*1 (No. 61826. ILLINOIS,
THE OF THE STATE OF Appel PEOPLE JOSEPH, lee, v. MICHAEL Appellant. JOHN 20, 1986. Opinion June filed *3 SIMON, J., dissenting.
Robert Agostinelli, Defender, Thomas Deputy A. Lilien, Defender, Assistant Office of the State Ap- Defender, of pellate Ottawa, for appellant. Kimbell
Raymond III, State’s Attorney, Galesburg Breslin, (John X. of the State’s Ser- Attorneys Appellate vice Commission, Ottawa, of counsel, and Gerald R Ursini, clerk), law the People.
JUSTICE RYAN delivered opinion of the court: defendant, John Michael asks this court Joseph, to determine whether the circuit court of Knox County erred in that section 122—8 of the Post-Conviction ruling (Ill. Hearing Stat., Act Rev. 1984 Supp., par. 122—1 et violates seq.) clause of separation-of-powers II, 1970 Constitution 1). Const. art. *4 The statute requires all post-conviction proceedings “shall be conducted and all shall considered petitions be aby judge who was not in the proceed- involved original Stat., Rev. (Ill. in conviction.” which resulted
ing mo We defendant’s granted ch. Supp., par. 122— as a matter of right. tion for leave to appeal following was convicted of murder The defendant over which trial in the circuit court of Knox County jury re- The conviction was Daniel J. Roberts Judge presided. remanded for a new on and the cause was versed appeal, himself, remand, recused and Roberts Upon Judge trial. The Scott I. Klukos. Judge the cause was to assigned in a conviction of murder. trial also resulted second jury this this conviction and The court affirmed appellate to appeal. court denied leave to was be appeal pending for leave
While petition se for pro filed a court, petition the defendant fore this Knox County. circuit court of relief in the post-conviction Klukos. Pursu Judge came before initially petition moved to have 8, the defendant ant to section 122— all the proceed other than Klukos conduct Judge Act Rev. Hearing (Ill. the Post-Conviction under ings seq.). Judge 122—1 et Stat., par. ch. Supp., as the administrative Roberts, in his capacity Circuit, reassigned Ninth Judicial Knox in the County to G. Evans. Judge Stephen the cause 122—8 motion to have section The State then filed a returned the cause unconstitutional and have declarеd hearing, Judge After a for assignment. Roberts Judge as a vio- 122—8 unconstitutional declared section Evans Judge of powers. of the of separation lation principles Klukos, who the cause to Judge again assigned Roberts Appel- of the State the office directing issued an order all remedies before any late Defender pursue leave to appeal motion for allowed defendant’s court. We right. a matter of as Act Hearing of the Post-Conviction 122—8
Section is a 8) leg Stat., 1984 Supp., par. Rev. 122— aspect an govern attempts enactment which islative *5 41 judicial procedure. (People (1985), v. Ruiz 107 Ill. 19, 2d 23.) The defendant contends that this is consti provision tutional because neither infringes it unduly upon the power nor with judiciary, conflicts rules any promulgated this court. by
We note in position defendant’s “that a support strong attaches to presumption constitutionality any legislative enactment and that the rests burden upon challenger demonstrate its v (Sanelli Glen invalidity.” .20; view State Bank 108 (1985), 1, Ill. 2d Chicago Na Club, tional League Thompson Ball Inc. v. (1985), 108 357, Ill. 2d 368; Mazda, Fireside Chrysler-Plymouth, Inc. v. Edgar 1, 5, 102 Ill. 2d (1984), appeal dismissed 469 83 (1984), 926, 254, U.S. L. 105 Ed. 2d S. Ct. 316.) We note also that the wisdom of legislation this is not an issue before this court. v. People (1984), J.S. 103 Ill. 2d 395, 407.
The separation-of-powers of our clause constitution “The provides: legislative, executive and judicial branches are No separate. branch shall exercise powers another.” prоperly belonging 1970, II, Const. art. 1.) This provision not contemplate “rigidly sep arated re compartments.” (In Estate Barker (1976), 113, 63 Ill. 2d 119; 76 Strukoff(1979), Strukoff v.
