NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 78726, 78730 cons.--Agenda 5--January 1996.
BARBARA TRENT et al., Appellants, v. RALPH SAMUEL WINNINGHAM, Appellee.
Opinion filed June 20, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
This appeal is from a circuit court order containing a judgment which,
in part, declared a provision of the Illinois Parentage Act of 1984
unconstitutional. See 134 Ill. 2d R. 302(a). We remand the cause with
directions.
BACKGROUND
In 1991 Barbara Trent filed a paternity suit against Ralph Winningham.
Trent alleged, and Winningham later conceded, that he fathered a son born to
Trent four years earlier. Part of the relief that Trent sought was
retroactive child support under section 14(b) of the Parentage Act (750 ILCS
45/14(b) (West 1992)).
The trial judge denied retroactive support for three reasons: Trent was
not entitled to it; Trent's claim was time-barred; and section 14(b) was
unconstitutional anyway because it violated federal and State equal
protection guaranties. The trial judge himself had suggested to the parties
that the section might be unconstitutional and asked them to brief the issue.
His reasoning: the section caused unwed fathers to be treated differently
from divorced fathers who, under the Illinois Marriage and Dissolution of
Marriage Act, did not have to pay similar support.
The other grounds for the denial of support did not turn on finding the
section unconstitutional. Denial of Trent's claim on the merits actually
followed consideration of factors directed by section 14(b). As for being
time-barred, the trial judge characterized Trent's claim as one for her own
reimbursement of child-rearing expenses, a claim which the Parentage Act
required to have been made within two years of her son's birth. 750 ILCS 45/8
(West 1992).
The Cook County State's Attorney, who had argued on Trent's behalf for
the constitutionality of section 14(b), appealed. So did the Illinois
Attorney General who had intervened (see 134 Ill. 2d R. 19) to represent the
State's interest in upholding the section. Both asserted that a direct appeal
lay to this court because section 14(b) had been held unconstitutional. See
134 Ill. 2d R. 302.
The State's Attorney's opening brief argues not only that the trial
judge was wrong to find the section unconstitutional but also that
retroactive relief should not have been denied for either alternative reason
given. The brief also challenges a different aspect of the trial judge's
order. Retroactive child support was only part of the relief Trent had
sought. The order also contains a current support award. The State's Attorney
argues that the level of current support was set too low because the trial
judge failed to consider the child's best interests.
Winningham has moved to strike that part of the State's Attorney's
brief. We decided to dispose of the motion in the course of this appeal.
ANALYSIS
Winningham is right to argue that whether the trial judge ignored some
factor in awarding current support has nothing to do with Trent's retroactive
support claim. And it is the claim for retroactive support that spurred
consideration of section 14(b)'s constitutional validity upon which our
jurisdiction hinges. But Winningham's argument suggests larger procedural
concerns. The concerns would indicate that the motion should be denied except
that the same concerns make disposition of the motion itself unnecessary in
the end.
Supreme Court Rule 302 is a principal means by which this court fulfills
its constitutional supervisory role; the rule calls for direct review in
certain kinds of cases. See Ill. Const. 1970, art. VI, §16 (granting this
court supervisory authority to be exercised through the court's own rules);
see 134 Ill. 2d R. 302(a), Committee Comments, at 233 (stating that this
court "should be the forum for the decision of important questions which
affect the public interest or are otherwise of importance and general
applicability"). Jurisdiction here is based on Rule 302(a), which commands
that "[a]ppeals" from "final judgments of circuit courts shall be taken"
directly to this court "in cases in which a statute of *** this State has
been held invalid." 134 Ill. 2d R. 302(a).
Circumstances triggering Rule 302(a) technically exist: section 14(b)
was held to be unconstitutional in a final judgement of a circuit court. Our
jurisdiction would be nonproblematic had the case involved only denial of
retroactive support solely because the section was ruled unconstitutional.
Complicating matters are the alternative, nonconstitutional reasons given for
denying the support and the aspect of the case concerning current support.
