Price v. Philip Morris, Inc.

In February 2000, plaintiffs filed a class action lawsuit in the circuit court of Madison County against the defendant, Philip Morris, Inc. The suit alleged that defendant’s use of the terms “lights” and “lowered tar and nicotine” on the packaging and in the marketing of its Marlboro Lights and Cambridge Lights cigarettes (Lights) violated the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1998)) and the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq. (West 1998)). Plaintiffs alleged that, “ ‘when smoked under actual conditions’ ” by consumers, Lights failed to provide “ ‘lowered tar and nicotine’ ” as compared to conventional cigarettes and, thus, the descriptors used by defendant were deceptive. Price, 219 Ill. 2d at 209-11. Plaintiffs did not seek damages for personal injuries, if any, resulting from their consumption of Lights. Instead, they sought only economic damages, based on their contention that they did not receive what defendant told them they would receive when they purchased Lights, i.e., a cigarette that delivered less tar and nicotine than conventional cigarettes and that was, therefore, safer. Id. at 209. ¶ 5 Defendant raised numerous defenses in response to plaintiffs’ complaint. Relevant here, defendant argued that plaintiffs’ complaint was barred by section 10b(1) of the Consumer Fraud Act (815 ILCS 505/10b(1) (West 1998)). This provision states that nothing in the Consumer Fraud Act shall apply to “[a]ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.” Id. Relying on various exhibits as well as expert testimony, defendant asserted that its use of the terms “light” and “lowered tar and nicotine” complied with policies promulgated by the Federal Trade Commission (FTC) and, thus, plaintiffs’ complaint should not go forward. ¶ 6 The circuit court rejected defendant’s proffered defenses, including its defense based on section 10b(1). The court certified a class consisting of all purchasers of Lights in Illinois from 1971 to 2001, approximately 1.14 million people. On March 21, 2003, following a bench trial, the circuit court rendered judgment in favor of plaintiffs and awarded compensatory and punitive damages totalling $10.1 billion. ¶ 7 This court granted direct review under Supreme Court Rule 302(b) (Ill. S. Ct. R. 302(b) (eff. Oct. 4, 2011)) and, on December 15, 2005, reversed the judgment of the circuit court. In its opinion, this court concluded that the FTC had “specifically authorized” defendant’s use of the descriptors “light” and “lowered tar and nicotine,” thereby barring plaintiffs’ complaint. In reaching this conclusion, the court first explained that “the FTC’s informal regulatory activity, including the use of consent orders, comes within the scope of section 10b(1)’s requirement that the specific authorization be made ‘by laws administered by’ a state or federal regulatory body.” Price, 219 Ill. 2d at 258. This conclusion was consistent, the court stated, with the testimony of defendant’s expert witness, Dr. John Peterman, a former FTC bureau director, who testified that “the FTC uses consent orders to provide guidance to the entire cigarette industry.” Id. ¶ 8 This court then found that, in a 1971 consent order (In re American Brands, Inc., 79 F.T.C. 255 (1971)): “the FTC could, and did, specifically authorize all United States tobacco companies to utilize the words ‘low,’ ‘lower,’ ‘reduced’ or like qualifying terms, such as ‘light,’ so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the ‘tar’ and nicotine content in milligrams of the smoke produced by the advertised cigarette.” Price, 219 Ill. 2d at 265. ¶ 9 The court also found that the FTC reiterated this authorization in a 1995 consent order (In re American Tobacco Co., 119 F.T.C. 3 (1995)). This order, the court stated, “forbade the representation of tar ratings as ‘a numerical multiple, fraction or ratio of the tar or nicotine ratings of any other brand,’ but specifically allowed the ‘express or implied representation’ that a cigarette is ‘ “low,” “lower,” or “lowest” in tar and/or nicotine.’ ” Price, 219 Ill. 2d at 265-66. Accordingly, this court held that plaintiffs’ claim was “barred by section 10b(1) of the Consumer Fraud Act.” Id. at 266. ¶ 10 Although this ruling resolved the appeal, the court also noted that it had “reservations” about the “existence of individual issues” concerning deception, causation and injury “that might make class certification inappropriate,” as well as “grave reservations” about plaintiffs’ theory of damages in the case. Id. at 268-71. The court did not, however, rule on these issues. The court concluded its opinion by stating that the judgment of the circuit court was reversed and that the cause was remanded “with instructions to dismiss pursuant to section 10b(1) of the Consumer Fraud Act.” Id. at 274. ¶ 11 Justice Karmeier, joined by Justice Fitzgerald, specially concurred, finding that plaintiffs’ consumer fraud claim failed for the “additional and more basic reason” that plaintiffs had “failed to establish that they sustained actual damages.” Id. at 275 (Karmeier, J., specially concurring, joined by Fitzgerald, J.). Justice Freeman and Justice Kilbride each dissented from the judgment of the court. The dissenting justices rejected the court’s conclusion that plaintiffs’ complaint was barred by section 10b(1) as well as the special concurrence’s conclusion that plaintiffs had failed to establish actual damages. Id. at 285-337. ¶ 12 The court stayed its mandate while plaintiffs petitioned the United States Supreme Court for writ of certiorari. The mandate was issued by this court on December 5, 2006, after