53, 58; see also City Waukegan v. Pollution Control (1974), 170, However, Board 57 Ill. 2d 174.) this court has held that if character, “power leg islature is it.” expressly prohibited exercising (Em v. Jackson phasis added.) People (1977), 256; see v. (1952), also Checker Taxi 412 Ill. Agran Co. 145, 149; 146, 157. Ill. People (1931), v. Bruner term,
While our constitution does not define the has is the “[¡judicial stated that power power of citizens and to adjudicates rights upon the law.” v. applies (People end construes and Hawkin 287.) recognized son Ill. We have be may supplemented definition this very in of our and to the history to the common law looking of the 1970 Consti thе time of the adoption stitutions at 14; People Callopy (1934), tution. (People Both of 3d 51 Ill. App. v. Brumfield of our judi that the administration these factors indicate exclu of the “judicial power” cial is an element system the courts. conferred on sively legislative that the law, it was recognized At common how the judicial to specify “without power branch was *6 circumstance a given under shall be exercised power Distribut v. added.) (People ***.” (Emphasis Crawford v. 332, 338; People Spegal 53 Ill. 2d (1972), Co. ing was 211, prohib The 219-20.) legislature 5 Ill. 2d (1955), in the per a judge from or limiting handicapping ited Thus, the 211, 219.) formance of his duties. author the inherent included of concept “judicial power” (Agran of procedure. and institute rules ity prescribe v. 145, 149; Ill. People v. Checker Taxi Co. this common 11, 14-15.) Ill. Clearly, Callopy (1934), court of how the include matters would law prohibition court admin function, concerning is matters that was istration. that also indicates of our branch judicial history of the courts’ the ambit administration falls within (Ill. of The Constitution “judicial power.”
inherent courts to the 1 et 1870, VI, seq.) granted sec. Const. art. performance for the complete all necessary powers v. (People Spegal function. judicial that provides constitution 211, 220.) Our present over authority and supervisory administrative “[g]eneral shall be Court and in the Supreme courts is vested all *** Const. (Ill. with its rules.” in accordance exercised “and supervisory” The words 1970, VI, 16.) sec. art. to emphasize in the 1970 provision added were the judi supervision central concept strengthen Stat., cial VI, 16, Ill. system. Ann. art. sec. Constitu tional Commentary, at 527 (Smith-Hurd 1971). VI, 7,
Article section “[s]ubject to the provides Court, authority the Chief Supreme shall Judge general have court, over his in authority cluding divisions, or provide spe cialized, and for appropriate times and places holding court.” (Emphasis added.) (Ill. 1970, VI, Const. art. sec. When our constitution intends that the 7(c).) legislature is to act in court, the activities governing term “as the limiting law” is used as provided by phrase. (See People (1977), 51 Ill. 3d App. Brumfield 637, For example, court’s appellate power directly review administrative actions is “as limited pro vided law.” Ill. VI, Const. 6; art. sec. see also VI, Const. art. sec. 7(b). have that,
We held when this court has not acted in an area into which it arguable the “judicial extends, section 16 of article power” VI Const. VI, art. sec. to exclude the 16) purport legislature acting any may have way pe ripheral effect on Ill. Ann. administration. (Cf. Stat., VI, art. Constitutional at Commentary, 528 (Smith-Hurd 1971).) For example, court has up *7 held the legislature’s enactment of rules of evidence v. (People Rolfingsmeyer (1984), 101 Ill. 2d of stat 137), utes a life mandating sentence for sentenced to anyone imprisonment for more than one (People murder v. Tay lor 102 (1984), Ill. 2d and 201), of statutes which affect in an proceedings action entirely statutory origin and nature which do not conflict with a rulе this court (Strukoff v. (1979), 53). Strukoff
However, when the has legislature encroached a upon fundamentally judicial prerogative, we have not hesi- tated protect court’s This court has authority. found that a statute which to require purported judges
