dissenting:
Unlike the majority, I do not believe that the statute at issue in this case threatens the separation of powers. The court’s undue concern over a perceived encroachment on judicial turf here, as in other recent cases (see Kiven v. Mercedes-Benz of North America, Inc. (1986), 111 Ill. 2d 585 (Simon, J., concurring in supervisory order); People v. Flores (1984), 104 Ill. 2d 40, 51 (Simon, J., dissenting); People v. Davis (1982), 93 Ill. 2d 155, 163 (Simon, J., dissenting)), takes us further along the road to a government of “rigidly separated compartments” (see In re Estate of Barker (1976), 63 Ill. 2d 113, 119) not contemplated by the drafters of our constitution. I regard this as unfortunate.
The majority recites the familiar principle that a strong presumption of constitutionality attaches to all legislative acts. That presumption gives way here, however, to a presumption of judicial inviolability which the majority raises to a more elevated status. The mistake, as I see it, lies in the fact that the majority has divorced the presumption of constitutionality from its root — respect between coordinate branches of government — and has thereby rendered it little more than another rule of statutory construction to be utilized when convenient.
In this case it seems to me eminently possible, without betraying the separation-of-powers provision of our constitution, to accept the legislature’s judgment that a different judge should review the post-conviction petition. It also makes sense to do so in light of the fact that the different-judge provision is only a piece of the legislative package which dramatically circumscribes the procedures afforded those seeking post-conviction relief.
The majority’s argument to the contrary is apparently twofold. First, it contends that even if no conflicting supreme court rule existed, the statute — section 122 — 8 of the Code of Criminal Procedure of 1963-standing alone would unduly infringe the judiciary’s inherent administrative authority. Second, it concludes that the statute indeed conflicts with a court rule and must therefore fall. I address each in turn.
The majority first declares that administration of the judicial system is an element of judicial power “exclusively conferred on the courts.” (113 Ill. 2d at 42.) The court thereafter concedes what could hardly be doubted from our prior cases: the legislature may take some actions which affect judicial administration. As the majority sees it, this court will give effect to statutes which have a mere “peripheral” effect on judicial administration. 113 Ill. 2d at 43.
I am confused, though, by the majority’s concept of which legislative acts intrude upon a “fundamentally judicial prerogative” and which merely involve a “peripheral effect on judicial administration” (emphasis in majority opinion) (113 Ill. 2d at 43). Apparently the majority would characterize statutes prescribing rules of evidence (People v. Rolfingsmeyer (1984), 101 Ill. 2d 137), mandating that a judge impose a particular sentence (People v. Taylor (1984), 102 Ill. 2d 201), requiring a judge to inspect a presentence report before imposing sentence (People v. Youngbey (1980), 82 Ill. 2d 556), and ordering a judge to wait two days between the stages of a bifurcated divorce proceeding (Strukoff v. Strukoff (1979), 76 Ill. 2d 53), as falling on the “peripheral effect” side of the line. By contrast, statutes telling a judge to state his reasons for imposing a sentence (People v. Davis (1982), 93 Ill. 2d 155), requiring five days’ notice before dismissing a case ex parte for want of prosecution (Agran v. Checker Taxi Co. (1952), 412 Ill. 145), and ordering a judge not to proceed for two days if a criminal defendant absconds during trial (People v. Flores (1984), 104 Ill. 2d 40) invade fundamental judicial prerogatives. I can discern no rhyme or reason to the distinctions the court has made, and the majority makes no real attempt to defend its decision here in terms of our prior cases.
The morass of our earlier cases to one side, I cannot see how, in any event, section 122 — 8 can fairly be described as primarily directed to or affecting administration. The statute represents a policy decision by the legislature — which created the Post-Conviction Hearing Act in the first place (see Strukoff v. Strukoff (1979), 76 Ill. 2d 53) — that due to a contraction of other procedural safeguards, the defendant should be protected by having a fresh eye look at the case before it is summarily dismissed. There is ample reason for the legislature, in enacting a statute which makes it easier for a circuit court to deny post-conviction relief, to provide the safeguard of a new judge to review what occurred at trial. I do not understand why the judiciary should resist this approach, which strikes me as one guided by a fundamental sense of fairness. This substantive decision by the legislature, like a statute of limitations, has an effect on those administering the judicial system; but the impact is truly “peripheral” to the business of running the courts. I do not regard it, therefore, as a legislative attempt to wrest the governance of the courts from the supreme court in contravention of either the separation of powers or article VI, section 16, of the 1970 Illinois Constitution.
