Illinois Supreme Court Rule 352(a): Illinois’ Recommitment to Appellate Oral Argument
By Laura Peters
Oral argument has long been a staple of appellate practice in the United States. Like most of its legal system, the United States inherited courts of review and the appellate process from England.1 Initially, there were no intermediary courts in the United States, so the Supreme Court handled all federal appeals directly. Even so, the relatively low population of the country and the low number of cases being appealed in the early 1800s allowed the Supreme Court ample time to both read written briefs and hear oral argument on appeal. This was the era of epic cases like Trustees of Dartmouth College v. Woodward,2 Gibbons v. Ogden,3 and M’Culloch v. State of Maryland.4 Such Supreme Court cases are famous not only for their groundbreaking holdings, but also for their lengthy oral arguments.5 For example, in M’Culloch v. State of Maryland, the Supreme Court heard nine days of oral argument.6
However, as the population and access to the legal system grew, court dockets at all levels became inundated with an immense number of cases.7 To accommodate their burgeoning caseloads, appellate courts had to choose between oral and written advocacy; they simply did not have time for both.8 Today, oral argument has generally been relegated to the background of the appellate process in favor of the expediency of written briefs.9
Illinois’ Approach to Appellate Oral Argument
In Illinois, appellate oral argument is governed by Supreme Court Rule 352(a). Prior to July 1, 2018, Rule 352(a) stated:
A party shall request oral argument by stating at the bottom of the cover page of his or her brief that oral argument is requested. If the party has elected to allow a petition for leave to appeal or answer to stand as the party’s brief, the party may file a request for oral argument, with proof of service upon opposing parties. This request shall be filed within the time that the party could have filed a further brief. If any party so requests, all other parties may argue without an additional request.
No party may argue unless that party has filed a brief as required by the rules and paid any fee required by law. A party who has requested oral argument and who thereafter determines to waive oral argument shall promptly notify the clerk and all other parties. Any other party who has filed a brief without requesting oral argument may then request oral argument upon prompt notice to the clerk and all other parties.
After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power should be exercised sparingly.10
The amended version of Rule 352(a), which went into effect on July 1, 2018, is substantially similar to the old rule. The first two paragraphs of Rule 352(a) remain unchanged in the revision. However, the third paragraph has been expanded, reflecting a significant change to the oral argument process in Illinois. The changes between the original and new versions of Rule 352(a) are noted below, with text deleted from the original appearing with a strikethrough and text added in the amended version that did not appear in the original underlined:
After the briefs have been filed, the court may dispose of any case without oral argument if no substantial question is presented, but this power shall should be exercised sparingly and only upon the entry of a written order stating with specificity why such power is being exercised in the affected case. Notwithstanding the foregoing, oral argument shall be held in any case in which at least one member of the panel assigned to the case requests it.11
While the Illinois Supreme Court has not explicitly stated why Rule 352(a) was revised, the change is no doubt meant to encourage appellate courts to hear more oral arguments. In a monthly newsletter published by the Illinois Supreme Court, Chief Justice Lloyd A. Karmeier lamented that “oral argument in our appellate court[s] has become the exception rather than the rule.”12 Attached to his newsletter, Justice Karmeier included a chart comparing the number of oral arguments held to dispositions issued in each appellate district from 1996 to 2016. The results are surprising.
In 1996, the five appellate districts in Illinois disposed of a combined 5,519 cases and heard 1,608 oral arguments.13 So, in 1996, Illinois appellate courts heard oral argument 29.1% of the time.14 Fast forward 20 years to 2016, the five appellate districts in Illinois disposed of a combined 3,783 cases and heard 735 oral arguments.15 That means that in 2016, the rate of oral argument sank to 19.4%.16 Justice Karmeier’s concern about the demise of appellate oral argument is well founded: despite a lighter caseload in 2016, the rate at which appellate courts heard oral argument still fell by nearly 10% between 1996 and 2016.17
As Justice Karmeier further points out in his newsletter, “the statistics may be even more stark depending on where an appeal is heard.”18 In 2016, oral argument was held in 52.6% of cases in the Fifth Appellate District; 28.6% of cases in the Fourth Appellate District; 26.5% of cases in the Third Appellate District; 19.5% of cases in the Second Appellate District; and 9.7% of cases in the First Appellate District.19
Though Rule 352(a) (both pre and post amendment) states that the power to dispose of cases without oral argument is to be used “sparingly,” the data shows that four out of five appellate courts disposed of their cases without oral argument over 70% of the time. While it is not immediately clear what exactly amended Rule 352(a) means for the appellate process in Illinois due to its novelty, it is evident that the Supreme Court is committed to ensuring that oral argument holds an important place in appellate practice moving forward.
