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175 Ill. 2d 394

677 N.E.2d 918

Proctor v. Upjohn Co.

Illinois Supreme Court

Decided February 20, 1997

Illinois Supreme Court · decided 1997-02-20

Key passage — most relied on by later courts

““Two requirements are necessary for an appellate court opinion. First, three judges must participate in the decision of every case. 145 Ill. 2d R. 22(c). Second, the concurrence of two judges in the judgment of the court is necessary. 145 Ill. 2d R. 22(c); Ill. Const. 1970, art. VI, §5; 705 ILCS 25/l(d) (West 1994). Absent the concurrence of at least two judges, the appellate court cannot render a valid judgment.” Proctor v. The Upjohn Co., 175 Ill. 2d 394, 396 (1997).”

quoted by 2 later decisions, including Alexander v. Industrial Commission, 405 Ill. App. 3d 708 - Reliable Fire Equipment Co. v. Arredondo

Relies on 153 Ill. 2d 6 - Cirro Wrecking Co. v. Roppolo · 74 Ill. 2d 561 - People Ex Rel. Director of Finance v. Young Women's Christian Ass'n · 275 Ill. App. 3d 593 - Proctor v. Davis

Good law ✅— No negative treatment on recordhow we know

Decided 1997-02-20

How this case has been cited

Cited by 30 later decisions — most recently January 2025 · most notably 196 Ill. 2d 236 - People v. Ortiz (2001), 291 Ill. App. 3d 265 - Proctor v. Davis (1997)

30 state decisions

2301997200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CHIEF JUSTICE HEIPLE

¶1delivered the opinion of the court:

¶2The sole issue in this case is whether a decision of the appellate court obtains within the meaning of the Illinois Constitution (Ill. Const. 1970, art. VI, § 5), the Appellate Court Act (705 ILCS 25/1(d) (West 1994)), and the rules of this court (145 Ill. 2d R. 22(c)) where two judges concur in the opinion, the third judge dissents, and one of the concurring judges then vacates his office before the opinion is filed. The short answer is, it does not.

¶3The record before us shows that the jury rendered a verdict in this case in favor of the plaintiffs, Meyer and Marjorie Proctor, against defendant Upjohn. The appellate court affirmed subject to a reduction in the punitive damage award, but then granted Upjohn’s petition for rehearing. Upon rehearing, the appellate court issued a modified opinion which reversed the circuit court’s judgment against Upjohn and granted judgment notwithstanding the verdict in Upjohn’s favor. 275 Ill. App. 3d 593. Justice McCormick, who participated in both the original opinion and the modified opinion, retired two months before the modified opinion was filed. The two remaining justices did not agree, with Justice DiVito listed as author, and Justice Hartman dissenting.

¶4Two requirements are necessary for an appellate court opinion. First, three judges must participate in the decision of every case. 145 Ill. 2d R. 22(c). Second, the concurrence of two judges in the judgment of the court is necessary. 145 Ill. 2d R. 22(c); Ill. Const. 1970, art. VI, § 5; 705 ILCS 25/1(d) (West 1994). Absent the concurrence of at least two judges, the appellate court cannot render a valid judgment. See Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6, 17 (1992).

¶5With regard to the requirement that three appellate judges participate in the decision of each case, this court has held that the departure of a judge prior to the filing date will not affect the validity of the decision so long as the remaining two judges concur. Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d at 17-19; but cf. People ex rel. Director of Finance v. Young Women’s Christian Ass’n, 74 Ill. 2d 561 (1979) (allowing a 1-1 appellate decision to function as an affirmance of the trial court where all the other appellate justices in the district had recused themselves). Here, the two judges who remained on the panel when the modified opinion was filed did not agree and nothing precluded substituting another appellate judge to replace the third panel member who had retired. Consequently, the modified opinion was invalid.

¶6Given the invalidity of the modified opinion, this court has no jurisdiction to entertain an appeal therefrom. 155 Ill. 2d R 316; People ex rel. Director of Finance v. Young Women’s Christian Ass’n, 74 Ill. 2d at 567. Accordingly, we order that this appeal be dismissed and instruct the appellate court to enter a constitutionally valid opinion or order disposing of the matters raised, briefed and argued subsequent to Upjohn’s unanimously allowed rehearing petition.

¶7Appeal dismissed.

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