Opinion
1984.
(59866) Wacaser v. Wacaser ......................................... Denied.
(59900) Wade v. Wade ............................................... Denied.
(59992) Ward v. Kramer ............................................. Denied.
(60007) Waste Management of Illinois v. Illinois Pollution Control Board ............................................ Denied.
(59865, 59930) Western Casualty Surety Co. v. Brochu ............ Allowed.
(59839) White v. Mieher ............................................ Denied.
(60041) Zimmerman v. Netemeyer ..................................... Denied.
(59791) Zurek v. Jones ............................................. Denied.
Lowe v. Norfolk Western Ry. Co. 101 Ill.2d 547 forum non conveniens 124 Ill. App.3d 80 forum non conveniens situs Stambaugh v. International Harvester Co. 102 Ill.2d 250 263 forum non conveniens mandamus mandamus Espinosa v. Norfolk Western Ry. Co. 86 Ill.2d 111 125 forum non conveniens forum non conveniens In re Marriage of Davies 95 Ill.2d 474 478 forum non conveniens forum non conveniens. Murphy v. Crawford, Murphy Tilly, Inc. 101 Ill.2d 547 nunc pro tunc Grissom v. Buckley-Loda Community Unit School District No. 8 11 Ill. App.3d 55 West v. West 76 Ill.2d 226 233 Stauffer v. Held 16 Ill. App.3d 750 752 require[d] nunc pro tunc Grissom v. Buckley-Loda Community Unit School District No. 8 11 Ill. App.3d 55 nunc pro tunc nunc pro tunc 11 Ill. App.3d 55 59 People v. Moore 101 Ill.2d 549 People v. Payne 99 Ill.2d 135 140 certiorari Williams v. Illinois, Dixon v. Illinois Yates v. Illinois 80 L.Ed.2d 836 104 S.Ct. 2364 People v. Payne 99 Ill.2d 135 People v. Yates 98 Ill.2d 502 People v. Cobb 97 Ill.2d 465 People v. Williams 97 Ill.2d 252 People v. Gosberry 93 Ill.2d 544 People v. Davis 95 Ill.2d 1 Swain v. Alabama 380 U.S. 202 13 L.Ed.2d 759 85 S.Ct. 824 Cf. Ballard v. United States 329 U.S. 187 91 L.Ed. 181 67 S.Ct. 261 United States v. McDaniels 379 F. Supp. 1243 1244 33 33 Ballard v. United States 329 U.S. 187 195 91 L.Ed. 181 187 67 S.Ct. 261 265 Strauder v. West Virginia 100 U.S. 303 25 L.Ed. 664 Frontiero v. Richardson 411 U.S. 677 36 L.Ed.2d 583 93 S.Ct. 1764 Thiel v. Southern Pacific Co. 328 U.S. 217 225 90 L.Ed. 1181 1187 66 S.Ct. 984 988 McCray v. New York 461 U.S. 961 77 L.Ed.2d 1322 103 S.Ct. 2438 certiorari certiorari habeas corpus cf. McCray v. Abrams 576 F. Supp. 1244 Swain Payne. APPENDIX I
The following is the text of Justice Simon's dissent from the denial of leave to appeal in (1984), .
JUSTICE SIMON, dissenting:
In addition to the question, this appeal raises substantial issues, including whether jurors were properly dismissed during trial and whether 47 separate lawsuits should have been consolidated for trial. The most prominent issue presented in the petition for leave to appeal and addressed by the appellate court (), however, was whether the circuit court of Madison County was the appropriate forum. The appellate court decided it was not and that the case should be refiled in another forum. The railroad's suggestion to the trial judge was that a Missouri court would be the proper forum. I would allow the petition for leave to appeal to review the appellate court's disposition of the issue.
Even should we conclude that the appellate court correctly reversed the judgments in favor of the plaintiffs on the other issues, and I do not comment here on the merits of those issues, resolution of the forum question will determine whether a new trial will take place in Illinois or elsewhere. The of the new trial may determine the law that will be applied to the case to the extent that it differs
from State to State.
As Justice Clark noted in dissent in (1984), , (Clark, J., dissenting), this is a late date to be overturning, on grounds, a substantial verdict arising from an accident which has been the subject of litigation in the courts both of this State and of Missouri for a long time. This court has already refused to interfere with the question of the appropriate forum in this case when we denied Norfolk Western's pretrial motion for relief on that issue (People ex rel. Monsanto Co. v. Chapman, No. 55023, denied Sept. 3, 1981). In denying this petition for leave to appeal, we are ignoring the approach of this court in a somewhat similar situation in (1981), , , where we said:
"And, furthermore, this court did deny a pretrial application for leave to file an original action to vacate denial of the motion. While our denial is ordinarily meaningless in a consideration of an alleged error on appeal, it is not totally irrelevant here where, by reversing, we would be punishing plaintiff for subjecting the witnesses and defendant to expense and inconvenience which we could have prevented but did not."
