Docket Nos. 100682, 100730 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ALLEGIS REALTY INVESTORS et al., Appellees, v. JOHN
LOTUS NOVAK, County Treasurer and ex-officio County Collector
of Du Page County, et al., Appellants.
Opinion filed September 21, 2006.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
and Garman concurred in the judgment and opinion.
Justice Burke took no part in the decision.
OPINION
Plaintiffs, Allegis Realty Investors and other taxpayers from
Du Page County, filed objections under section 23–10 of the Property
Tax Code (35 ILCS 200/23–10 (West 1998)) to various taxes
imposed in 1997 by several units of local government. Among the
taxes challenged, and the only one at issue in this case, was the 1997
permanent road (hard-road) tax levied by Naperville Township Road
District (the Road District). The Road District intervened in the case
and moved for summary judgment. Its motion was granted, and the
challenge to its 1997 hard-road tax levy was rejected.
Plaintiffs subsequently brought an interlocutory appeal pursuant
to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). The appellate
court reversed and remanded, concluding that there was a genuine
issue of fact, precluding summary judgment, with respect to whether
the statutory requirements for the tax levy had been satisfied. 356 Ill.
App. 3d 887. The Du Page County treasurer and the Road District
filed separate petitions with our court seeking leave to appeal. 177 Ill.
2d R. 315. We granted those petitions and consolidated them. While
the matter was pending in our court, the General Assembly enacted
amendatory legislation specifically validating the tax authorization
methods challenged in this case. The primary issue now before us is
whether this new legislation may be applied retroactively to validate
the tax levy at issue here. For the reasons that follow, we hold that it
can. The judgment of the appellate court is therefore reversed, the
judgment of the circuit court granting summary judgment in favor of
the Road District is affirmed, and the cause is remanded to the circuit
court for further proceedings.
BACKGROUND
The Illinois Highway Code (605 ILCS 5/1–101 et seq. (West
1998), formerly Ill. Rev. Stat. 1977, ch. 121, par. 1–101 et seq.),
authorizes local road districts to levy permanent-road taxes for the
purpose of constructing and maintaining gravel, rock, macadam or
other hard roads (see 605 ILCS 5/6–601 et seq. (West 1998)). Where
a county is organized into townships, as Du Page County is, the
township is considered to be and is called the road district for “all
purposes relating to the construction, repair, maintenance, financing
and supervision” of township roads, except in circumstances not
present here. 605 ILCS 5/6–102 (West 1999). Accordingly, Naperville
Township, which is located in Du Page County, is the Road District
referred to in this case and the entity responsible for the hard-road tax
levy involved in this appeal.
The Road District has levied hard-road taxes for many years, both
before and after 1979. During that time, however, the statutory
authorization schemes governing road district tax levies changed.
Prior to 1979, the law limited authority to levy hard-road taxes to no
more than five years. After the expiration of the five-year period,
townships were required to reauthorize the levy at the annual
-2-
township meeting or through a road district election. See Ill. Rev.
Stat. 1977, ch. 121, pars. 6–601, 6–602. The Road District received
authority for a hard-road tax levy in accordance with these provisions
at Naperville Township’s 1979 annual township meeting.
After the 1979 hard-road tax levy was approved, the General
Assembly amended the law governing hard-road tax levies to repeal
the five-year authorization limit. Effective January 1, 1980, authority
to levy hard-road taxes, once obtained, would remain permanent until
repealed by referendum. See Ceres One Corp. v. Naperville Township
Road District, 343 Ill. App. 3d 382, 385 (2003).
Between April 1979 and February 1997, the Road District levied
a hard-road tax every year without holding a new referendum for its
reauthorization. Several objections were filed against the tax. Most
were settled. The Road District did not, however, settle objections
filed by a group of objectors which included Ceres One Corporation
(see Ceres One Corp. v. Naperville Township Road District, 343 Ill.
App. 3d 382 (2003)). That matter, which was addressed to the Road
District’s 1996 hard-road levy, remained pending when plaintiffs filed
the objections underlying the present appeal.
