dissenting:
When the order amending Supreme Court Rule 22 to create an “Industrial Commission division” of the appellate court was entered on February 1, 1984, I filed a heretofore unpublished dissent. For the reasons stated in that dissent I must also dissent in the present case. The previous dissent read as follows:
“While recognizing the desirability of reducing the workload of the Supreme Court in order that it can more freely ‘exercise its discretionary leave to appeal jurisdiction by which important and novel issues of law could be determined ***’ (6 Record of Proceedings, Sixth Illinois Constitutional Convention Committee Proposals 816), I find the court’s order, with proposed rule changes, both invalid and contrary to our constitutional mandate to provide for expeditious and inexpensive appeals. (Ill. Const. 1970, art. VI, sec. 16.) I, therefore, respectfully dissent from the order creating a so-called “Industrial Commission division” of the appellate court.
I believe there are constitutional defects inherent in the order wherein it creates a special panel of various appellate court judges to hear all appeals, involving review of Industrial Commission cases, from final orders of any circuit court. The 1970 Constitution guarantees, as a matter of right, appeals from final judgments of the circuit court, to the '*** Appellate Court in the Judicial District in which the Circuit Court is located except in cases appealable directly to the Supreme Court ***.’ (Emphasis added.) (Ill. Const. 1970, art. VI, sec. 6.) It is the duty of this court ‘to construe the constitution so as to effectuate the intent of its drafters ***.’ (People v. Turner (1964), 31 Ill. 2d 197, 199.) The order announced today, which allows this court to transfer Industrial Commission appeals to a special five-judge panel of the appellate court, circumvents the intent — in fact the clear language — of section 6 of article VI of the Constitution.
In addition, I find the court’s approach constitutionally infirm on other grounds. Our constitution provides that ‘[t]he Supreme Court shall prescribe by rule the number of Appellate divisions in each Judicial District. Each Appellate division shall have at least three Judges. Assignments to divisions shall be made by the Supreme Court ***.’ (Ill. Const. 1970, art. VI, sec. 5.) Section 16 of article VI authorizes ‘[t]he Supreme Court [to] assign a Judge temporarily to any court ***’ in accordance with its ‘[g]eneral administrative and supervisory authority over all courts ***.’ (Ill. Const. 1970, art. VI, sec. 16.) A combination of these provisions, however, does not authorize the court to change the basic three-tier structure of the court system which is comprised of ‘a Supreme Court, an Appellate Court and Circuit Courts.’ (Emphasis added.) Ill. Const. 1970, art. VI, sec. 1.
The creation of a special five-judge panel of the appellate court, with one judge from each of the five judicial districts, cannot be viewed as a constitutionally authorized creation of a new division within a judicial district. (Ill. Const. 1970, art. VI, sec 5.) Such a division would hear appeals only from final judgments of circuit courts within its district. The special panel, on the other hand, will have its jurisdiction limited to Industrial Commission cases and will hear statewide appeals of such cases regardless of the county of origin. This is most certainly not an appellate court created by article VI of our constitution but rather an entirely new court created by the order.
Our court has been confronted with an analogous situation in other cases. In People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353 and In re Contest of Election For Governor (1983), 93 Ill. 2d 463, statutes which provided for special judicial panels were challenged and found unconstitutional. Cunningham involved the constitutionality of a former death penalty statute (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1A). The statute required the chief judge of a circuit to assign three circuit judges, in a case where the death penalty was applicable, to determine if the death penalty was to be imposed. Noting that the judicial article of the 1970 Constitution vests judicial power in ‘a Supreme Court, an Appellate Court and Circuit Courts’ (Ill. Const. 1970, art. VI, sec. 1) and makes no provision for legislative creation of new courts, the court held that ‘the legislature ha[d] no constitutional authority to create a new court under article VI of the 1970 Constitution.’ (People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, 359.) Similarly, the court in In re Contest of Election for Governor, following the rationale of Cunningham, held that a statute providing for the appointment of a three-judge panel to hear state-wide election contests was ‘an attempt by the legislature to alter the basic character of the circuit courts, which *** the General Assembly was constitutionally prohibited from doing.’ In re Contest of Election for Governor (1983), 93 Ill. 2d 463, 473.
