Gardner v. International Harvester Co.

CHIEF JUSTICE CLARK, specially concurring:

I concur only on the basis of stare decisis. I believe the instant case is on all fours with Stambaugh v. International Harvester (1984), 102 Ill. 2d 250 , and International Harvester v. Goldenhersh (1981), 86 Ill. 2d 366 . I dissented in Stambaugh because this court’s holding in that case was inconsistent with its earlier holding in International Harvester.

In International Harvester, this court declined to issue a writ of mandamus and allowed a lawsuit against International Harvester to proceed in St. Clair County. This court stated:

“Five independent retail dealers which sell petitioner’s [International Harvester’s], products are located in St. Clair County. Petitioner reimburses the dealers for half of their advertising expenses. Various sales representatives, who are employees of petitioner, regularly visit the dealers to provide a wide range of assistance and service. Two of the dealers lease computer terminals from petitioner which link them to petitioner’s warehouse for automatic inventory control and reorder of spare parts. ***

*** Dealer contracts, which are entered into with petitioner annually in St. Clair County, give petitioner the right to review dealer performance. Dealers are required to honor warranties on petitioner’s products, and services performed by the dealers under such warranties are reimbursed by petitioner. Each dealer sells petitioner’s spare parts, which are delivered regularly by petitioner in St. Clair County.” 86 Ill. 2d 366, 371 .

Then in Stambaugh, this court held that venue did not lie in St. Clair County, despite the fact that the two cases involved the same corporation, the same trial judge, and the same venue question. Acknowledging that International Harvester left open the possibility that a different venue determination could be made by the “normal appeal process,” as in Stambaugh, rather than by mandamus, as in Harvester, I dissented in Stambaugh because “such inconsistent signals only exacerbate the problem of crowded dockets and interminable appeals which vex our judicial system.” 102 Ill. 2d 250, 265 .

In my dissent in Stambaugh, I disagreed with the majority’s characterization of Harvester’s activities in St. Clair County as “incidental.” In the instant case, again, I believe that since Harvester’s products have been marketed and used for many years in St. Clair. County, and such operations are not incidental to some other activity that keeps Harvester in business, Harvester is doing business in St. Clair County for purposes of venue.

I specially concur in this case because I agree with a statement made by Mr. Justice Traynor, former chief justice of the California Supreme Court, which is also quoted in my special concurrence in People v. Lewis (1981), 88 Ill. 2d 129 , that once a judge has dissented, he is obligated to follow the law as pronounced. Justice Traynor wrote:

“Paradoxically the well-reasoned dissent, aimed at winning the day in the future, enhances the present certainty of the majority opinion, now imbedded in the concrete of resistance to the published arguments that beat against it. For that very reason the thoughtful dissident does not find it easy to set forth his dissent.

Once he has done so he has had his day. He should yield to the obligation that is upon him to live with the law as it has been stated. He may thereafter properly note that he is concurring under compulsion, abiding the time when he may win over the majority, but he should regard dearly enough the stability of the law that governs all the courts in the state not to renew the rataplan of his dissent. When the trial court properly "follows the declared law and is duly affirmed by the intermediate court, he should not vote for a hearing on the basis of his dissent. Conversely, should the trial court be reversed on the basis of his dissent, he should vote for a hearing. When the court has granted a hearing in a case with multiple issues, including the ancient one, and there is a nucleus of dissenters on other issues, he should not cast his vote on the basis solely of his ancient dissent to achieve a reversal or affirmance that would not otherwise have materialized. To do so would only work mischief. The judge’s responsibility to keep the law straight is not less when he is a dissenter.” Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211 , 218-19 (1957).

Since I believe there to be great wisdom in the above-quoted statement of Justice Traynor, I respectfully concur in the judgment of the majority.