2017 IL 121048
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121048)
PATRICIA ROZSAVOLGYI et al., Appellants and Cross-Appellees, v. THE CITY OF
AURORA, Appellee and Cross-Appellant.
Opinion filed October 19, 2017.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Kilbride and Theis concurred in the
judgment and opinion.
Justice Burke dissented, with opinion, joined by Justices Freeman and Thomas.
OPINION
¶1 On November 13, 2012, plaintiff-appellant Patricia Rozsavolgyi filed a charge
of discrimination on the basis of disability with the Illinois Department of Human
Rights against the city of Aurora (City). Rozsavolgyi had been employed by the
City from 1992 until she was involuntarily discharged on or around July 13, 2012.
On November 18, 2013, Rozsavolgyi received a letter informing her that the time
limitation for the Department of Human Rights to complete its investigation of the
charge had expired and that she had the right to commence a civil action in the
appropriate state circuit court. 775 ILCS 5/7A-102(G) (West 2014). On January 22,
2014, Rozsavolgyi filed a four-count complaint in the circuit court of Kane County
for civil rights violations in employment under the Illinois Human Rights Act. (775
ILCS 5/1-101 et seq. (West 2014)). On the basis of three interlocutory orders, the
circuit court certified three questions for permissive interlocutory review to the
appellate court under Illinois Supreme Court Rule 308 (eff. Jan 1, 2016). The
appellate court allowed permissive interlocutory review and addressed each
question. 2016 IL App (2d) 150493. Rozsavolgyi petitioned for rehearing or,
alternatively, for a certificate of importance under Rule 316 as to only the third
certified question. The appellate court denied Rozsavolgyi’s petition for rehearing
but granted her request for a certificate of importance to the Illinois Supreme Court.
Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). The Illinois Department of Human Rights
(Department) was permitted leave to intervene as an additional appellant and to file
a brief instanter. 735 ILCS 5/2-408(a)(2) (West 2014).
¶2 BACKGROUND
¶3 Rozsavolgyi’s claims are brought under the provisions of the Human Rights
Act. 775 ILCS 5/1-101 et seq. (West 2014). The City is an “employer” under the
Human Rights Act. See 775 ILCS 5/2-101(B)(1)(c) (West 2014). Count I of
Rozsavolgyi’s complaint alleges that the City refused to accommodate
Rozsavolgyi’s disability. Count II alleges disparate treatment. Count III alleges
retaliation by the City for Rozsavolgyi’s request for a reasonable accommodation.
Count IV alleges a hostile work environment on the basis of Rozsavolgyi’s
disability.
¶4 The City’s answer raised six affirmative defenses and sought the striking and
dismissal of counts I through IV. On October 17, 2014, the circuit court struck and
dismissed counts I and IV of Rozsavolgyi’s complaint for failure to state a cause of
action, “finding that disability harassment is not a cause of action under the Illinois
Human Rights Act.” The City voluntarily withdrew its affirmative defenses aimed
at counts I and IV. However, on January 23, 2015, the circuit court granted
plaintiff’s motion to reconsider, reinstated counts I and IV, and gave the City leave
to file amended affirmative defenses.
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¶5 Relevant here, the City’s third, fourth, and fifth affirmative defenses are based
on the Local Governmental and Governmental Employees Tort Immunity Act (Tort
Immunity Act). 745 ILCS 10/1 et seq. (West 2014). The City is a “local public
entity” for purposes of the Tort Immunity Act. 745 ILCS 10/1-206 (West 2014).
The City’s third affirmative defense invokes supervisory immunity under section
3-108 of the Tort Immunity Act as to counts I and IV. 745 ILCS 10/3-108 (West
2014). The City’s fourth affirmative defense asserts discretionary immunity under
section 2-201 of the Tort Immunity Act as to counts I and IV. 745 ILCS 10/2-201
(West 2014). The City’s fifth affirmative defense asserts immunity as to all counts
based on section 2-103 of the Tort Immunity Act, which provides that “[a] local
public entity is not liable for an injury caused by adopting or failing to adopt an
enactment or by failing to enforce any law.” 745 ILCS 10/2-103 (West 2014).
¶6 Rozsavolgyi filed a motion to strike the City’s amended affirmative defenses,
and the City filed a motion for a Rule 308(a) finding. The circuit court ordered the
parties to brief both motions and scheduled a hearing for April 22, 2015. On April
22, 2015, the circuit court denied Rozsavolgyi’s motion to strike the City’s first and
second affirmative defenses (subject-matter jurisdiction and existence of employer
policy) but granted the motion to strike the third, fourth, fifth, and sixth affirmative
defenses. The circuit court, however, granted the City’s motion for a Rule 308(a)
finding and stayed counts II and III pending the interlocutory appeal. On April 29,
2015, the circuit court entered an order finding that the prior interlocutory orders
dated October 17, 2014, January 23, 2015, and April 22, 2015, involved questions
of law as to which there were substantial grounds for difference of opinion and that
an appeal from these orders may materially advance the ultimate termination of the
litigation. The circuit court certified the following questions for permissive
interlocutory appellate review under Illinois Supreme Court Rule 308:
“1. Does section 2-102(A) of the Illinois Human Rights Act prohibit
‘disability harassment’ as a civil rights violation? Alternatively, do counts I &
IV of Plaintiff’s Complaint state cognizable civil rights violations under section
2-102(A) of the Illinois Human Rights Act?
2. If section 2-102(A) of the Illinois Human Rights Act permits a cause of
action for disability harassment, does the statutory provision contained in
section 2-102(D) of the Illinois Human Rights Act ‘that an employer shall be
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held responsible for sexual harassment of the employer’s employees by
nonemployees or nonmanagerial and nonsupervisory employees only if the
employer becomes aware of the conduct and fails to take reasonable corrective
measures’ similarly apply to a cause of action for disability harassment brought
under section 2-102(A) of the Illinois Human Rights Act?
If yes, does the employee or the employer bear the burden of alleging and
proving that the employer is: (a) aware of the conduct by its nonmanagerial and
nonsupervisory employees; and (b) fails to take reasonable corrective
measures?
If no, can an employer assert the ‘Faragher-Ellerth’ affirmative defense to
a hostile work environment harassment claim brought under section 2-102(A)
of the IHRA?
3. Does the Local Government[al] and Governmental Employees Tort
Immunity Act, 745 ILCS 10/1, et seq., apply to a civil action under the Illinois
Human Rights Act where the plaintiff seeks damages, reasonable attorneys’
fees and costs?
If yes, should this Court modify, reject or overrule its prior holdings in
Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (2nd Dist. 1976),
Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (2nd Dist. 1983), and People ex rel.
Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2nd Dist. 2001) that ‘the
Tort Immunity Act applies only to tort actions and does not bar actions for
constitutional violations’?”
¶7 The appellate court allowed the City’s Rule 308 petition for leave to appeal. A
divided panel answered the certified questions as follows: (1) section 2-102(A) of
the Human Rights Act prohibits hostile work environment disability harassment,
and a reasonable accommodation claim may be brought as a separate claim under
that provision; (2) section 2-102(D) of the Human Rights Act applies to hostile
work environment disability harassment claims brought under section 2-102(A),
and the employee always bears the ultimate burden of persuasion in such a case;
and (3) the Tort Immunity Act applies to actions under the Human Rights Act, and
the City can assert immunity with respect to plaintiff’s request for damages but not
to her request for equitable relief. 2016 IL App (2d) 150493, ¶¶ 77, 95, 115. The
appellate majority also noted “that the supreme court has impliedly rejected our
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holdings that the Tort Immunity Act applies only to tort actions” and does not apply
to other types of claims in Raintree Homes, Inc. v. Village of Long Grove, 209 Ill.
2d 248, 261 (2004). 2016 IL App (2d) 150493, ¶ 97. Therefore, the majority did not
follow appellate precedent in answering the third certified question.
¶8 Justice McLaren concurred in part and dissented in part, opining that the
legislature did not intend for section 2-102(A) of the Human Rights Act to include
any or all types of harassment beyond sexual harassment (id. ¶¶ 121-24) and that
the third certified question was not a proper question (id. ¶¶ 125-28). Justice
McLaren did not find reasonable grounds for a difference of opinion as to whether
the Tort Immunity Act applies to a Human Rights Act claim and that the form of the
question implies that the appellate court would be effectively overruling three of its
prior decisions. The only reason to depart from appellate court precedent,
according to Justice McLaren, would be if the Illinois Supreme Court overruled
those actions. Justice McLaren disagreed that this court’s opinion in Raintree
Homes impliedly rejected previous holdings of the appellate court but that it rather
declined to adopt or approve of the appellate court’s reasoning. Id. ¶ 127 (citing
Raintree Homes, 209 Ill. 2d at 261 (“[W]e do not adopt or approve of the appellate
court’s reasoning that the Tort Immunity Act categorically excludes actions that do
not sound in tort ***.”)).
¶9 Rozsavolgyi petitioned the appellate court for rehearing as to the third certified
question. Alternatively, Rozsavolgyi requested that the appellate court certify the
third certified question as involving a question of such importance that it should be
decided by the Illinois Supreme Court. See Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). The
appellate court granted Rozsavolgyi’s request for a certificate of importance as to
the third certified question.
¶ 10 ANALYSIS
¶ 11 Rozsavolgyi and the Department argue that the third certified question should
not have been answered by the appellate court and that the majority’s answer
should be vacated because the question was improperly certified by the circuit
court under Illinois Supreme Court Rule 308(a). Alternatively, if this court finds
that the third certified question was properly certified, Rozsavolgyi and the
Department assert that it should be answered in the negative and that Streeter v.
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County of Winnebago, 44 Ill. App. 3d 392 (1976), Firestone v. Fritz, 119 Ill. App.
3d 685 (1983), and People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196
(2001), remain good law.
¶ 12 The City contends that the third certified question should be answered in the
affirmative and that this court should further hold that the City’s tort immunity
defenses bar Rozsavolgyi’s requested damages relief. The City also argues that the
first certified question should be answered in the negative, for counts I and IV to be
dismissed, and that this court should hold that Rozsavolgyi’s failure to plead and
prove that she utilized and complied with the City’s anti-harassment/reasonable
accommodation policies absolutely bars her from recovering damages resulting
from the alleged civil rights violations.
¶ 13 Essentially, we are asked to go beyond the third certified question because,
under Rule 316, the whole case comes before the supreme court. See Hubble v.
Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 238
Ill. 2d 262, 267 (2010) (“[U]nder Supreme Court Rule 316 [citation], the whole
case comes before the supreme court and not only a particular issue.”); Ill. S. Ct. R.
318(a) (eff. Feb. 1, 1994) (“In all appeals, by whatever method, from the Appellate
Court to the Supreme Court, any appellee *** may seek and obtain any relief
warranted by the record on appeal without having filed a separate petition for leave
to appeal or notice of cross-appeal or separate appeal.”). In response to the City’s
request that this court address the first certified question, both Rozsavolgyi and the
Department ask this court to affirm the appellate court’s answer to the first certified
question.
¶ 14 The threshold question facing this court is to decide which issues presented, if
any, to address. Before answering this question, however, we believe it prudent to
first examine Illinois Supreme Court Rules 316 and 308, given the unique
procedural posture of this case.
¶ 15 Illinois Supreme Court Rule 316
¶ 16 Illinois Supreme Court Rule 316 provides in relevant part that “[a]ppeals from
the Appellate Court shall lie to the Supreme Court upon the certification by the
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Appellate Court that a case decided by it involves a question of such importance
that it should be decided by the Supreme Court.” Ill. S. Ct. R. 316 (eff. Dec. 6,
2006). Neither section 4(c) of article 6 of the Illinois Constitution of 1970 nor
Illinois Supreme Court Rule 316 addresses the nature of cases that rise to the level
of importance warranting review outside the normal appeal process. Ill. Const.
1970, art. VI, § 4; Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). However, albeit a different
avenue for appeal to this court, Illinois Supreme Court Rule 315 provides some
illumination upon the types of considerations that the Illinois Supreme Court
affords weight when determining whether to allow review. Ill. S. Ct. R. 315 (eff.
Mar. 15, 2016).
¶ 17 As a matter of course, the Illinois Supreme Court determines whether to grant
review by exercising its “sound judicial discretion.” Ill. S. Ct. R. 315(a) (eff. Mar
15, 2016). Illinois Supreme Court Rule 315 provides a nonexhaustive list of
considerations that inform this court’s appraisal, including: “the general
importance of the question presented; the existence of a conflict between the
decision sought to be reviewed and a decision of the Supreme Court, or of another
division of the Appellate Court; the need for the exercise of the Supreme Court’s
supervisory authority; and the final or interlocutory character of the judgment
sought to be reviewed.” Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016); Johnson v. Ames,
2016 IL 121563, ¶ 25 (Thomas, J., specially concurring) (“In short, this court’s
decision to grant review turns largely on whether the issue involved warrants an
authoritative resolution of statewide impact or whether it is the type of case whose
final resolution we may entrust to the appellate court.”). In deciding whether to
grant a certificate of importance, an appellate court may do well to look to the
factors set forth in Rule 315. See id. ¶ 26.
