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Docket No. 90114-Agenda 14-March 2001.

THE PEOPLE ex rel. JOSEPH E. BIRKETT, State's Attorney of 
Du Page County, Petitioner, v. HON. GEORGE J. BAKALIS,
Judge of the 18th Judicial Circuit, et al., Respondents.

Opinion filed June 21, 2001.

CHIEF JUSTICE HARRISON delivered the opinion of thecourt:

Marilyn Lemak is awaiting trial in the circuit court of Du PageCounty for the murder of her three children. The State has givennotice that it will seek the death penalty. Lemak has given noticethat she will assert an insanity defense.

In preparing their client's defense, Lemak's attorneys havesought leave to take the depositions of certain witnesses, includingLemak's husband, David. Following a hearing, the circuit courtgranted the motion as to David. The State's Attorney of Du PageCounty then petitioned this court for a writ of mandamus or,alternatively, for a supervisory order (155 Ill. 2d Rs. 381, 383) tocompel the circuit court to vacate its order.

The circuit court stayed its order pending our review. Wesubsequently denied the State's petition for a writ of mandamus,but ordered briefing on the State's motion for a supervisory orderand set the matter for oral argument. Briefing has now beenconcluded and oral argument has been presented. For the reasonsthat follow, the motion for a supervisory order is denied.

Supervisory orders are granted by our court only in limitedcircumstances. Their predominate use is to address issues whichare brought to our attention in the context of petitions for leave toappeal, but which do not warrant full briefing, oral argument andissuance of an opinion. The most typical example of this is whena new opinion is released by this court or by the Supreme Court ofthe United States which appears to be dispositive of other casespending before us on petitions for leave to appeal. Becauseissuance of additional opinions addressing the same legalquestions in each of the pending cases would contribute little tothis state's body of legal precedent, our normal practice is toexercise our supervisory authority to vacate the lower court'sjudgment and remand for reconsideration in light of the newdecision. See, e.g., People v. Harden, 191 Ill. 2d 545 (2000)(petition for leave to appeal denied but court exercised supervisoryauthority to vacate judgment of the appellate court and remandcause to the appellate court with directions to reconsider itsjudgment in light of People v. Diaz, 192 Ill. 2d 211 (2000)).

Beyond our leave to appeal docket, supervisory orders aredisfavored. As a general rule, we will not issue a supervisory orderunless the normal appellate process will not afford adequate reliefand the dispute involves a matter important to the administrationof justice (see People ex rel. Foreman v. Nash, 118 Ill. 2d 90, 97-99 (1987)) or intervention is necessary to keep an inferior tribunalfrom acting beyond the scope of its authority (People ex rel. Daleyv. Suria, 112 Ill. 2d 26, 38 (1986)).

When it initially sought our review, the State argued that thecircuit court had no authority to order the deposition of Lemak'shusband. That argument, however, was premised on the law as itexisted prior to recent rule changes promulgated by our court. OnMarch 1, 2001, we enacted a comprehensive set of new rulesgoverning capital cases, including a rule which expresslyauthorizes circuit judges to allow parties to take discoverydepositions of any person disclosed as a witness. Official ReportsAdvance Sheet No. 6 (March 21, 2001), R. 416(e) (eff. March 1,2001). There is no dispute that Lemak's husband is such a person.

Our court has expressly held that the rule permitting discoverydepositions "shall be effective immediately" unless theirapplication "in a particular case pending at the time the rulebecomes effective would not be feasible or would work aninjustice, in which case former procedures would apply." OfficialReports Advance Sheet No. 6 (March 21, 2001), R. 416 (eff.March 1, 2001). There is no possible basis for invoking thatexception here. The proceedings remain at the pretrial stage, andno legally cognizable injustice will result if the deposition ofLemak's husband proceeds as ordered by the court and aspermitted by the new rule.

Because the discovery deposition of Lemak's husband ispermissible under the new rule, the question of whether it couldalso have been authorized under the law as it existed prior to ourrecent amendments is now moot. That being so, there is no reasonfor us to proceed. Just as supervisory orders may not be used as amechanism for rendering advisory opinions (People ex rel. Parteev. Murphy, 133 Ill. 2d 402, 412 (1990)), our court will not exerciseour supervisory power to resolve legal questions which havebecome moot.

Despite the mootness of its claim that the deposition ofLemak's husband was not authorized under the old law, the Statecontends that intervention by our court is still appropriate becausethe trial court's decision to allow the deposition is improper evenunder the new rule. Under the new rule, discovery depositions arenot permitted as a matter of right. A party seeking to take adeposition must obtain "leave of court upon a showing of goodcause." The State's argument is that the circuit court should nothave granted leave in this case because Lemak's lawyers did notmake a sufficiently compelling showing of good cause to justifythe intrusion on the deponent, who was the victims' father.

The new rule on discovery depositions lists factors to beconsidered by the court in considering whether to allow adeposition. They are:

"the consequences to the party if the deposition is notallowed, the complexities of the issues involved, thecomplexity of the testimony of the witness, and the otheropportunities available to the party to discover theinformation sought by deposition."

The transcript of the hearing on Lemak's motion to depose herhusband indicates that the circuit court considered these factors inmaking its decision. The transcript also reflects sensitivity by thetrial court to the personal difficulty Lemak's husband mightexperience in submitting to interrogation by defense counsel.

While the State may not agree with the decision the circuitcourt ultimately reached, this is not the type of situation where theexercise of our supervisory authority would be appropriate. Just asmandamus will not lie under ordinary circumstances to regulatediscovery or even to correct abuses of discretion by trial courts inmatters of discovery, supervisory relief is not available in suchcircumstances either. We will invoke our supervisory authorityonly under exceptional circumstances. Statland v. Freeman, 112Ill. 2d 494, 497 (1986). No such circumstances are presented bythe discretionary discovery order entered by the circuit court in thiscase.

For the foregoing reasons, the motion of the State for asupervisory order is denied, and this cause is remanded to thecircuit court for further proceedings.

Motion denied;

cause remanded.

JUSTICE THOMAS, dissenting:

I agree with the State that the trial court's decision to allowthe deposition of David Lemak was improper even under the newrules governing capital cases. In the committee comments to newRule 416(e) (Official Reports Advance Sheet No. 6 (March 21,2001), R. 416(e), Committee Comments, eff. March 1, 2001), wenote that the decision to permit a deposition is committed to a trialcourt's sound discretion, and further note that the need to deposea potential witness will depend upon the facts of each case. Basedupon the facts of this case, I believe that the trial court abused itsdiscretion in ordering the deposition of David Lemak.

As the State argued in support of its motion for a supervisoryorder, David Lemak, as the father of the three murdered children,was a victim within the meaning of the Rights of Crime Victimsand Witnesses Act (725 ILCS 120/3(a)(3) (West 2000)), and theIllinois Constitution Victim's Rights amendment (Ill. Const. 1970,art. I,