Opinion
No. 127864
01-26-2022
IN RE MARRIAGE OF Lloyd SOWELL, Jr., respondent, and Sharon F. Sowell, petitioner.
Petition for Leave to Appeal Denied.
Dissent attached.
Anne M. Burke, C.J., joined by Carter, J., dissenting from the court's denial of the petition for leave to appeal.
Neville, J. took no part.
CHIEF JUSTICE ANNE M. BURKE, dissenting:
¶ 1 I have written in the past about this court's practice of entering a straight denial order on a petition for leave to appeal in situations where a majority of this court has not, in fact, voted to deny. See, e.g., People v. Sheldon, No. 127355 (Ill. Sept. 29, 2021) (denial order). Unfortunately, the court has again applied this practice here.
¶ 2 When an order of this court states that a petition for leave to appeal has been denied and no further explanation or identification of the court's votes is provided, it indicates to the parties and the public that a majority of the justices of the court have concluded that the petition does not meet the criteria for discretionary review under Illinois Supreme Court Rule 315 (eff. Oct. 1, 2021) and have, therefore, voted to deny the petition. See Ill. Const. 1970, art. VI, § 3 (the concurrence of four justices "is necessary for a decision" of this court). Such a "straight" denial order is a decision on the merits of the petition for leave to appeal.
¶ 3 The order entered by the court in this matter states, without qualification, that the petition for leave to appeal has been "denied"-a straight denial. It would appear, therefore, that at least four justices have determined that the petition for leave to appeal does not merit further review by this court. But this is not, in fact, the case. The votes in this matter are evenly divided. Three justices have voted to deny the petition, three justices have voted to allow, and one justice is not participating. The court has thus denied a petition for leave to appeal on the merits, even though there are not four votes to deny.
¶ 4 The court's practice of entering a straight denial order when there are not four votes to deny should be ended. Three does not equal four. A straight denial order that is entered on the basis of only three votes to deny is inaccurate and violates the constitutional rule that four votes are necessary for a decision of this court.
¶ 5 Further, there is no need for this practice. The court already has a longestablished procedure in place—the Perlman order—to address those situations where it is not possible to obtain four votes. See Perlman v. First National Bank of Chicago, 60 Ill.2d 529 (1975). A Perlman order notes that one or more members of the court are not participating, states that it is not possible to obtain the concurrence of four votes necessary for a decision, and dismisses the action. Perlman orders are applied to cases that have been fully briefed and argued. See, e.g., In re JMA., 2021 IL 125680 (per curiam). They are applied to full-court motions. See, e.g., Chicago Public Media v. Gaughan, No. 123880 (Ill. Sept. 12, 2018). They are applied to petitions for rehearing. See, e.g., Chultem v. Ticor Title Insurance Co., No. 120448 (Ill. Sept. 25, 2017). They have even been applied to petitions for leave to appeal. 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 PLA). There is no reason why a Perlman order should not be entered here.
¶ 6 Moreover, even if there were some reason to continue the practice of entering a denial order in this situation, the court could, at minimum, identify the votes of the court. In this way, the court could accurately inform the public that the votes are evenly divided and that the denial is not a decision on the merits of the petition for leave to appeal. Yet, the court does not take even this simple step.
¶ 7 To date, no member of the court has offered any defense of the practice of entering a straight denial order when there are not four votes to deny. It should be apparent by now that there is none. The practice continues not for any logical, defensible reason but only because of institutional inertia and a puzzling unwillingness on the part of the court to correct an easily correctable error.
¶ 8 A Perlman order should be entered in this matter. Because one is not, I respectfully dissent.
¶ 9 JUSTICE CARTER joins in this dissent.