As noted, the Supreme Court, unlike the legislature, is authorized to ‘prescribe by rule the number of Appellate divisions in each Judicial District ***’ [and make] [assignments to divisions (Ill. Const. 1970, art. VI, sec. 5) or ‘assign a Judge temporarily to any court ***.’ (Ill. Const. 1970, art. VI, sec. 16.) Like the legislature, however, the court’s authority must be carried out within the confines of our constitution. As such, the creation of any ‘new’ court, not enumerated in article VI, section 1, of the 1970 Constitution, I believe, is as unconstitutional an exercise of authority as attempted by the legislature in the above — cited cases.
In addition to the constitutional objections, I also disagree with the court’s plan for practical reasons. The judicial article of the constitution of 1870 (article VI) was amended in 1962 and became effective January 1, 1964. The new judicial article was a ‘major reform of the Illinois court system’ guaranteeing the right of appeal in all types of cases, changing the jurisdictional grounds for mandatory direct appeal to this court and authorization to supplement, by rule, additional classes for direct review. (See Karasik, A Special Appellate Court of Workers’ Compensation Review: A Polite Proposal, 71 Ill. Bar J. 44 (1982), discussing the historical basis for mandatory direct appeal of Industrial Commission cases and suggesting alternative solutions to reduce the large number of such cases appealed to this court.) At the time, the legal community was anxious to elicit the support of the electorate for this new article. Organized labor was concerned that ‘heterogeneous confusion’ would result if appeals from Industrial Commission cases were heard by the five districts created by the new article. Support from these labor-oriented groups was obtained by assuring them direct review would be retained by the supreme court. (71 Ill. Bar. J. 44, 46, quoting 3 Angerstein, The Record of Petition for Writ of Error in Workmen’s Compensation Cases, note 8, 2176.1, at 27 (pocket supplement).) This promise was fulfilled when this court provided by rule for direct appeal from circuit court final judgments of Industrial Commission orders (36 Ill. 2d R. 302).
In 1970 Illinois adopted a new constitution which became effective on July 1, 1971. It eliminated the mandatory direct appellate jurisdiction of the Supreme Court in all cases except those in which a sentence of death had been imposed but allowed the court to provide by rule for direct appeal in other cases. (Ill. Const. 1970, art. VI, sec. 4(b).) Thereafter, Rule 302 was amended to provide for direct review from final judgments of the circuit courts (1) in cases in which a statute of the United States or this State has been held invalid or (2) in proceedings to review orders of the Industrial Commission. (50 Ill. 2d R. 302.) On June 29, 1978 the court adopted an amendment to Rule 302 which abolished direct appeals from the circuit courts in proceedings to review orders of the Industrial Commission. This amendment was rescinded on the day it was to become effective, with Justice Clark and myself dissenting.
Under the present framework followed in Industrial Commission cases, it is not unusual for five, or more, years to elapse between the time of injury and final judicial resolution. Article VI, section 16, of the 1970 Constitution states that ‘[t]he Supreme Court shall provide by rule for expeditious and inexpensive appeals.’ The court’s plan for assignment of Industrial Commission cases to the ‘special panel’ moves a step away, rather than toward, this objective. Presently, Industrial Commission litigants have available three levels of review, as of right. (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(a), (f).) A claim is first heard before an arbitrator (Ill. Rev. Stat. 1981, ch. 48, pars. 138.19(a), (d)). If the claim is pursued through all three levels of review, it first would go to the Industrial Commission (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(e)), followed by review by summons in the circuit court (Ill. Rev. Stat. 1981, ch. 48, par. 138.19(f)(1), (2), as amended by Pub. Acts 83 — 360, 83 — 361, effective Sept. 14, 1983). The third level of review is by direct appeal to this court pursuant to Rule 302(a) (87 Ill. 2d R. 302(a)).
The order, along with its related supreme court rule addition, Rule 22(g), and amendments to Rules 302(a) and 315(a), will add a possible fourth level of review as litigants, dissatisfied with the outcome of the special appellate panel, petition for leave to appeal to this court via Rule 315. (87 Ill. 2d R. 315.) Admittedly, this last level of review will be limited by the proposed amendment to Rule 315(a) which applies only to Industrial Commission cases and requires ‘two or more judges of that panel join in a statement that the case in question involves a substantial question***.'1 Nevertheless, a fourth level of review will still remain a strong possibility in a significant number of cases, further delaying resolution of issues which have already experienced a long and expensive process of review.
