Can a lower court set aside the order of dismissal it entered on the instructions of the Supreme Court when subsequent developments appear to cast doubt on part of the Supreme Court’s decision? That was the issue pending before the Illinois Supreme Court earlier this month in Price v. Philip Morris, Inc. In an opinion by Justice Burke, a divided Court held that the answer was “no.” Our detailed report on the underlying facts and lower court opinions is here. Our report on the oral argument is here.
Unlike most tobacco litigation, Price isn’t a personal injury case – it’s a consumer law case. The plaintiff filed a putative class action alleging that the defendant had violated the Illinois Consumer Fraud and Deceptive Business Practices Act by advertising cigarettes as “light” and “low tar” – essentially complaining that cigarette smokers hadn’t gotten what they paid for. In 2003, the court entered judgment for the plaintiffs for $10.1 billion. In 2005, the Illinois Supreme Court reversed the judgment, finding that the claim was barred by Section 10b(1) of the Act, which provides that the Act doesn’t apply to conduct “specifically authorized” by any federal regulatory body. The theory was that the Federal Trade Commission had specifically authorized the use of the terms “light” and “low tar” in various consent decrees. In 2008, the FTC filed an amicus brief in an unrelated case saying it had never intended to specifically authorize the use of those terms. Shortly after that, the FTC issued a “rescission of guidance” revoking a 1966 document concerning permissible representations.
Ten days after the rescission of guidance was issued, the plaintiffs in Price filed a petition under Section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401), asking that the order of dismissal, entered following the Supreme Court’s remand, be set aside and the verdict reinstated, based on the actions of the FTC. The trial court denied the petition on the merits, but the Fifth District Appellate Court reversed.
The Supreme Court reversed the Fifth District. The Court began by considering whether Section 2-1401 authorized a Circuit Court to vacate the judgment of a superior court. The Court pointed out that Section 2-1401 has long been construed to require that the petition be filed in the same court which rendered the challenged judgment and, if possible, assigned to the same judge. From that, the Court concluded, it necessarily followed that a litigant can’t ask a Circuit Court to vacate the judgment of the Appellate or Supreme Court. This conclusion was further mandated by the provision in Article VI of the Illinois Constitution stating that the Supreme Court “alone can overrule and modify its previous opinion[s].” Indeed, the Court commented, if Section 2-1401 had been applicable to reviewing courts’ judgments, “serious separation of powers concerns” would be created. Instead, the only avenue available to a litigant who wishes to mount a collateral attack on a reviewing court’s judgment is to file a motion with the Court to recall its mandate and reassume jurisdiction. The Court expressed no opinion on what they might do with such a motion in Price if one were to be filed at some future date.
The Court then turned to the alternative rationale in the Appellate Court’s opinion – that the Section 2-1401 petition was challenging the trial court’s order of dismissal, not the Supreme Court’s judgment. Not so, the Court held. When the Court directs a lower court to take a certain action, the lower court’s order “is, in fact, the judgment of this court promulgated through the trial court.” The trial court’s action of following the Supreme Court’s instructions is a purely ministerial act. Besides, the Court pointed out, the plaintiffs weren’t asking the lower courts to revisit whether it had been right at the time to follow the Supreme Court’s mandate. The plaintiffs were arguing subsequent developments – leading to the inevitable conclusion that it was the Supreme Court’s judgment they were attacking.
Justice Freeman dissented, joined by Justice Kilbride. The plaintiffs’ petition had been filed “under a unique set of circumstances,” the dissenters wrote. The plaintiffs had properly filed their Section 2-1401 petition in the Circuit Court because that was who had issued the final order of dismissal. The majority had concluded that the statute didn’t apply to orders of dismissal entered on instructions from an appellate court, but the dissenters argued that the language of the statute stating that the petition “shall be available in every case” didn’t allow such a distinction. The dissenters conclude that in the “rare case,” relief should be available.