There are additional reasons why the appellate court should have deferred to the plaintiffs' choice of forum in this case. The railroad's attempt to upset the verdicts on the ground of inconvenience so that this case can be retried in Boone County, Missouri, or another central Missouri forum near the site of the accident is highly suspect in view of the contrary position it urged with respect to actions arising out of the same derailment and chemical spill which were filed in the circuit court of Boone County. The railroad sought a change of venue from Boone County on the ground it could not receive a fair trial in that forum because of extensive media coverage in the area where the accident occurred and resulting injuries were suffered. I view it
as a bizarre change of position that, in a subsequent action filed in St. Clair County, Illinois, involving the same spill, Norfolk Western moved to dismiss on grounds, stating that trial of the case in Boone County, Missouri, would be in the best interest of the courts and of the people of the States of Illinois and Missouri.
The railroad's response to this apparent inconsistency provides additional reason for skepticism. The railroad explains in its response to the petition for leave to appeal that the proper forum for this case, arising out of a spill of chemicals in Boone County, Missouri, while the railroad was carrying them through that county, would perhaps be a court in central Missouri other than Boone County. However, it fails to explain why other counties in central Missouri are preferable to Boone County in view of the national attention that the spill attracted and the fact that television and radio stations in counties surrounding Boone County and the major newspapers circulating in central Missouri, as well as in St. Louis and Kansas City, appear to have extensively covered the incident which gave rise to this action. In any event, I do not understand why a reviewing court should defer to a defendant which, in the words recently used by this court in (1983), , , blows "hot and cold" and also lukewarm on the issue of what would be a proper forum.
When these cases were filed, the roster of defendants included General American Transportation Company, which had its principal place of business in Illinois, and Monsanto Company, which manufactured the chemicals which spilled out of the tank cars when the accident occurred. These chemicals were manufactured by Monsanto Company in St. Clair County, Illinois, which adjoins the forum (Madison County, Illinois) that the plaintiffs chose. Thus at that time Madison County, whose courthouse is less than 20 miles from Monsanto's factory in St. Clair County, was a proper forum for these cases.
The cases were set for trial on March 15, 1982. On that day General American Transportation Company and Monsanto Company
settled with the plaintiffs. Thereupon the railroad presented an oral motion to renew the motion it had previously filed on grounds. The oral motion was denied by the trial judge and the railroad made no effort to supplement it or to file a written motion before opening statements and the presentation of evidence commenced on April 5, 1982, after a jury had been selected. Effective April 1, 1981, Rule 306(a)(1)(ii) (87 Ill.2d R. 306(a)(I)(ii)) was amended to allow an interlocutory appeal from an order denying dismissal on grounds of The plaintiffs contend that the railroad should have sought leave to appeal the issue of the proper forum between the time the rule change became effective and opening statements in the trial and that by failing to do so they waived reliance on this issue. The plaintiffs' position appears on its face to be a reasonable one and I believe this court should examine it. Certainly that would have been a more expeditious way of attempting to determine the forum issue instead of waiting until a long, complicated and expensive trial involving numerous plaintiffs had been concluded.
In effect, the procedure approved by the appellate court gives a defendant two bites, first in its defense at the trial and second in the new trial necessitated by its belated but successful effort on appeal to upset the result of the trial on the ground of inconvenience. While I agree that defendants should not be exposed at their peril to an abusive choice of forum, I believe that they should be diligent in objecting to such forums, and not be rewarded for lack of diligence in so doing. The railroad contends that the scenario changed on March 15, 1982, when General American Transportation Company and Monsanto Company were dismissed from the case. However, the railroad showed lack of diligence in failing to bring the changed scenario to the attention of a reviewing court under the new rule before trial actually commenced.
Finally, an important issue in these cases was the toxicity of the chemical spill and its capacity to cause the injuries sustained. It seems to me that the proximity of the plant in which
the chemical was manufactured (in the adjoining county 20 miles away from the courthouse) could be regarded as a relevant factor in determining the convenience of the forum on that issue, even after Monsanto was dismissed.
JUSTICE GOLDENHERSH joins in this dissent.
APPENDIX II
The following is the text of Justice Simon's dissent from the denial of leave to appeal in (1984), .