As part of its challenge to the 1996 levy, Ceres One Corporation
asserted that the 1979 authorization on which the 1996 tax levy was
based had long since expired and that the statutory amendments
eliminating the five-year authorization limit could not be applied
retroactively to validate it. In light of that challenge, a decision was
made by the Road District to seek authorization of the tax for 1997.
Signatures were obtained from 50 registered voters in support of a
petition to hold a referendum to obtain the necessary authorization.
The signatures were collected in February of 1997, and the petition
was received by the Road District’s clerk on March 13, 1997. In
accordance with statutory requirements, notice of the referendum was
subsequently published in a newspaper of general circulation on
March 26, 1997. The proposition was duly submitted for a vote at the
township meeting on April 8, 1997, and passed. By a vote of 51 to 0,
authorization for the tax was granted.
On November 13, 1998, plaintiffs filed a complaint in the circuit
court of Du Page County objecting to various taxes levied by several
county taxing districts in 1997 and seeking refunds of those taxes.
Plaintiffs’ Objection H specifically attacked the Road District’s 1997
-3-
hard-road tax levy on the ground that the 1979 referendum
authorizing the tax in question was void because proper notice was
not provided per section 6–601 of the Illinois Highway Code (Ill. Rev.
Stat. 1977, ch. 121, par. 6–601). The Road District was granted leave
to intervene to dispute that objection.
While plaintiff’s cause of action was pending in the circuit court,
our appellate court entered judgment in the case arising from Ceres
One Corporation’s challenge to the Road District’s 1996 hard-road
tax levy. The appellate court’s decision affirmed the judgment of the
circuit court which had held the 1996 hard-road tax levy invalid. In the
appellate court’s view, the 1979 hard-road tax authorization, which
served as the predicate for the 1996 tax levy, was subject to the five-
year authorization contained in the statute at the time the 1979 levy
was approved. That period had expired and no new authorization had
been sought or granted. Although the General Assembly subsequently
repealed the five-year limitation, the court noted that additional
legislative action had the effect of partially restoring the five-year
limitation. In the appellate court’s view, that partial restoration applied
to the 1979 hard-road tax. The statutory provision eliminating the
five-year limitation applied only to levies approved after January 1,
1980, and could not be applied retroactively to the Road District’s
1979 levy. Ceres One Corp. v. Naperville Township Road District,
343 Ill. App. 3d at 387.
The appellate court filed its opinion in Ceres One Corp. v.
Naperville Township Road District on September 30, 2003. On
January 27, 2004, the Road District filed a motion for summary
judgment in this case with respect to plaintiffs’ Objection H, which
pertained to the 1997 hard-road tax levy. The Road District’s motion
contended that there was no genuine issue of material fact and that it
was entitled to judgment as a matter of law because, unlike the 1996
hard-road tax levy struck down in Ceres One Corp. v. Naperville
Township Road District, the 1997 levy was not based on the original
1979 authorization. Rather, as outlined earlier in this opinion, the
Road District had obtained new authorization for the levy through a
properly called referendum at the annual township meeting held April
8, 1997.
Plaintiffs objected to the Road District’s motion for summary
judgment on the grounds that the 1997 referendum was invalid.
-4-
Plaintiffs pointed out that while the proposition to approve the 1997
hard-road tax was presented as a measure to extend, reauthorize and
reaffirm a hard-road tax levy already in existence, there was no valid
hard-road tax levy then in existence. The original 1979 authorization
had lapsed years earlier without being renewed, and the 1996 tax levy
based on that authorization had been declared invalid. There being no
valid existing hard-road tax, plaintiffs argued that the 1997 measure
was, instead, an attempt to establish and increase township taxes.
Such measures are governed by section 30–20(b) of the Township
Code (60 ILCS 1/30–20(b) (West 1998)). That statute precludes
electors at annual township meetings from establishing or increasing
township taxes unless the proposal to take such action is supported by
a petition containing the signatures of not less than 10% of the
registered voters in the township. 60 ILCS 1/30–20(b) (West 1998).
