Seeking supervision

How the high court’s supervisory power can provide relief

De Novo Review

Michael A. Scodro

Michael A. Scodro is a partner in the Supreme Court and appellate practice at Mayer Brown. Previously, he served for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and is the immediate past president of the Appellate Lawyers Association.

Many lawyers are familiar with the process for seeking discretionary review in the Illinois Supreme Court with a petition for leave to appeal, or PLA. Perhaps less familiar, however, is the Supreme Court’s authority to offer some relief from an adverse lower court judgment — without a full round of additional briefing — pursuant to the court’s supervisory power. This authority is broad-ranging and versatile, and attorneys are well-advised to consider it in weighing their options following a loss in the appellate court.

The Illinois Constitution vests the Supreme Court with “[g]eneral administrative and supervisory authority over all courts.” Ill. Const. 1970, Art. VI, Section16. And Rule 383 gives effect to that power with specific procedures for requesting supervisory relief.

Most commonly — although by no means exclusively — the Supreme Court exercises its supervisory authority in connection with the denial of a PLA. The court has explained that, while “[s]upervisory orders are … granted only in limited circumstances,” “[t]heir predominate use is to address issues which are brought to our attention in the context of petitions for leave to appeal, but which do not warrant full briefing, oral argument and issuance of an opinion.” People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 512 (2001).

In 2015, the most recent year with available data, the Supreme Court denied the PLA while simultaneously granting some form of supervisory relief in 34 cases, a significant number when one considers that the court accepted only 56 PLAs that same year. Administrative Office of the Illinois Courts, 2015 Annual Report of the Illinois Courts: Statistical Summary 164.

The court may exercise its supervisory power in any of several ways, and counsel should consider including an alternative request for supervisory relief in a PLA where appropriate. (On a practical note, “counsel should be aware that this request for supervisory relief should not be so designated on the cover of the petition for leave to appeal lest the court construe it as an improper request under Rule 383. Rather, counsel should include such relief as an alternative relief in the petition’s prayer.” Brad A. Elward, “Original Actions in the Illinois Supreme Court,” in IICLE, Illinois Civil Appeals: State & Federal Section 29.8 (2015 ed.)).

The court explains that it is most likely to exercise its supervisory authority “when a new opinion is released by this court or by the Supreme Court of the United States which appears to be dispositive of other cases pending before us on petitions for leave to appeal.” Birkett, 196 Ill. 2d at 512. In these instances, the court’s “normal practice is to exercise [its] supervisory authority to vacate the lower court’s judgment and remand for reconsideration in light of the new decision.” Id. at 512-13. This creates an opportunity for the alert litigant to use its PLA to seek the benefit of new, controlling authority issued shortly after a loss in the appellate court.

But the court may exercise its supervisory authority in other ways as well. Surveying supervisory orders issued in connection with the denial of a PLA over the past 12 months alone, one sees a range of additional uses — nearly all of them aimed at overcoming a threshold obstacle to merits review and requiring the appellate court to address the merits in the first instance.

One order, for example, required the appellate court to accept an untimely notice of appeal. People v. Petermon, 60 N.E.3d 868 (Sept. 28, 2016) (mem.). Another instructed the appellate court to allow a party “to file an amended and corrected brief” and “to set a new briefing schedule for the parties, and to resolve the appeal on the merits, if possible.” Zagarov v. Kraft Foods Global Inc., 2016 WL 7404180 (Nov. 23, 2016).

In yet another, where the appellate court had dismissed an appeal for lack of jurisdiction, the Supreme Court ordered the appellate court to vacate the dismissal and “consider the appeal on the merits.” Herdova v. Linden Oaks Hospital, 2017 WL 1192280 (March 29, 2017) (tbl.).

In the same vein, if the appellate court has declined to accept a discretionary interlocutory appeal, the Supreme Court may deny the ensuing PLA but order the appellate panel to hear the case. See Cheng v. Ford, 2016 WL 7404195 (Nov. 23, 2016) (mem.) (directing appellate court to accept interlocutory appeal under Rule 308); Rudesill v. Baby Fold, 60 N.E.3d 869 (Sep. 28, 2016) (mem.) (directing appellate court to accept interlocutory appeal under Rule 306).

In each of these cases, the court denied the PLA while still providing the petitioner with meaningful relief — an important reminder for counsel considering their next move following a loss on appeal.