JUSTICE SIMON, dissenting:
I would allow this petition for leave to appeal. The appellate court dismissed plaintiff's appeal. In doing so, it ensnared the plaintiff in a technical pleading trap which it was never the intent of the supreme court rules to set. The appellate court's resolution fails to promote the fairness and clarity in the law which the rule in question was enacted to ensure.
The plaintiff's action under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) sought recovery for injuries suffered when a backhoe crushed his leg. The circuit court of Sangamon County ruled that this kind of injury did not come within the scope of the Structural Work Act and dismissed the complaint with prejudice in a docket entry dated October 4, 1983. This entry stated "continued for written order." Plaintiff filed a notice of appeal on October 7. On October 27 a signed written order dismissing the complaint with prejudice was entered, but it was dated to October 4, by agreement of all the parties. Although plaintiff did not file a new notice of appeal, none of the defendants contested the jurisdiction of the appellate court to hear the case, and indeed one filed a declaratory judgment action to determine which of its insurance carriers would be liable for defending the lawsuit and paying any judgment that might eventuate. The appellate court on its own motion, 4 1/2 months after the notice of appeal was filed, dismissed the appeal for lack of jurisdiction, citing
(1973), , and our Rule 272 (87 Ill.2d R. 272).
Appeals of right from the circuit court may be taken only from final judgments.
(87 Ill.2d R. 301.) Rule 272 defines what constitutes a final judgment in certain cases in which judgment is announced orally before a signed order is entered:
"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record." (87 Ill.2d R. 272.)
The committee comments indicate that the purpose of Rule 272 is to remove doubt as to the date a judgment is entered, so as to put appellants clearly on notice of when their appeals must be filed and reduce the possibility that parties will lose their right of appeal through uncertainty.
(See (1979), , .) It is a rule that was designed to guide the diligent rather than to trap the unwary, and is consistent with the maxim that reviewing courts should attempt to decide cases on the merits rather than disposing of them on procedural technicalities or inadvertent omissions.
( (1974), , .) As such, it should not be so interpreted as to destroy causes of action in cases which do not clearly fall within its scope. The rule, by its terms, covers only cases in which "at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him." Although such a form was ultimately signed and entered as the judgment of the court, the docket entry of October 4 did not indicate that the judge " the submission" of the form at the time he initially announced his judgment. What is significant here is that the trial judge later
appeared to acknowledge that his judgment took effect on October 4 rather than October 27.
The record provides no basis for branding as indiligent plaintiff's decision to consider the October 4 judgment final. On the contrary, his filing of his notice of appeal three days later displayed unusual diligence. Nor is there any compelling reason for disregarding the clear intention of the trial judge through his use of a order that the effective date of the judgment was to be October 4.
(1973), , does not justify ignoring the trial court's retroactive entry of judgment. In that case a written judgment entered was ruled effective as of the date of entry rather than the earlier date because it decided substantive questions relating to damages which had not been adjudicated in any previous order. By contrast, the signed order of October 27 in the instant case merely repeated what had been said in writing in the docket entry of October 4, which was that the plaintiff's Structural Work Act claims were dismissed with prejudice. No attempt to supply a new judicial ruling is apparent in the October 27 order, and that order was validly made "'to enter of record an order actually made.'" (Emphasis deleted.) , .
Dismissal of the plaintiff's appeal on jurisdictional grounds derives no support from Rule 272 or the case law, and under the circumstances I regard it as bizarre. Everybody knew the plaintiff was seeking review by the appellate court, and everybody was on notice of precisely what it was that he sought to have reviewed. None of the actors involved envisioned any jurisdictional problems — not the plaintiff, not the trial judge, and certainly not the defendants, one of which went to the trouble of filing a collateral lawsuit in anticipation of the appeal. In my opinion, the appellate court's expansive interpretation of Rule 272 reestablishes the kind of hypertechnical pleading, requirement that defies understanding and punishes diligence; its disposition is reminiscent of the common law rules of pleading
which our legislature and this court have struggled for so long to purge from our law. Plaintiff should have his day in a reviewing court.
APPENDIX III
The following is the text of Justice Simon's dissent from the denial of leave to appeal in (1984), .
JUSTICE SIMON, dissenting:
I would allow the petition for leave to appeal and resolve the defendant's claim that the prosecutor's systematic exclusion of black people from the jury deprived him of his right to a jury drawn from a fair cross-section of the community. For the reasons explained in my dissent in (1983), , (Simon, J., dissenting), I believe that the State's use of peremptory challenges violates the defendant's rights under the sixth and fourteenth amendments to the United States Constitution and article I, sections 2 and 13, of the Illinois Constitution.
