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September 10, 2004

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Benjamin Barr

The quoted material comes from the concurrence by Justice Harrison and does not reflect the majority opinion of the Supreme Court of Illinois. In fact, it represents just the opposite view.

As Justice Harrison complained, "I fail to see how the majority can hold 'that when conflicts arise amongst the districts, the circuit court is bound by the decisions of the appellate court of the district in which it sits.'" Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 95 (1997) (Harrison, J., concurring).

While certain justices on the Supreme Court of Illinois adhere to the view about a unitary appellate court with uniform jurisdiction, the majority of the Court does not adhere to this view.

In the end, it does matter what district the appellate opinion originated out of because the jurisdiction of our appellate courts is constrained by their geographical limits.

Best,

Benjamin Barr
Staff Attorney
Nineteenth Judicial Circuit Court

Michael Carter

I apologize for any errors, grammer, spelling & thoroughness, contained in this as I do not have time to draft a complete response. However, this is an issue I have litigated with some success in trial courts over the years.

Mr. Barr is wrong. There is only one appellate court, period. Nowhere does statute or case law say that the jurisdiction of the appellate courts is limited by geographical limits. Nowhere does it mention appellate courts. What statute plainly provides for is one appellate court with several branches. The statute follows. However, a decision of the appellate court, through any of its branches, is a decision of the one appellate court and is binding on the entire state.

The question is what should counsel do when different branches have reached different conclusions on the same issue of law. The answer is to follow the last decision in time as it reflects the current status of the law. However, if three branches have held one way and the fourth, and last in time, branch holds another, it might seem that there is a strong argument the last decision is an abhoration.

It might seem proper to attempt to limit the decisions of our unitary appellate court to geographical bounderies, but I have found no authority from either the legislature or the Illinois Supreme Court supporting this argument. If you have any such authority I would love to read it. Appellate Court geographic bounderies are not limitations upon the decisions rendered by a branch of the Appellate Court.

Should this issue continue to flourish I

Michael D. Carter Jr.
Horwitz, Horwitz & Associates


§ 705 ILCS 25/1. [Branches; judges]


Sec. 1. (a) A branch of the appellate court is established in each of the 5 judicial districts as such districts are determined by law.

(b) In the first judicial district, 18 appellate court judges shall be elected.

(c) In the second judicial district, 6 appellate court judges shall be elected. In the third judicial district, 6 appellate court judges shall be elected. In the fourth judicial district, 6 appellate court judges shall be elected. The 2 additional fourth district appellate court judgeships authorized by this amendatory Act of 1993 shall be initially filled by election at the general election in 1994. In the fifth judicial district, 6 appellate court judges shall be elected.

(d) The Supreme Court may assign additional judges to service in the appellate court from time to time as the business of the appellate court requires. There shall be a number of divisions of not less than 3 judges each, as the Supreme Court shall prescribe. Assignments to divisions shall be made by the Supreme Court and a judge may be assigned to a division in a district other than the district in which such judge resides. The organization of the appellate court and its divisions shall be prescribed by rule of the Supreme Court. The actual and necessary expenses of judges of the appellate court incurred in performing their duties shall be paid by the state. The majority of a division shall constitute a quorum and the concurrence of a majority of the division shall be necessary to a decision of the appellate court.

(e) This subsection (e) applies only to the Second, Third, Fourth, and Fifth Judicial Districts.

A person who is an appellate judge on the effective date of the Judicial Redistricting Act of 1997 [705 ILCS 21/1 et seq.] and whose district of residence is changed by that Act may, when next seeking retention in that office, run for retention in either (i) the district in which he or she resides when seeking retention or (ii) any other district that includes a portion of the judicial district in which he or she resided on the day before the effective date of the Judicial Redistricting Act of 1997 [705 ILCS 21/1 et seq.].

If, as a result of the Judicial Redistricting Act of 1997 [705 ILCS 21/1 et seq.] or of the retention decisions of the appellate judges affected by that Act, a judicial district has more than 6 appellate judges, a vacancy that occurs in that judicial district shall be assigned to and filled in the judicial district having the fewest appellate judges; if 2 or more judicial districts are tied for the fewest appellate judges, the Secretary of State shall determine by random public selection the district to which that vacancy shall be assigned.

HISTORY:
Source: P.A. 86-786; 86-1478; 88-72, § 5; 89-719, § 95.

Evan

Benjamin and Michael: I didn't know I'd stepped into such a hornest's nest, but apparently I did. Thanks for your comments. I invite anyone else who has relevant information to please chime in.