¶ 18 Illinois Supreme Court Rule 316 provides for an exceptional avenue of appeal
to this court and should therefore be exercised rarely and only when unequivocally
warranted. In re Marriage of O’Brien, 2011 IL 109039, ¶ 58 (Garman, J., specially
concurring) (“[T]hat an appeal reaches this court as a matter of right, rather than as
a matter of our discretion, does not negate the doctrines of mootness, ripeness,
standing, or procedural default. Similarly, the certification of a question to this
court does not require this court to answer the question if it is not squarely raised in
the case.”); John Crane, Inc. v. Admiral Insurance Co., 2013 IL App 093240-B,
¶ 73 (“It is well settled that the appellate court’s power to certify a case to the
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supreme court should be used very sparingly. [Citation.] Our supreme court is in a
better position than this court to determine whether it should accept this case for
further review.”); People v. Cherry Valley Public Library District, 356 Ill. App. 3d
893, 900 (2005) (“While this case is one of first impression and of obvious
importance ***, it is also a relatively straight forward case. Thus, we deem it best
that defendant proceeds through usual channels and seeks leave to appeal from the
supreme court.”); People v. Lemons, 210 Ill. App. 3d 33, 40-41 (1991) (“While the
question involved is important, we do not deem it to be of such importance as to
require such certification. The supreme court faces an expanded number of appeals
which arise as a matter of right. We need not infringe upon its exercise of discretion
as to how it spends the rest of its limited time.”).
¶ 19 Illinois Supreme Court Rule 308
¶ 20 Illinois Supreme Court Rule 308 provides another exception to the normal
appeal process. Illinois Supreme Court Rule 308 provides in relevant part:
“When the trial court, in making an interlocutory order not otherwise
appealable, finds that the order involves a question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of the litigation, the
court shall so state in writing, identifying the question of law involved. Such a
statement may be made at the time of the entry of the order or thereafter on the
court’s own motion or on motion of any party. The Appellate Court may
thereupon in its discretion allow an appeal from the order.” Ill. S. Ct. R. 308(a)
(eff. Jan. 1, 2016).
¶ 21 By definition, certified questions are questions of law subject to de novo
review. Moore v. City of Chicago Park District, 2012 IL 112788, ¶ 9. Certified
questions must not seek an application of the law to the facts of a specific case.
De Bouse v. Bayer AG, 235 Ill. 2d 544, 557 (2009). If addressing a certified
question will result in an answer that is advisory or provisional, the certified
question should not be reached. See Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d
460, 469-70 (1998); In re Estate of Luccio, 2012 IL App (1st) 121153, ¶ 32 (“The
courts of Illinois do not issue advisory opinions to guide future litigation ***.”
(citing Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003))).
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Similarly, if an answer is dependent upon the underlying facts of a case, the
certified question is improper. In re Estate of Luccio, 2012 IL App (1st) 121153,
¶ 32 (“As too often happens, a certified question is framed as a question of law, but
the ultimate disposition depends on ‘the resolution of a host of factual predicates.’ ”
(quoting Dowd & Dowd, Ltd, 181 Ill. 2d at 469)). Appeals under Illinois Supreme
Court Rule 308 should be reserved for exceptional circumstances, and the rule
should be sparingly used. Voss v. Lincoln Mall Management Co., 166 Ill. App. 3d
442, 450 (1988).
¶ 22 Subsection (e) of Illinois Supreme Court Rule 308 states that “[t]he application
for permission to appeal or the granting thereof shall not stay proceedings in the
trial court unless the trial court or the Appellate Court or a judge thereof shall so
order.” Ill. S. Ct. R. 308(e) (eff. Dec. 6, 2006). The committee comments explain,
“Normally the interlocutory appeal will not stay proceedings in the trial court. The
case may proceed in that court unless the trial court or the Appellate Court or a
judge thereof otherwise orders. This will discourage an attempt to take an
interlocutory appeal with a motive of delay.” Ill. S. Ct. R. 308, Committee
Comments (revised 1979). Illinois Supreme Court Rule 318, titled “General Rules
Governing All Appeals from the Appellate Court to the Supreme Court,” makes
clear that “[t]he review of cases at an interlocutory stage is not favored, and a
failure to seek review when the Appellate Court’s disposition of the case is not final
does not constitute a waiver of the right to present any issue in the appropriate court
thereafter.” Ill. S. Ct. R. 318(b) (eff. Feb. 1, 1994).
¶ 23 Upon survey of Illinois Supreme Court Rule 308, it is evident that the appellate
court serves as gatekeeper and must carefully question whether the case before it
warrants consideration outside the usual process of appeal. In fact, after allowing
permissive interlocutory review, the appellate court at times has vacated its order
allowing leave to appeal upon reconsideration of its decision to allow permissive
interlocutory review. See Voss, 166 Ill. App. 3d at 443 (vacating order allowing
leave to appeal as having been improvidently entered because addressing certified
question would not actually materially advance the ultimate termination of the
litigation); Kincaid v. Smith, 252 Ill. App. 3d 618, 622 (1993) (after reviewing the
parties’ briefs, appellate court dismissed the appeal as improvidently granted
because resolution of the certified question alone would not materially advance the
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litigation).
¶ 24 The Instant Case
¶ 25 This court’s scope of review is generally limited to the certified question.
Moore, 2012 IL 112788, ¶ 9. The appellate court’s answer to a certified question is
reviewed de novo. Id. Whether the appellate court erred in allowing an appeal under
Rule 308 is reviewed for an abuse of discretion. See Healy v. Vaupel, 133 Ill. 2d
295, 305-06 (1990). Turning to the third certified question, we are asked to
consider:
“3. Does the Local Government[al] and Governmental Employees Tort
Immunity Act, 745 ILCS 10/1, et seq., apply to a civil action under the Illinois
Human Rights Act where the plaintiff seeks damages, reasonable attorneys’
fees and costs?
If yes, should this Court modify, reject or overrule its prior holdings in
Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (2nd Dist. 1976),
Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (2nd Dist. 1983), and People ex rel.
Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2nd Dist. 2001), that ‘the
Tort Immunity Act applies only to tort actions and does not bar actions for
constitutional violations’ [citation]?”
¶ 26 The third certified question is improperly overbroad, should not have been
answered, and does not warrant our review at this time. As framed, the third
certified question ignores the breadth of the Illinois Human Rights Act, which
provides for numerous types of civil actions for unlawful conduct in a variety of
contexts. 775 ILCS 5/1-101 et seq. (West 2014). Relevant here, article 2 of the
Human Rights Act is specific to causes of action arising in the employment setting.
775 ILCS 5/2-101 (West 2014). Answering the third certified question as framed
would necessarily bear on situations not before this court and would therefore
result in an advisory opinion. As noted by the Department, a municipality’s
relationship to a plaintiff varies throughout the articles of the Human Rights Act.