Nothing in article VI, section 7, requires invalidation of this statute either. The majority implies that the legislature must steer clear of any acts perceived as implicating administration because this provision vesting general administrative authority in the chief judge of each circuit subject to the authority of the supreme court (Ill. Const. 1970, art. VI, sec. 7(c)) ousts the legislature completely. I disagree. That the chief judge’s administrative authority is limited by the overarching authority of the supreme court does not mean that his authority is otherwise unfettered or that he may ignore legislative enactments. The provision only clarifies the relative authority of the chief judge and the supreme court; it does not say his actions are subject only to pronouncements of this court. Would anyone suggest, for example, that a general administrative order by a chief judge discriminating against court employees on the basis of race would be exempt from the provisions of the Illinois Human Rights Act (Ill. Rev. Stat. 1985, ch. 68, par. 1 — 101 et seq.)?
Nor do I find impressive the argument advanced by the majority that when the Constitution intends the legislature to act it must explicitly say that the judicial power is to be exercised “as provided by law.” This phrase occurs only when the Constitution consciously leaves a void and invites legislative action to fill it. To attribute to the drafters of the Constitution the intent to prohibit the legislature from any action which may touch upon the judiciary whenever these magic words are not employed suggests that the drafters thought themselves prescient in all the myriad ways the two branches of government could intersect. As the majority concedes, rules of evidence are permissible, yet there is no provision in the Constitution expressly inviting the legislature to “provide by law” rules of evidence.
The majority also bolsters its argument for judicial inviolability by reference to the common law view of the separation of powers purportedly expressed in People v. Spegal (1955), 5 Ill. 2d 211, 219-20, and People v. Crawford Distributing Co. (1972), 53 Ill. 2d 332, 338. The majority quotes expansive language from Crawford Distributing (drawn from a quotation in Spegal) stating that the “legislative branch was ‘without power to specify how the judicial power shall be exercised under a given circumstance.’ ” (Emphasis in majority opinion.) (113 Ill. 2d at 42.) It also cites Spegal for the same principle and for the further proposition that the legislature could not handicap or limit a judge in the performance of his duties. 113 Ill. 2d at 42.
These cases do not stand for the principles which the majority seeks to extract from them. The language on which the majority’s argument is based derives not from Spegal, but from the earlier case of People v. Scott (1943), 383 Ill. 122. Scott had held that a statute providing that a criminal defendant could waive a jury for trial violated the separation-of-powers doctrine because the statute attempted to specify how the judicial power should be exercised in a given circumstance and because it would handicap or limit the judge in the exercise of his duties. (383 Ill. 122, 126.) The language attributed to Spegal does appear in Spegal, but only in a passage (People v. Spegal (1955), 5 Ill. 2d 211, 219-20) quoting the court in Scott. However, the Spegal court, in an opinion by Justice Walter V. Schaefer, one of this court’s most eminent legal scholars, then proceeded to expressly overrule Scott, discrediting along the way the broad view of judicial inviolability embodied in the majority opinion here. Thus, it is obvious that in Spegal this court quoted the language from Scott on which the majority relies only to show its dissatisfaction with that language. While the Spegal court acknowledged that there are “limits beyond which the legislature may not go in specifying how judicial power is to be exercised” (5 Ill. 2d 211, 220), the court made clear that those limits are narrow ones; as examples it noted that the legislature cannot direct the judiciary how to decide a case and cannot unduly circumscribe the power of the courts to determine the facts and apply the law to them. The statute requiring a different judge on post-conviction review does neither, and is in fact far more like the statute allowing the defendant to choose between trial by judge or jury which was ultimately sanctioned by Spegal. As in Spegal, this court has no authority to “override the determination of the legislature as to the method of trial to be employed.” 5 Ill. 2d 211, 220.
Crawford Distributing does contain broad language to the effect that the legislature cannot specify how the judicial power is to be exercised in a given circumstance, but the factual situation of that case demonstrates that the principle was limited to the very narrow compass contemplated by Spegal. The court in Crawford Distributing only stated that the legislature could not direct the judiciary to construe the State antitrust law in conformity with Federal courts’ construction of the Federal antitrust laws. The legislature here has not told the court how to interpret a specific statute; indeed section 122 — 8 does not tell the judiciary how the judicial power is to be exercised at all. Thus, the fact that the expansive words of Scott, quoted and then renounced in Spegal, were exhumed in Crawford Distributing does not breathe a second life into the view of the separation of powers laid to rest in Spegal.