certiorari was denied. On December 18, 2006, the circuit court dismissed plaintiffs’ complaint with prejudice in accordance with this court’s mandate. ¶ 13 On December 18, 2008, plaintiffs commenced the present action by filing a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)) in the circuit court of Madison County. As ultimately amended, plaintiffs’ petition focused primarily on an amicus curiae brief that had been filed by the FTC in the United States Supreme Court case, Altria Group, Inc. v. Good, 555 U.S. 70 (2008). Plaintiffs alleged that, in this brief, which had been filed subsequent to the dismissal order in Price, the FTC indicated that it had not authorized cigarette companies to use descriptors such as “light” or “lowered tar and nicotine.” Plaintiffs contended that the FTC statements in the brief, as well as other actions taken by the FTC subsequent to Price, constituted “new evidence” that merited relief from judgment under section 2-1401. Plaintiffs asserted in their petition that they had: “a meritorious claim because the newly-available evidence discussed above contradicts the factual record that led to the conclusion that section 10(b)(1) of the Illinois Consumer Fraud Act exempted Philip Morris’ conduct from liability. Because that conclusion was pivotal and necessary to the Supreme Court’s reversal of the March 21, 2003 judgment in this case, Plaintiffs, who prevailed on their claims in the trial court, have a meritorious claim.” ¶ 14 Plaintiffs’ petition concluded by stating that, “[a]s the final judgment was predicated on an inaccurate interpretation of the historical record, the newly-available evidence would have prevented entry of the judgment.” Plaintiffs therefore requested the circuit court “to vacate the final judgment in this case.” ¶ 15 The circuit court dismissed plaintiffs’ section 2-1401 petition, finding that the petition had not been filed within the time limits required under that statute (735 ILCS 5/2-1401(c) (West 2006)). The appellate court reversed that determination and remanded the matter to the circuit court to address the merits of plaintiffs’ petition. Price v. Philip Morris, Inc., No. 5-09-0089 (2011) (unpublished order under Illinois Supreme Court Rule 23). This court denied defendant’s petition for leave to appeal. Price v. Philip Morris Inc., No. 112067 (Ill. Sept. 30, 2011). ¶ 16 On remand, the circuit court explained that, for relief to be granted under section 2-1401, plaintiffs had to show that it was more probably true than not that defendant’s section 10b(1) defense would have failed if the FTC position had been presented in the underlying case. The circuit court then stated: “this case is in a unique procedural posture as Plaintiffs in fact prevailed at the trial level. Defendant only prevailed, in its affirmative defense, on direct appeal to the Illinois Supreme Court. Thus this Court must determine whether it is more probably true than not that, had the FTC position been presented in the record on appeal, the Illinois Supreme Court would not have ruled in Defendant’s favor on its affirmative defense that Plaintiffs’ claim was exempt pursuant to Section 10b(1) of the [Consumer Fraud Act].” After reviewing the parties’ arguments, the circuit court concluded that “it appears probable that, had the FTC position been known to the Illinois Supreme Court, the court would have given deference to the FTC and not have found in Defendant’s favor on the Section 10b(1) exemption.”



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¶ 17 However, the circuit court then went on to hold that, because this court in Price had expressed “grave reservations” regarding plaintiffs’ theory of damages, and because the special concurrence had expressly found for defendant on the issue of damages, it was “likely” defendant would have prevailed in the case even if the section 10b(1) defense had not succeeded. The circuit court therefore denied plaintiffs’ section 2-1401 petition on the merits, holding that plaintiffs had failed to show that it was “more probably true than not” that Price would have been decided differently, even given the information in plaintiffs’ petition. ¶ 18 The appellate court again reversed. 2014 IL App (5th) 130017. The appellate court concluded that the only issue that was properly before it was whether the statements made by the FTC in 2008 would have altered this court’s resolution of the section 10b(1) issue, and that any inquiry into what this court would have decided had it addressed the issue of damages was impermissibly speculative. See id. ¶ 50. Describing the FTC amicus brief as “contain[ing] direct statements that the FTC never intended to authorize use of the terms” used by defendant (emphases in original) (id. ¶ 55),” the appellate court concluded it was “easy to see” how this court’s analysis “would have been changed” (id.). ¶ 19 After addressing the remaining elements of the section 2-1401 petition, the appellate court held that plaintiffs were entitled to relief. Noting that “the unique procedural history” of the case left it with little guidance in resolving the question of what relief could be granted, the appellate court ordered the circuit court to restore the parties to the status quo that existed before defendant filed its appeal from the original circuit court judgment in plaintiffs’ favor. This had the effect of reinstating the original $10.1 billion judgment that had been vacated by this court in Price. Id. ¶¶ 59-60. ¶ 20 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. July 1, 2013).

¶ 21 ANALYSIS ¶ 22 At issue in this case is whether the appellate court correctly reversed the judgment of the circuit court denying plaintiffs’ petition brought pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). Section 2-1401 of the Code of Civil Procedure creates a comprehensive statutory procedure for obtaining relief from final orders and judgments more than 30 days after their entry. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. The statute abolishes the common-law writs that once provided the means to collaterally challenge final judgments and replaces them with a single, postjudgment petition. Section 2-1401(a) provides: “(a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. Writs of error coram nobis and coram vobis, bills of review and bills in the nature of bills of review are abolished. All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered. Except as provided in Section 6 of the Illinois Parentage Act of 1984, there shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.” 735 ILCS 5/2-1401(a) (West 2012).