44 sentence imposing to state their reasons for particular 1970, (Ill. clause Const. violated the separation-of-powers 155, Ill. (1982), v. Davis 2d II, 1). (People art. sec. where legisla We also found such violation 161-62.) trial to con ture of a ability encroached upon after the trial of a cause had begun. trol his own docket 40, 49.) 2d v. Flores 104 Ill. (1984), Recently (People of the Code held that sections 2—1009 and 13—217 2— 1983, 110, Stat. ch. (Ill. pars. of Civil Procedure Rev. the court 1009, 217) operatе preclude could 13— (87 103(b) a motion to dismiss under Rule on ruling Hospital Francis Ill. 2d R. O’Connell St. 103(b)). 273, 2d 112 Ill. 282-83. of the Post- that section 122—8 argues The defendant Stat., Act Rev. Hearing Supp., Conviction on this court’s 38, does not encroach 8) unduly par. 122— un however, authority; and supervisory above, and for the reasons discussed principles der the encroachment below, we find that because of stated vio administration, section 122—8 in this area of court clause of our constitution lates separation-of-powers 1970, II, 1). art. (Ill. Const. lati greater that the has legislature do not believe
We because simply in this area tude to prescribe procedure origin (see People statutory review is post-convictión en 278, 2d Prior 284). 39 Ill. v. Slaughtеr which a act, by the available methods of this actment writ could be attacked were of conviction judgment 278, (39 corum nobis. 2d error, corpus, habeas con United States was Court of the Supreme pris was preventing cerned that this “merry-go-round” challenges constitutional legitimate oners from pursuing 278, 284, Marino quoting to their convictions. 176, L. Ed. 332 U.S. v. Ragen (1947), J., joined (Rutledge, concurring, Ct. 68 S. This concern JJ.).) prompted and Murphy, Douglas *8 45 enactment the Post-Conviction Act Hearing (Ill. Rev. Stat., 38, ch. 122—1 et was Supp., par. seq.), which designed a a provide whereby means could prisoner his easily (See assert challenge. People Slaughter v. (1968), 278, 39 Ill. 2d 284-85.) Although post-conviction relief is in it was statutory origin, designed to implement the common law remedies. The amendment we are now considering was or designed limit define the scope of the (See statutory remedy. (1979), Strukoff v. Strukoff 53, Instead, 76 Ill. 2d 59-60.) it conflicts with directly rules of this and of the circuit court adopted pursu ant to the 1970, VI, Illinois Constitution of article sec tions 16 and In 7(c). court denied that the Strukoff of section requirement 403(e) of Illinois and Marriage Dissolution of Act Stat. Marriage (Ill. 40, Rev. its for a par. 403(e)), bifurcated requirement hearing, clause, violated the since dissolu separation-of-powers tion of marriage is in statutory origin entirely nature. This court noted that situation that case was not one “in a statute directly conflicts with a rule of this court." (1979), 76 Ill. 2d Strukoff v. Strukoff 53, 58.
Assuming statute, alone, standing does not represent violation of the separation-of-powers clause II, Const. art. 1), with legislature is out authority to interfere with “a product this court’s supervisory and administrative v. responsibility." (People Jackson 69 Ill. 2d (1977), words, In if other with statute conflicts a rule of this court adopted pursu ant to constitutional the rule will Peo authority, prevail. 268, 274; v. ple Cox People Jackson 259. In this case section 122—8 conflicts with Supreme Court Rule Ill. 2d R. That rule 21). provides: “(a) Court Rules. A ma- Appellate Court and Circuit jority Appellate judges Court each district and a *9 may adopt of the in circuit majority judges circuit each and which are consist- governing rules civil criminal cases the ***. ent with these rules and the statutes of State (b) judge The chiеf of each circuit General Orders. general the his may general enter orders in exercise of providing including authority, orders for assignment judges (Emphasis added.) 94 Ill. 2d ***.” of (b). 21(a), Rules the The defendant that section 122—8 of Post- argues Stat., ch. (Ill. Act Rev. 1984 Hearing Supp., Conviction not Rule 21 because 38, does conflict with 8) par. 122— the chief of (a) judge of Rule 21 subparagraph requires applica circuit to consistent with assign judges any each However, statutes, 122—8. Rule including section ble of the rule-making to the 21(a) pertains only au 21(b), courts. Rule chief gives to for the general providing assign enter orders thority the general not that order judges, require ment 21(b), pur consistent with the statutes. Rule adopted be (Ill. of article VI our сonstitution 7(c) suant section VI, art. earlier confers 7(c)), quoted, Const. enter orders for on each chief power legisla from any express free assignment judges, limitations. tive literal interpreta note that the defendant’s