Rule 302(a) is not expressly designed to confer interlocutory
jurisdiction. And so the intended scope of review is not really one tailored
to particular issues, as with Rule 304(a); jurisdiction under Rule 302(a)
extends to "cases." In this particular case, jurisdiction exists only because
of the part of the trial judge's order holding section 14(b) to be
unconstitutional. The jurisdiction, however, is not limited to that issue but
encompasses the entire final judgment as set out in the circuit court order.
Finding section 14(b) to be unconstitutional here was like letting the
proverbial camel's nose into the tent; that done, it is impossible to keep
out the rest of the beast. The alternative reasons for denying retroactive
support as well as the argument that the trial judge ignored a factor in
setting the amount of current support are issues that the order unavoidably
presents.
Whether or not section 14(b) is, in fact, unconstitutional would not
dispose of all concerns. True, if the section were, as the trial judge ruled,
unconstitutional, it would be immaterial that alternative reasons existed for
denying retroactive support. Those reasons could be ignored. But the argument
concerning current support would remain. If the section turned out to be
constitutional, it might be necessary to only consider one of the two
alternative reasons for denying retroactive support to dispose of the case.
But, again, the argument respecting current support would remain. In either
situation, the nonconstitutional issues might be addressed by invoking the
interests of judicial economy.
There are better reasons not to do so. The primary purpose of Rule
302(a) is to preserve stability in our legal system; when legislation has
been held unconstitutional, the rule provides for immediate review by the
ultimate authority in this State on the law. But courts are cautioned not to
compromise that stability in the first place by declaring legislation
unconstitutional when the particular case does not require it. See, e.g.,
People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 464 (1994),
citing Exchange National Bank v. Lawndale National Bank, 41 Ill. 2d 316, 321
(1968). After all, existing legislation enjoys a presumption of
constitutional validity. See People v. R.L., 158 Ill. 2d 432, 437 (1994). And
even though facially unconstitutional legislation is void when enacted (see
In re Contest of the Election for the Offices of Governor & Lieutenant
Governor, 93 Ill. 2d 463, 471 (1983)) and bad law ought not be allowed to
stand, the fact of the matter is that courts operate only in the context of
resolving lawsuits.
Whenever a judgment of the circuit court is grounded upon finding
legislation unconstitutional, the mandate of Rule 302(a) forces the parties
to bypass the normal appellate process. When the same judgment contains
alternative grounds, or even addresses other issues, the disposition affects-
-in a largely negative way--the scheme of appellate and supreme court review.
This court, otherwise a court of permissive review, must contend with those
issues, ones the court might have elected not to address in deference to our
appellate court where the issues would have been reviewable as a matter of
right. See generally 155 Ill. 2d R. 315 (outlining various factors material
to granting leave to appeal to this court).
In this case, it was unnecessary to find section 14(b) unconstitutional
to dispose of Trent's retroactive support claim against Winningham. And
though it is the linchpin for our jurisdiction, there is no need for us to
consider the issue either. See People ex rel. Sklodowski v. State of
Illinois, 162 Ill. 2d 117, 131 (1994), citing Stigler v. City of Chicago, 48
Ill. 2d 20 (1971). Given the concerns outlined, the answer is not simply to
vacate that portion of the judgment (see, e.g., People v. Mitchell, 155 Ill.
2d 344, 356-57 (1993)), nod to the presumption that section 14(b) is
constitutional, and proceed on to the other issues. The answer is to permit
the normal appellate process to run its course.
That requires recognition of two things: (1) that, but for unnecessarily
declaring section 14(b) unconstitutional, there is no cause to disturb the
trial judge's disposition of the matter; and (2) that--only because under
Rule 302(a) the entire case was of necessity before this court, and we have
declined jurisdiction--time has expired for seeking, in the appellate court,
review of the non-constitutionally-based challenges to the order. See 155
Ill. 2d R. 303. Accordingly, the circuit court order must be vacated in its
entirety and reentered, as modified consistent with the concerns of this
opinion, to again start the time clock running for appeal. Invoking the power
to "grant any relief *** that the case may require" (155 Ill. 2d R. 366(a))
we remand the cause to the circuit court, directing that the order of the
circuit court entered on January 30, 1995, is to be vacated, immediately
modified to exclude the declaration that section 14(b) of the Illinois
Parentage Act of 1984 is unconstitutional, and immediately reentered.
