CBA Record September-October 2021

for a supervisory order was gone. Yet the Court still declined to resolve the disputed question of authority for the deposition, reasoning that it was “not the type of situ- ation where the exercise of our supervisory authority would be appropriate.” That question generated a dissent arguing for a supervisory order on the ground that authority for the deposition plainly did not exist (Thomas, J., dissenting). More recently, when the Circuit Court of Sangamon County refused to accept jurisdiction of a matter transferred to that court for consolidation with other litigation related to Covid-19, the Illinois Supreme Court granted a supervisory order that, in effect, rebuffed the Circuit Court’s refusal to accept transfer. Governor J.B. Pritzker v. Hon. John M. Madonia , No. 126921 (Ill. Feb. 22, 2021). The matter involved a challenge to the Illinois governor’s Covid-19 mitigations imposed on high school student athletic activities. Although we do not know the Court’s rea- soning (as usual in supervisory order cases) because the order was not a written opin- ion, we can theorize that the Court may have accepted the governor’s argument that the Circuit Court simply had no authority under Illinois Supreme Court 187(c)(1) to refuse jurisdiction and was required to docket the case. Again, a judicial act that can be characterized as outside the court’s authority, and not just as an abuse of dis- cretion, appears to make a more persuasive case for a supervisory order. Substantive Issues What if a case isn’t about exceeding author- ity, but rather about the judge simply getting it wrong? According to recent experience, the road to a supervisory order is tougher, but not necessarily blocked, if the issue is substantive. As the pandemic raged during 2020,

the governor of Illinois asked the Illinois Supreme Court for a supervisory order declaring that he acted within his authority under state emergency statutes and the Illi- nois Constitution in issuing disaster proc- lamations and executive orders in response to the pandemic. Governor Jay Robert Pritzker v. Hon. Michael D. McHaney , No. 126261 (Aug. 11, 2020). The Clay County Circuit Court had entered partial summary judgment in favor of plaintiff Illinois Sen. Darren Bailey (R-Xenia), who had challenged the governor’s authority, and the lower court ordered the governor to appear for a rule to show cause hearing on why he ought not be held in contempt of the partial summary judgment order. The governor obtained from the Supreme Court a stay of the order for him to appear, but the Court denied the motion for a supervisory order. Not having a published opinion, we might surmise that McHaney shows how even in matters of the utmost public import, the Court still will be reluctant to grant a supervisory order, at least on that basis. The Illinois Attorney General’s brief in the case argued that the Clay County Circuit Court was “wrong as a matter of law,” that the governor’s disaster proclama- tions and executive orders targeted by the Bailey lawsuit were designed to stop the spread of Covid-19 in Illinois, and that the Circuit Court’s order created “public confusion over the validity of the Gover- nor’s actions during a pandemic.” None of that was enough to persuade the Court to deploy its broad supervisory power. The Court may or may not have disagreed with the Clay County Circuit Court, but we can speculate that even if the Court disagreed, it was not prepared to decide such an important public issue by making a sweep- ing reversal in a one-sentence order saying that the governor’s motion was “allowed.”

On the other hand, in another case of great public import, the Supreme Court allowed a supervisory order motion directed at the Cook County Circuit Court’s having barred the public from access to the court file in the high-profile murder prosecution of former Chicago police officer Jason Van Dyke in the death of Laquan McDonald, a teenager who was shot 16 times. Chicago Public Media, Inc., et al. v. Hon. Vincent M. Gaughan , No. 123569 (Ill. May 23, 2018). The interven- ing news organizations relied heavily on substantive First Amendment law provid- ing that courts may not seal public filings without making a set of on-the-record findings. In Chicago Public Media , again resulting only in a one-sentence order stat- ing the motion was allowed, we see perhaps that in some cases, the winning argument might claim that the lower court’s result is so substantively wrong that immediate correction is appropriate. Occasionally, justices of the Court have stated publicly that substance and public import should matter in deciding whether to issue supervisory orders. In Van Dyke’s underlying criminal prosecution, prosecu- tors contended that the sentencing court had exceeded its authority by resting its 81-month, second-degree murder sen- tence on a dissenting opinion in People v. Lee , 213 Ill. 2d 218 (2004). People ex rel. Kwame Raoul v. Hon. Vincent M. Gaughan , No. 124535 (Ill. Mar. 19, 2019). The Court denied the prosecutors’ motion for a supervisory order, but in unpublished dis- sents (available earlier on the internet but now unavailable), two justices indicated that a supervisory order was appropriate to address a substantive error by the sen- tencing court in so publicly significant a criminal case. Justice Thomas L. Kilbride’s dissent referred to the trial court’s “clearly improper” reliance on the Lee dissent.

For more helpful insights on supervisory orders, see: • MatthewR. Carter,“The supervisory authority of the Supreme Court of Illinois: Apowerful tool for the court and practitioner alike,” Illinois State Bar Association’s Trial Briefs Newsletter , Vol. 57, No. 9 (April 2012); • Michael A. Scodro, “Seeking Supervision: How the high court’s supervisory power can provide relief,” Chicago Lawyer (July 10, 2017); and • J. Timothy Eaton and Jonathan B. Amarilio, “A Fresh Look at Supervisory Orders,” Illinois Bar Journal 42 (July 2018).

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