Benjamin Barr

I agree there is but one appellate court with several branches. That is made clear from the statute included by Mr. Carter. However, as to Mr. Carter's thought that, when the districts are in conflict that a court should follow "the last decision in time as it reflects the current status of the law," that view is not supported by the Supreme Court of Illinois.

How would you explain the Supreme Court's statement in Aleckson where it noted that "when conflicts arise amongst the districts, the circuit court is bound by the decisions of the appellate court of the district in which it sits"? Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 92 (1997) (citing State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539-40, 178 Ill. Dec. 745, 605 N.E.2d 539 (1992)). This seems to be a rather clear statement of the law on this topic.

The Supreme Court of Illinois did not state that the "last decision in time" was binding precedent. Rather, it stated that when there are conflicts amidst the districts, the circuit court must follow the decisions of the district court in which the circuit court sits.

In support of this theory, see Aleckson v. Village of Round Lake Park, as cited above. See also Hubeny v. Chairse, 305 Ill. App. 3d 1038, 1046 (2d Dist. 1999) ("It is true that, when conflicts arise among appellate districts, a trial court is bound by the decisions of the appellate court of the district in which it sits"); People v. Thorpe, 52 Ill. App. 3d 576, 579 (2d Dist. 1977) ("Where two or more appellate districts are in conflict the circuit court should follow the decision of the appellate court of its district").

None of these cases point to the "last in time" theory. If you have cases supporting this view, please post.

Best,

Benjamin Barr

Michael Carter

This is no hornets nest. I am happy Mr. Barr raised this issue. He argues well and persuasively. Unfortunately, I am unable to do so. My limited response is largely text based. Or, rather, the lack of text.

ARGUMENT IN A NUTSHELL:

In short, explicit constitutional authority is needed to limit the precedential authority or jurisdiction of a lawful state Appellate Court expressly established by constitutional mandate. Illinois has one Appellate Court. The unitary Appellate Court's authority and jurisdiction is granted explicitly by the State Constitution. The Appellate Court is divided into districts for purposes wholly unrelated to jurisdiction or precedential effect. One cannot read such a limitation into the Appellate Court's constitutional authority by inference. I understand the Illinois Supreme Court can interpret the constitution, however, I do not agree that it can limit the Appellate Court's jurisdiction, which is explicitly derived from the state constitution, by recognized geographical lines be it judicial districts or county lines.

END OF ARGUMENT IN NUTSHELL

There is no authority for either the Illinois Supreme Court or the Appellate Court to limit the appliction of a decision from the one unitary appellate court to a geographically defined area.

The Illinois Constitution speaks to the purpose of judicial district lines. In pertinent part, it states, "SECTION 2. JUDICIAL DISTRICTS The State is divided into five Judicial Districts for the selection of Supreme and Appellate Court Judges." Judicial districts are simply a tool to provide for the orderly and fair filling of judicial seats.

If you assume the Illinois Supreme Court, or the Appellate Court, has authority to limit the precedential authority of an Appellate Court decision based upon geography (and convenience), this authority is not limited to following Appellate Court district lines. Nothing would prohibit limiting the scope of a decision to any geographic line recognized by the State of Illinois. I believe the State must recognize county lines. Therefore, an Appellate Court's decision could properly be limited to a specific county.

705 ILCS 25/1(d) gives the Illinois Supreme Court statutory authrority to prescribe by rule the organization of the Appellate Court and its divisions. This provision speaks to the number of judges on a panel, and to the number of panels in a district.

The "general supervisory authority" the Illinois Supreme Court exercises over the entire Illinois court system pursuant to Art 6, Sec. 16 of the Illinois Constitution is not a grant of authority to limit the precedential value of a an appellate court's opinion to a geographical district.

Note that there is a substantial difference between the state and federal systems regarding appellate courts (or courts of appeal). Art. III of the U.S. Constitution created one Supreme Court and as many inferior courts as the Congress would create. Congress could choose to create courts of appeal, it could have chosen not to and it could choose tomorrow to abolish them. The Illinois State Constitution expressly provides for the Illinois Appelate Court and does not limit its jurisdiction by geographic or other line.

Alright Mr. Barr. I pass the baton to you.

Michael

John McCarthy

I think an argument can be made on both sides of this issue. A friend of mine has extensively researched this issue (and I think she wrote a law review article or note). Her bottom line is: Both sides have authority and must convince the judge through advocacy. The Supreme Court should rule on this once and for all.

Benjamin Barr

As to McCarthy,

"The Supreme Court should rule on this once and for all." It already has. Please see my earlier post. No case law has been cited that would demonstrate that the doctrine described in Aleckson v. Village of Round Lake Park has been overturned. Hence, it is binding and authoritative.