For this reason, caution must be exercised.
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¶ 27 The City asserts several arguments as to why the form of the certified question
should not preclude our review. The City contends that Rozsavolgyi forfeited any
argument as to the form of the third certified question because she did not raise it in
her application for certificate of importance or petition for rehearing and did not
argue that the appellate court abused its discretion in allowing the question.
However, when the City sought permissive interlocutory appeal, Rozsavolgyi filed
an answer in opposition to defendant’s application for leave to appeal pursuant to
Rule 308, specifically arguing that the third question “fails to comply with any of
the requirements of Rule 308(a).” Further, even if Rozsavolgyi forfeited this
argument, such forfeiture would not persuade this court to proceed in addressing an
improperly formulated certified question and issuing an advisory opinion.
¶ 28 The City posits that the question was intended to be broadly framed but that this
court may modify the certified question to correct any impropriety. See Ill. S. Ct. R.
366(a)(5) (eff. Feb. 1, 1994). We acknowledge that we have, in some cases,
modified a certified question or read a certified question in such a way as to bring it
within the ambit of a proper question of law. See e.g. De Bouse, 235 Ill. 2d at
556-67. But because this court has modified a certified question before does not
mean that we will do so in every case. Although we are cognizant of principles of
judicial economy, we are still not persuaded that modification of the third certified
question is warranted in this case.
¶ 29 The City maintains that, under Illinois Supreme Court Rule 316, “[e]ven if the
certified question may have been improper under Rule 308, it matters not because
the Appellate Court determined that ‘a case decided by it involves a question of
such importance that it should be decided by the Supreme Court.’ ”
¶ 30 However, the third certified question was presented to the appellate court in the
same form as it reaches this court. The overbreadth of the third certified question
was as readily apparent then as it is now. Accordingly, the appellate court’s
issuance of a certificate of importance in this case does not somehow automatically
remedy the third certified question’s defects.
¶ 31 As mentioned, a certified question must involve a question of law as to which
there is substantial ground for difference of opinion and for which an immediate
appeal from the interlocutory order may materially advance the ultimate
termination of the litigation. See Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2016). As noted by
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Justice McLaren in his partial concurrence and dissent, the form of the third
certified question implies that the appellate court would be effectively overruling
three of its prior decisions—and the only basis to do so would be if the Illinois
Supreme Court overruled those cases. See Streeter v. County of Winnebago, 44 Ill.
App. 3d 392, 394-95 (2d Dist. 1976); Firestone v. Fritz, 119 Ill. App. 3d 685, 689
(2d Dist. 1983); People ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202
(2d Dist. 2001). The appellate majority points to a single sentence in the Illinois
Supreme Court case of Raintree Homes, which states that “we do not adopt or
approve of the appellate court’s reasoning that the Tort Immunity Act categorically
excludes actions that do not sound in tort.” 209 Ill. 2d at 261. From this sentence,
the appellate majority concludes that this court “impliedly rejected [the appellate
court’s] holdings, including, as relevant here, our holdings that constitutional
claims and civil rights actions are not subject to the Tort Immunity Act.” 2016 IL
App (2d) 150493, ¶ 112. But the appellate majority then notes that “there is case
law in this district that holds that the Tort Immunity Act applies only to tort
claims.” Id.
¶ 32 The substantial grounds for difference of opinion prong in Rule 308 has been
satisfied in instances where the question of law had not been directly addressed by
the appellate or supreme court (In re Estate of Kleine, 2015 IL App (2d) 150063,
¶ 14) or where there is a conflict between appellate districts or with the Illinois
Supreme Court (Johannsen v. General Foods Corp., 146 Ill. App. 3d 296, 298-99
(1986)). Raintree Homes did not “impliedly reject” the appellate court’s holdings
but instead made clear that the Illinois Supreme Court was not adopting or
approving of the appellate court’s reasoning and was affirming on a different
ground. 209 Ill. 2d at 261 (“Thus, while we do not adopt or approve of the appellate
court reasoning that the Tort Immunity Act categorically excludes actions that do
not sound in tort [citation], this court can affirm the appellate court on any basis in
the record.”). By its own terms, the third certified question acknowledges the
existence of appellate case law. Therefore, it is questionable at best whether a
substantial difference of opinion exists so as to support certification of this
question, let alone issuance of a certificate of importance.
¶ 33 Illinois Supreme Court Rule 308 also requires that resolution of the question
materially advance the ultimate termination of the litigation. See Ill. S. Ct. R. 308
(eff. Jan. 1, 2015). Rozsavolgyi’s prayers for relief are the same for each count of
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her complaint. Specifically, Rozsavolgyi seeks “all legal and equitable relief
available under the Illinois Human Rights Act which includes back pay, front pay,
the value of lost employment benefits, actual damages, emotional distress and other
compensatory damages, reinstatement with full seniority, attorney’s fees, litigation
expenses and costs of suit in an amount in excess of $50,000.” The third certified
question addresses whether the Tort Immunity Act applies to a plaintiff seeking
“damages, reasonable attorneys’ fees and costs.” Thus, regardless of how the third
certified question is answered, the City’s liability would still be at issue as to the
other forms of relief sought. See 745 ILCS 10/2-101 (West 2016) (“Nothing in this
Act affects the right to obtain relief other than damages against a local public entity
or public employee.”). Necessarily then, the third certified question presupposes
that Rozsavolgyi can successfully plead her causes of action and that the City can
avail itself of and prove the specific immunities raised under the Tort Immunity
Act.
¶ 34 For the foregoing reasons, we decline to answer the third certified question. We
also think it appropriate to remind litigants and the lower courts that appellate
review of interlocutory orders is not favored (see Ill. S. Ct. R. 318 (eff. Feb. 1,
1994)), and appellate courts should exercise their authority to certify questions to
our court under Rule 316 sparingly (Cherry Valley Public Library District, 356 Ill.
App. 3d at 900). While this court has repeatedly reviewed appellate court answers
to Rule 308 certified questions that were granted permissive interlocutory review,
the vast majority of those cases reached this court by Illinois Supreme Court Rule
315, not Rule 316. See, e.g., Hampton v. Metropolitan Water Reclamation District
of Greater Chicago, 2016 IL 119861; Bowman v. Ottney, 2015 IL 119000; Moore,
2012 IL 112788; Wilson v. Edward Hospital, 2012 IL 112898; Johnston v. Weil,
241 Ill. 2d 169 (2011); Simmons v. Homatas, 236 Ill. 2d 459 (2010); Solon v.
Midwest Medical Records Ass’n, Inc., 236 Ill. 2d 433 (2010); Applebaum v. Rush
University Medical Center, 231 Ill. 2d 429 (2008); Vision Point of Sale, Inc. v.