According to plaintiffs, the 50 signators to the petition submitted at
the April 8 township meeting represented far less than 10% of
Naperville Township’s registered voters. The electors present at the
annual township meeting therefore had no authority to approve the
1997 hard-road tax levy.
Plaintiffs argued that the 1997 hard-road tax levy was also fatally
infirm because the notice requirements of section 6–601(a) of the
Illinois Highway Code (605 ILCS 5/6–601(a) (West 1998)) were not
satisfied. Under that statute, notice by publication is not sufficient.
Where propositions for or against hard-road taxes are to be taken up
at an annual township meeting, notices that the proposition will be
voted upon must be posted in at least 10 of the most public places in
the town at least 10 days prior to the meeting. 605 ILCS 5/6–601(a)
(West 1998). Plaintiffs contended that the Road District had failed to
show that the requisite notice had, in fact, been given in this case.
In reply to plaintiffs’ objections, the Road District argued that
plaintiffs were improperly attempting to raise new objections to the
1997 tax levy beyond those contained in their original pleadings. The
Road District also disputed plaintiffs’ arguments on the merits. First,
it contended that section 30–20(b) of the Township Code (60 ILCS
1/30–20(b) (West 1998)) did not apply to the permanent-road tax
because, contrary to plaintiffs’ characterization, the referendum in
question reauthorized an existing tax. It did not establish or increase
a tax rate. Second, the Road District argued that it had, in fact,
-5-
complied with the notice requirements set forth in section 6–601(a)
(605 ILCS 5/6–601(a) (West 1998)). In support of that argument, the
Road District submitted a fax from the township clerk to the township
attorney listing the places where the notices were posted. Finally, the
Road District urged the circuit court to reject a request submitted by
plaintiffs to permit further discovery prior to disposition of the motion
for summary judgment.
Following a hearing, the circuit court found the Road District’s
arguments to be meritorious and entered summary judgment in favor
of the Road District and against plaintiffs with respect to plaintiffs’
objections to the 1997 hard-road tax.1 In so doing, the court made an
express written finding pursuant to Supreme Court Rule 304(a) (155
Ill. 2d R. 304(a)) that there was no just reason to delay enforcement
or appeal of its judgment.
Plaintiffs moved to vacate the circuit court’s judgment and for
leave to amend their objection to the 1997 hard-road tax levy in order
to incorporate arguments raised in their response to the Road
District’s motion for summary judgment. When the circuit court
declined to vacate the judgment or to allow plaintiffs leave to amend,
they filed an interlocutory appeal. On that appeal, the appellate court
found, as plaintiffs had argued, that the referendum regarding the
1997 hard-road tax levy was, indeed, a measure to establish or
increase a township tax rate and was therefore governed by section
30–20(b) of the Township Code (60 ILCS 1/30–20(b) (West 1998)).
356 Ill. App. 3d at 891. To be valid under that statute, the measure
had to have been supported by petitions containing signatures of no
fewer than 10% of the registered voters in the township. In light of the
fact that the petitions contained only 50 signatures, the appellate court
concluded that there remained a genuine issue as to whether the
minimum number of signatures required by section 30–20(b) had been
secured. The court therefore reversed the circuit court’s entry of
summary judgment and remanded for further proceedings. 356 Ill.
App. 3d at 893. Both the Du Page County treasurer and the Road
1
In the same order, the circuit court also granted summary judgment in
favor of the Naperville Township on a separate set of objections asserted in
plaintiffs’ initial pleadings. That aspect of the case is not relevant to the
matter before us here and requires no further discussion.
-6-
District petitioned our court for leave to appeal. 177 Ill. 2d R. 315.
We granted those petitions in September of 2005 and consolidated
them.
