Illinois supreme court justices squabble over which issues to decide

Justice Burke authored the opinion in this appeal, joined by five of her six colleagues. From an appellate practice point of view, Justice Karmeier’s dissent is far more interesting than the majority decision. The dissent objects to Justice Burke’s failure to reach an issue that was the basis of the lower courts’ decisions and her approach of instead resolving the case on other grounds. How many issues – and which ones – a court should reach in deciding cases is not an unusual concern on appellate review, particularly in courts of last resort. And it is usually pretty dry stuff for everyone except the court and the parties to the appeal.

But not so in this case because of the tone of Justice Karmeier’s dissent. For example: “I must also point out that Justice Burke, author of the majority’s opinion, has frequently taken this court to task for not reaching important legal issues presented by an appeal, even when resolution of those issues is not necessary for disposition of the particular controversy before it.” Justice Karmeier then cites five cases as examples, including two in which he wrote the majority opinion.

He makes special reference to one of his decisions, from which Justice Burke dissented, and to which he refers as her “most recent pronouncement on the subject[.]” In that case, Justice Burke argued that deferring resolution of an issue can be counterproductive in circumstances when the same issue is likely to come before the court again. Justice Karmeier then points out that “[s]uch circumstances were not actually present in [that case], where the legal issue Justice Burke wanted us to take up was arcane, it had no application to the dispute before us, and there was no empirical basis for believing it was likely to arise again any time soon. Such circumstances are present here.”

No comment on this one. Make of it what you will.

Performance Marketing Association, Inc. v. Hamer, 2013 IL 114496.