Cause remanded with directions.
JUSTICE McMORROW, dissenting:
Today's decision marks a watershed in appellate review: the
unprecedented dilution of this court's willingness to review a final judgment
of the circuit court wherein an act of legislation was held unconstitutional.
In what can only be described as an unexpected and indefensible repudiation
of legal precedent, the majority has seen fit to abdicate its responsibility
of judicial review under Supreme Court Rule 302(a). Therefore, I must
respectfully dissent.
On April 29, 1987, Barbara Trent gave birth out-of-wedlock to a son,
Alexander Winningham. Soon after the birth, Barbara informed the father of
the child, Ralph Winningham, that neither she nor Alexander required any
financial assistance. Nevertheless, approximately four years later, Barbara
instituted a paternity action on Alexander's behalf in the circuit court of
Cook County, seeking both retroactive and current child support. Barbara
based these claims on section 14(b) of the Illinois Parentage Act of 1984
(Ill. Rev. Stat. 1991, ch. 40, par. 2514, now codified at 750 ILCS 45/14(b)
(West 1992)), which provides in pertinent part:
"(b) The court shall order all child support payments,
determined in accordance with [the guidelines set forth in sections
505(a) and 505.2 of the Illinois Marriage and Dissolution of
Marriage Act (750 ILCS 5/505(a), 505.2 (West 1992))], to commence
with the date summons is served. *** The Court may order any child
support payments to be made for a period prior to the commencement
of the action, including payments to reimburse any public agency
for assistance granted on behalf of the child." 750 ILCS 45/14(b)
The Act further provides that in determining whether and to what extent such
payments are to be made for any prior period, i.e., retroactive child
support, the court shall consider all relevant facts. These include not only
the factors listed in section 505(a) of the Illinois Marriage and Dissolution
of Marriage Act, but other "equitable" factors such as:
"(1) the father's prior knowledge of the fact and
circumstances of the child's birth;
(2) the father's prior willingness or refusal to help raise or
support the child;
(3) the extent to which the mother or the public agency
bringing the action previously informed the father of the child's
needs or attempted to seek or require his help in raising or
supporting the child;
(4) the reasons the mother or the public agency did not file
the action earlier; and
(5) the extent to which the father would be prejudiced by the
delay in bringing the action." 750 ILCS 45/14(b) (West 1992).
During the pendency of this action, the circuit court sua sponte raised
the issue of the constitutionality of retroactive child support. As a result,
the Illinois Attorney General was granted leave to intervene pursuant to
Supreme Court Rule 19 (134 Ill. 2d R. 19). The matter proceeded to trial.
Subsequently, the circuit court denied Alexander's request for
retroactive child support on three grounds. First, the court held that the
petition for retroactive support was in essence an action brought by Barbara
for reimbursement of her own expenses rather than an action on Alexander's
behalf. Accordingly, the court found the claim untimely under section 8(a)(2)
of the Parentage Act (750 ILCS 45/8(a)(2) (West 1992)), which requires
actions on behalf of a person other than the child to be brought no later
than two years after the birth of the child.
Second, the court ruled that, even if the request for retroactive child
support were timely, the equities lay in Ralph's favor. Applying the above-
quoted factors used in determining whether retroactive child support should
be awarded, the court found that Barbara never informed Ralph as to
Alexander's monetary needs. The court also found that Barbara never attempted
to locate Ralph despite remaining in contact with Ralph's mother throughout
the entire period.
Finally, the circuit court declared a portion of section 14(b) violative
of the federal and state constitutional guarantees of equal protection. U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, §2. The court found that
unmarried fathers were treated differently from married fathers in that unwed
fathers were potentially liable for support retroactive to the birth of the
child. 750 ILCS 45/14(b) (West 1992). Contrarily, finding no corresponding
provision in the Illinois Marriage and Dissolution of Marriage Act (see 750
ILCS 5/505(a), 505.2 (West 1992)), the court believed that fathers who were
once married could never be liable for retroactive support. As the circuit
court explained, "[the] court finds that there is no rational basis in the
statute in question or relationship between a child's right to the physical,
mental, emotional and monetary support of the child's parents that justifies
unwed fathers to be ordered to pay retroactive child support prior to the
date of the filing of the action where the state [sic] purposes of both the
Illinois Marriage and Dissolution of Marriage Act and the Illinois Parentage
Act are so similar and substantially the same, yet married fathers are not by
legislation required to do so." Accordingly, the court held section 14(b)
unconstitutional to the extent that it permitted an award of retroactive
child support.