The majority next suggests that section 122 — 8 is void because it conflicts with our Rule 21 (94 Ill. 2d R. 21). Rule 21 provides in section (a) that a majority of judges of a circuit may adopt rules governing civil and criminal cases as long as they are “consistent with these rules and the statutes of this State”; section (b) permits the chief judge of each circuit to enter general orders in the exercise of his administrative authority. The latter section does not expressly require that such orders be consistent with supreme court rules or legislative acts.
Plainly, section 122 — 8 and Rule 21 do not collide head on. The logic of the majority opinion is difficult to follow, but the argument is apparently that the authority of the administrative judge of Knox County to assign the defendant’s post-conviction petition to the same judge who presided at the trial was ultimately founded in Rule 21(b), that this fact demonstrates a conflict between Rule 21(b) and the statute (which requires assignment to a different judge), and that the statute must therefore be invalidated.
I believe that the majority is incorrect for a number of reasons. Initially, .the error lies in the majority’s misapprehension that the authority for the administrative judge’s assignment power was a general order entered pursuant to Rule 21(b). As the rules of the Ninth Judicial Circuit (attached as an appendix to this opinion) clearly disclose on their face, that authority was expressly grounded in Rule 21(a) and section 1 — 104(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1— 104(b)). By its own terms, the provision establishing an administrative judge and setting forth his duties is a rule, not a general order, and therefore must be “consistent with *** the statutes of this State” under Rule 21(a). Thus, any action taken by the administrative judge pursuant to the local rule could hardly be a sufficient basis for striking down the statute.
The majority’s further argument — that we must read a limitation into Rule 21(a) that rules adopted by circuit judges need only be consistent with statutes which do not infringe upon the judicial power — is without force. There is no warrant in the plain language of our rule for such a limitation. The fear that a “literal interpretation” of the rule would “give the legislature unlimited authority over administration of all Illinois courts” (113 Ill. 2d at 46) is also baseless. Rule 21(a) obviously was designed to prevent rules of the circuit courts from overturning statutes. The legislature is not thereby given control of judicial administration in view of this court’s constitutional power under section 16 of article VI (Ill. Const. 1970, art. VI, sec. 16).
Even assuming that the local rule at issue here had indeed been a general order promulgated by the chief judge pursuant to Rule 21(b), I could not agree that Rule 21(b) confers upon each chief judge the power to enter general orders “free from any express legislative limitations.” (113 Ill. 2d at 46.) On this view, this court’s decision in Strukoff v. Strukoff (1979), 76 Ill. 2d 53, upholding a statutory two-day waiting period between the phases of a bifurcated divorce proceeding, could be effectively overruled by any chief judge in the State who decided to enter a general order to the effect that there would no longer be such a waiting period. Legislative policy choices should not be rendered so fragile merely because of a circuit judge’s view of administrative convenience.
The separation-of-powers doctrine does not mean the legislature must avoid all policy choices (Kiven v. Mercedes-Benz of North America, Inc. (1986), 111 Ill. 2d 585 (Simon, J., concurring in supervisory order)) which may now or in the future be thought to touch upon rules, orders, or particular directives of this court or the lower courts. A statute may only be invalidated if there is a direct conflict with a supreme court rule in an area of judicial supremacy. People v. Cox (1980), 82 Ill. 2d 268, for example, involved a rule of this court which, as interpreted, established “abuse of discretion” as the standard of appellate review of criminal sentences and prohibited a reviewing court from reducing a sentence of imprisonment to one of probation. The court declared unconstitutional a legislative act which purported to change the standard of review and to allow reduction of a sentence to probation. In People v. Jackson (1977), 69 Ill. 2d 252, the statute at issue stated that the parties were entitled to conduct voir dire, while the court rule provided that the judge would conduct voir dire and could permit the parties to supplement that questioning. In view of the direct conflict on a matter within the judicial power, the statute was held unconstitutional.
No such direct conflict between a statute and a rule of this court exists in this case. Section 122 — 8 does not purport to strip the chief judge of the authority which Rule 21(b) gives him to enter general assignment orders, nor does it lodge that authority elsewhere; it therefore cannot be analogized to the statutes in Cox or Jackson. The statute does not dictate the judge who should be assigned to the post-conviction hearing. It prescribes only a narrow substantive limitation on the chief judge’s authority to act pursuant to the rule: he may not enter a general order requiring that a post-conviction petition be heard by the judge who presided at the trial. I see no reason why a circuit judge or even this court should be able to trump such a policy decision simply because it has some impact on assignment of cases.