I believe we can all agree that the Supreme Court of Illinois' precedent is binding on all courts within our state.

I would be eager to read your friend's law review article regarding this issue. Please post a citation to it.

Thanks,

Benjamin Barr.

Benjamin Barr

As to Mr. Carter's statements, I'll address them by responding to his text.

Carter: "My limited response is largely text based. Or, rather, the lack of text."

Barr: Logic dictates that if you hold a position that is not based on a precedential, authoritative decision then that position is without support. It does not mean the position is, necessarily, errant. However, it does not enjoy recognition by our court system.

Carter: "In short, explicit constitutional authority is needed to limit the precedential authority or jurisdiction of a lawful state Appellate Court expressly established by constitutional mandate."

Barr: Why does there need to be 'explicit constitutional authority' to 'limit the precedential authority of jurisdiction' of such courts? The provision states that a "branch of the appellate court is established in each of the 5 judicial districts as such districts are determined by law." The material cited by Mr. Cater does not discuss the jurisdiction of the appellate courts. Instead, it speaks to their creation. Further, we're not told what the significance of having "5 judicial districts" is or how those districts might affect jurisdiction. It seems to me these provisions are readily subject to judicial interpretation, much as the Court did in leckson v. Village of Round Lake Park, 176 Ill. 2d 82 (1997).


Carter: "Illinois has one Appellate Court."

Barr: True.

Carter: "The unitary Appellate Court's authority and jurisdiction is granted explicitly by the State Constitution. The Appellate Court is divided into districts for purposes wholly unrelated to jurisdiction or precedential effect."

Barr: How do we know that the appellate court is "divited into districts for purposes wholly unrelated to jurisdiction or precedential effect." What source tells us this?

Carter: "One cannot read such a limitation into the Appellate Court's constitutional authority by inference."

Barr: Never has an inference been made. Instead, direct Supreme Court authority holds that, where there is a conflict in the districts, a circuit court must decide the issue according to the decisions of the district court in the district the circuit court sits. No inference is necessary to make that point. Moreover, the provisions cited by Mr. Carter do not expressly state what he has stated. Thus, anything said about jurisdiction or precedential value based solely on the provisions cited is an inference. Relying on the Supreme Court's interpretation of jurisdiction and precedential value requires no such inference to be made.

Carter: "I understand the Illinois Supreme Court can interpret the constitution, however, I do not agree that it can limit the Appellate Court's jurisdiction, which is explicitly derived from the state constitution, by recognized geographical lines be it judicial districts or county lines."

Barr: Let's keep in mind what Aleckson v. Village of Round Lake Park really says and doesn't say. It's unfair to read Aleckson as a jurisdiction-limiting decision. There is but one appellate court -- a concept we can all agree on. Opinions produced by that appellate court have precedential value in all circuit courts, thus their jurisdiction is not really affected by Aleckson.

What --is-- affected is the weight of the precedential authority where there is a split in the districts. Where district branches differ in their result on a legal issue, a circuit court must follow the district court in the district it resides in. This rule in no way affects jurisdiction but, instead, affects the weight of the precedential value of a given case.

For example, if you are in a circuit court, seated in the Second District, that circuit court would be bound to follow the rationale of legal issue "x" if "x" was contested and different appellate branches reached different conclusions. Conversely, if there is no split in the districts, the "one appellate court" rule has its strongest application and, of course, opinions from any district would have equal value.

Carter: "There is no authority for either the Illinois Supreme Court or the Appellate Court to limit the appliction of a decision from the one unitary appellate court to a geographically defined area."

Barr: Since the provisions cited by Mr. Carter earlier do not purport to describe the jurisdiction or precedential value of the decisions reached by varying branches of the appellate court, it is reasonable to suggest that the Supreme Court needed to define this issue. A task that it completed in Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82.

Carter: "The Illinois Constitution speaks to the purpose of judicial district lines. In pertinent part, it states, "SECTION 2. JUDICIAL DISTRICTS The State is divided into five Judicial Districts for the selection of Supreme and Appellate Court Judges." Judicial districts are simply a tool to provide for the orderly and fair filling of judicial seats. "

Barr: Again, the Constitution does not speak to the jurisdictional or precendential value issues raised by Mr. Carter.

Carter: "If you assume the Illinois Supreme Court, or the Appellate Court, has authority to limit the precedential authority of an Appellate Court decision based upon geography (and convenience), this authority is not limited to following Appellate Court district lines. Nothing would prohibit limiting the scope of a decision to any geographic line recognized by the State of Illinois. I believe the State must recognize county lines. Therefore, an Appellate Court's decision could properly be limited to a specific county."