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¶ 23 Section 2-1401(b) requires the petition to be filed in the “same proceeding” in which the contested order or judgment was entered, but the petition is not a continuation of the original action. 735 ILCS 5/2-1401(b) (West 2012). Instead, the section 2-1401 petition is an initial pleading that commences a new and separate cause of action, subject to the usual rules of civil procedure. People v. Vincent, 226 Ill. 2d 1, 7-8 (2007). Relief under section 2-1401 is predicated on the showing of a defense or claim that would have precluded rendition of the judgment in the original action as well as diligence in both discovering the defense or claim and presenting the petition. Id. The petition must be supported by affidavit or other appropriate showing as to matters not of record and must be filed no later than two years after the entry of the contested order or judgment. Id. at 7. ¶ 24 Defendant initially contends that both the circuit court and the appellate court, on review of the circuit court’s judgment, erred in considering the merits of plaintiffs’ section 2-1401 petition. Defendant maintains that plaintiffs’ petition sought to vacate the judgment rendered by this court in Price and that the lower courts have no authority to grant such relief. ¶ 25 To better understand defendant’s argument, it will be helpful at the outset to review how section 2-1401 applies when the judgment being challenged is one that was rendered by a circuit court. When a petitioner seeks relief from the final judgment of a circuit court under section 2-1401, the petition must be filed in the circuit court in which the contested judgment was entered and must allege either that the petitioner had a valid claim in the original action (if he was an unsuccessful plaintiff) or a valid defense (if he was an unsuccessful defendant). See generally Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice Notes, at 610-11 (Smith-Hurd 1983). If the petitioner is able to satisfy the requirements of section 2-1401, the circuit court will then grant relief directed against its original judgment. In other words, when a petitioner invokes section 2-1401 to obtain relief from an adverse circuit court judgment, the petitioner is asking the circuit court to revisit the correctness of the court’s own judgment. See, e.g., Smith v. Airoom, Inc., 114 Ill. 2d 209 (1986). ¶ 26 This is true even if the original circuit court judgment was affirmed on appeal before the petitioner filed the section 2-1401 petition. The section 2-1401 petition is a new action, based on matters that were not of record in the original action and that were not considered by the appellate court. Relief, if it is granted, is premised on the theory that these new matters would have changed the result in the original circuit court action. Thus, the fact that a circuit court judgment has been affirmed on appeal does not preclude the filing of a section 2-1401 petition. The section 2-1401 petitioner is still, in these circumstances, asking only that the circuit court revisit the correctness of its own, adverse judgment. See People v. Partee, 125 Ill. 2d 24, 35 (1988) (the filing of a direct appeal does not affect the availability of postjudgment relief from an adverse circuit court judgment); People v. Dabbs, 372 Ill. 160, 165-66 (1939) (construing section 72 of the Civil Practice Act of 1933, a statutory predecessor to section 2-1401). See also Standard Oil Co. of California v. United States, 429 U.S. 17 (1976) (reaching the same result under federal law). ¶ 27 In this case, however, when plaintiffs filed their section 2-1401 petition in circuit court they did not, and could not, ask the court to revisit the correctness of its original judgment rendered in March, 2003. Plaintiffs won in the original action in circuit court and there was, therefore, no adverse judgment from which they needed to obtain relief. Instead, the adverse judgment was rendered by this court, when plaintiffs lost on direct appeal in Price. Thus,



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defendant asserts that the prayer in plaintiffs’ petition that the circuit court “vacate the final judgment in this case” is, in fact, a request by plaintiffs to the circuit court to grant relief from this court’s judgment. This, defendant maintains, is impermissible, because a lower court does not have the authority to vacate the judgment of a higher court. ¶ 28 Plaintiffs respond by contending that “section 2-1401 relief is available from a final judgment entered by or at the direction of a higher court” (emphasis added). Plaintiffs, thus, make two arguments. First, plaintiffs contend that as a general matter, section 2-1401 authorizes the circuit court to grant relief from a “final judgment entered by” a reviewing court. Therefore, plaintiffs assert, the circuit court in this case was authorized to vacate the judgment rendered by this court in Price on December 15, 2005. Second, plaintiffs point out that, after reversing the judgment of the circuit court, our opinion in Price remanded the cause to the circuit court with instructions to dismiss the action. In compliance with these instructions, an order of dismissal was entered in the circuit court on December 18, 2006. Plaintiffs maintain that the order of dismissal may be considered distinct or separate from this court’s judgment in Price and, even though it was “entered *** at the direction of a higher court,” they may seek relief from that order of dismissal. Thus, according to plaintiffs, even if section 2-1401 did not authorize the circuit court to vacate this court’s judgment in Price, it did authorize the circuit court to vacate the order of dismissal and relief may be granted on that basis. We address these arguments in turn.

¶ 29 A. Section 2-1401 Does Not Authorize the Circuit Court to Vacate the Judgment of a Reviewing Court ¶ 30 Plaintiffs’ contention that section 2-1401 authorizes the circuit court to vacate the judgment of a higher court presents a question of statutory interpretation. When interpreting a statute, our primary objective is to give effect to the legislature’s intent, presuming that the legislature did not intend to create absurd, inconvenient or unjust results. People v. Gaytan, 2015 IL 116223, ¶ 23. The best indication of that intent is found in the statutory language, given its plain and ordinary meaning. Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 21. Further, in determining legislative intent, we may consider the purpose and necessity for the law as well as the consequences that would result from interpreting the statute in one way or another. Gaytan, 2015 IL 116223, ¶ 23. The interpretation of a statute is a question of law that is reviewed de novo. Id. ¶ 31 In support of their contention that the circuit court has the authority, under section 2-1401, to vacate the adverse judgment of a reviewing court, plaintiffs point to the language of subsection (a) of the statute. Plaintiffs emphasize that this provision is broadly worded to provide a means of relief “in every case *** regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered.” 735 ILCS 5/2-1401(a) (West 2012). Plaintiffs further observe that the statute does not contain any exception for judgments rendered by a reviewing court. Therefore, according to plaintiffs, section 2-1401 authorizes the circuit court to vacate a judgment rendered by a higher court. We disagree. ¶ 32 Subsection (b) of section 2-1401 states, in part, that the petition “must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof.” 735 ILCS 5/2-1401(b) (West 2012). Although the term “same proceeding” is not defined in the