We also unlimited au legislature give tion Rule would It is the of all Illinois courts. over administration thority this its court undisputed duty protect enactments legislative encroachment by powers (Agran judiciary. an independent order preserve rules of 145, 149.) Ill. If the Co. Checker Taxi en consistent with every legislative circuit must be each subject even where procedure, regarding actment “judicial of the within the ambit matter is properly 21(a) Rule totally would be abandoned. duty power,” that аs requiring interpreted be properly should each circuit’s rules be consistent with statutes that do infringe upon “judicial power.” unduly court, defendant also that this argues promul our Rule 1 2d R. gating 1), has recognized (Ill. Code of Criminal Procedure of 1963 Rev. Stat. 100—1 et seq.), which includes the ch. par. Stat., Post-Conviction Act Rev. Hearing 1984 Supp., 122—1 et seq.), can par. trial govern proce dure administration, and that the legislature may create different rules particular kinds of actions. Rule provides rules on in the proceedings “[t]he court, trial together with the Civil Practice Law and Procedure, Code Criminal shall all govern proceedings in the trial court ***.” 87 Ill. 2d R. 1.
Again, as with Rule 21(a) (94 Ill. R. 2d we can 21(a)), not agree with the defendant’s of this reаding rule which would require this court to abandon its duty protect the of the authority judicial of government. branch (Agran Checker Taxi Co. 145, 149.) 412 Ill. of proper reading this rule contemplates that the statutes mentioned, so long as they do not en unduly croach on the “judicial and the power,” rules promul gated these areas should one another. complement VI, In summary, 1, article section of the Illinois Con stitution of 1970 vests the judicial power the supreme court, an appellate court, and the circuit courts. The su pervisory authority over all the courts is in the court, vested to be exercised in supreme accordance with rules. (Ill. 1970, Const. art. VI, sec. Subject to the the authority court, of the supreme chief in each judge circuit has general administrative au thority 1970, over his court. (Ill. VI, Const. art. sec. Our Rule 7(c).) 21(b) gives the chief judge authority enter orders, orders for including the assign ment of Ill. 2d R. judges. (94 21(b).) The chief judge of Ninth the Judicial Circuit designated Judge Roberts as of Knox with County authority the administrative to the who are judges regularly duties assign to that Thus Judge Roberts’ assigned county. in this case to assign post-conviction petition from the of the constitu provisions flowed directly of the this court cited above. Section
tion and rule of (Ill. Act Rev. Hearing 122—8 of the Post-Conviction Stat., 38, interferes Supp., par. 8) directly ch. 122— assignment. judicial authority with maintains that if section 114— defendant Finally, Rev. (Ill. of the Code of Criminal Procedure of 5(a) for the 5(a)), ch. which allows Stat. par. 114— motion, the defendant’s substitution judges upon clause Const. (Ill. not violate separation-of-powers not II, art. then section 122—8 should be 1), no However, to do so. the defendant has cited deci held of section sions where issue of constitutionality course, We, Illinois ex 5(a) was before an court. 114— other validity no on the statutes opinion any press here; therefore, we need judicial procedure regulating this contention. address find has rebutted sufficiently the State We to section afforded constitutionality presumption Act Rev. Hearing 122—8 of Post-Conviction For the reasons Stat., par. 8). Supp., 122— court of Knox above, the circuit stated order is affirmed. County
Order affirmed. *11 SIMON, dissenting: JUSTICE that the statute I do not believe Unlike majority, of powers. the separation in this case threatens at issue encroach undue concern over perceived The court’s (see cases here, as other recent turf judicial ment on Inc. America, (1986), North v. Mercedes-Benz Kiven of or- J., concurring supervisory 585 (Simon, 111 Ill. 2d der); People (1984), (Simon, Flores J., dissenting); v. Davis 93 Ill. People 2d J., (Simon, takes dissenting)), us further road along to a government “rigidly separated compartments” In (see re Estate Barker 63 Ill. 119) 2d not contemplated the drafters of our constitution. I regard this as unfortunate.
