Opinion
Nos. 65229, 72862 and 87168.
March 15, 1999.
Prior report: 132 Ill.2d 235, 138 Ill.Dec. 233, 547 N.E.2d 202.
ORDER
Defendant, Andrew Kokoraleis, is scheduled to be executed in less than two days. While his second post-conviction petition was pending in the circuit court, Kokoraleis moved this court for d stay of execution. While that motion was ending, the circuit court dismissed Kokoraleis post-conviction petition, and he filed a timely appeal to our court in accordance with to Supreme Court Rule 651(a) (134 Ill.2d R. 651(a)). After that appeal was docketed, but before the record was filled, briefs were submitted or oral arguments were conducted, this court denied the stay and dismissed the appeal on its own motion. Kokoraleis has now filed a petition for writ of certiorari with the Supreme Court of the United States contending, among other things, that our summary dismissal of his appeal violated State law and thereby deprived him of his federally-protected right to due process.
The matter comes before us today on Kokoraleis motion for a stay of his execution pending the United States Supreme Court's disposition of his petition for writ of certiorari. Pursuant to Illinois Supreme Court Rules 651(d) and 612(q) (134 Ill.2d R. 651(d), 612(q)), Kokoraleis' motion for stay is governed by our Rule 368 (155 Ill.2d R. 368). Rule 368 provides.
"In cases in which review by the Supreme Court of the United states may be sought, the court whose decision is sought to be reviewed or a judge thereof, and in any event the Supreme Court of Illinois or a judge thereof, may stay or recall the mandate as may be appropriate." 155 Ill.2d R. 368 (Emphasis supplied).
Under the express language of this rule, any judge of our court has the authority to grant a stay pending review by the United States Supreme Court. Having considered Kokoraleis motion and the response filed by the State, I believe that a stay should issue here. The petition for certiorari presents a substantial and important question, and the State presents no legitimate reason why we should allow Kokoraleis to be put to death before he has an opportunity to seek judicial review of our actions. The State has offered nothing to support its claim that Kokoraleis' appeal in the underlying case is frivolous or was submitted solely for purposes of delay. In addition, there is no merit to the State's suggestion that the rules of our court can be disregarded in cases which might ultimately prove to be lacking in merit. If the State understands my position to be otherwise, it is mistaken.
For the foregoing reasons,
IT IS ORDERED that the motion for stay of execution is ALLOWED. The execution of Andrew Kokoraleis currently scheduled for March 17, 1999, is stayed pending disposition of his petition for writ of certiorari currently pending in the Supreme Court of the United States.
Moses W. Harrison, II
Hon. Moses W. Harrison II Justice of the Illinois Supreme Court