Haas, 226 Ill. 2d 334 (2007); Barbara’s Sales, Inc. v. Intel Corp., 227 Ill. 2d 45
(2007); Bright v. Dicke, 166 Ill. 2d 204 (1995); Richardson v. Economy Fire &
Casualty Co., 109 Ill. 2d 41 (1985).
¶ 35 That Rule 315 is available as an avenue of recourse was something we made
clear in Schrock v. Shoemaker: “[w]hen the appellate court renders a final
judgment, either denying an application for appeal under Rule 308 or permitting an
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appeal and answering the certified questions, either party may petition this court for
leave to appeal from the appellate court’s judgment, pursuant to Supreme Court
Rule 315(a).” 159 Ill. 2d 533, 537 (1994) (citing Healey v. Vaupel, 133 Ill. 2d 295
(1990)). If Rozsavolgyi had proceeded by means of Rule 315, she would have
suffered no prejudice. Doing so would not have limited the issues she would have
been permitted to raise, for “[i]f this court allows a petition for leave to appeal
pursuant to Rule 315(a), the scope of our review is not limited to determining
whether the appellate court answered the certified questions correctly. Pursuant to
Supreme Court Rule 366(a)(5), this court may ‘enter any judgment and make any
order that ought to have been given or made, and make any other and further orders
and grant any relief *** that the case may require.’ [Citation.]” Schrock, 159 Ill. 2d
at 537.
¶ 36 Moreover, Rozsavolgyi did not need to petition the appellate court for
rehearing or alternatively for a certificate of importance in order to avoid forfeiture
(see Ill. S. Ct. R. 318(b) (eff. Feb. 1, 1994) (“a failure to seek review when the
Appellate Court’s disposition of the case is not final does not constitute a waiver of
the right to present any issue in the appropriate court thereafter”)) or to prevent
undue delay. Although dissatisfied with the majority’s answer to the third certified
question, Rozsavolgyi could have avoided further delay by returning to the circuit
court after conclusion of the appellate court’s permissive interlocutory review and
still preserved her right to petition this court for leave to appeal under Rule 315.
¶ 37 We further note that Rozsavolgyi may have been granted some recourse even if
a Rule 315 petition for leave to appeal had been denied. Supervisory authority
could still have been invoked to aid her. This court has exercised its supervisory
authority to issue orders in cases involving interlocutory appeals where it has seen
fit to do so. Hubble, 238 Ill. 2d at 266 (entering a supervisory order directing the
circuit court to grant interlocutory appeal and stay proceedings pending outcome of
appeal); Solon v. Midwest Medical Records Ass’n, 226 Ill. 2d 633 (2008) (table)
(denying petition for leave to appeal under Rule 315 but issuing supervisory order
directing the appellate court to vacate its order denying leave to appeal under Rule
308, to enter an order allowing the application for leave to appeal, and to consider
the certified question on the merits); Thompson v. Gordon, 221 Ill. 2d 414, 420
(2006).
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¶ 38 In sum, there was no reason for Rozsavolgyi to have resorted to Rule 316
instead of Rule 315. Rule 315 is the procedural avenue that should be followed
where, as here, a litigant seeks review of an appellate court’s ruling on a certified
question under Rule 308. It is the avenue we urge litigants to follow in future cases
such as this one.
¶ 39 Because the appellate court granted a certificate of importance and the whole
case is now before this court does not mean that this court will address issues that
should not be before it at this time or in this manner. The appellate court erred in
answering the third certified question, and we therefore vacate the court’s opinion
and remand to the circuit court for further proceedings. Because this court declines
to answer the third certified question—the only certified question upon which a
certificate of importance was issued—we likewise decline to address the other
issues urged upon us. Should issues again arise upon remand, we remind the parties
and the courts below both of the proper process of appeal and of this court’s ability
to exercise its discretion if and when it deems it necessary to do so.
¶ 40 CONCLUSION
¶ 41 The appellate court issued a certificate of importance under Rule 316 only as to
the third certified question. Because the third certified question is overbroad, we
hold that the appellate court should have declined review and also that it should not
have issued a certificate of importance. Because the third certified question is
improper, we decline to answer it. The Illinois Supreme Court does not render
advisory opinions. As a matter of discretion, we decline to address other issues
urged upon us. We vacate the entirety of the appellate court’s judgment and remand
to the circuit court for further proceedings.
¶ 42 Certified question not answered.
¶ 43 Appellate court judgment vacated.
¶ 44 Remanded.
¶ 45 JUSTICE BURKE, dissenting:
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¶ 46 On April 29, 2015, the circuit court of Kane County certified three questions to
the appellate court pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015).
The appellate court answered the questions (2016 IL App (2d) 150493) and then
certified the case to this court under Illinois Supreme Court Rule 316 (eff. Dec. 6,
2006). With the entire case now before us as a matter of right, the majority chooses
not to address the merits of any of the certified questions and, further, vacates the
judgment of the appellate court in its entirety. Thus, after more than two years of
litigation and the expenditure of an undoubtedly large amount of legal fees, the
parties are left with nothing. Their dispute is no closer to resolution than it was in
2015.
¶ 47 There are times when judicial waste of this sort is unavoidable, such as when a
jurisdictional bar or mootness prevents us from reaching the merits of an issue. But
this is not such a case. The majority fails to reach the merits of the certified
questions, not because of an important legal principle but because of a series of
serious errors.
¶ 48 First, the majority’s conclusion that the third certified question is improper and
that the appellate court abused its discretion in answering the question is simply
incorrect. Second, the majority fails to address or even acknowledge the
defendant’s cross-appeal from the appellate court’s judgment regarding the first
and second certified questions, even though that cross-appeal is before us as a
matter of right. Third, rather than simply vacating that portion of the appellate court
judgment regarding the third certified question, the majority vacates the entirety of
the appellate court’s judgment, even though the majority has just stated it is not
reaching the merits of the first and second certified questions. Finally, the majority
holds that a litigant may not seek, and our appellate court may not issue, a
certificate of importance in a case that involves a certified question under Rule 308,
a finding that is absolutely incorrect. Nothing in our rules or, more importantly, our
constitution limits the appellate court’s authority in this way. Because of these
serious errors, I must respectfully dissent.
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¶ 49 I. Third Certified Question
¶ 50 Plaintiff filed a complaint in January 2014 alleging that her employer, the city
of Aurora, committed four civil rights violations under article 2 of the Illinois
Human Rights Act (775 ILCS 5/2-101 et seq. (West 2014)) (refusal to
accommodate, disparate treatment, retaliation, and hostile work environment). In
response, the defendant city raised a number of affirmative defenses, including
immunity defenses under sections 2-103, 2-201, and 3-108 of the Local
Governmental and Governmental Employees Tort Immunity Act (Tort Immunity
Act) (745 ILCS 10/2-103, 2-201, 3-108 (West 2014)). On April 22, 2015, the trial
court granted plaintiff’s motion to strike defendant’s affirmative defenses grounded
in the Tort Immunity Act.