Shortly thereafter, the General Assembly enacted Public Act
94–692 (Pub. Act 94–692, eff. November 3, 2005). That statute
amended the Illinois Highway Code by adding section 6–620. The
new provision states:
“(a) Any road district tax that was authorized by the
electors at an annual or special town meeting during the years
1975 through 1979 for a period not exceeding 5 years, but
that was not re-authorized within 5 years after it was
authorized due to [the legislation] which repealed the 5-year
limitation, is hereby validated for all tax levy years subsequent
to 1980 only to the extent that the authority to tax did not
automatically expire after 1980.
(b) Any road district tax that was levied prior to 1980 shall
not be subject to the requirements of subsection (b) of Section
30–20 of the Township Code if that tax was or is:
(i) re-authorized by the electors at an annual or special
town meeting after the year 1980; and
(ii) levied at least once during the 3-year period
preceding the reauthorization.” Pub. Act 94–692, eff.
November 3, 2005, adding 605 ILCS 5/6–620.
Public Act 94–692 also amended section 30–20(b) of the
Township Code (Pub. Act 94–692, eff. November 3, 2005, amending
60 ILCS 1/30–20(b)) to include coordinating language. With the new
language indicated in italics, the provision now reads:
“(b) Notwithstanding the provisions of any other Act,
except as provided in Section 6–620 of the Illinois Highway
Code, before establishing or increasing any township tax rate
that may be established or increased by the electors at the
annual township meeting, a petition containing the signatures
of not less than 10% of the registered voters of the township
must be presented to the township clerk authorizing that
action.”
Public Act 94–692 was initially vetoed by the Governor. The
General Assembly overrode that veto, and the new law took effect on
-7-
November 3, 2005. It is against this background that the case is now
before us for a decision on the merits.
ANALYSIS
While many aspects of this matter are open to dispute, one thing
is not. Under Public Act 94–692, the authorization obtained in 1979
for the hard-road tax levy cannot be deemed to have expired and the
1997 levy is not subject to challenge on the grounds that it failed to
comply with section 30–20(b) of the Township Code (60 ILCS
1/30–20(b) (West 1998)). If the Act applies, plaintiffs would therefore
no longer have any valid basis for objecting to the 1997 hard-road tax
levy. The arguments they advanced in the circuit and appellate courts
would be moot, and the judgment of the appellate court reversing the
circuit court’s entry of summary judgment in favor of the Road
District could not stand. The principal issue we must therefore decide
is whether Public Act 94–692 can be applied to validate the 1997
hard-road tax levy.
As noted, this matter comes before us in the context of a motion
for summary judgment. Summary judgment is proper if, when viewed
in the light most favorable to the nonmoving party, the pleadings,
depositions, admissions, and affidavits on file demonstrate that there
is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2–1005(c)
(West 1998). The interpretation and applicability of legislation present
questions of law resolvable through summary judgment. See Barnett
v. Zion Park District, 171 Ill. 2d 378, 385 (1996). We review a circuit
court’s grant of summary judgment de novo. Illinois State Chamber
of Commerce v. Filan, 216 Ill. 2d 653, 661 (2005). De novo review
likewise guides our consideration of the meaning and effect of
statutory provisions. Hawthorne v. Village of Olympia Fields, 204 Ill.
2d 243, 254-55 (2003).
Whether Public Act 94–692 should be applied to the hard-road tax
levy challenged in this case turns on questions of retroactivity. In
assessing whether a statute applies retroactively, this court has
adopted the approach set forth by the United States Supreme Court
in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229,
114 S. Ct. 1483 (1994). Commonwealth Edison Co. v. Will County
-8-
Collector, 196 Ill. 2d 27, 37-39 (2001). The Landgraf analysis
consists of two steps. First, if the legislature has expressly prescribed
the statute’s temporal reach, the expression of legislative intent must
be given effect absent a constitutional prohibition. Second, if the
statute contains no express provision regarding its temporal reach, the
court must determine whether the new statute would have retroactive
effect, keeping in mind the general principle that prospectivity is the
appropriate default rule. In making this determination, a court will
consider whether retroactive application of the new statute will impair
rights a party possessed when acting, increases a party’s liability for
past conduct, or impose new duties with respect to transactions
already completed. If retrospective application of the new law has
inequitable consequences, a court will presume that the statute does
not govern absent clear legislative intent favoring such a result.
Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 262, 114 S. Ct. at 1505;
see Commonwealth Edison Co., 196 Ill. 2d at 38.
After adopting the Landgraf framework, our court considered the
effect of section 4 of the Statute on Statutes (5 ILCS 70/4 (West
1998)) on our retroactivity analysis. Section 4, often referred to as the
general saving clause of Illinois (see People v. Glisson, 202 Ill. 2d
499, 505 (2002)), provides:
“No new law shall be construed to repeal a former law,
whether such former law is expressly repealed or not, as to
any offense committed against the former law, or as to any act
done, any penalty, forfeiture or punishment incurred, or any
right accrued, or claim arising under the former law, or in any
way whatever to affect any such offense or act so committed
or done, or any penalty, forfeiture or punishment so incurred,
or any right accrued, or claim arising before the new law takes
effect, save only that the proceedings thereafter shall conform,
so far as practicable, to the laws in force at the time of such
proceeding.” 5 ILCS 70/4 (West 1998).
Our court has recognized section 4 as a clear legislative directive
as to the temporal reach of statutory amendments and repeals when
none is otherwise specified: those that are procedural may be applied
retroactively, while those that are substantive may not. Caveney v.
Bower, 207 Ill. 2d 82, 92 (2003). This principle applies to civil as well
as criminal enactments. Caveney v. Bower, 207 Ill. 2d at 92-93. In
-9-
light of the statute, we have held that an Illinois court need never go
beyond step one of the Landgraf test. People v. Atkins, 217 Ill. 2d 66,
71 (2005). That is because the legislature will always have clearly
indicated the temporal reach of an amended statute, either expressly
in the new legislative enactment or by default in section 4 of the
Statute on Statutes. Caveney v. Bower, 207 Ill. 2d at 95.
Because it is a default standard, section 4 of the Statute on
Statutes is inapplicable to situations where the legislature has clearly
indicated the temporal reach of a statutory amendment. Whenever a
court is called upon to assess the applicability of a statutory change,
the court must therefore still make an initial determination as to
whether the legislature has clearly indicated the amended statute’s
temporal reach. If it has, there is no need to invoke section 4 of the
Statute on Statutes. Rather, in accordance with Landgraf, the
expression of legislative intent must be given effect absent
constitutional prohibition. Caveney v. Bower, 207 Ill. 2d at 94.
The approach set forth in Landgraf and adopted by our court is
time-neutral. That is, its applicability is not affected by whether the
expression of legislative intent calls for prospective or retroactive
application. If the General Assembly has clearly expressed an intention
that a statute be given retroactive effect, we must honor that intention
unless the constitution prohibits us from doing so.
Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d
27 (2001), cited in Caveney v. Bower, 207 Ill. 2d at 95, illustrates this
principle. In that case, the General Assembly had amended section
5–1024 of the Counties Code (55 ILCS 5/5–1024 (West 1994)) and
section 9–107 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS
10/9–107 (West 1994)) to (a) validate prior levies made by the county
to cover the costs of insuring or otherwise defending itself against
workers compensation and tort immunity claims and (b) prospectively
exclude such levies from the general corporate rate limitation. A
challenge was filed to certain taxes levied by Will County prior to the
amendment’s becoming a law. Because we determined that the
General Assembly had clearly intended to reach those earlier tax
levies, and because we concluded that retroactive application would
not offend the constitution, we gave effect to the legislature’s intent
-10-
and upheld the statutory amendment. Commonwealth Edison, 196 Ill.
2d at 42.