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statute, its use by the General Assembly has long been understood to mean that the postjudgment petition must be filed in the same court in which the contested judgment was entered and, when possible, assigned to the same judge who heard the original action. See, e.g., Kilbride v. Kilbride, 64 Ill. App. 2d 355, 360-61 (1965). To fully explain why this is so, it is necessary to review some of the history of section 2-1401. ¶ 33 The relief sought by plaintiffs under their section 2-1401 petition in this case is that which, at common law, was available under the writ of coram nobis. In general, the writ of coram nobis was a means of collaterally challenging a final judgment by bringing “to the court’s attention factual matters that, if known to the court before entry of judgment, would have precluded entry of that judgment.” Warren County, 2015 IL 117783, ¶ 32 (citing Ellman v. De Ruiter, 412 Ill. 285, 290 (1952), and People v. Touhy, 397 Ill. 19, 24 (1947)). See also, e.g., Mitchell v. King, 187 Ill. 452, 457 (1899); Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice Notes, at 604 (Smith-Hurd 1983); David G. Seykora, Recall of Appellate Mandates in Federal Civil Litigation, 64 Cornell L. Rev. 704, 710 (1979) (noting that the writ of coram nobis was available in both appellate and trial courts). Given its purpose, the writ of coram nobis had to be “filed in the court that rendered the judgment” being contested. Warren County, 2015 IL 117783, ¶ 32; Mitchell, 187 Ill. at 457 (“the assignment of error was heard in the same court where the error was alleged to have been committed”); Ill. Ann. Stat., ch. 110, ¶ 2-1401, Historical and Practice Notes, at 608 (Smith-Hurd 1983). ¶ 34 Although a few very early Illinois cases recognized the writ of coram nobis (see, e.g., Beaubien v. Hamilton, 4 Ill. 213 (1841)), it was declared “obsolete” by this court in 1867 (see McKindley v. Buck, 43 Ill. 488, 490 (1867)). In 1871, the legislature expressly abolished the writ and replaced it with a statutory motion. Ellman, 412 Ill. at 290-91. Since that time, a series of statutory provisions have provided a mechanism for obtaining collateral relief from final judgments. Warren County, 2015 IL 117783, ¶ 33. ¶ 35 In People v. Sheppard, 405 Ill. 79 (1950), this court addressed one such statute, section 72 of the Civil Practice Act of 1933. At the time Sheppard was decided, section 72 provided that all errors of fact which could have been corrected under the writ of coram nobis could “be corrected by the court in which the error was committed, upon motion in writing” at any time within five years after the rendition of the final judgment in the case. Ill. Rev. Stat. 1949, ch. 110, ¶ 196. While section 72 spoke only of the necessity of filing the motion in “the court in which the error was committed,” Sheppard held that, when possible, the motion also had to be heard by the same judge who entered the contested judgment. Sheppard, 405 Ill. at 82. As the Sheppard court explained, this result followed from the nature of the writ of coram nobis: “A reasonable construction of section 72 of the Civil Practice Act [Ill. Rev. Stat. 1949, ch. 110, ¶ 196], to the extent it provides that all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by the writ of error coram nobis, ‘may be corrected by the court in which the error was committed,’ is that the motion in the nature of a writ of error coram nobis should be presented to the same judge who rendered the original judgment. As observed in McGrath & Swanson Construction Co. v. Chicago Railways Co. 252 Ill. App. 479, ‘That the errors to be corrected under the writ were errors of fact would seem to require that the writ should be brought before the same judge who rendered the



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original judgment, for he only would know whether or not he was ignorant of the fact which if known would have prevented the judgment.’ ” Id. ¶ 36 In 1955, section 72 was substantially revised by the legislature. See Ill. Rev. Stat. 1955, ch. 110, ¶ 72. Consistent with Sheppard, the legislature changed the requirement that a section 72 motion be filed in the same court in which the error was committed to a requirement that a postjudgment petition “be filed in the same proceeding in which the order, judgment or decree was entered.” Ill. Rev. Stat. 1955, ch. 110, ¶ 72(2). By using the term “same proceeding,” the legislature captured the point made in Sheppard that the petition had to be filed in the same court in which the error occurred and, when possible, presented to the same judge who rendered the original judgment.1 Subsequent decisions, such as Kilbride, 64 Ill. App. 2d at 359 n.*, 360-61, have recognized that the term “same proceeding” reflects the holding of Sheppard. ¶ 37 Apart from the removal of the word “decree,” the language in the current version of section 2-1401(b) is identical to that found in the amended version of section 72 addressed by Kilbride in 1965. Thus, for at least 50 years, Illinois courts have held that the statutory requirement that a postjudgment petition be filed in the “same proceeding” means that the petition must be filed in the same court in which the judgment being challenged was entered and, when possible, heard by the same judge who rendered that judgment. See also, e.g., Warren County, 2015 IL 117783, ¶ 35 (noting that “the legislature intended section 2-1401 to operate as the statutory analog to the common law writ” of coram nobis). From this, it follows that a litigant cannot file a section 2-1401 petition in circuit court to vacate the judgment of a reviewing court. In such a case, the petition would not be filed in the same court in which the judgment being challenged was entered and, therefore, would not be filed in the “same proceeding.” ¶ 38 This understanding of section 2-1401 is compelled not only by the language and history of the statute, but also by our constitution. The judicial article of the Illinois Constitution of 1970, like its predecessor in the constitution of 1870, creates a three-tiered court system, with the appellate court sitting in review of the circuit courts, and the supreme court sitting in review of the appellate and circuit courts. Ill. Const. 1970, art. VI. A fundamental principle flows from this hierarchical structure: “Where the Supreme Court has declared the law on any point, it alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow such decision in similar cases.” (Emphasis added.) Agricultural Transportation Ass’n v. Carpentier, 2 Ill. 2d 19, 27 (1953); Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 551 (1983); Mekertichian v. Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004) (noting that the failure to adhere to this principle would “inject chaos into the judicial process”). ¶ 39 When conducting a trial or other ongoing proceeding, a circuit court has the authority and responsibility to determine whether a supreme court decision is on point and, therefore, must be applied in the case before it, or whether the decision is distinguishable and should not be applied. But that is not the power which section 2-1401 confers on the circuit court. Section 2-1401 gives authority to the circuit court to grant relief from a judgment, i.e., to vacate it and 1The legislature could not, of course, create a mandatory requirement that the postjudgment petition be presented to the same judge who rendered the original judgment because of the practical limitations of such a rule: a litigant would be left without a remedy if the judge were to retire or pass away before the postjudgment petition was filed.