¶ 51 Subsequently, however, on defendant’s motion, the court certified three
questions pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). The
appellate court allowed appeal from the trial court’s order in order to answer the
certified questions. Relevant here, the third certified question states:
“(3) Does the [Tort Immunity Act] apply to a civil action under the Human
Rights Act where the plaintiff seeks damages, reasonable attorney fees, and
costs? If yes, should this court modify, reject, or overrule its holdings in People
ex rel. Birkett v. City of Chicago, 325 Ill. App. 3d 196, 202 (2001), Firestone v.
Fritz, 119 Ill. App. 3d 685, 689 (1983), and Streeter v. County of Winnebago,
44 Ill. App. 3d 392, 394-95 (1976), that ‘the Tort Immunity Act applies only to
tort actions and does not bar actions for constitutional violations’ (Birkett, 325
Ill. App. 3d at 202)?”
¶ 52 The majority of the appellate court answered “yes” to this question. 2016 IL
App (2d) 150493, ¶¶ 97-115. The appellate court held that the Tort Immunity Act
applies to actions under the Human Rights Act and defendant can assert immunity
with respect to plaintiff’s requests for damages but not to her requests for equitable
relief. Id. ¶¶ 112-15. The appellate court then certified the case to this court
pursuant to Illinois Supreme Court Rule 316 (eff. Dec. 6, 2006).
¶ 53 Now, with the case properly before this court, the majority refuses to decide the
significant issue in this case, i.e., whether the appellate court’s answer to the third
certified question is correct. The majority holds, because the question refers
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generally to “ ‘a civil action under the Illinois Human Rights Act’ ” rather than the
specific cause of action involved in this case, that the question is “improperly
overbroad” and that the appellate court abused its discretion in answering the
question. Supra ¶ 26. The majority further holds that the third certified question
cannot be answered by this court because answering the question would result in an
“advisory opinion.” Supra ¶ 26.
¶ 54 I find the majority’s holding perplexing, since there is nothing improper or
overly broad about the way the question is framed. Rule 308 allows a trial court,
upon a finding that an order involves a question of law where there is a substantial
ground for difference of opinion, to make an otherwise interlocutory order
immediately appealable if an appeal may materially advance the ultimate
termination of the litigation. See Ill. S. Ct. R. 308(a) (eff. Jan. 1, 2016).
¶ 55 Certified questions, by their nature, are pure questions of law. See Dowd &
Dowd Ltd. v. Gleason, 181 Ill. 2d 460, 469 (1998); Bauer v. Giannis, 359 Ill. App.
3d 897, 902 (2005). As such, a question certified under Rule 308 will obviously
bear on factual situations other than the one before the reviewing court. See Walker
v. Carnival Cruise Lines, Inc., 383 Ill. App. 3d 129, 133 (2008) (a properly written
certified question under Rule 308 articulates a specific question of law and is “not
intended to allow for an interlocutory appeal of merely an application of the law to
the facts of a specific case”).
¶ 56 It is true that a reviewing court should avoid answering a certified question
where the answer would not materially advance the ultimate termination of the
litigation, as required by Rule 308(a). For example, a question that calls for a
hypothetical answer with no practical effect on the rights of the parties is not a
proper question under the rule. See Lawndale Restoration Ltd. Partnership v.
Acordia of Illinois, Inc., 367 Ill. App. 3d 24, 27-28 (2006); see also In Re
Commitment of Hernandez, 239 Ill. 2d 195, 201 (2010) (a court will not decide
moot or abstract questions or issue advisory opinions where the result will not be
affected no matter how the issues are decided). In addition, where a certified
question cannot be answered without resolving issues of fact, the court should
refrain from answering it. See Dowd & Dowd, Ltd., 181 Ill. 2d at 469-70 (holding
that an answer to the certified question would be “meaningless” where it depended
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on the resolution of one or more factual predicates in the case). Neither of these
circumstances is present here.
¶ 57 The third certified question asks, as a matter of law, whether a defendant may
assert immunity under the Tort Immunity Act for claims brought under the Human
Rights Act. The answer to this question obviously will affect the parties’ rights and,
thus, will not result in a hypothetical or “advisory” opinion. See In re Marriage of
O’Brien, 2011 IL 109039, ¶ 20 (an opinion is only advisory if “ ‘it is impossible for
this court to grant effectual relief to either party’ ” (quoting In re Mary Ann P., 202
Ill. 2d 393, 401 (2002))). If the answer to the question is “yes,” as the appellate
court held, then it is appropriate to remand the case to the circuit court for further
proceedings on the question of whether defendant can prove its immunity pursuant
to the particular provisions of the Tort Immunity Act. If the answer is “no,”
plaintiff’s complaint can move forward through the regular course of litigation.
Either answer will affect the rights of the parties to these proceedings. Nor does
addressing the third certified question depend on resolving any factual issues. It is
not necessary to decide whether defendant can sustain the particular immunity
defenses raised below before deciding whether the Tort Immunity Act applies at all
to civil rights claims brought under the Human Rights Act.
¶ 58 The majority suggests that it is somehow improper for this court to address the
application of the Tort Immunity Act to all claims brought under the Human Rights
Act, rather than to plaintiff’s specific claims of employment discrimination. The
majority’s concern is unfounded. The trial court granted plaintiff’s motion to strike
defendant’s affirmative defenses based on appellate court case law holding that the
Tort Immunity Act is applicable only to tort claims and is inapplicable to
constitutionally based claims. See People ex rel. Birkett v. City of Chicago, 325 Ill.
App. 3d 196, 202 (2001); Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (1983);
Streeter v. County of Winnebago, 44 Ill. App. 3d 392, 394-95 (1976). While it is
true that the Human Rights Act provides for actions in a variety of contexts (e.g.,
employment, education, public accommodations), the majority never explains why
an answer to the third certified question would differ depending on the type of civil
rights violation being alleged. Actions to redress civil rights violations under the
Human Rights Act are distinct from tort claims. Maksimovic v. Tsogalis, 177 Ill. 2d
511, 518 (1997). Accordingly, if the Birkett line of cases is correct, statutory
immunities under the Tort Immunity Act will not apply to any Human Rights Act
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claims, including the ones in this case. The framing of the third certified question
makes perfect sense in this context. There is absolutely no basis for holding that the
appellate court abused its discretion and no reason for the majority to refuse to
address the question.
