Opinion
No. 124835
09-25-2019
CONTINENTAL CASUALTY COMPANY, Petitioner, v. HENNESSY INDUSTRIES, INC. et al., Respondents.
Petition for Leave to Appeal Denied.
Burke, J., dissents.
Dissent attached.
Thomas, J. took no part.
JUSTICE BURKE, dissenting:
OPINION
¶1 The order entered in this matter states that the petition for leave to appeal is "denied." From this, one would assume that a majority of this court has concluded that the petition does not meet the criteria for discretionary review under Illinois Supreme Court Rule 315 (eff. July 1, 2018) and has, therefore, voted to deny the petition. However, this is not the case. In fact, there is no majority: three justices have voted to allow the petition, three justices have voted to deny, and one justice is not participating.
¶2 Petitions for leave to appeal are subject to the rule, under article VI, section 3, of the Illinois Constitution of 1970, that four concurring votes are necessary for a decision from this court. PHL, Inc. v. Pullman Bank & Trust Co., 181 Ill.2d 575 (1998). Because, in this case, there are neither four votes to grant nor to deny the petition for leave to appeal, the appropriate disposition under our constitution is to dismiss the petition without decision. Id.; see also Perlman v. First National Bank of Chicago, 60 Ill.2d 529 (1975). The court here makes no attempt to explain how, in' the absence of four concurring votes to deny, its denial order comports with the constitution.
¶3 Further, the parties and the public have a right to be given accurate information about the cases before this court. By entering a denial order when there are not, in fact, four concurring votes to deny, this court's order is telling the parties and the public something that is not true. And this is not a purely academic matter. For example, a dismissal order from an evenly divided court in a criminal case will convey to the State or the defense bar that the issue presented is worth pursuing in future petitions where the recusing justice may be able to participate. That information is lost when an erroneous denial order is entered.
¶4 This is not the first time this court has entered an order denying a petition for leave to appeal despite the lack of four concurring votes to deny. Indeed, it is fair to say that this has become the recent practice of the court—one to which I have consistently objected. See People v. Lee, No. 124719 (Ill. Sept. 25, 2019) (denial order) (Burke, J., dissenting); Continental Casualty Co. v. Hennessy Industries, Inc., No. 124836 (Ill. Sept. 25, 2019) (denial order)(Burke, J., dissenting); People v. Ford, No. 124583 (Ill. May 22, 2019) (denial order) (Burke, J., dissenting); People v. Rodriguez, No. 124715 (Ill. May 22, 2019) (Burke, J., dissenting); People v. Perkins, No. 123555 (Ill. Sept. 26, 2018) (denial order) (Burke, J., dissenting); Johnson v. Pneumo Abex, LLC, No. 123820 (Ill. Sept. 26, 2018) (denial order) (Burke, J., dissenting).
¶5 Notably, however, there have been other instances when the court has properly entered a dismissal order when there were not four concurring votes for a decision. For example, in PHL, the court dismissed a petition for leave to appeal rather than deny it because two justices had recused themselves and the court was not able to "secure the constitutionally required concurrence of four judges for a decision." PHL, 181 Ill.2d 575. And, recently, the court dismissed a full court motion1 rather than deny it, noting that two justices had recused themselves and the court was unable to "secure the constitutionally required concurrence of four judges for a decision" Chicago Public Media, Inc. v. Gaughan, ^o. 123880(Ill. Sept. 12, 2018)(dismissal order). No effort has been made by the court to reconcile these conflicting dispositions.
¶6 In sum, the denial order in this case is not supported by four concurring votes to deny and, therefore, does not accurately reflect the votes cast by the members of this court. Moreover, the order violates article W, section 3, of the Illinois Constitution of 1970. These problems are easily corrected. To accurately reflect the votes cast, and to comply with our constitution, the court need only change the order from "deny" to "dismiss." Yet, puzzlingly, the court declines to do so. I must, therefore, respectfully dissent.