CBA Record September-October 2021

Justice P. Scott Neville, Jr. wrote that “this dispute clearly involves a matter of the utmost importance to the administration of justice. Allowing a sentence to stand, where it has been challenged as contrary to supreme court precedent and contrary to statutory sentencing guidelines, ‘would lead to public contempt for, and ridicule of, our court system, as well as nullify our mandate under the constitution to super- vise our court system’” (citing McDunn v. Williams , 156 Ill. 2d 288, 302-03 (1993)). Inadequate Appellate Relief If a supervisory order is to be granted, it appears likely that the Court must be persuaded that “normal” paths to appellate relief are not available or not adequate. In Bakalis and other cases, the Court has stated that it ordinarily will not grant a supervisory order unless “the normal appel- late process will not afford adequate relief.” 196 Ill. 2d at 513; Burnette v. Terrell , 232 Ill. 2d 522, 545 (2009). This requirement, which appears nowhere in Rule 383 but in the handful of published supervisory order decisions, rests on the common- sense idea that some litigant wronged by a lower court’s error ordinarily may pursue “normal” appellate relief to get the lower court reversed, and where this “normal” avenue to relief is available, a supervisory order should not short-circuit it.

The first step toward persuading the Supreme Court of the inadequacy of appel- late relief is making, in the lower court, a clear and precise record of the immediacy of the client’s need for relief. In Chicago Public Media , for example, the news orga- nizations claimed a need to review court filings contemporaneously so that report- ers could provide timely news coverage. Reporters could not wait until months after the trial to access the written versions of motions whose pre-trial adjudication the reporters sought to cover coherently as the motions were heard in court. We can only speculate that in allowing the supervisory order, the Court understood that later appellate relief would have amounted, in effect, to a denial of relief. Where the supervisory order petitioner was a minor-respondent in a juvenile delinquency petition and was contesting an order that he be tried in adult criminal court, “normal” appellate relief might have offered him no more than a second trial in juvenile court after a conviction in adult court in the face of statutory amendments that he claimed kept his prosecution in Juvenile Court. In Jeremiah Davis v. Hon. Kevin M. Sheehan, et al. , No. 120736 (Ill. Jan. 10, 2017), the Supreme Court’s January 2017 supervisory order in that case directed the Circuit Court to vacate its order denying transfer to the Juvenile

Court. Our supposition might be that “normal” appellate relief was not deemed adequate because it meant that before the appeal could be heard, the minor would be subjected to the adult criminal process he sought to avoid. On the other hand, in a case in which the movant claimed that the “normal” appellate pathway could not afford him relief from a sentencing error because he would be entitled to immediate release from custody if the lower court had been found to have erred, the Supreme Court denied the motion for a supervisory order. James Swansey v. Hon. Kevin M. Sheehan , No. 124137 (Ill. Nov. 30, 2018). Even if the Court was persuaded that the sentenc- ing court erred by sentencing the movant to a de facto life sentence on resentencing under Miller v. Alabama , 567 U.S. 460 (2012), for a double murder he committed as a juvenile, the Court may well have been uncomfortable with ordering a criminal defendant’s immediate release from cus- tody in a supervisory order posture without the benefit of a full appellate record. Other Concerns The thin nature of the record in a super- visory order posture has generated con- cerns in the past at the Court. In Weems v. Appellate Court, Fifth District , 992 N.E.2d 1228 (Ill. 2012), the Court issued

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