As to the other relief sought, the circuit court ordered Ralph to pay
current child support as mandated elsewhere in section 14(b). As previously
indicated, the first sentence of section 14(b) states in relevant part:
"The court SHALL order all child support payments, determined
in accordance with [the guidelines set forth in sections 505(a) and
505.2 of the Illinois Marriage and Dissolution of Marriage Act], to
commence with the date summons is served." (Emphasis added.) 750
ILCS 45/14(b) (West 1992).
Section 505(a) guidelines further provide a graduated schedule used in
determining the minimum amount of child support. Where only one child is
involved, as in this case, the supporting party is required to contribute an
amount equal to 20% of his or her net income unless the court expressly finds
a reason for deviating from the statutory guidelines. Some of the listed
factors include the financial resources of the child as well as the financial
resources and needs of the custodial and noncustodial parent. 750 ILCS
5/505(a) (West 1992). In this case, the court ordered Ralph to pay an amount
less than 20% of his net income due in large part to expenses associated with
his attendance at Iowa State University. The court also noted that Barbara
had seemingly inflated her own monthly expenses. No further orders were
entered.
Due to the fact that the circuit court held section 14(b) invalid,
Barbara and the Attorney General appealed directly to this court in
accordance with Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a) (providing
for direct appeals from final judgments in cases where a statute has been
held invalid)). The matter was fully briefed by the parties. Included for our
review was whether the circuit court erred in (i) finding the action
untimely, (ii) holding in favor of Ralph on the merits, (iii) declaring part
of section 14(b) unconstitutional, and (iv) ordering current child support in
an amount less than the statutory guidelines. 750 ILCS 5/505(a) (West 1992).
Ralph thereafter filed a motion to strike the current support issue on the
grounds that it was "never appealed by [Barbara] under Supreme Court Rule
302." Both Barbara and the Attorney General responded in writing. After
taking the motion with the case, we then proceeded to entertain full oral
argument. A motion for leave to file supplemental authority and a response
thereto were subsequently filed during the pendency of our advisement. Thus,
the only matter remaining was the issuance of our decision.
However, without any forewarning to the parties, the majority has now
chosen instead to embark upon an unnecessarily obtuse, interpretive journey
into the otherwise plain and simple language of Rule 302(a), only to conclude
that the instant matter should be disposed of without reaching any of the
issues presented to this court. Having "technically" found that jurisdiction
exists (see slip op. at 3), the majority does a surprisingly abrupt about-
face and declines jurisdiction simply because the parties have presented more
than a single, constitutional issue for our review. As a result, the court
proceeds in the unusual course of vacating that portion of the circuit
court's order which held section 14(b) unconstitutional--a course that is
unusual in that a court ordinarily will dismiss an appeal if the court has
declined jurisdiction.
The majority further complicates matters by remanding the now amputated
order back to the circuit court (once again after having declined
jurisdiction) for the needless task of reentering its prior order, as
modified. The majority apparently believes that in doing so it can
resuscitate--by judicial sleight-of-hand--the long since expired appeal
rights under Supreme Court Rule 303 (134 Ill. 2d R. 303). However, the
majority does not explain why it requires the parties to jump through
additional procedural hoops instead of summarily transferring the matter
directly to the appellate court under Supreme Court Rule 365 (134 Ill. 2d R.
365). A simple transfer of the case would, of course, obviate the need for
refiling the record and paying a second, unnecessary filing fee. It would
also permit a more expeditious review and resolution of the issues.
Regardless of how one reads the opinion, precious little has been
accomplished.
The shortsightedness of the majority's machinations becomes even more
pronounced upon examination of the reasons offered by the majority in support
of its declination of jurisdiction. According to the majority,
"Our jurisdiction would be nonproblematic had the case involved
only denial of retroactive support solely because the section was
ruled unconstitutional. Complicating matters are the alternative,
nonconstitutional reasons given for denying the support and the
aspect of the case concerning current support." Slip op. at 3.