The recites the majority familiar that a principle strong to all presumption constitutionality attaches legislative acts. That herе, how- presumption gives way ever, to a presumption judicial which the inviolability raises to a more majority mistake, elevated status. The it, as I see lies in the fact that the majority has divorced presumption constitutionality its root—re- spect between coordinate branches government —and has thereby rendered it little than more another rule of construction be statutory utilized when convenient. In this case it seems to me with- eminently possible, out betraying of our separation-of-powers provision constitution, the legislature’s that a accept judgment different judge should review the post-conviction peti- tion. It also makes sense to do so in of the fact that light the different-judge is рrovision piece of the legis- lative package dramatically pro- circumscribes cedures afforded those seeking post-conviction relief.
The majority’s argument to the is contrary appar- First, twofold. ently it contends that even if no conflict- ing existed, rule supreme statute —section 122—8 of Code of Criminal Procedure of 1963- alone would standing unduly infringe the in- judiciary’s herent Second, it authority. concludes the statute indeed conflicts with a court rule and must therefore fall. I each address in turn.
The first majority declares that administration of the an element of system “exclu judicial power sively conferred on the courts.” 2d at
50 hardly
court thereafter concedes what could be doubted our some legislature may cases: take prior ma actions which affect administration. As the judicial it, sees this court will effect to statutes which jority give a effect have mere on administra “peripheral” judicial 113 43. tion. Ill. 2d at confused,
I am majority’s concept though, legislative upon ju acts intrude a “fundamentally involve a prerogative” “periph dicial and which merely ma eral effect on judicial (emphasis administration” 2d at jority opinion) 43). Apparently Ill. characterize rules of majority would statutes prescribing v. Ill. 2d (1984), evidence 101 (People Rolfingsmeyer that a a sen 137), mandating judge particular impose Taylor (1984), 201), v. (People requiring tence a before presentence rеport imposing a judge inspect 82 Ill. 2d and (1980), 556), v. Youngbey sentence (People stages days to wait two between ordering a judge v. (Strukoff a bifurcated divorce proceeding Strukoff ef 53), 76 Ill. 2d as (1979), falling “peripheral on contrast, a telling fect” side of line. statutes By his for a (Peo state reasons sentence imposing v. (1982), days’ Davis five ple 155), requiring a case for dismissing parte notice before ex want Ill. v. (1952), Checker Taxi Co. (Agran prosecution if days two proceed and 145), ordering v. trial (People during defendant absconds a criminal fundamental 40) 2d invade Flores or I can no reason discern rhyme prerogatives. makes made, the majority the court has distinctions here in terms real to defend its decision no аttempt our prior cases. I cannot side, of our cases to one
The morass earlier de- 122—8 can how, event, fairly section be see in any affecting to or administra- directed scribed as primarily the leg- decision by represents policy tion. statute Act Hearing islature —which created Post-Conviction (see the first 76 Ill. place Strukoff Strukoff 53) 2d due to a contraction other procedural —that having the defendant should safeguards, protected by be a fresh look at the case before it is dis eye summarily *13 There in en legislature, missed. is reason for the ample a it a circuit court acting statute makes easier for relief, to to the deny post-conviction safeguard providе of a new at I not to review what occurred trial. do judge the understand should resist this why approach, judiciary which strikes me as one a guided fundamental sense by of This legislature, fairness. substantive decision the by limitations, like statute of has effect an on those ad the the ministering judicial system; but is impact truly the “peripheral” to business of the I running courts. do it, therefore, as regard legislative wrest attempt the of the courts from the governance supreme court contravention of either the or arti separation powers VI, cle section the Illinois Constitution. VI, in article section invalidation
Nothing requires of this either. statute The that the implies legis majority lature must steer clear of any percеived acts as implicat administration ing because this provision vesting general administrative authority the chief of each circuit to the subject (Ill. of the court authority supreme Const. VI, 1970, art. the I 7(c)) legislature ousts completely. That the chief disagree. judge’s authority is the by overarching limited of the authority supreme court not mean that his un authority otherwise fettered or he that may ignore legislative enactments. only clarifies the relative of the provision court; chief and the it supreme does not his say subject only actions are of this pronouncements court. Would for ad anyone suggest, that a example, order ministrative a chief by judge discriminating on the against employees basis race would be the Human Rights from the Illinois exempt provisions seq.)