With these principles in mind, we now consider Public Act
94–692, the statute at issue in this case, which added section 6–620
to the Illinois Highway Code and amended section 30–20(b) of the
Township Code. The initial inquiry, whether the General Assembly
expressly indicated the temporal reach of the statute, is easily
answered. Clearly it did. As described earlier in this opinion, the new
section 6–620 of the Illinois Highway Code is specifically directed to
specified Road District taxes authorized by electors at annual or
special township meetings during certain years prior to Public Act
94–692’s enactment. The corresponding amendment to section
30–20(b) of the Township Code exempts those prior levies from
statutory requirements to which they might otherwise have been
subject. Because the changes in the law were thus directed toward
events occurring before Public Act 94–692 took effect, they are
intrinsically retroactive. Anything other than retroactive application
could not be squared with statute’s clear and unambiguous terms.
That the General Assembly intended the law to apply retroactively is
therefore obvious.
As we have discussed, where as here the legislature clearly intends
for a statute to be applied retroactively, Landgraf and our decisions
applying that case require that we honor the legislature’s intention
unless doing so would contravene the constitution. Caveny v. Bower,
207 Ill. 2d at 94. Plaintiffs in this case contend that upholding Public
Act 94–692 to validate the 1997 hard-road tax levy would be
unconstitutional for three reasons. First, they contend that the
legislation violates the doctrine of separation of powers set forth in
article II, section 1, of the Illinois Constitution of 1970 (Ill. Const.
1970, art. II, §1). Second, they assert that applying the new law to
uphold the 1997 tax levy would deprive them of property without due
process of law in violation of article I, section 2, of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. I, §2). Finally, for the same
reasons they claim that the statute contravenes article I, section 2, of
the Illinois Constitution, plaintiffs argue that it also violates the due
process clause of the fourteenth amendment to the United States
Constitution (U.S. Const., amend. XIV).
-11-
Whether an enactment by the General Assembly is constitutional
is a matter we consider de novo. In undertaking our review, we
presume that statutory enactments are constitutional. The burden is on
the party challenging the statute to clearly establish any constitutional
invalidity. The burden is a formidable one, and this court will uphold
a statute’s validity whenever it is reasonably possible to do so.
Vaugniaux v. Department of Professional Regulation, 208 Ill. 2d 173,
193 (2003).
1. Separation of Powers
Article II, section 1, of the Illinois Constitution of 1970 provides
that the legislative, executive and judicial branches of government are
separate and that “no branch shall exercise powers properly belonging
to another.” Ill. Const. 1970, art. II, §1. The purpose of this doctrine
is to insure that each of the three branches of government retains its
own sphere of authority, free from undue encroachment by the other
branches. People v. Izzo, 195 Ill. 2d 109, 116 (2001). In the context
of the interplay between the legislature and the judiciary, the doctrine
has been interpreted to mean that the legislature’s role is to make the
law and the judiciary’s role is to interpret the law. Bates v. Board of
Education, Allendale Community Consolidated School District No.
17, 136 Ill. 2d 260, 267 (1990).
Plaintiffs assert that the General Assembly overstepped its bounds
when it enacted Public Act 94–692 because the legislation effectively
nullifies the construction given to the prior law by the appellate court
in Ceres One Corp. v. Naperville Township Road District and
represents an impermissible attempt by the General Assembly to tell
this court how to decide the present case. In making this argument,
plaintiffs fail to recognize the distinction between curative legislation
and a legislative declaration of the General Assembly’s earlier intent.
There is no question that after a final judicial interpretation of
legislative intent, the legislature may not put into effect a change in
that construction through a later declaration of what it did intend. See
People v. Rink, 97 Ill. 2d 533, 541 (1983). Our court has long held,
however, that legislature may by a curative act validate any
proceeding which it might have authorized in advance, provided the
power is so exercised as not to infringe on constitutionally protected
-12-
rights of the parties involved. Bates, 136 Ill. 2d at 268; Worley v.
Idelman, 285 Ill. 214, 219 (1918).
