CBA Record September-October 2021

a supervisory order directing the appellate court to remand a matter to the trial court with instructions to vacate a preliminary injunction prohibiting prison officials from closing prison facilities during ongoing negotiations with a labor union; appar- ently, the supervisory order averted a separation of powers problem in which the injunction would have compelled legisla- tors to spend unbudgeted funds. In dissent, Justice Kilbride specifically mentioned his reluctance to grant sweeping relief (dissolu- tion of an injunction through a supervisory order) “without the benefit of arguments by the parties or a record developed to resolve the issues” (emphasis in original). A word about getting a fast supervi- sory order ruling: Review Rule 383’s time frames for responses carefully. The judge will have seven days to respond if you can serve the judge by email (although many judges do not maintain public-facing email addresses) or personally (this carries various practical and political challenges). Service by regular mail is a less complicated option, but then the judge will have 14 days to respond. The Illinois Attorney General’s Office may likely represent the judge, see 15 ILCS 205/4, and more delays can be avoided by initially serving that office with your motion, as the Clerk’s Office has advised practitioners. The Attorney Gen-

eral in the past has not accepted service, at least not immediately, on behalf of the respondent judge. Aside from the need for immedi- ate relief, you might also argue that the requested relief is so narrow that meticu- lous appellate briefing is not necessary. If the Supreme Court believes it must deploy its supervisory authority sparingly, make the proposed supervisory order narrow and precise. Hydra-headed motions tend to generate more countervailing legal argu- ments, and the Court is less likely to grant those motions without the full appellate record and briefing that a normal appeal would allow. The single ground for super- visory relief will be one with the best fit into the rubric discernible from Rule 383 and the sparse case law around it: a clear departure from the lower court’s author- ity, and a clear inadequacy of the appellate process to afford meaningful relief. After all, a good supervisory order motion is not an appellate brief. With- out throat-clearing, the motion and its “explanatory suggestions” must make clear immediately the what, where, when and how of the lower court’s error, and how ordinary appeal will not right the wrong. The claim for supervisory relief should “grab” the justices. Chicago Public Media might have been such a case: All the press

wanted was access to the public court file in one of the most watched murder cases in Illinois history. If the lower court’s action is not striking, or if its extraordinary nature is somehow difficult to explain, that action is likely a poor candidate for a supervisory order. It should not take pages and pages of blather to get to the point, which ought to be immediately obvious to the justices. And do not expect an oral argument or a reply opportunity, as they are not typically granted on these motions. Nonetheless, even though the odds are difficult, a tightly focused supervisory order motion can get relief that your client could not obtain in the Circuit Court and could not have waited for in the Appellate Court. But to obtain supervisory relief, you must persuade at least four Supreme Court justices that the error – in authority or in substance – creates a true emergency that can only be addressed by immediate relief. And if you do obtain a supervisory order, savor the win, because it will be an extraordinary event. Judge Gabriel A. Fuentes is a United States magistrate for the Northern District of Illinois. Before his appointment in 2019, Judge Fuentes litigated supervisory order motions in private practice.

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