? Act Rev. 1—101 et Stat. par. I the advanced argument by Nor do find impressive that intends the leg- when Constitution majority the judicial islature to act it must explicitly say is to be exercised law.” This provided “as power when the Constitution consciously occurs phrase fill it. legislative invites action to To at- leaves a void and of the Constitution the intent tribute to drafters may action which touch prohibit legislature any are not whenever these words upon judiciary magic themselves suggests thought drafters employed in all the two branches myriad ways prescient concedes, the majority could intersect. As government no there is yet rules of evidence arе permissible, provi- legislature inviting sion in the Constitution expressly law” rules evidence. “provide by in also bolsters its argument The majority to the common view of the reference law violability by *14 in v. expressed separation powers purportedly People 211, 219-20, v. People and Craw Spegal (1955), ma Ill. 2d 338. The (1972), Co. 53 Distributing ford from Distrib language jority quotes expansive Crawford the stating in that Spegal) from a uting (drawn quotation to how was ‘without “legislative power specify branch cir given be exercised under the shall judicial power ” (113 in Ill. 2d opinion.) majority cumstance.’ (Emphasis for the same principle at It also cites 42.) Spegal not the could legislature the further proposition of his du in the performance or limit a judge handicap ties. Ill. 2d 42. at which the not for the principles
These cases do stand on them. The language seeks to extract from majority is based derives not argument which the majority’s v. Scott People the earlier case but from Spegal, provid- held that a statute Ill. had 122. Scott that a criminal defendant could waive a for trial ing jury violated the doctrine the because separation-of-powers statute how the attempted specify judicial power in a should be exercised circumstance and because given it would or limit in the exercise his handicap (383 duties. language attributed does in but in a Spegal appear Spegal, (Peo only passage Ill. 2d ple Spegаl 219-20) quoting in However, court, Scott. an in Spegal opinion Schaefer, Justice Walter V. one of by this court’s most scholars, eminent then legal over proceeded expressly Scott, rule discrediting the broad along way view inviolability embodied in the majority opinion it Thus, here. obvious that Spegal court quoted the language from Scott on which the majority relies to show its dissatisfaction with that language. While the Spegal court acknowledged that there are “limits be which the yond legislature may go in specifying how is to judicial power be exercised” 220), court made clear ones; those limits are narrow as it noted that the examples legislature cannot direct the how to judiciary decidе case and unduly cannot circum scribe power courts to determine the facts and the law to apply them. The statute a different requiring on post-conviction review does is in neither, and fact far more like the statute allowing the defendant choose between by judge trial or jury was ulti sanctioned As mately this court has Spegal. Spegal, no to “override the determination of the legis lature as to the method of trial to be 5 Ill. employed.” 211, 220. 2d Distributing contain broad language
Crawford to the effect that the legislature cannot specify how *15 is to be exercised in a power given circumstance, but the factual situation of that case demonstrates that the was limited to the princiрle very compass narrow The Spegal. court in Distrib-
contemplated by Crawford the stated that the could not direct uting legislature to construe the State antitrust law in conform- judiciary the anti- with Federal courts’ construction of Federal ity trust The here not the court legislature laws. told has statute; how to indeed 122—8 specific section interpret not how tell is to be judiciary judicial power Thus, all. the fact that the words expansive exercised at and then in ex- Scott, Spegal, of renounced were quoted not a sec- Distributing does breathe in humed Crawford to of laid powers the view of the separation ond life into rest Spegal. is section 122—8 suggests next that majority R. it our
void because cоnflicts with Rule Rule that a 21). (a) in section provides majority of a circuit rules civil and adopt judges may governing are as as “consistent these long they criminal cases with State”; of this section (b) rules and the statutes permits each circuit to orders general chief enter judge The latter authority. his the exercise be such orders that expressly require section does not acts. legislative court rules or supreme consistent with 21 do collide 122—8 and Rule Plainly, section is difficult head on. The logic majority opinion authority that the follow, apparently but the argument assign County the administrative Knox same petition post-conviction defendant’s in Rule at the founded ultimately trial was presided who this fact a conflict between that demonstrates 21(b), (which assignment and the statute 21(b) requires Rule be that the must therefore statute judge), a different invalidated. is incorrect for a number
I majority believe mis- error lies in the majority’s Initially, of reasons. .the the administrative apprehension entered was order power assignment judge’s *16 As the 21(b). to Rule rules the Ninth Judicial pursuant as (attached opinion) Circuit an to this appendix clearly face, disclose on their was expressly the 104(b) in Rule and section Code grounded 21(a) 1— 1— par. Civil Procedure Rev. Stat. its an terms, own 104(b)). By provision establishing judge forth his duties is a setting rule, order, not a general and therefore must be “con *** sistent with statutes of this State” under Rule Thus, action taken 21(a). any by administrative judgе to the local rule could be a ba pursuant hardly sufficient striking sis for down the statute.