Justice Marshall's recent dissent to the denial of in three Illinois cases ( , and (1984), 466 U.S. ___, , (Marshall, J., dissenting, joined by Brennan, J.)) should provide the incentive for us to reexamine a disturbing problem which will not resolve itself of its own accord. Justice Marshall's eloquent analysis of the problem includes statistics which show without doubt that black persons are grossly under-represented on the jury panels of black defendants accused of capital offenses in Illinois. Similar underrepresentation occurs in noncapital cases such as this one.
This court has now at least six times within one year rejected the claims of black defendants that the systematic exclusion of black persons from juries resulted in the denial of equal
protection and of their right to a trial by a jury of their peers.
( (1983), ; (1983), ; (1983), ; (1983), ; (1983), ; (1983), .) The facts in those cases alone are enough to establish the systematic exclusion of a particular group in case after case which this court requires under (1965), , , , in order to find a violation of the equal protection clause of the fourteenth amendment. In addition, of course, the sixth amendment, as applied to the State of Illinois through the fourteenth amendment, prohibits the exclusion of jurors solely on the basis of race. There can no longer be any doubt that the practice of excluding jurors on the basis of race is pervasive in Illinois and that it raises constitutional issues of the gravest dimension under two separate guarantees. Because this court once again refuses to recognize this constitutional right, I dissent.
Even more troubling is the majority's continued reluctance to consider limiting the misuse of peremptory challenges under our State constitution or under our supervisory jurisdiction over the system of justice in this State.
( (1946), , , (granting a new trial under supervisory jurisdiction over Federal courts where, pursuant to State law, women were excluded from a jury venire unless they volunteered); see also (E.D. La. 1974), , (granting a new trial under Federal Rule of Criminal Procedure (Fed.R.Crim.P. ) in the "interest of justice" where prosecutors used peremptory challenges to remove six of seven black persons from the venire).) The cost of not doing so is substantial. The majority's decisions on this issue have emboldened prosecutors to increase their use of peremptory challenges to exclude black persons from jury service. These decisions give judicial sanction to racially discriminatory activity in a way that is likely to undermine the jury system and pervert its goal of seeking the
truth. The majority's implicit endorsement of these practices will diminish the confidence that the people of this State must have in the fairness and impartiality of the trial by jury, and it will ultimately discourage respect for the law.
The defendant is not the only person affected by this pernicious practice — "there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts." ( (1946), , , , , , .) Moreover, when lawyers use peremptory challenges to exclude prospective black jurors from serving on a jury, they deny those persons the opportunity to participate in the administration of the criminal justice system through the privilege of jury service. In many cases, I suspect, lawyers are using peremptory challenges to exclude black jurors as a group because they presume all black people are prejudiced against the prosecution or will decide cases based upon racial affinity with the defendant or the victim in the case rather than upon their obligations as citizens and as impartial jurors. This kind of stereotype has been justly condemned under the equal protection clause.
(See (1880), , ; (1973), , , (opinion of Brennan, J., joined by Douglas, White, and Marshall, JJ.).) Whether exercised by prosecutors or by private attorneys, discrimination based on race, sex, religious creed, or national origin is contrary to the principles of fairness and justice which guide us in the exercise of our supervisory jurisdiction.
The idea that a citizen shall have the right to have his guilt or innocence determined by fellow citizens and not by the government is the most cherished democratic component of our common law system of justice. We must do everything in our power to protect this hard-won right to trial by jury against practices that would destroy it. "It follows that we cannot sanction the method by which the jury panel was formed in this case. * * * To reassert [the high standards of jury selection], to
guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen." (1946), , , , , , .
Five justices of the United States Supreme Court have indicated that the peremptory-challenge issue presented by this appeal is a serious one that will merit the court's attention at a later date.
(See (1983), , , (opinion of Stevens, J., joined by Blackmun and Powell, JJ., on denial of ) (Marshall, J., dissenting from denial of , joined by Brennan, J.).) Until then, criminal defendants will repeatedly raise the issue in proceedings before the Federal courts ( (E.D.N.Y. 1983), ), and criminal defendants and possibly black persons excluded from jury service will assert a violation of their rights by bringing actions in the United States district courts. Instead of relying on the Federal courts to protect the integrity of the jury system in Illinois, I urge again that this court recognize the inequity of the decision and adopt under our State constitution, or under our supervisory authority, the standard set forth by the appellate court in