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render it without legal effect. Vincent, 226 Ill. 2d at 7. Under our constitutional scheme, the circuit court cannot possess that power over a reviewing court’s judgment. Thus, to say that section 2-1401 grants a circuit court the authority to vacate the judgment of a reviewing court would be to say that the General Assembly intended to grant an unconstitutional power to our circuit courts. We are certain this is not the case. ¶ 40 Since, under the terms of the statute, section 2-1401 does not authorize the circuit court to vacate a reviewing court’s judgment, should a petitioner seeking relief from a reviewing court judgment after the mandate has issued file a section 2-1401 petition directly in the reviewing court? No. ¶ 41 Under the Illinois Constitution of 1970, the procedures which govern appellate practice in our reviewing courts are established by this court through its rulemaking authority, not by the General Assembly through legislation. Ill. Const. 1970, art. VI, § 16 (“The Supreme Court shall provide by rule for expeditious and inexpensive appeals.”); People ex rel. Stamos v. Jones, 40 Ill. 2d 62, 66 (1968) (“the constitution has placed responsibility for rules governing appeal in the Supreme Court, and not in the General Assembly”); Ill. Ann. Stat., ch. 110, ¶ 1-107, Historical and Practice Notes, at 34-35 (Smith-Hurd 1983) (“the Illinois Supreme Court is granted exclusive jurisdiction over the regulation of appeals by the Judicial Article of the Constitution of 1970”). Section 2-1401 is a provision of the Civil Practice Law, article II, of the Code of Civil Procedure (see 735 ILCS 5/1-101(b) (West 2012)), which governs civil practice in the circuit courts. Section 2-1401 is inapplicable to reviewing courts and, indeed, a determination that the proceedings in the appellate or supreme court could be governed by the legislature through section 2-1401 would raise serious separation of powers concerns. Koffski v. Village of North Barrington, 241 Ill. App. 3d 479, 482-83 (1993). ¶ 42 This does not mean, however, that a litigant seeking relief from a reviewing court’s judgment under circumstances similar to those present here is without a remedy. Appellate courts “are recognized to have an inherent power to recall their mandates.” Calderon v. Thompson, 523 U.S. 538, 549 (1998). Because of “ ‘the profound interests in repose’ ” that attach to the mandate of a reviewing court, the power to recall a mandate is one that “can be exercised only in extraordinary circumstances.” Id. at 550 (quoting 16 Charles Alan Wright et al., Federal Practice and Procedure § 3938, at 712 (2d ed. 1996)). Nevertheless, this power is long-standing, having been firmly “established in English practice long before the foundation of our Republic.” Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944), rev’d on other grounds, Standard Oil Co. of California v. United States, 429 U.S. 17 (1976) (per curiam). See also, e.g., Ex Parte James, 836 So. 2d 813, 836-39 (Ala. 2002) (Houston, J., specially concurring) (collecting cases). ¶ 43 Although no Illinois Supreme Court rule addresses the general power of a reviewing court to recall its mandate,2 Rule 361(a) provides that “an application for an order or other relief” in the reviewing court “shall be made by filing a motion.” Ill. S. Ct. R. 361(a) (eff. Jan. 1, 2015). Further, motions to recall the mandate have been considered, and ruled on, by this court in the past. See, e.g., Avery v. State Farm, No. 91494, Order Denying Motion by Appellees to Recall Mandate and Vacate August 18, 2005 Judgment (filed Nov. 17, 2011), 2Illinois Supreme Court Rule 368(c) (eff. July 1, 2006), provides that an appellate court mandate may be recalled until the time for seeking review in this court has expired, and that this court’s mandate may be recalled until the time for seeking review in United States Supreme Court has expired.



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http://www.illinoiscourts.gov/SupremeCourt/Announce/2011/111711_4.pdf. (last visited Nov. 2, 2015). Thus, pursuant to this court’s rules and practice, after the mandate of the reviewing court has issued, the appropriate means to bring to the reviewing court’s attention factual matters that, if known to the court before entry of judgment, would have precluded entry of that judgment, is by filing a motion to recall the mandate in that court. ¶ 44 Notably, federal courts have reached the same conclusion under Federal Rule of Civil Procedure 60(b) (Fed. R. Civ. P. 60(b)), the federal counterpart to section 2-1401. See, e.g., Ute Indian Tribe of the Uintah & Ouray Reservation v. State of Utah, 114 F.3d 1513, 1520-22 (10th Cir. 1997); Eutectic Corp. v. Metco, Inc., 597 F.2d 32, 34 (2d Cir. 1979) (per curiam) (observing that a federal district court has no authority to “alter or set aside” a judgment of the court of appeals). As one treatise states: “If the request for relief goes directly to the correctness of the court of appeals ruling, *** the district court ordinarily lacks power to review the court of appeals decision and any relief must be provided by the court of appeals.” 16 Charles Alan Wright et al., Federal Practice and Procedure § 3938 (3d ed. 2008). ¶ 45 For these reasons, we hold that section 2-1401 does not authorize the circuit court to grant collateral relief from the judgment of a reviewing court. Such relief must be sought by filing a motion to recall the mandate in the reviewing court. Accordingly, neither the circuit court in this case, nor the appellate court on review, had the authority to vacate the judgment of this court rendered in Price on December 15, 2005.