The majority continues that "Rule 302(a) does not confer interlocutory
jurisdiction" and therefore this appeal should not be decided.
Aside from the rather dispositive fact that this appeal does not even
involve interlocutory jurisdiction, it is somewhat surprising that the
majority is apparently prepared to overrule, sub silentio, precedent of
recent vintage. Only two months ago, this court allowed an appeal of an
interlocutory order under Supreme Court Rule 302(a), noting that "where the
order appealed from rests on a finding of a statute's unconstitutionality,
this court has assumed jurisdiction under Rule 302(a), notwithstanding the
finality requirement." Desnick v. Department of Professional Regulation, 171
Ill. 2d 510, 516 (1996), citing Garcia v. Tully, 72 Ill. 2d 1 (1978). Because
the appeal here stems from a final order of the circuit court, any reliance
by the majority upon interlocutory jurisprudence is misplaced, and further
discussion of interlocutory jurisdiction in this dissent would be
superfluous.
Nevertheless, the majority further submits that our scope of review is
not "to be tailored to particular issues." Yet it is precisely because this
appeal has not been tailored to a particular issue, i.e., the
constitutionality of section 14(b), that the majority declines jurisdiction.
See slip op. at 3 ("Our jurisdiction would be nonproblematic had the case
involved only denial of retroactive support solely because the section was
ruled unconstitutional)." Ordinarily, this inherent contradiction between the
majority's statement that Rule 302(a) review is not to be tailored to
particular issues, and its ultimate disposition of this case on the grounds
that this appeal presents more than a single nonconstitutional issue, would
be sufficient in and of itself to refute the majority's argument, and my
dissent could end here. However, because the majority's decision, perhaps
unwittingly, has disturbing consequences for future appeals under Rule
302(a), I believe additional comment is warranted.
The majority asserts that the existence of the nonconstitutional issue
of current child support, as well as the alternative nonconstitutional
grounds for disposing of the issue of retroactive support, "affects--in an
unnecessary and largely negative way--the scheme of appellate and supreme
court review." This argument is predicated upon the fact that this court,
which is "otherwise a court of permissive review," "must contend with those
issues, ones the court might have elected not to address." Slip op. at 4,
citing 155 Ill. 2d R. 315. As the majority states, "[f]inding section 14(b)
to be unconstitutional here was like letting the proverbial camel's nose into
the tent; that done, it is impossible to keep out the rest of the beast."
Slip op. at 3.
Thus, because the majority apparently would not have reviewed the issue
of current child support--as well as the nonconstitutional bases for denying
retroactive support--had those issues arrived dressed in a petition for leave
to appeal under Rule 315, it elects not to decide any of the issues in this
case. It does so despite the fact that a statute has been held
unconstitutional. However, by incorporating the analysis for permissive
review under Rule 315 into the present equation, the majority has so limited
our review under Rule 302(a) that, hence forth, under the majority's
analysis, only the neatly packaged, single-issue constitutional case is ripe
for our review, absent a determination by this court that consideration of
the constitutional issue is not foreclosed by other issues in the case. As a
result, the majority has rendered the full measure of Rule 302(a) anemic.
Unfortunately, such a narrow approach to Rule 302(a) jurisdiction not
only ignores the realities of multifaceted litigation, but it also disregards
the fact that this court has, on previous occasions, reviewed
nonconstitutional and/or collateral issues under Rule 302(a). For example, in
People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460 (1994), cited by
the majority, the circuit court of Lake County held section 1.25 of the
Wildlife Code (Ill. Rev. Stat. 1991, ch. 61, par. 1.25) unconstitutional, and
the State appealed directly to this court. During the course of the appeal,
we determined, sua sponte, that a nonconstitutional basis existed by which we
could affirm the circuit court. Contrary to today's decision, we accepted
jurisdiction in Waller, ruled on the nonconstitutional ground, declined
consideration of the constitutional issue, and affirmed the circuit court.
Similarly, the fact that a case may present some issues for our
resolution which, standing alone, are not themselves reviewable under Rule
302(a) does not mean that the presence of those issues thwarts this court's
jurisdiction when they are part of final judgment holding a statute
unconstitutional. To the contrary, in Brown's Furniture, Inc. v. Wagner, No.