¶ 59 The majority also suggests that the third certified question fails to meet the
criteria for certification under Rule 308(a). First, the majority states that “it is
questionable at best whether a substantial difference of opinion exists so as to
support certification of this question.” Supra ¶ 32. I am puzzled as to how the
majority has arrived at this conclusion. Determining whether the Tort Immunity
Act applies to claims under the Human Rights Act is an issue of first impression in
this court, which is far from settled. There is legitimate reason to doubt the
continued validity of the Birkett line of case law, which appears to be abrogated by
section 1-204 of the Tort Immunity Act. See 745 ILCS 10/1-204 (West 2014)
(providing that the Act’s immunities apply to injuries alleged in any “civil action,”
including those based upon the federal or state constitutions or upon a federal or
state statute). Indeed, other courts have applied the Tort Immunity Act to nontort
claims, reasoning that the claims at issue were not expressly exempted from the
Tort Immunity Act. See 745 ILCS 10/2-101 (West 2014) (listing types of claims
exempt from the Tort Immunity Act but not including Human Rights Act claims);
Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 500 (2001)
(applying the Tort Immunity Act to a nontort claim based in quasi-contract); In re
Marriage of Murray, 2014 IL App (2d) 121253, ¶¶ 40-55 (applying the Tort
Immunity Act to a nontort claim under the Income Withholding for Support Act
(750 ILCS 28/1 et seq. (West 2010))).
¶ 60 The trial court found, and I agree, that the state of the law on this issue is
uncertain and lacking in clear direction. The third certified question involves
statutory construction, a proper subject for certification under Rule 308. See, e.g.,
Bowman v. Ottney, 2015 IL 119000, ¶ 8; Moore v. Chicago Park District, 2012 IL
112788, ¶ 9; Johnson v. Weil, 241 Ill. 2d 169, 175-76 (2011). Thus, the question is
ideally suited for resolution through Rule 308.
¶ 61 The majority also asserts that this court should not address the third certified
question because answering it would not “materially advance the ultimate
termination of the litigation.” Supra ¶ 33. The majority notes that, even if the Tort
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Immunity Act shields defendant from plaintiff’s claims for damages, attorney fees
and costs, defendant’s liability would still be at issue as to the other forms of relief
sought by plaintiff (e.g., back pay, front pay, loss of benefits). I cannot agree.
Removing an entire category of damages from consideration obviously advances
the course of litigation, and it is disingenuous to pretend otherwise.
¶ 62 Moreover, even if I agreed that the phrasing of the third certified question is too
broad because it refers to all civil actions under the Human Rights Act, I see no
reason why this court should not reformulate the question. If the majority believes
that the answer to the question depends on the type of Human Rights Act claim at
issue, they should limit their answer to employment discrimination claims under
article 2 of the Human Rights Act. There is nothing preventing the majority from
modifying the wording of the question and answering it, in the interest of judicial
economy. This court has done precisely that on more than one occasion.
¶ 63 Most recently, in Hampton v. Metropolitan Water Reclamation District of
Greater Chicago, 2016 IL 119861, this court completely rewrote a certified
question that was based on a legally incorrect premise. The original certified
question asked whether Arkansas Game & Fish Comm’n v. United States, 568 U.S.
23 (2012), “overruled” People ex rel. Pratt v. Rosenfield, 399 Ill. 247 (1948), that a
temporary flooding is not a taking under our state constitution. Hampton, 2016 IL
119861, ¶ 6. The appellate court answered affirmatively, and this court granted
leave to appeal. Recognizing that the United States Supreme Court has no authority
to overrule a state court’s declaration of state law, a majority of this court
proceeded to address an entirely different question from that certified by the trial
court. Id. ¶ 10. The majority noted that “[t]he circuit court should have avoided the
use of the term ‘overruled’ and drafted its certified question in a way that would
better reflect the role of federal precedent in Illinois law.” Id. “Nevertheless,” the
majority went on, “we will consider whether the decision in Arkansas Game & Fish
Comm’n ought to be incorporated into this court’s Illinois takings clause
jurisprudence and, if so, whether that decision conflicts with this court’s decision in
Pratt.” Id. If this court can completely rewrite a certified question, as we did in
Hampton, then there is no reason why the third certified question cannot be
modified here.
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¶ 64 Additional case law supports this conclusion. In De Bouse v. Bayer AG, 235 Ill.
2d 544 (2009), this court determined that the term “product” in a certified question
was too broad because the answer would depend on the nature of the product being
sold. Id. at 556-57 (certified question asked whether a company offering a
“product” for sale is a representation that the product is safe for its intended use).
Accordingly, we limited our consideration of the question to the type of product at
issue in the case, i.e., prescription drugs, and proceeded to answer that question. Id.
at 557. This court also addressed a question different from the one certified by the
trial court in Boyd v. Travelers Insurance Co., 166 Ill. 2d 188 (1995). In Boyd, the
certified question asked “ ‘[w]hether a plaintiff in a spoliation of evidence case
must plead and prove that he lost the underlying civil case, or whether it is
sufficient that he plead a significant impairment of his ability to prove the
underlying suit.’ ” Id. at 190-91. This court noted that the question as framed by the
trial court assumed, incorrectly, that Illinois courts already recognized an
independent cause of action for “spoliation of evidence.” Id. at 192-93. Rather than
dismiss the appeal, however, we chose to address the underlying question and
ultimately concluded that an action for negligent spoliation could be stated under
Illinois’s existing negligence law. Id. at 193.
¶ 65 There is absolutely no reason why this court should refuse to address the third
certified question now before us, even if the phrasing of the question requires
modification. The issue has been thoroughly briefed and argued by the parties. The
trial and appellate courts have sought clarification, and a decision on the issue at
this time would materially advance the litigation and also serve the interest of
judicial economy. The majority offers no justification for its failure to rephrase and
answer the question other than to say it is not “persuaded that modification of the
third certified question is warranted in this case.” Supra ¶ 28. I am unsure what this
means, since there is nothing about this case that differentiates it from other cases in
which this court has exercised its discretion to reformulate a certified question so
that it could be addressed. Unfortunately, the majority fails to resolve the
controversy at this juncture, forcing the parties and the lower courts to waste time
and resources and, inevitably, merely delaying the time at which this issue will
once again come before this court.
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¶ 66 II. Cross-Appeal
¶ 67 Not only does the majority fail to address the issue raised by the plaintiff, but
the majority does not even mention that defendant has filed a cross-appeal in this
court. This is a serious omission, as the cross-appeal is a part of this case, and this
court has no discretion not to consider it.
