Opinion
No. 127768
01-26-2022
PEOPLE State of Illinois, respondent, v. Ricardo RODRIGUEZ, petitioner.
Petition for Leave to Appeal Denied.
Neville, J., joined by Carter, J., dissenting from the court's denial of the petition for leave to appeal.
Dissent attached.
Anne M. Burke, C.J. took no part.
JUSTICE NEVILLE, dissenting:
¶ 1 I have previously disagreed with this court's practice of entering an order that simply denies—with no additional explanation —a petition for leave to appeal where there are not four votes to deny. See, e.g., People v. Sheldon, No. 127355 (Ill. Sept. 29, 2021) (denial order); People v. Brown, No. 127093 (Ill. Sept. 29, 2021) (same). Because the court has elected to continue this practice and enter such an order in this matter, in spite of the constitution's four-vote rule, I am compelled to voice my disagreement yet again.
¶ 2 As was true in those earlier cases, the order entered by the court in this matter states that the petition for leave to appeal is "denied." Given that this simple denial expresses no rationale for the ruling, the order purports to represent that the petition does not meet the criteria for discretionary review under Illinois Supreme Court Rule 315 (eff. Oct. 1, 2019) and consequently a majority of the court has voted to deny it on the merits. However, the order entered in this case does not reflect the actual votes cast on this petition. In fact, the votes in this matter are evenly divided. Three justices have voted to allow the petition for leave to appeal, three justices have voted to deny, and one justice is not participating.
¶ 3 Because our constitution requires four concurring votes for a decision (see Ill. Const. 1970, art. VI, § 3), the simple denial order in this case must, at the very least, explain that the four votes necessary to allow the petition have not been achieved.
¶ 4 I cannot agree with the court's practice of entering a simple denial order when a majority of the court has not voted for that disposition. The entry of a denial order based on only three votes is inaccurate and violates the constitutional rule of four votes for a decision.
¶ 5 Moreover, there is no justifiable reason for the court to engage in this practice. For more than four decades, the court has utilized an established procedure —the Perlman order—to resolve matters in which a constitutional majority cannot be achieved. See Perlman v. First National Bank of Chicago, 60 Ill.2d 529 (1975) (per curiam). A Perlman order specifically notes that one or more members of the court are not participating, states that the constitutional majority of four votes cannot be achieved, and dismisses the action. Id. at 529-30. This court has applied Perlman orders to opinions (see In re JMA., 2021 IL 125680 (per curiam)), full court motions (see Chicago Public Media v. Gaughan, No. 123880 (Ill. Sept. 12, 2018)), and to petitions for rehearing (see Chultem v. Ticor Title Insurance Co., No. 120448 (Ill. Sept. 25, 2017)). In fact, this court also has applied Perlman orders to petitions for leave to appeal. See PHL, Inc. v. Pullman Bank & Trust Co., 181 Ill.2d 575 (1998); PHL, Inc. v. Pullman Bank & Trust Co., 181 Ill.2d 593 (1999) (denying motion to reconsider dismissal of petition for leave to appeal). Yet, the court has refused to enter a Perlman order in this case and also refuses to offer any explanation for that action.
¶ 6 This approach runs counter to the court's core values of accountability and adherence to the rules prescribed in our constitution. Transparency in the reporting of legal decisions is not only important—it is critical. To advance this goal, the court should accurately reflect the resolution of matters that come before it. Here, that can be achieved by entering a Perlman order. This is not simply a matter of internal procedure. Rather, it represents the court's communication of its disposition on the pending petition.
¶ 7 I cannot agree with the court's practice of entering orders that convey inaccurate information to the litigants and the public by failing to identify the evenly divided votes of the court. I believe that a Perlman order should be entered in this matter. Because the court has opted not to do so, I respectfully dissent.
¶ 8 JUSTICE CARTER joins in this dissent.