¶ 46 B. The Lower Courts Did Not Have the Authority, Under Section 2-1401, to Vacate the December 18, 2006, Dismissal Order ¶ 47 The appellate court below acknowledged that a “trial court obviously has no authority to vacate or set aside” the judgment of a higher court, and further observed that, if a circuit court “is to grant relief at all, it must grant relief from its own order—assuming that it finds a basis for granting that relief.” Price v. Philip Morris, Inc., No. 5-09-0089, slip order at 9 (2011) (unpublished order under Illinois Supreme Court Rule 23). However, the appellate court read plaintiffs’ section 2-1401 petition not as challenging this court’s judgment in Price, but as challenging only the order of dismissal that was entered in the circuit court on December 18, 2006. The appellate court then concluded that, because the relief sought was only the vacatur of the circuit court’s order of dismissal, rather than this court’s judgment, plaintiffs’ petition was properly brought in circuit court. Id. at 9-10.3 ¶ 48 Before this court, plaintiffs mirror this reasoning. Plaintiffs again emphasize that section 2-1401(a) states that relief is available in “every case *** regardless of the nature of the order or judgment from which relief is sought” (735 ILCS 5/2-1401(a) (West 2012)), and that the statute contains no exception for orders “entered at the direction of” a reviewing court. Thus, plaintiffs argue, even if section 2-1401 did not authorize the circuit court to vacate the judgment rendered by this court in Price, it did authorize the circuit court to vacate the order of dismissal and, therefore, the petition was properly brought in that court.

3Although this court denied the petition for leave to appeal from the first appellate decision in this case, that action has no precedential effect. Mattis v. State Universities Retirement System, 212 Ill. 2d 58, 75 (2004). We may therefore consider any issues addressed in that appellate decision.



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¶ 49 Plaintiffs’ argument rests on a misapprehension of the nature of the dismissal order. “When a judgment is reversed by a court of review, the judgment of that court is final upon all questions decided ***.” PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 305 (1981). If the cause is then remanded by the reviewing court with instructions to the circuit court to enter a specific order, the reviewing court’s judgment is, with respect to the merits, “the end of the case,” and there is “nothing which the circuit court [is] authorized to do but enter the decree.” Smith v. Dugger, 318 Ill. 215, 217 (1925). Because the circuit court has no discretion on remand to take any further action on the merits, but must do only as directed, the order entered in the circuit court is necessarily a “ministerial act.” Gospel Army v. City of Los Angeles, 331 U.S. 543, 546 (1947); Ute Indian Tribe, 114 F.3d at 1521 (noting that once an appellate court resolves an issue and remands the cause to enter judgment, the trial court can only follow the “ ‘ministerial dictates of the mandate’ ”) (quoting Colorado Interstate Gas Co. v. Natural Gas Pipeline Co. of America, 962 F.2d 1528, 1534 (10th Cir. 1992)). This principle—that a circuit court order which is entered at the specific direction of a reviewing court is a ministerial act—has long been recognized by this court. As we stated in Dugger: “A decree entered by a trial court in accordance with the mandate of this court must be regarded as free from error. It is, in fact, the judgment of this court promulgated through the trial court and is final and conclusive upon all the parties.” (Emphasis added.) Dugger, 318 Ill. at 217 (citing People ex rel. McKee v. Gilmer, 10 Ill. 242, 247-48 (1848)). ¶ 50 The fact that a dismissal order entered at the direction of a reviewing court is a ministerial act has consequences for how the order may be challenged under section 2-1401. A petition may be brought under section 2-1401 to challenge the order of dismissal if the argument made in the petition is that the circuit court failed to comply with the mandate of the reviewing court. Such a petition would be asking the circuit court only to reexamine the correctness of its own, ministerial act, precisely the undertaking that section 2-1401 is designed to allow. Cf. 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478.3 (2d ed. 2002) (noting that it is possible to attack a trial court judgment that violates an appellate mandate under Federal Rule of Civil Procedure 60(b)). ¶ 51 However, it is not permissible under section 2-1401 to challenge a dismissal order entered at the direction of a reviewing court when the argument for relief is based on the underlying merits of the case. Any merits-based challenge would necessarily be directed to the judgment of the reviewing court because that is where judgment was rendered and where the decision on the merits occurred. And, as we have explained, section 2-1401 does not permit the circuit court to grant relief from the judgment of a reviewing court, both because the “same proceeding” language of section 2-1401(b) does not allow a challenge to a reviewing court’s judgment to be brought in the circuit court and because our constitution prohibits the circuit court from vacating the judgment of a higher court. Supra ¶¶ 29-45. ¶ 52 In this case, plaintiffs’ section 2-1401 petition is an impermissible attack on the judgment rendered by this court in Price. Plaintiffs’ petition discusses Price at length, describes the FTC’s statements and actions that took place after Price, and argues why, in light of these actions, the decision that this court reached in Price was incorrect. The petition concludes by stating that, “[a]s the final judgment was predicated on an inaccurate interpretation of the historical record, the newly-available evidence would have prevented entry of the judgment”