While I agree with my brethren that a solution to the ever increasing number of direct appeals in Industrial Commission cases in this court must be remedied, still I cannot, for the reasons stated, concur that the method to be applied is the correct legal solution. I suggest that the court could accomplish the desired result without exceeding constitutional limitations and at the same time provide a more ‘expeditious and inexpensive’ review of such cases. My suggestion would require legislation.
Section 6 of article VI of the 1970 Constitution provides that ‘[t]he Appellate Court shall have such powers of direct review of administrative action as provided by law.’ (Emphasis added.) (For example, see Ill. Rev. Stat. 1981, ch. HV-k, par. 1041, wherein the General Assembly provided for direct review by the appellate court of orders entered by the Pollution Control Board. A similar legislative provision in the Workers’ Compensation Act and the Workers’ Occupational Diseases Act would eliminate reviews in the circuit courts.)
Further, while labor’s concern over possible ‘heterogeneous confusion,’ created as a result of appeal to five judicial districts, may have been tenable 20 years ago, I find no merit to this position today. Any apprehension of diversity of interpretation by the five appellate districts has been eliminated, or greatly limited, by the enormous body of case law pertaining to Industrial Commission cases built up over the past years. I believe my suggested procedure would not only avoid one step in the review process (the circuit court), but also would allow leave to appeal to this court, pursuant to Rule 315 in its present form, to correct any alleged ‘heterogeneous confusion’ and thereby further the goal of expeditious and inexpensive appeals.
In the case at bar the majority attempts to answer some of the objections noted in the above dissent, but I do not find these answers to be persuasive. The majority attempts to evade the mandate that circuit court judgments be appealed “to the Appellate Court in the Judicial District in which the Circuit Court is located” (Ill. Const. 1970, art. VI, sec. 6) by labeling the Industrial Commission court a “division” of the appellate court. This “division,” however, is not a division within a particular judicial district but instead conveniently changes its district to fit the origins of whatever case is before it. For any given case, four of the five judges on the panel will not be residents of the judicial district from which the case arises, despite the constitutional requirement that judges must be residents of the judicial unit for which they are selected. (Ill. Const. 1970, art. VI, sec. 11.) To allow a panel so constituted to be a division of any and every judicial district completely subverts the requirements of sections 6 and 11 of article VI of the Illinois Constitution.
Furthermore, the creation of the Industrial Commission division, as so constituted, is not a valid exercise of the Supreme Court’s “administrative and supervisory authority over all courts” (Ill. Const. 1970, art. VI, sec. 16), even though this authority includes the power to “assign a Judge temporarily to any court” (Ill. Const. 1970, art. VI, sec. 16). This provision contemplates only temporary reassignments to alleviate backlogs, fill vacancies, or remedy similar temporary problems. The “Industrial Commission division,” however, is not a temporary reassignment of judges to alleviate a temporary problem; it is a permanent court of limited jurisdiction operating wholly outside of the basic three-tiered structure of the court system as mandated by article VI, section 1, of the 1970 Constitution. The majority’s attempt to distinguish People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353, and In re Contest of Election for Governor (1983), 93 Ill. 2d 463, ignores the basic point made in those cases that neither the legislature nor this court may create a new court outside of the constitutional structure.
In addition, I continue to have serious doubts as to the validity of the amendment to Rule 315 which limits the right of litigants before the Industrial Commission division to petition this court for leave to appeal. While, as the majority notes, this court may provide different procedures and requirements for review, depending upon the nature of the case, in no other class of cases may the Supreme Court’s discretion to review a case be totally blocked by the action or inaction of the lower courts. The undesirability of such an arrangement is underscored by the fact that the court has already seen fit to ignore the rule in the case at bar, granting review even though there was no statement joined by two or more judges of the panel that the case in question involves a substantial question which warrants consideration by this court.
For the foregoing reasons I respectfully dissent.
I question the validity of the amendment to Rule 315(a), which limits the right of Industrial Commission litigants to appeal to this court. These parties will be the only class of litigants limited in their right to petition this court for leave to appeal.”