78195 (April 18, 1996), the circuit court of Sangamon County had held, inter
alia, that the Illinois Use Tax Act (35 ILCS 105/1 et seq. (West 1994)), as
applied to a certain taxpayer, contravened the commerce clause of the United
States Constitution. U.S. Const., art. I, §8. However, the circuit court's
finding that the statute was unconstitutional "as applied" was not in and of
itself appealable under Rule 302(a). See Rehg v. Illinois Department of
Revenue, 152 Ill. 2d 504, 508-09 (1992) ("[s]uch an order does not declare a
statute unconstitutional; it simply declares that application of that statute
would violate a particular defendant's constitutional rights. An appeal from
such an order is properly brought in the appellate court pursuant to Rule 301
(134 Ill. 2d R. 301)") overruled in part on other grounds, Wilson v.
Department of Revenue, 169 Ill. 2d 306 (1996). This court nevertheless
resolved the "as applied" challenge in Brown's Furniture under Rule 302(a)
because the circuit court had also held the Illinois Use Tax Act
unconstitutional on its face. That latter finding was sufficient to sustain
our jurisdiction, and nothing prohibited us from reviewing all of the issues
presented.
Perhaps the most troubling aspect of today's decision, however, is the
fact that the majority does not define the standards by which this court will
exercise its discretion under Rule 302(a) in declining jurisdiction in future
appeals. The majority's opinion teaches us that judicial economy is not a
consideration; that notion has been summarily rejected by the majority. See
slip op. at 3 ("the nonconstitutional issues might be addressed by invoking
the interests of judicial economy. There are better reasons not to do so").
The majority also informs us that fairness to the parties is not a
consideration. There is simply nothing fair about an eleventh hour rejection
of an appeal which sends the parties back to the circuit court for reentry of
an order, only so that they may scurry off to the appellate court to have the
issues, already briefed and argued before this court, briefed and argued
again. In fact, under the majority's remandment, the appellate court may very
well reverse the circuit court's decision on the current child support issue
as well as the nonconstitutional issues and remand the matter for further
proceedings. At that point, the circuit court might undertake the perfunctory
task of reentering its judgment holding section 14(b) unconstitutional. The
parties could then appeal again directly to this court under Rule 302(a) with
a new order that has by then been laundered of all nonconstitutional issues.
Under today's decision, only then will we review the constitutionality of
section 14(b).
If judicial economy and fairness to the parties are not to be the
benchmark of the majority's permissive review under 302(a), then what are the
standards by which this court will exercise its ill-defined discretion in
future appeals? The majority offers no guidance to litigants as to whether
they should appeal to the appellate court or to this court in cases which
involve more than an isolated constitutional challenge. More important, the
majority fails to explain why we should frustrate our own review of a
constitutional issue simply because a circuit court has entered judgment on
all of the issues in the case.
The absence of such an explanation only serves to highlight the circular
reasoning of the majority's logic. Rule 302(a) by its terms specifically
requires that appeals be from a "final judgment[ ]" of the circuit court. In
other words, in order for an appeal to lie in this court under Rule 302(a),
the circuit court must, by rule, enter judgment on all of the issues in the
case. And yet when the circuit court does so, it thereby precludes our review
under Rule 302(a), according to the majority's approach, precisely because it
has ruled on the other nonconstitutional issues. This cannot be so.
Therefore, for all of the above reasons, I cannot join in the majority's
recognition and subsequent declination of jurisdiction. Instead, consistent
with prior precedent, and in the interests of judicial economy, I would have
decided this appeal and, as is the usual case, ruled first on the
nonconstitutional issues. See, e.g., People ex rel. Waller v. 1990 Ford
Bronco, 158 Ill. 2d 460 (1994). Then, only if necessary, would I have reached
the equal protection challenge to section 14(b) of the Illinois Parentage
Act. But either way, this case would have come to its deserved end rather
than be sent back to the circuit court so that it may begin a new odyssey
before the appellate court.
I respectfully dissent.
CHIEF JUSTICE BILANDIC joins in this dissent.