Even accepting the proposition that a general order entered by the chief judge to the effect that post-conviction petitions must be heard by the trial judge would create a conflict requiring invalidation of the statute, any conflict here is purely imagined. Neither the chief judge nor the circuit itself has created any such rule or general order. The only action by the Ninth Circuit was to provide by rule for the appointment of an administrative judge.
The majority is finally reduced to identifying a “conflict” between the statute and the administrative judge’s particular directive in this case, which is said to “flow” from Rule 21(b) by way of the Ninth Circuit administrative judge rule (which the majority insists on seeing as a general order). This attempt to bootstrap a conflict of constitutional magnitude is unprecedented in our cases. In my judgment, the administrative judge’s directive reassigning this case to the trial judge is simply too far downstream from the headwaters of the Constitution and our rules to implicate the separation of powers. This is especially true here because the Ninth Circuit rule relied upon does not purport to authorize any particular assignment policy in post-conviction cases. Further, a close reading of the rule discloses that only the chief judge is authorized to make “case by case” assignments. The administrative judge, who may “assign additional judicial duties to the Circuit and Associate Judges regularly assigned to that County and may further assign said Judges to divisions within the County in the absence of an assignment order by the Chief Judge,” has not been empowered by the Ninth Circuit to assign a specific judge to a post-conviction proceeding in contravention of the statutes of this State.
In striking down section 122 — 8, the court also fails to account adequately for Supreme Court Rule 1 (87 Ill. 2d R. 1). Rule 1 specifically incorporates the Code of Criminal Procedure of 1963, of which section 122 — 8 is a part, into our rules of procedure. Since we have adopted section 122 — 8 by incorporation, it remains a part of our rules until they are explicitly amended to exclude it. Given the mandate of Rule 1, I cannot understand why the majority strains to find a conflict between the statute and Rule 21, which address different subjects.
Rule 1, at a minimum, commands us to construe statutes and court rules in harmony whenever possible. The majority concedes that the rules and the statutes should complement one another, but I am frankly puzzled by its view of the proper relation of the court and the legislature. After this decision, no statutory provision which may affect procedure is safe because it may be ousted by the administrative authority of this court or even rules or directives of the circuit or appellate courts.
The majority opinion is therefore a harbinger of worse things to come. If this statute is invalid, then the far broader criminal and civil substitution-of-judges statutes (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 5; ch. 110, par. 2 — 1001) and the speedy-trial statute (Ill. Rev. Stat. 1983, ch. 38, par. 103 — 5), which also impose substantive policy limitations on the functioning of the courts, are also on shaky ground.
This court is called on not only to decide the case before it, but also to lay the tracks for future lawmakers and judges. Instead, my fear is that we are proceeding in an ad hoc manner in applying the constitutional provision relating to separation of powers. This decision leaves future decisionmakers to chart an unsurveyed course and likely wander in the wilderness of our separation-of-powers jurisprudence. I therefore dissent.
APPENDIX
RULES OF COURT NINTH JUDICIAL CIRCUIT STATE OF ILLINOIS
The within Rules, ADMINISTRATIVE, GENERAL, and PROBATE shall be effective August 1, 1984. These Rules supercede all former Rules of the Ninth Judicial Circuit Court.
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RULES OF COURT
POWER OF COURT TO ADOPT RULES: These rules are promulgated pursuant to Section 1 — 104(b) of the Code of Civil Procedure providing that the Circuit Court may make rules regulating their dockets, calendars, and business and Supreme Court Rule 21(a) providing that a majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases consistent with rules and statutes.
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ADMINISTRATIVE RULES
RULE A — 1 ADMINISTRATION
The Office of the Chief Judge shall have general administrative authority over the Courts in the Ninth Judicial Circuit.
A. ADMINISTRATIVE JUDGE
1. Designation of Administrative Judge — The Chief Judge shall appoint one Judge within each County "of the Circuit as the Administrative Judge of that County.
2. Duties of the Administrative Judge — The Administrative Judge shall administer the Judicial Divisions of the County in which he is presiding and perform such other duties as may be required for the proper administration of justice.
B. JUDICIAL ASSIGNMENTS
1. Assignments by the Chief Judge — The Chief Judge shall assign Circuit and Associate Judges to the various Counties within the Circuit and may further assign all Judges to Divisions within a County and on a case by case basis.
2. Assignments by the Administrative Judge — The Administrative Judge within each County may assign additional judicial duties to the Circuit and Associate Judges regularly assigned to that County and may further assign said Judges to Divisions within the County in the absence of an assignment order by the Chief Judge.
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