The further we majority’s argument must read —that a limitation into Rule that rules circuit 21(a) adopted by need be consistent with statutes which do judges not judicial without infringe upon power force. —is is There no warrant in the plain language our rule such a The limitation. fear that a “literal interpretation” of the rule “give legislature would unlimited author ity over administration all Illinois courts” (113 at is 46) also baseless. Rule 21(a) obviously was designed of the circuit rules courts prevent from overturning statutes. The legislature not thereby given control of administration in view of this court’s constitu tional power under section 16 of article VI (Ill. Const. VI, 16). art.
Even assuming local rule at issue here had been a indeed order general promulgated the chief to Rule I could judge pursuant 21(b), agree that Rule 21(b) confers each upon chief to enter power orders “free general legislative limita any express view, tions.” Ill. 2d at this On court’s deci v. sion in 2d uphold Strukoff Strukoff ing statutory two-day period between the waiting of a bifurcated divorce effec phases proceeding, could be overruled chief de- tively by any the State who to enter a order the effect that there cided Legislative would no be such a longer waiting period. so fragile merely choices should not be rendered policy con- because of a circuit of administrative judge’s view veniеnce. not mean the doctrine does separation-of-powers (Kiven all choices must avoid
legislature policy America, Mercedes-Benz North Inc. J., order)) which (Simon, concurring supervisory to touch thought now or in future be
may upon *17 rules, of this court or the orders, or directives particular if A there lower courts. statute be invalidated may only is court in an area supreme a direct conflict with a rule v. Cox People judicial supremacy. which, a of this as 268, for involved rule court example, as the established “abuse of discretion” interpreted, of criminal sentences and standard review appellate a a sentence of reviewing reducing prohibited The one court declared to of probation. imprisonment a which to purported unconstitutional act legislative the of review and to allow reduction standard change a In v. Jackson People sentence to probation. the at issue that parties the statute stated court rule dire, to voir while the
were entitled conduct dire and the would conduct voir that provided judge that questioning. to parties supplement could the permit the on matter within judi In of the direct conflict a view held unconstitutional. the statute was cial power, a statute and a rule such direct conflict between No not in case. Section 122—8 does court exists this this the authority the which judge chief strip purport orders, him enter gives general assignment Rule 21(b) elsewhere; it therefore nor it lodge or in Cox Jackson. to the statutes analogized cannot be as- who should be not dictate judge The statute does It hearing. prescribes to the signed post-conviction a narrow substantive limitation on the chief au- judge’s to act to the he a thority pursuant rule: enter may general order requiring be post-conviction petition heard who at I see by judge presided the trial. no reason awhy circuit or even this court judge should be able such a decision trump policy because it simply has some on of cases. impact assignment
Even accepting proposition that order entered chief to the effect by judge thаt post-convic- tion must be petitions by heard the trial would cre- ate a statute, conflict requiring invalidation any conflict here is purely Neither the imagined. chief judge nor circuit itself any has created such rule or general order. The only action by Ninth Circuit was to pro- vide rule for the by of an appointment administrative judge. is majority reduced to finally a “con- identifying
