Opinion
No. 127355
09-29-2021
PEOPLE State of Illinois, respondent, v. Scott G. SHELDON, petitioner.
Petition for Leave to Appeal Denied.
Chief Justice Anne M. Burke, C.J., joined by Neville, J., dissenting from the court's denial of the petition for leave to appeal.
Dissent attached.
Carter, J. took no part.
CHIEF JUSTICE ANNE M. BURKE, dissenting from denial of the petition for leave to appeal:
¶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. Oct. 1, 2019) and has, therefore, voted to deny the petition. However, this is not the case. In fact, there is no majority vote: three justices have voted to deny the petition, three justices have voted to allow, and one justice is not participating.
¶2 The court makes no attempt to explain why, in the absence of four concurring votes to deny, a denial order is appropriate. Nor does the court explain why it is appropriate to issue an order that does not accurately describe the votes of the court. This silence is not surprising; there is no justification for the court's disposition. And this is particularly true when one considers the history of this court's treatment of matters that fail to receive a majority vote.
¶3 Prior to 1975, it appears this court did not have a formal policy or procedure that allowed for the disposition of a full court matter when there was no majority vote. As Justice Klucynski explained in testimony before the Greenberg Commission in 1969, it was the practice of the Court when there was no majority vote to simply " ‘hold[ ] the tie until a judge change[d] his vote and there [was] a decision.’ " Kenneth A. Manaster, Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens 151 (2001).
The Greenberg Commission was convened by this court to investigate allegations of wrongdoing against Chief Justice Solfisburg and Justice Klingbiel. See Report of Special Commission of the Supreme Court of Illinois, In re Special Commission in Relation to No. 39797(People of the State of Illinois, Appellant, v. Theodore J Isaacs et al., Appellees), No. 39797 (Ill., July 31, 1969), https://presspubs.uchicago.edu/manaster/commissiomeport.html, [https://perma.cc/D9GKZ2XQ].
¶4 This changed, however, with this court's opinion in Perlman v. First National Bank of Chicago, 60 Ill. 2d 529 (1975) (per curiam). In that case, two justices had recused themselves, and the remaining justices lacked four concurring votes regarding the proper judgment to render in the opinion. Id. at 529. It was thus not possible to obtain the concurrence of four votes necessary for a decision as required under the Illinois Constitution ( Ill. Const. 1970, art. VI, § 3 ). Perlman, 60 Ill. 2d at 529.
¶5 Over a dissent from Chief Justice Underwood, the court first rejected (without discussion) the option of appointing a replacement justice to hear the case and break the tie. Id. at 529-30 ; see id. at 531-32 (Underwood, C.J., dissenting). Instead, the court chose to embrace the policy followed by the United States Supreme Court, which, briefly stated, is to take no affirmative action when there is no majority vote. Id. at 529-30 (majority opinion); see, e.g., Durant v. Essex Company, 74 U.S. 107, 110 (1868) ("It has long been the doctrine in this country and in England, where courts consist of several members, that no affirmative action can be had in a cause where the judges are equally divided in opinion as to the judgment to be rendered or order to be made."); see generally Edward A. Hartnett, Ties in the Supreme Court of the United States, 44 Wm. & Mary L. Rev. 643,646 (2002).
¶6 Perlman did depart from Supreme Court practice in one respect, however. When the Supreme Court issues an opinion in a case with evenly divided votes, the judgment line will state that the lower
court has been "affirmed by an equally divided Court." See, e.g., Washington v. United States, 584 U.S. ––––, ––––, 138 S. Ct. 1832, 1833 (2018) (per curiam). The legal effect of this affirmance, however, is the same as if the appeal were dismissed. Neil v. Biggers, 409 U.S. 188 (1972). Since the legal effect of an affirmance by an equally divided court is a dismissal, this court in Perlman chose simply to state on the judgment line that the appeal was dismissed. Perlman, 60 Ill. 2d at 530.
¶7 Since 1975, this court has continued to follow the practice established in Perlman. When there is no majority vote in a case under advisement, a per curiam opinion is issued, which explains that one or more of the justices are recused and that the remaining justices are divided, and the appeal is then dismissed without decision. The most recent Perlman opinion was issued in In re JMA., 2021 IL 125680 (per curiam).
¶8 Importantly, the procedure adopted by the court in Perlman has not been limited solely to opinions. For example, in the most recent motion heard by the full court that failed to achieve a majority vote, the following order was entered, consistent with Perlman:
"Motion by Movants for a supervisory order.
In this case, two Justices of this Court have recused themselves and the remaining members of the Court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision ( Ill. Const. 1970, art. IV, sec. 3 ). Accordingly, the motion for supervisory order is dismissed." Chicago Public Media, Inc. v. Gaughan, No. 123880 (Ill. Sep. 12, 2018).
Like petitions for leave to appeal, motions that are heard by the full court are subject to the constitutional rule that four concurring votes are necessary for a decision. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 21.
¶9 Similarly, the most recent petition for rehearing that failed to achieve a majority vote was also dismissed using the Perlman procedure:
"In this case, one Justice of this court has recused himself, and the remaining members of the court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, § 3 ). Accordingly, the petition for rehearing is dismissed." Chultem v. Ticor Title Insurance Company, No. 120448 (Ill. Sept. 25, 2017).
¶10 The Perlman procedure has even been applied to petitions for leave to appeal. In PHL, Inc. v. Pullman Bank & Trust Co., 181 Ill. 2d 575 (1998), the following order was entered:
"In this case, two Justices of this Court have recused themselves and the remaining members of the Court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision ( Ill. Const. 1970, art. IV, sec. 3 ). Accordingly, the petition for leave to appeal is dismissed."
¶11 Notably, following the entry of this order, the court denied a motion to vacate the dismissal order and reconsider the petition for leave to appeal. In two concurring opinions and a dissent, the court again discussed and rejected the option of appointing a replacement justice to break the tie. Instead, the court elected to resolve petitions for leave to appeal that fail to receive a majority vote by "continu[ing] to adhere to the procedure followed in Perlman." PHL, Inc. v. Pullman Bank & Trust Company, 181 Ill. 2d 593, 594 (1999) (Miller, J., concurring, joined by Freeman C.J., and Bilandic, J.).
¶12 Despite the foregoing, and despite the fact that an established practice for addressing petitions for leave to appeal that fail to receive a majority vote was already in place, at some point in time this court began to treat petitions for leave to appeal differently. Instead of following the Perlman procedure, petitions for leave to appeal without a majority vote were simply denied, with no indication given in the denial order that the court's votes were evenly divided. The court has never explained why this change was made or even acknowledged to the public that it was being done.
¶13 I have brought this problem to the court's attention on several occasions, repeatedly noting that a straight denial order in this situation is highly misleading since such an order indicates to the public that there were four votes to deny the petition when, in fact, there were not. Nevertheless, the court has persisted in this practice. See People v. Lee, No. 124719 (Ill. Sept. 25, 2019) (denial order) (Burke, J., dissenting); Continental Casualty Co. v. Hennessy Industries, Inc., No. 124835 (Ill. Sept. 25, 2019) (denial order) (Burke, J., dissenting); Continental Insurance 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).
¶14 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 saying something that simply is not true. It is both confounding and disappointing that, with full knowledge of what it is doing, the court continues to mislead the public.
¶15 There is no reason not to apply the Perlman procedure to petitions for leave to appeal. Other full court matters continued to be resolved using that framework, and it has been applied to petitions for leave to appeal in the past. Because the court does not apply the Perlman procedure here, I dissent.
¶16 JUSTICE NEVILLE joins in this dissent.