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and, therefore, the circuit court should “vacate the final judgment in this case.” At no point in their petition do plaintiffs allege that the circuit court failed in its ministerial task of entering the dismissal order; the petition is addressed solely to the effect of the FTC’s statements and actions on Price. Stated otherwise, plaintiffs’ petition did not ask the circuit court to revisit the correctness of its own, ministerial act of complying with this court’s mandate. Instead, the petition asked the circuit court to revisit the correctness of this court’s judgment in Price. And that is precisely what the circuit court did. ¶ 53 The circuit court described the task before it in addressing plaintiffs’ section 2-1401 petition: “[T]his Court must determine whether it is more probably true than not that, had the FTC position been presented in the record on appeal, the Illinois Supreme Court would not have ruled in Defendant’s favor on its affirmative defense that Plaintiffs’ claim was exempt pursuant to Section 10b(1) of the [Consumer Fraud Act].” Thus, although the circuit court ultimately denied plaintiffs relief, the court’s analysis rested on the fundamentally erroneous premise that it possessed the authority to reconsider, and possibly alter, the judgment of this court. ¶ 54 The appellate court’s reasoning suffers from a similar error. The appellate court frankly acknowledged that “plaintiffs cannot challenge the dismissal order without also challenging the supreme court ruling” in Price and explained that “what the plaintiffs are alleging is essentially that there are facts which, if brought to the trial court’s attention during the original trial in this matter, would have caused the supreme court to rule differently in its December 2005 decision—which in turn would have led to a different result from the trial court after the mandate issued in December 2006.” (Emphasis added.) Price v. Philip Morris, Inc., No. 5-09-0089, slip order at 7, 9 (2011) (unpublished order under Illinois Supreme Court Rule 23). The appellate court thus recognized that plaintiffs’ argument for vacating the circuit court’s order of dismissal rested first on undoing the judgment of this court in Price. And that is exactly what the appellate court attempted to do. ¶ 55 The appellate court, after considering plaintiffs’ petition, ultimately concluded that the proper result was to “reinstate the verdict” entered in plaintiffs’ favor in the original circuit court action in March 2003. 2014 IL App (5th) 130017, ¶¶ 59-60. But the original judgment could only be reinstated if the appellate court effectively vacated this court’s judgment in Price. The appellate court therefore attempted to act as a superior court to this one. This is plainly incorrect. Under the hierarchical judicial system created by our constitution, this court “alone can overrule and modify its previous opinion.” Agricultural Transportation Ass’n, 2 Ill. 2d at 27. ¶ 56 Section 2-1401 does not permit an on-the-merits challenge to a dismissal order entered at the direction of a reviewing court because such a challenge is necessarily directed to the judgment rendered by the reviewing court. Because plaintiffs’ section 2-1401 petition in this case was such a challenge, neither the circuit court in this case, nor the appellate court on review, had the authority to vacate the order of dismissal entered on December 18, 2006.

¶ 57 C. Klose v. Mende ¶ 58 Plaintiffs cite one appellate decision, Klose v. Mende, 378 Ill. App. 3d 942 (2008) (Klose II), in support of their contention that section 2-1401 relief is available in this case. Klose



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involved a dispute between an Illinois township and farmers Jerome and Ruth Klose over proposed improvements to two rural roadways that threatened to eliminate some of the Kloses’ cropland. The case began in August 2000, when the Kloses brought a declaratory judgment action against the township highway commissioner seeking a determination that they held fee simple title to the disputed portions of the roadways. The defendant township moved to dismiss the action based on certain documents which, the defendant contended, established that the township had acquired a right to the roadways by statutory dedication in 1856. The circuit court granted the township’s motion to dismiss, finding that the statutory dedication was valid. Klose v. Mende, 329 Ill. App. 3d 543, 544-45 (2001) (Klose I). ¶ 59 On appeal, the appellate court held that the documents offered by the township were incomplete and, thus, insufficient to establish the statutory dedication. In addition, the court held that the Kloses had proven, through documentary evidence accompanying their complaint, that they possessed a fee simple interest in the disputed land. However, the appellate court also found that the township had acquired an easement by prescription for the portion of the roads in use at the time of the action, although this easement did not permit the township to carry out the proposed improvements. Id. at 546-49. The appellate court therefore vacated the circuit court’s dismissal of the Kloses’ complaint and, in December 2001, remanded the cause to the circuit court with instructions to enter an order “establishing [the Kloses’] fee simple title and [the township’s] easement rights in the two roadways.” Id. at 550. ¶ 60 What happened next is best stated in the words of the appellate court: “The record indicates that thereafter the Kloses filed a motion to reinstate, to enter a second amended complaint, to set a date for the township’s answer, and to order the township to produce right-of-way maps. Various matters were continuously pending in the trial court until the township filed [a] petition to reopen proofs pursuant to section 2–1401 of the Code of Civil Procedure on April 10, 2003.” Klose II, 378 Ill. App. 3d at 944. ¶ 61 The petition to reopen proofs was based on documents relating to the statutory dedication that were found by the township in a town hall cupboard following the remand to the circuit court. After a hearing on the petition, the circuit court determined that these documents were newly discovered evidence which “constituted the records that the appellate court determined were necessary to establish a valid dedication.” Id. at 946. For this reason, and because the court concluded the remaining elements of section 2-1401 were satisfied, the circuit court granted the township’s section 2-1401 petition to “reopen proofs.” Id. ¶ 62 On appeal for the second time, the appellate court agreed with the circuit court’s conclusion that the newly discovered documents were the ones that were necessary to establish the statutory dedication and stated that “[h]ad the township known of their existence and been able to present the documents during the original proceedings, the trial court’s ruling in its favor would have been affirmed by this court.” Id. at 947. The appellate court also agreed with the circuit court’s determination that the elements of section 2-1401 had been satisfied. The appellate court therefore affirmed the judgment of the circuit court, holding that the circuit court had properly granted “the township leave to reopen proofs.” Id. at 952. ¶ 63 Plaintiffs in the present case contend that, in Klose II, the appellate court approved the circuit court’s “vacatur of a judgment previously entered at the direction of the appellate court.” Thus, plaintiffs maintain that Klose II supports their contention that the circuit court in this case had the authority, under section 2-1401, to vacate the December 18, 2006, dismissal