Barr: Actually, it makes good sense to limit the precedential value of opinions originating out of the appellate branches. Quite simply, nothing cited by Mr. Carter provides an answer to the question of "if two branches of the same court differ in their result on the same legal issues, what precendetial result?" The Supreme Court has provided an answer to that question and has limited the effect according to the geographic boundaries of the branch of the appellate court.

It makes sense to limit the precedential value of appellate decisions to the particular branch of that court. We could think of other ways to limit the precedential value as Mr. Carter suggests, but they wouldn't make sense. We might limit the precedential value of the Second District --only-- to Moline, Chicago, Fox Lake, and Waukegan. Under that rule, circuit courts sitting in the Second District and not in a named city might follow precedents from other districts. But, as noted, that wouldn't make sense.

What does make sense is the Supreme Court of Illinois limiting the precedential value of a given court according to its geographic boundaries. While it is true that there is but one appellate court, it has many branches. Those branches have geographic boundaries. In Aleckson v. Village of Round Lake Park, the Supreme Court furnished a rule of reason when it limited the precedential value of decisions in conflict to the boundaries of such districts.

Carter: "705 ILCS 25/1(d) gives the Illinois Supreme Court statutory authrority to prescribe by rule the organization of the Appellate Court and its divisions. This provision speaks to the number of judges on a panel, and to the number of panels in a district."

Barr: Like the other sources cited, it does not speak to the precedential value of a decision issued by one branch of an appellate court that stands in contradiction with another district.

Carter: "Note that there is a substantial difference between the state and federal systems regarding appellate courts (or courts of appeal). Art. III of the U.S. Constitution created one Supreme Court and as many inferior courts as the Congress would create. Congress could choose to create courts of appeal, it could have chosen not to and it could choose tomorrow to abolish them. The Illinois State Constitution expressly provides for the Illinois Appelate Court and does not limit its jurisdiction by geographic or other line."

Barr: Nor does the Illinois State Constitution define what should happen when two different branches of the one court differ on a legal issue. Nor does it define the significance of branches and how they should be interpreted as to geographical limitations and the value of their precedents. These terms are open to interpretation, but that interpretation has been conclusively settled.

We limit the precedential value of cases when there is a conflict in the districts. In such instances, circuit courts are bound to follow the law issued by the district in which it sits. See Aleckson v. Village of Round Lake Park, 176 Ill. 2d at 92. You may disagree with the result, but the Supreme Court of Illinois has the last word on the subject.

I also believe the approach makes sense. Allowing different districts to advance different theories of law improves our adversarial system. Eventually, the Supreme Court has to decide which theory is correct and the issue is settled. Moreover, individual districts enjoy the stability of knowing that in District 1, they follow rule "X" while in District 2, they follow rule "y."

Under Mr. Carter's "last in time" rule, the law would flip-flop and constantly change until it had review by the Supreme Court. In the period of a year, different branches of the same, unitary court could issue conflicting opinions on the same issue. The result would be that in January, we follow "rule x" because District 1 issued that opinion. In March, we follow "rule y" because District 3 issued that opinion. Come May, we follow "rule z" because District 5 issued that opinion. This does not bode well for the rule of law.

Instead, it makes sense to compartmentalize and limit the precedential effect of decisions based on the geographic boundaries of the branch in question.

Carter: "Alright Mr. Barr. I pass the baton to you."

Barr: Baton received and I'm running like a cheetah.

Carter: "Michael"

Barr: "Benjamin"

Michael Carter

Not to beat a dead horse (cheetah?), but the reason this issue, and this discussion, exists is because the issue has not been argued before the Illinois Supreme Court. The language cited from the Supreme Court opinion is not part of the holding. Even a cursory reading of the opinion will convince a reader the cited language is dicta. I am aware that there is a debate about how much weight to give to dicta, however, I believe Mr. Barr is placing entirely too much weight on it.

Further, one should carefully examine the cases cited to support the language at issue in Aleckson. Direct support is clearly lacking as no court has thoroughly examined the proposition.

This issue has never been decided by the Illinois Supreme Court. I believe it should be analyzed by examining the factors I have previously mentioned. The Illinois Constitution speaks directly to some of these issues. Hopefully, someday, the issue can be argued and a thoughtful decision will follow.

Michael

Benjamin Barr

We'll have to wait for that day, Mr. Carter.

I still think it makes better sense to apply sensible geographic limitations to the precedential weight of opinions rather than the "last in time" theory. Otherwise, the rule of law is jeopardized by having "rule x" mutated and changed into "rule y" and "rule z" -- binding over all circuit courts under Mr. Carter's theory -- as time progresses. Under the traditional approach as adopted in Aleckson, the natural geographic limits of the branches of the one appellate court also limit the weight of the precedent. That way, we don't have continual flip-flopping of the law across every circuit. We simply have circuits in contention, which the Supreme Court resolves.