¶ 68 Following the appellate court’s decision, plaintiff filed a petition for rehearing
or, in the alternative, a request for a certificate of importance pursuant to Illinois
Supreme Court Rule 316 (eff. Dec. 6, 2006). Subsequently, the appellate court
denied rehearing but entered an order granting a Rule 316 certificate, finding that
the case involved a question of such importance that it should be decided by the
Illinois Supreme Court. See Ill. S. Ct. R. 316 (eff. Dec. 6, 2006). After the plaintiff
filed her appellant’s brief in this court, defendant filed its appellee’s brief along
with a notice of cross-appeal. The cross-appeal challenged the appellate court’s
answer to the first certified question and part of the appellate court’s analysis of the
second certified question.
¶ 69 The majority never mentions that a cross-appeal has been filed in this court.
Instead, they characterize the issues raised in the cross-appeal as “other issues
urged upon us” by the defendant. Supra ¶ 39. The majority then states that it is
exercising its “discretion” not to address the issues raised by defendant, based on
the fact that the third certified question was “the only certified question upon which
a certificate of importance was issued.” Supra ¶ 39. These statements represent a
fundamental misunderstanding of the nature of an appeal under Illinois Supreme
Court Rule 316.
¶ 70 The appellate court has the authority to issue a certificate of importance in a
case pursuant to article VI, section 4(c), of the Illinois Constitution of 1970 (Ill.
Const. 1970, art. VI, § 4(c)) and Illinois Supreme Court Rule 316 (eff. Dec. 6,
2006). Article VI, section 4(c) provides that “[a]ppeals from the Appellate Court to
the Supreme Court are a matter of right *** if a division of the Appellate Court
certifies that a case decided by it involves a question of such importance that the
case should be decided by the Supreme Court.” (Emphases added.) Ill. Const. 1970,
art. VI, § 4(c). Rule 316 similarly provides that an appeal from the appellate court
“shall lie to the Supreme Court upon the certification by the Appellate Court that a
case decided by it involves a question of such importance that it should be decided
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by the Supreme Court.” (Emphases added.) Ill. S. Ct. R. 316 (eff. Dec. 6, 2006).
Thus, under our constitution, when the appellate court issues a certificate of
importance to this court, this court assumes jurisdiction of the whole case. Hubble
v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, 238
Ill. 2d 262, 267 (2010) (citing O’Casek v. Children’s Home & Aid Society, 229 Ill.
2d 421, 436 (2008), and People v. Crawford Distributing Co., 78 Ill. 2d 70, 73
(1979)).
¶ 71 Because an appeal pursuant to Rule 316 is of the entire case, it is neither
necessary nor appropriate for the appellate court to certify a particular question or
questions in its order granting a certificate of importance. Nowicki v. Union Starch
& Refining Co., 54 Ill. 2d 93, 95 (1973). Further, the appellate court’s certification
does not limit the scope of our review. Id. at 100 (Goldenhersh, J., dissenting,
joined by Ward, J.) (citing Schatz v. Abbott Laboratories, Inc., 51 Ill. 2d 143
(1972)). Accordingly, the majority errs in viewing the appellate court’s
certification as limited only to the third certified question. The entire case is now
before us as a matter of right, including defendant’s cross-appeal. The majority
does not find that this court lacks jurisdiction to consider the cross-appeal.
Therefore, this court has no discretion to refuse to address the issues raised in the
cross-appeal.
¶ 72 III. Vacation of Appellate Court’s Judgment
¶ 73 The majority exacerbates its errors in this case by vacating the entirety of the
appellate court’s judgment, including the appellate court’s answers to the first and
second certified questions. The majority takes this unusual and unnecessary step
after expressly declining to consider the merits of the certified questions. There is
no finding by the majority that the appellate court erred in granting review of the
first and second questions or that the answers were incorrect. Thus, this court is
now vacating a portion of the judgment of the appellate court for no legal reason
whatsoever. If the majority believes it is improper for this court to consider the
merits of the appellate court’s judgment regarding the first and second questions,
then the majority should simply let that portion of the appellate court judgment
stand.
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¶ 74 IV. Appellate Procedure Involving a Rule 316 Certificate of Importance
¶ 75 Finally, I cannot agree with the majority that it was improper for the plaintiff to
seek, and for the appellate court to allow, an appeal to the supreme court under Rule
316 in a case involving a certified question under Rule 308. The majority holds that
“Rule 315 is the procedural avenue that should be followed where, as here, a
litigant seeks review of an appellate court’s ruling on a certified question under
Rule 308.” Supra ¶ 38. Because plaintiff sought a certificate of importance from the
appellate court rather than filing a petition for leave to appeal under Rule 315, the
majority finds that the issues in this appeal “should not be before [this court] at this
time or in this manner.” Supra ¶ 39.
¶ 76 The problem with the majority’s holding is that nothing in our constitution or
our rules limits a party’s right of appeal in this way. Rule 316 is a legitimate avenue
for appeal that negates the necessity for a party to pursue a discretionary appeal.
The constitution authorizes a division of the appellate court to issue a certificate of
importance whenever it finds that the case involves a question of such importance
that it should be decided by the supreme court. Ill. Const. 1970, art. VI, § 4(c). Such
an appeal is before this court as a matter of right. Id.
¶ 77 The majority cites no case law to support the notion that Rule 315 is the proper
procedural avenue for seeking review of an appellate court’s answer to a question
certified under Rule 308. In fact, this court has issued opinions in other cases
involving certified questions that came before us through a Rule 316 certificate of
importance. In deciding these cases, this court did not comment on the parties’
decision to seek a certificate of importance rather than a discretionary appeal
through Rule 315. See, e.g., Hubble, 238 Ill. 2d 262; Hermitage Corp. v.
Contractors Adjustment Co., 166 Ill. 2d 72 (1995).
¶ 78 The fact that, as the majority states, the “vast majority” of cases involving Rule
308 questions have “reached this court by Illinois Supreme Court Rule 315, not
Rule 316” (supra ¶ 34), does not lead to the conclusion that Rule 315 is the
“procedural avenue that should be followed” (supra ¶ 38) in these cases. Rather, it
is evidence that the appellate court understands that it is appropriate for it to
exercise its power under Rule 316 sparingly and only under exceptional
circumstances. The availability of Rule 315 as an avenue of recourse does not
preclude a party from filing a motion for a certificate of importance under Rule 316,
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nor does it prevent the appellate court from issuing a certificate. To the extent that
the majority implies otherwise, it is incorrect.
¶ 79 It is not this court’s place to prevent future litigants from availing themselves of
a right of appeal written into our state constitution. Plaintiff did nothing wrong in
seeking a certificate of importance in this case, and the appellate court did not err in
granting one.
¶ 80 For the foregoing reasons, I respectfully dissent.
¶ 81 JUSTICES FREEMAN and THOMAS join in this dissent.
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