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order, even if that meant the circuit court had to address the merits of this court’s decision in Price. ¶ 64 Plaintiffs misread Klose II. Following the first appeal in Klose I, the appellate court did not simply reverse the circuit court’s dismissal of the Kloses’ complaint; it also ruled on the merits and instructed the circuit court to enter an order “establishing [the Kloses’] fee simple title and [the township’s] easement rights in the two roadways.” Klose I, 329 Ill. App. 3d at 550. This was a direction to the circuit court to perform a ministerial act that would have concluded all proceedings with respect to the Kloses’ complaint. However, no such order was entered. Instead, on remand the Kloses’ moved to reinstate their original complaint and to file a second amended complaint, and the case continued in the circuit court for almost a year and a half until the township filed its petition under section 2-1401. Klose II, 378 Ill. App. 3d at 944. Thus, rather than ending the case, the circuit court treated the matter as if it had been remanded by the appellate court in Klose I for a trial on the Kloses’ complaint. ¶ 65 The appellate court, in Klose II, never explained why the circuit court did not enter the order it had been directed to enter. Whatever the reason, the fact that no order was entered distinguishes Klose II from the case before us. Unlike Price, where the circuit court entered the dismissal order, Klose was an ongoing proceeding following the remand, going forward on the Kloses’ complaint for declaratory judgment. During the remand proceedings, the circuit court did not vacate an order entered at the direction of the appellate court for the simple reason that no such order had ever been entered. Thus, contrary to plaintiffs’ assertions, Klose II cannot stand for the proposition that a circuit court has the authority to vacate an order entered at the direction of a reviewing court and, therefore, the case has no relevance here. ¶ 66 And Klose II is problematic for another reason. Section 2-1401 is a procedural mechanism for vacating final judgments more than 30 days after their entry. Vincent, 226 Ill. 2d at 7. The statute plays no role in an ongoing case. Once the circuit court in Klose permitted the case to go forward after the remand, it erred by permitting the township to file its request to reopen proofs as a section 2-1401 petition. The circuit court should have treated the township’s request as a motion filed in an ongoing proceeding, subject to the usual rules regarding the law of the case, and then rendered judgment on the Kloses’ complaint. There was no need to invoke section 2-1401, which served only to unnecessarily complicate matters. See, e.g., 18B Charles Alan Wright et al., Federal Practice and Procedure § 4478 (2d ed. 2008) (noting the distinction between a collateral challenge to a final judgment brought under Federal Rule of Civil Procedure 60(b), which is a separate cause of action, and motions brought during the course of a single, continuing lawsuit following remand). For this reason as well, Klose II is unpersuasive. ¶ 67 In this case, whether the prayer in plaintiffs’ section 2-1401 petition “to vacate the final judgment” is viewed as a request to the circuit court to vacate the December 15, 2005, judgment of this court, or a request to vacate the December 18, 2006, dismissal order on the merits, the result is the same: the circuit court was asked to do something it does not have the authority to do—vacate a judgment of a higher court. Accordingly, the circuit court erred in considering the merits of plaintiffs’ section 2-1401 petition. As relief was unavailable under that provision, the petition should have been dismissed. Vincent, 226 Ill. 2d at 8 (a section 2-1401 petition is subject to dismissal if, “ ‘on its face, it shows that the petitioner is not entitled to relief’ ” (quoting Klein v. La Salle National Bank, 155 Ill. 2d 201, 205 (1993))). We



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therefore vacate the judgments of the circuit and appellate courts and dismiss this cause of action. ¶ 68 The dissent concludes that we have “misconstrue[d]” section 2-1401. Infra ¶ 97. Dismissing the common-law origins and long-accepted understanding of the statute, the dissent finds that the General Assembly, in enacting section 2-1401, intended to give our circuit courts the authority to vacate a judgment rendered by a reviewing court. Thus, the dissent would hold that the circuit court in this case had the authority to vacate the December 18, 2006, dismissal order on the merits—even though, to do so, the circuit court would first have to vacate the judgment rendered by this court in Price. ¶ 69 The dissent justifies this result on the basis of necessity. According to the dissent, section 2-1401 must be read as authorizing a circuit court to vacate the judgment of a reviewing court in order “to promote justice and fairness.” Infra ¶ 78. Our holding to the contrary, the dissent explains, improperly denies a remedy to plaintiffs in this case, as well as others similarly situated, and defeats the goals of achieving “fundamental fairness and substantial justice” (infra ¶ 118). ¶ 70 This is emphatically untrue. As we have explained, plaintiffs and other similarly situated litigants have a remedy: they may file a motion, pursuant to Illinois Supreme Court Rule 361 (eff. Jan. 1, 2015), to recall the mandate in the reviewing court in which the contested judgment was rendered. This remedy permits “justice and fairness” to be achieved, and it does so in a way that does not require ceding the authority of our reviewing courts to the circuit courts. There is no need, therefore, to embrace an interpretation of section 2-1401, as the dissent does, that upends the judicial hierarchy and that flies in the face of common sense. ¶ 71 Finally, we note that plaintiffs have not moved in this court to recall the mandate from Price, and that we have no briefing or argument on how the standards applicable to a motion to recall the mandate would apply to that case.4 In these circumstances, we decline to sua sponte recast plaintiffs’ section 2-1401 petition as a motion to recall the mandate from Price. We express no opinion on the merits of a motion to recall the mandate, should such a motion be filed in this court at a future date.

For the foregoing reasons, the judgments of the appellate and circuit courts are vacated. The cause is dismissed without prejudice to plaintiffs to file a motion to recall the mandate in this court.



Judgments vacated.