Illinois Appellate Court Justice Michael Hyman lashed out in an opinion this week at a state court rule that permits a majority of the three-judge appellate court panels to stifle dissent by keeping cases from official publication anytime a majority chooses.
Hyman’s complaint came as he agreed in part and dissented in part on what was an otherwise ordinary dispute by an ice removal company that contended it had not been paid for work it performed for a group of properties.
In an opinion dated Tuesday, the two-judge majority, Justices Mary Anne Mason and Daniel J. Pierce, together voted against publishing the case in official court decisions; unpublished opinions may not generally be cited by lawyers in future cases, and therefore have little significance to anyone except the parties to the case.
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Court rules that decide not every case should be published are designed to permit judges and lawyers to focus on cases with value as precedents. The rule is intended to minimize the impact of cases that in theory have no novel issues and merely raise issues that are well established in the law; it also spares appellate judges the burden of writing full opinions in every case.
Hyman, in his separate dissent, called on the State Supreme Court to revise its rule that permits a majority of the court to decide whether or not a case is suitable for publication. “I believe we do this institution and the public a disservice when we downplay our disagreements,” Hyman wrote. “Time and again, disagreement among justices brings issues out in the open to be dissected and studied and debated.”
The justice wrote in strikingly personal terms that he had asked his colleagues to publish the case, “and they refused. I have never refused a request by a fellow justice to publish. If one of my colleagues thinks a decision should be published, I respect that.”
A court’s decision not to publish a case, Hyman wrote, “dispatched an unmistakable yet unfounded signal in regard to a dissent or special concurrence: ‘Nothing new or important here.’ I believe we do this institution and the public a disservice when we downplay our disagreements.”
His opinion calls on the Supreme Court to adopt a rule requiring publication of any case if one judge favors publication.
The Illinois rule — leaving it to the majority to decide if a case should be published — is common in most states, said attorney Kirk Jenkins of Sedgwick, who has made a study of appellate courts. Hyman, in his opinion, noted that several state court systems, including California, Missouri and Texas, as well as several federal court jurisdictions have moved to a system of approving publication if any judge thinks it worthy.
Jenkins said in an interview Wednesday that the Illinois Supreme Court has often agreed to hear appeals in cases even if the appellate court majority had deemed the issues unpublishable and, implicitly, unremarkable. That, he said, suggested that unpublished opinions are not completely invisible.
Hyman, in his dissenting opinion, said that the Supreme Court’s willingness to consider cases that had been unpublished showed the appellate judges’ decisions not to publish are unreliable: “One would think that if a case is important enough to be taken by the supreme court, something about it was compelling enough to have been made an opinion.
At issue in the case decided Tuesday was whether the ice removal company, Snow & Ice Inc., could sue the owners of the buildings even if the contract was with the management company, not the owners. All three judges agreed that since the owners of the properties were not parties to the lawsuit, they could not be sued.
Hyman’s dissent was on whether the ice removal company could sue based on the legal doctrine of being owed a reasonable sum for work that was performed and for which the owners benefited, even if they were not the parties to the contract.