.

One of the advantages of studying so extensive a period is the opportunity to see the Court develop most areas of the law. Indeed, one would expect during a span of fifteen years that the Court would visit most important questions in the civil law at least once. For the reasons discussed above, we expect tort law, government and regulatory law and perhaps domestic relations to dominate the Court’s docket. We turn then to the question of how the Court’s civil docket has evolved between 2000 and 2014.

During the first five years of our study period, torts, civil procedure, and cases involving the regulatory state and suits against the government dominated the Court’s civil docket. Surprisingly, the Court showed a significant interest in constitutional and workers compensation cases during these five years. As one might expect from the academic literature referenced above, the Court heard a number of domestic relations cases. Property law continued to fade as a prominent part of the docket.

Table_7_A_Part_1Table_7_A_Part_2Table_7_A_Part_3

In our next post, we’ll address the areas of law found in the Court’s civil docket between 2005 and 2009.

Image courtesy of Flickr by William (no changes).

11585837205_87d514e4b7_zIn the last two posts, we’ve been investigating where in the state the Illinois Supreme Court tends to draw its civil docket from. Now, we turn to the last five years of our study period.

Table_6_C_Part_1Table_6_C_Part_2

During the most recent years – comprising the entirety of the Kilbride Court and the beginning of the Garman Court – we see Cook County’s share of the docket remaining relatively steady, with a one-year jump in 2010, and the increase in government cases from the state capital in Sangamon County continuing. Both St. Clair and Madison Counties saw one-year spikes out of proportion to their population in cases, but neither saw any cases at all reach the Court during this period in the other four years.

Aggregated for the entire period, only three counties in the state accounted for more than 5% of the Court’s civil docket:

Table_6_D

For the entire 15-year study period, many counties’ shares of the docket mirror reasonably well their share of Illinois’ population. Not surprisingly, Sangamon County is comparatively overrepresented on the docket because of government cases. St. Clair and Madison Counties – both widely considered to be highly favorable to plaintiffs and both with heavy asbestos dockets – are somewhat overrepresented in cases granted review by the Court. We will further address the implications of this finding later, when we determine the district-by-district reversal rates of the Appellate Court. On the other hand, among the top counties in population, Kane (1.3%), Winnebago (0.7%) and McHenry counties (1.1) are somewhat underrepresented.

In our next post, we’ll begin our investigation of what areas of the civil law the Court has addressed during the last fifteen years.

Image courtesy of Flickr by Michael Hart (no changes).

—————————————————-

[1]           Jurisdictions accounting for one civil case each in 2010 were St. Clair, Will, Tazewell, Champaign, Jefferson, LaSalle and Marion Counties.

[2]           Jurisdictions accounting for one civil case each in 2011 were Winnebago, Kane, Williamson, Peoria, Marion and Jersey Counties, and the Illinois Pollution Control Board and Educational Labor Relations Board.

[3]           Jurisdictions accounting for one civil case each in 2012 were Sangamon, Lake, Madison, Kane, Kendall, Lee, Clinton and Massac Counties.

[4]           Jurisdictions accounting for one civil case each in 2013 were Lake, Will, McHenry, Kane, Putnam, Vermilion, Piatt, Effingham, Stephenson, Woodford and Macoupin Counties, and the Illinois Pollution Control Board and Educational Labor Relations Board.

[5]           Jurisdictions accounting for one civil case each in 2014 were Washington, Marion, Peoria, Kendall, Kane and Franklin Counties, and the Illinois Commerce Commission.

13633022513_eb04353de8_zIn our last post, we began our discussion of where in the state the Illinois Supreme Court’s civil docket has come from over the past fifteen years, beginning with population figures for 2000 and 2010, and including also the data from 2000-2004.

For the second five years of the study period, the Court’s civil caseload was:

Table_6_B

Towards the end of this second five-year period, Cook County cases became a slightly less prominent part of the Court’s civil docket, while cases from Will and Du Page Counties were on a small upswing.  Government cases from Sangamon County also became slightly more common.

In our next post, we’ll consider the geographic sources of the Court’s docket for the final five years of our study period, 2010-2014.

Image courtesy of Flickr by David Wilson (no changes).

[1]           Jurisdictions accounting for one civil case each in 2005 were St. Clair, Monroe, Williamson, Peoria, Kane, Rock Island, Vermilion, Ogle and Henry Counties, as well as the Illinois State Labor Relations Board.

[2]           Jurisdictions accounting for one civil case each in 2006 were Du Page, Winnebago, Kendall, Madison, McLean, Jefferson, Peoria, Kane, Coles, Perry, Jackson, Menard and Scott Counties.

[3]           Jurisdictions accounting for one civil case each in 2007 were Du Page, Winnebago, Madison, Tazewell, Peoria, Knox, Rock Island, Lee, Piatt, Pike and Montgomery Counties, as well as the Illinois State Labor Relations Board, the Property Tax Appeal Board and the Pollution Control Board.

[4]           Jurisdictions accounting for one civil case each in 2008 were St. Clair, Adams, Madison, Macon, Champaign, McLean, Peoria and Kane Counties, as well as the Illinois Commerce Commission and the State Labor Relations Board.

[5]           Jurisdictions accounting for one civil case each in 2009 were Sangamon, Winnebago, Williamson, Edgar, Vermilion, Marion, Grundy, Clinton, Fayette and Cumberland Counties, and the Illinois Human Resources Board and State Elections Board.