Federalist No. 84

In California the rule is that trial courts are bound by the decision of any of its state appellate courts. However, on appeal, the appellate court starts from a clean slate. If the appellate court creats a split, then the trial court is free to decide which opinion to adopt. It's up the the Supreme Court to clean it all up.

Maybe that is the rule in Illinois (and I am only speculating). Namely, as to the trial court there is but one appellate court. As to the appellate courts, there are many. ?

Benjamin Barr

As to Federalist,

F: "Maybe that is the rule in Illinois (and I am only speculating). Namely, as to the trial court there is but one appellate court. As to the appellate courts, there are many. ?"

No, that is not the rule in Illinois. "[W]hen conflicts arise amongst the districts, the circuit court is bound by the decisions of the appellate court of the district in which it sits" Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 92 (1997) (citing State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539-40, 178 Ill. Dec. 745, 605 N.E.2d 539 (1992)).

In Illinois, the circuit court is the trial court. Hence, the trial court is affirmatively bound by the decisions of the district court (appellate level) of the district in which it sits.

The rule makes sense and avoids the "last in time" disturbance to the rule of law as discussed in earlier posts.

Best,

Benjamin

Jeffrey

It is obvious that the trial court is bound by the decisions of the appellate district in which it sits. If the trial court were to follow a conflicting decision of another district, the case would be appealed to the district in which the trial court sits and would be overturned. Thus, the rule is an intuitive one and does not need constitutional support.

Richard Rius

My purpose here is to challenge the view that there is a real basis for Illinois Appellate opinions having precedential effect in all circuit courts. As I do not have access to legal research tools at the moment, I would ask you all to forgive me in advance for a lack of citation.

I have to admit that when I read about this debate in the Illinois Bar Journal, I was stunned. I assumed that I was the only one interested issues like this. I want to go back a step, though. Where does the authority for the proposition that the decision of one Appellate District is binding on all Circuit Courts come from?

I am a new admittee, but I encountered this issue while interning at the Cook County State's Attorney's Office. I told a Public Defender that some Appellate case was only persuasive because it was from another district. He told me that a statute says otherwise. The case pleaded out, so I didn't put any more thought into at that point.

One day back at school, I decided to look into it. I started with Illinois Law and Practice (ILP). The encyclopedia told me that there was a statute, but that it was repealed in the 1970s. The statute said that the opinion of an Appellate District Court was binding on all Circuit Courts. I believe the statute mentioned splits among the Appellate Districts, but I don't remember what it said. Not having access to legal research tools, I can't refresh my memory. The Illinois Revised Code is in an ILP entry under Courts (or someting similar) in a section called "Precedential Effect of Opinions."

There were a few cases also cited in the ILP entry. The cases cited fell into four categories: (1) those decided before the statute was repealed; (2)those decided after the repeal, but citing category 1 cases; (3) those decided after the repeal, but citing category 2 cases; those decided after the repeal, but citing cases from some combination of cases from other categories. There an outlier that cited the ILP.

I looked in the ILCS for language like the repealed statute, but I didn't find any. I think that is because the language is not there, but I am not sure because I didn't do as extensive a job as I would have for a client. If I didn't miss anything, the authority for cross-district precedential effect is questionable.

Rich Rius

Nick W.

I am litigating a case in Macon County (4th App Dist.) and have run into some trouble via a 2nd Appellate District decision. The 2nd Appellate District ruled on the issue I am concerned with in a case of first impression in 2003, but no other Illinois appellate districts have ruled on the issue at all. Additionally, the 2003 case has no history since the ruling.

There was some very good discussions taking place on this board which have helped, but they ended in 2004. Has a definitive answer emerged yet? If not, does anyone any recommendations for me on other places I can look for some guidance on this issue?

Mark

Hey Nick. Good luck getting the IL Supreme Court to answer this one. I pro-se'd an admin review case where a 2nd dist precedent was ignored by the 4th dist, which would have resulted in a remand to the circuit court (and the end of my pro-se days). Instead the Sup. Ct. denied leave to appeal, and denied my motion for a supervisory order so the 4th dist could write an opinion consistant with the 2nd's Rule 23 order. The defendants in both cases were the same State agency, and the points argued were the same. (The Rule 23 should have been accepted as 'law of the case'), but the 4th created unreviewable discretion, and the Sup Ct didn't care. Wish I could have afforded a lawyer for this project.

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