flict” between the statute and the administrative judge’s particular case, directive is said to “flow” from Rule 21(b) of the Ninth Circuit way administra- tive rule (which the insists on as a majority seeing general order). This attempt a conflict of bootstrap constitutional magnitude unprecedented our cases. In my judgment, directive judge’s re- *18 assigning this case to the trial judge is too far simply downstream from the headwaters of the Constitution and our to rules implicate the of separation This powers. is especially true here because the Ninth Circuit rule re- lied upon to authorize purport any particular assignment Further, policy post-conviction cases. a close of the rule reading discloses that only chief judge is to authorized make “case by assignments. case” The administrative judge, “assign who additional may ju- dicial duties to the Circuit and Judges Associate regu- larly to assigned and County further may assign said Judges to divisions within the in the County absence order the Chief has not Judge,”
of an assignment by to a assign specific been Ninth Circuit empowered by to in cоntravention of a post-conviction proceeding of the statutes this State. 8,
In section the court also fails striking down 122— 1 (87 account for Court Rule adequately Supreme of 1). 2d R. Rule 1 Code specifically incorporates 1963, of 122—8 a Criminal Procedure of which section rules of Since we have adopted into our part, procedure. a of 122—8 it remains our section by incorporation, part it. until are to exclude they rules amended explicitly 1, of I understand why Given the mandate Rule cannot the stat strains find conflict between majority 21, subjects. ute and Rule which address different 1, minimum, Rule at a commands us to construe stat- The possible. rules in whenever harmony utes that the rules and the statutes should concedes majority I another, one am its frankly puzzled by but complement of and the legisla- relation the court proper view the no decision, After this statutory provision ture. is safe because it be ousted may affect procedure may or rules the administrative this court even circuit or courts. or directives appellate harbinger is therefore majority opinion invalid, then the to come. If this statute is things worse statutes criminal and civil substitution-of-judges far broader (I 110, 5; ch. ch. par. Rev. Stat. 114— ll. statute Rev. Stat. and the par. 1001) speedy-trial 2— which also substantive par. 5), impose 103— courts, are functioning on the limitations policy ground. on shaky also case be-
This court is called on not decide lawmаkers it, also to the tracks future lay fore but are Instead, fear is we proceeding and judges. my in an ad hoc manner provi- the constitutional applying This decision relating separation powers. sion *19 leaves future decisionmakers to chart an unsurveyed course and wander in the likely wilderness of our separa- tion-of-powers I therefore jurisprudence. dissent.
APPENDIX RULES OF COURT NINTH JUDICIAL CIRCUIT
STATEOF ILLINOIS Rules, The within ADMINISTRATIVE, GENERAL, and PROBATE shall be effective August 1984. These Rules su- percede all former Rules of the Ninth Judicial Circuit Court.
[*] [**] RULES OF COURT POWER OF COURT TO ADOPT RULES: These rules are promulgated pursuant to Section 104(b) of the Code of 1— Civil Procedure providing that the Circuit Court may make rules regulating dockets, their calendars, and business and Supreme 21(a) Court Rule providing that a majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases consistent with rules and statutes.
* * * ADMINISTRATIVE RULES RULE A—1 ADMINISTRATION
The Office of the Judge Chief shall have administra- tive over the Courts in the Ninth Judicial Circuit. A. ADMINISTRATIVE JUDGE 1. Designation of Judge Administrative Chief —The
Judge shall appoint one Judge within each County "ofthe Circuit as Judge Administrative County. 2. Duties of the Judge Administrative Adminis- —The Judge
trative shall administer the Judicial Divisions the County in which he is presiding and perform such other duties as may be required for the proper adminis- justice.
tration of *20 B. ASSIGNMENTS JUDICIAL Judge Judge 1. the Chief Chief Assignments by —The the various assign Judges shall Circuit and Associate may assign and further all Counties within the Circuit by a case Judges County to Divisions within a and on case basis. Assignments Judge the Administrative Ad- by 2. —The Judge County may assign within each addi-
ministrative Judges tional duties to the Circuit and Associate may assign further regularly assigned County Judges County to Divisions within the the absence said assignment Judge. of an order the Chief
* * * (No. 62361. IN HELLER, v. JONATHAN Appellee,
THEODORE R. al., et VESTMENTS, INC., Appellants. 20, 1986.
Opinion June filed