Public Act 94–692 is curative legislation, not an unconstitutional
attempt to legislatively overrule a court’s interpretation of the
legislature’s intent. A comparison with Bates makes this clear. In
Bates, taxpayers challenged bonds issued by the defendant school
district on the grounds that the bonds bore an interest rate higher than
that permitted by law. The interest rate on the bonds was 9.75%.
Although that rate was permissible under the Bond Authorization Act
(Ill. Rev. Stat. 1983, ch. 17, par. 6601 et seq.), it exceeded the 7%
ceiling established by section 17–2.11a of the School Code (Ill. Rev.
Stat. 1983, ch. 122, par. 17– 2.11a). The taxpayers argued that the
School Code provisions, rather than the ceiling imposed by the Bond
Authorization Act, controlled. The appellate court agreed. Bates v.
Board of Education, Allendale Community Consolidated School
District No. 17, 183 Ill. App. 3d 164 (1989). The defendant school
district then appealed to our court.
While the matter remained on appeal, the General Assembly
enacted Public Act 86–4 (Pub. Act 86–4, eff. June 6, 1989). That
statute (1) validated all government instruments for payment of money
duly issued before the effective date of the Act provided, among other
things, that they comported with any of Illinois’ omnibus bond
authorization acts; (2) amended the School Code by deleting the 7%
interest-rate ceiling on school-issued bonds and substituting the
interest ceiling set forth in the Bond Authorization Act; and (3)
declared that the legislature had always intended that bonds issued
under the School Code be permitted to take advantage of less
restrictive provisions of Illinois’ omnibus bond acts either before, on,
or after the effective date of the new law. Bates, 136 Ill. 2d at 264-65.
To the extent that Public Act 86–4 purported to ascribe a different
legislative intent to the prior version of the law than the one declared
by the appellate court, our court found that the Act violated
separation of powers principles under the Illinois Constitution. Bates,
136 Ill. 2d at 267. Insofar as the Act reached back to validate the
challenged school bonds, however, our court held that it was merely
curative legislation. That aspect of the legislation did not attempt to
attribute to the statute a meaning different from the one declared in
the appellate court’s opinion. Rather it provided authorization for the
-13-
higher interest rate, authorization that the General Assembly
unquestionably could have granted at the time the bonds were
originally issued. In exercising that authority after the fact, the
legislature infringed no protected rights because, at the time the
amendatory Act took effect, final judgment had not yet been rendered
in the case. It remained pending on appeal. Accordingly, our court
held that this aspect of the Act did not violate separation of powers
principles and was valid. Bates,136 Ill. 2d at 268-70.
The legislation in the present case is directly analogous to curative
provisions of Public Act 86–4, the statute at issue in Bates. No after-
the-fact declaration of intent was made concerning the preamendatory
law. No final judgment was disturbed. Prior to this proceeding, the
specific taxes at issue, those for 1997, had not been invalidated by a
court of law. When the General Assembly enacted Public Act 94–692
and specifically validated the 1997 hard-road taxes whose legality was
subject to challenge under the preamendent versions of the Illinois
Highway Code and Township Code, it engaged in a course of conduct
that it would unquestionably have been entitled to undertake before
the taxes were levied. Moreover, as in Bates, when the new law went
into effect, the legal proceedings initiated by the plaintiffs in this case
were not final. The case remained pending. Although the new law
produced a different result than was reached by the appellate court in
Ceres One Corp., the General Assembly may enact retroactive
legislation which changes the effect of a prior decision of a reviewing
court with respect to cases which have not been finally decided.
Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 19 (1985). We therefore
reject plaintiffs’ contention that Public Act 94–692 violated the
separation of powers provisions of the Illinois Constitution.
2. Due Process Under the Illinois and Federal Constitutions
Plaintiffs next argue that application of Public Act 94–692 to
validate the 1997 hard-road tax levy would violate their rights to due
process under article I, section 2, of the Illinois Constitution of of
1970 and the fourteenth amendment to the United States Constitution
(U.S. Const., amend. XIV). This argument must also fail. That a tax
measure has retroactive application does not necessarily place it in
violation of the state and federal constitutions. Taxes imposed
pursuant to state law may withstand due process scrutiny even where,
-14-
as here, they apply retroactively provided that certain requirements are
met. See Commonwealth Edison, 196 Ill. 2d at 43-44.