Enbridge Pipeline (Ill.), LLC v. Hoke
Given that the changes to Rule 352(a) are still relatively recent, the Illinois Supreme Court has not yet issued an opinion to guide lower courts in interpreting the revised rule. However, the Fourth District Court of Appeals recently offered their interpretation of the rule in Enbridge Pipeline (Ill.), LLC v. Hoke.20
Enbridge began in the Circuit Court of De Witt County, Illinois as an easement condemnation action brought by Enbridge against homeowners Edward and Sonna Hoke.21 During the proceedings, the Hokes’ attorney was sanctioned by the court. The attorney appealed the sanction on multiple grounds.22 In its reply brief, Enbridge requested an oral argument pursuant to the revised Illinois Supreme Court Rule 352(a).23
In considering Enbridge’s request for oral argument, the Fourth District Court first noted that “Rule 352(a) does not define ‘substantial question’ or give further guidance on when to deny oral argument.”24 Because the Supreme Court rule itself offers little direction, the Fourth District Court looked instead to the Federal Rules of Appellate Procedure for guidance. Per the Federal Rules of Appellate Procedure, a reviewing court may deny oral argument if “(A) the appeal is frivolous; (B) the dispositive issue or issues have been authoritatively decided; or (C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.”25 The Fourth District Court found the three factors presented in the Federal Rule to be highly persuasive to determining whether a case presents a substantial question.26
In Enbridge, the Court ultimately denied the request for oral argument.27 However, the Court’s analysis and incorporation of the Federal Rule of Appellate Procedure provides valuable guidance as to when oral argument may be denied. The Illinois Supreme Court may eventually overrule Enbridge, but, for now, it is the only precedent applying Rule 352(a) and therefore a valuable source of analysis for practitioners and other courts.
Appellate oral argument is a deeply rooted tradition in the United States’ legal system, and the Illinois Supreme Court is committed to ensuring it plays a significant role in the future. Because amended Rule 352(a) is still so new, it is difficult to predict how it will affect appellate advocacy long term. Anecdotally, Illinois appellate courts seem to be hearing far more oral arguments since the revised Rule 352(a) went into effect, complying with the Supreme Court’s directive. Attorneys should be mindful of this shift and know that if they request an oral argument, the request is more likely to be granted than in the past. As such, oral argument should only be requested in cases that would truly benefit from the practice.
1. Leonard M. Ring, The Pros of Oral Argument, 16 The Forum (A.B.A. Section of Insurance, Negligence and Compensation Law) 451 (1981).
2. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).
3. Gibbons v. Ogden, 22 U.S. 1 (1824).
4. M’Culloch v. State of Maryland, 17 U.S. 316 (1819).
5. Ring, supra note 1, at 452.
6. Constitutional Rights Foundation, McCulloch v. Maryland (1819) John Marshall and the Bank Case, Landmarks Historic U.S. Supreme Court Decisions, at 16, available at http://www.crf-usa.org/images/pdf/mcculloch.pdf.
10. Ill. Sup. Ct. R. 352(a) (West 2017).
11. Order of Ill. Sup. Ct. amending Rule 352, M.R. 3140, (May 25, 2018), available at http://www.illinoiscourts.gov/SupremeCourt/Rules/Amend/2018/052518-4.pdf.
12. Chief Justice Lloyd A. Karmeier, The Importance of Dialogue: Preserving the Right to Oral Argument, Illinois Courts Connect (Jun. 23, 2017), available at https://perma.cc/HX9M-9FH9.
20. Enbridge v. Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B.
21. Id. at ¶ 1.
22. Id. at ¶¶ 4-5.
23. Id. at ¶ 6.
24. Id. at ¶ 67.
25. Fed. R. App. P. 34(a)(2).
26. Enbridge, 2019 IL App (4th) 150544-B, ¶ 67.
27. Id. at ¶ 70.
Laura Peters is a third-year law student at Northern Illinois University College of Law. She graduated from Indiana University with a B.A. in Spanish and Linguistics. She is a Lead Articles Editor for the NIU Law Review. Laura formerly interned for Second District Appellate Court Justice Michael J. Burke and the Second District Office of the State Appellate Defender.