specially concurring:
I concur with the majority’s decision to affirm the circuit court’s dismissal of the instant petition brought under section 2 — 1401 of the Code. 735 ILCS 5/2 — 1401 (West 2002). However, I disagree with the majority’s finding of error and would hold that no error, harmless or otherwise, occurred in the court below.
There is a threshold question as to whether the circuit court re-characterized the petition from a section 2 — 1401 petition, which it was labeled, to a postconviction petition, as argued by the State. If the State is right, that would make the circuit court’s summary dismissal unquestionably correct, since summary dismissal is specifically contemplated by the Act. However, I believe the majority is correct when it chose to reject the State’s recharacterization argument and treat the petition as exactly what its author called it, a section 2 — 1401 petition. I recognize that the trial court refers to both the Act and section 2 — 1401 of the Code. However, in its written ruling, the circuit court referred to it as a section 2 — 1401 petition and I have treated it as such.
The majority also draws a distinction between “sua sponte,” and “summary” dismissals and states that the terms are “not equivalent.” 352 Ill. App. 3d at 942-43. In my view, the terms differ in that they refer to two different events or functions. “Sua sponte” means “without prompting or suggestion; on its own motion” (Black’s Law Dictionary 1464 (8th ed. 2004)), and refers to the manner by which a matter may come before the court. “Summary” or “summarily” means “short, concise” or “without the usual formalities”; “immediate; done without delay” (Black’s Law Dictionary 1476 (8th ed. 2004)), and describes one method by which a court may dispose of the matter it has raised. The majority held that summary dismissal is only available as an option under the Act, because of the permissive language therein. 725 ILCS 5/122 — 2.1(a)(2) (West 2002). The opinion further held that sua sponte dismissals may be appropriate if the circuit court, after raising the specter of dismissal, follows the procedural requirements attendant to that motion, even though it may see the petition as fatally flawed and not capable of successful amendment.
The question then becomes whether or not a court will always be required to compel a responsive pleading before disposing of a patently frivolous action. In my view, the answer is no.
The majority holds otherwise, following a line of recent cases from the Second District. In People v. Gaines, 335 Ill. App. 3d 292 (2002), the court held that the circuit court has no authority to dismiss a mandamus petition absent notice and hearing. In People v. Shellstrom, 345 Ill. App. 3d 175 (2003), the court reversed a sua sponte dismissal of defendant’s petition, saying the latter was prejudicial. Finally, in People v. Pearson, 345 Ill. App. 3d 191 (2003), the court went even further, stating that summary dismissal of defendant’s section 2 — 1401 petition was inherently prejudicial and, therefore, not subject to a harmless error analysis. In the case at bar, however, the majority specifically rejected the Pearson court’s position on harmless error, holding that because defendant’s petition was completely lacking in merit, any error in its summary dismissal was harmless.
The Fourth District, on the other hand, has adopted a position which is diametrically opposed to that of the Second District. In Mason v. Snyder, 332 Ill. App. 834 (2002), the court held that circuit courts have the authority to sua sponte order stricken mandamus petitions the court finds to be frivolous. In People v. Bramlett, 347 Ill. App. 3d 468 (2004), noting the similarity between mandamus and section 2 — 1401 motions, the Fourth District approved a sua sponte dismissal of a petitioner’s section 2 — 1401 petition, finding it untimely and without merit. The rationale for these decisions is rooted in concern over burgeoning inmate litigation. The Mason court stated:
“Thus, with the rules governing petitions for mandamus clearly laid out, we conclude that trial courts may evaluate such petitions to determine their sufficiency, particularly when filed by DOC inmates. In so concluding, we take judicial notice of our own records, which show an ever-increasing number of appeals brought by inmates in such cases, as well as the fact that DOC currently houses over 46,000 inmates. The potential to overwhelm the courts and the civil justice system by the filing of groundless DOC inmate mandamus petitions is clear and real, and one first step to deal with this situation is to recognize the trial court’s authority to evaluate such petitions for their sufficiency.
*** [W]e now conclude that the trial courts, which have the inherent authority to control their courtrooms and their dockets, have the corollary authority to utilize their discretion in dealing with ‘professional litigants’ who inappropriately burden the court system with nonmeritorious litigation, stemming from their unhappiness as DOC inmates.” Mason, 332 Ill. App. 3d at 840-42.
While I agree with the Mason and Bramlett courts that there is far too much court time wasted on meritless litigation, not just from inmates, but from civil litigants as well, my reasons for concluding that no error occurred here are different. I disagree with the elevation of form over substance and would not require that the circuit court engage in useless machinations where it has evaluated a matter and found it hopelessly flawed.
Further, I am struck by the lack of balance in a rule which requires compulsory responses in all circumstances where they are applicable. There appears to be scrupulous attention paid to the rights of the petitioner, criminal or civil, and little or none paid to those who are forced to respond to a frivolous petition. In the case of a criminal matter, the resources of the State are mobilized for a response, paid for by the taxpayer in squandered tax dollars. In the civil area, individuals are often required to waste substantial amounts of time and money defending against meritless lawsuits.
I subscribe to the reasoning of Owens v. Snyder, 349 Ill. App. 3d at 44, a decision from this court’s second division. In Owens, the court approved a “sua sponte” dismissal of defendant’s mandamus petition. While the instant case involves a section 2 — 1401 petition, it is like mandamus for purposes of our discussion, in that both are brought under the Code, which does not specifically provide for summary dismissal.
Although defendant had not been served, but noting that defendant’s petition was indeed meritless, Justice Wolfson stated:
“There was nothing plaintiff could do to make it any better. He simply was off the track and could not get back on. We do not believe the legislature intended to require judges and clerks to jump through useless hoops aimed toward impossible goals ***.
We hold a trial judge has the inherent authority to dismiss a patently frivolous mandamus complaint before service on the defendant is issued.” Owens, 349 Ill. App. 3d at 44.
In the case at bar, the majority, like the circuit court, reached the conclusion that petitioner’s section 2 — 1401 petition had no hope of success. It was untimely by a matter of years. The judgment was not void and nothing tolled the time period in which a petition could properly be filed under the Code. Further, petitioner’s core issue, a claimed Apprendi violation, was inherently erroneous. Petitioner complained that his sentence was inappropriately enhanced by the brutal and heinous nature of his crimes without submission of the same to a jury, thus offending Apprendi. Instead, it was actually enhanced based on defendant’s multiple crimes. If the appellate court, based on a cold record and absent input from defendant, could clearly see and appreciate the fatal flaws in defendant’s petition, I fail to see why the circuit court should not be trusted to do the same.