CBA Record September-October 2021

How to Get a Supervisory Order from the Illinois Supreme Court Magistrate Judge Gabriel A. Fuentes

I magine that you are litigating a civil or criminal matter in an Illinois court, and the court has denied your client some relief that you believe should have been granted. You could file an appeal, but appellate relief will come not nearly in time to prevent disaster. Is it possible to request a supervisory order from the Illinois Supreme Court? Such orders are almost never granted. But as recent high-profile cases have shown, getting a supervisory order from the state’s highest court is not easy, but not impos- sible. Knowing the scope of the Illinois Supreme Court’s supervisory authority and the ingredients for a strategy to persuade the Court to issue a supervisory order is critical to success. The Supreme Court’s authority to issue supervisory orders derives from its “[g]eneral administrative and supervisory authority over all courts” under the Illinois Constitution. Ill. Const. 1970, art. IV, Sec. 16; Ill. Sup. Ct R. 383. The Court itself described this authority as very broad. See In re Estate of Floyd W. Funk , 221 Ill. 2d 30, 57 (2006). But such breadth brings great reluctance to exercise the supervisory power in a summary manner. Unlike a written opinion, which would “provide[] assurance to the public that the legal basis [for a supervisory order] exists and that the

vacatur or reversal is not simply the result of whim or caprice,” People v. Griffin , 140 N.E.2d 762, 764 (Ill. 2019) (Burke, C.J., dissenting), supervisory orders state only that the motion for the order is allowed, denied, or dismissed. (A “dismissal” could occur at least if four of the seven justices, some of whommight have recused, did not vote to grant or deny the motion.) Although a motion for such an order is a big ask, the Court’s past action offers a few clues about how to obtain them, even as the orders themselves have no preceden- tial value under Illinois law. See People v. Blancas , 2019 IL App (1st) 1171127 ¶ 12. First, we may theorize that your odds are better if you can establish that the lower court acted outside of its authority, and not just that it abused its discretion. See People ex rel. Daley v. Suria , 112 Ill. 2d 26, 28 (1986). Suria was an example of how the Court looked for more than just a pure abuse of discretion. In Suria , prosecutors won a supervisory order vacating a pro- cedure in which the trial judge accepted guilty pleas from a group of defendants but then found them guilty of lesser-included offenses. The state persuaded the Supreme Court that the trial judge had no authority Exceeding Authority vs. Abuse of Discretion

to enter judgment on the lesser-included offenses because the defendants had not pleaded guilty to those offenses. Similarly, in People ex rel. Birkett v. Bakalis , 196 Ill. 2d 510 (2001), the Court denied a supervisory order that would have effectively reversed a trial court order permitting criminal defense attorneys to depose the husband of defendant Marilyn Lemak, a Naperville, Illinois, woman accused of murdering her three children. Outlining the doctrine, the Bakalis opinion noted that supervisory orders are granted “only in limited circumstances,” and that grants predominantly occur in cases on the Court’s leave-to-appeal docket when the Illinois Supreme Court or the U.S. Supreme Court has rendered a decision that is dispositive of a pending petition for leave to appeal. Supervisory orders other than those on the leave-to-appeal docket are “disfavored,” the Court said, noting that “As a general rule, we will not issue a supervisory order unless … the dispute involves a matter important to the administration of justice . . . or inter- vention is necessary to keep an inferior tribunal from acting beyond the scope of its authority.” citing Suria. In Bakalis , unlike Suria , the Court decided that the disputed action – allowing the deposition – was not clearly unauthorized, so the surest ground

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