Whether a retroactive tax measure contravenes state or federal
due process protections depends on the circumstances of each case.
The pivotal inquiry is whether retroactive application is so harsh and
oppressive as to transgress constitutional limitations. In making that
determination, courts have considered various factors. Among these
are (1) the legislative purpose for which the statute was enacted, (2)
the length of the period of retroactivity, (3) whether the taxpayer
reasonably and detrimentally relied on the prior law, and (4) whether
the taxpayer had adequate notice of the change in the law.
Commonwealth Edison, 196 Ill. 2d at 43-44.
The United States Supreme Court has been very reluctant to
override legislative judgment concerning the necessity for retroactive
taxation. Consistent with that view, the scope of inquiry under the due
process clause of the federal constitution is extremely limited. In that
regard, we note, as we did in Commonwealth Edison, that neither lack
of notice nor detrimental reliance are dispositive factors in determining
whether the retroactive application of a tax amendment violates
federal due process guarantees. Commonwealth Edison, 196 Ill. 2d at
44, citing United States v. Carlton, 512 U.S. 26, 33-34, 129 L. Ed. 2d
22, 30, 114 S. Ct. 2018, 2023 (1994); C. Hochman, The Supreme
Court and the Constitutionality of Retroactive Legislation, 73 Harv.
L. Rev. 692, 706 (1960).
With respect to the question of legislative purpose, we have held
that legislation applying a tax measure retroactively must not be
illegitimate or arbitrary. Commonwealth Edison, 196 Ill. 2d at 44.
Plaintiffs in this case assert that they, and possibly their lawyer, were
singled out for retribution because the appellate court ruled in their
favor. While use of retroactive taxation as a means of retribution
against unpopular groups or individuals is impermissible
(Commonwealth Edison, 196 Ill. 2d at 44, citing Carlton, 512 U.S. at
32, 129 L. Ed. 2d at 29, 114 S. Ct. at 2023), we find nothing in the
record to support the contention that these plaintiffs or their lawyers
were in any way singled out by the General Assembly. The taxes
validated by Public Act 94–692 applied generally to taxpayers in
Naperville Township. They were not limited to these plaintiffs.
Moreover, there is no indication that the General Assembly had any
-15-
purpose other than to correct an error in the Road District’s hard-road
tax levy after the problem was brought to its attention by township
officials.
Plaintiffs intimate that the township’s desire to avoid the effect of
the appellate court’s judgment in Ceres One Corp. and the fact that
the legislation was initially vetoed by the Governor are indicative of
an improper purpose. We disagree. As we have discussed, curative
legislation is permissible under Illinois law. That being so, we can see
no impropriety in approaching one’s legislators to obtain such curative
legislation, as Naperville Township officials did. While plaintiffs may
strongly disagree with the decision of those local elected officials to
seek legislative recourse in the General Assembly, their frustration that
the General Assembly intervened to validate the challenged tax is not
sufficient justification for judicial nullification of an otherwise valid
legislative enactment. Plaintiffs’ recourse for such conduct by their
elected representatives is through the political process, not the courts.
We likewise reject the notion that the Governor’s attempt to veto
Public Act 94–692 is indicative of any improper purpose by the
legislature. The statement issued by the governor when he vetoed the
law explained that he did not want to intercede in a taxing scheme
which he believed should be left to local voters. He was entitled to
express that view and to exercise his veto power. The General
Assembly, however, was equally entitled to reject the governor’s view
and override his veto. See Ill. Const. 1970, art. IV, §9. It did so.
Nothing in either the governor’s action or the legislature’s reaction
suggests that anything improper occurred.
The next factors we must consider under our due process analysis
are the length of the period of retroactivity, whether the taxpayer
reasonably and detrimentally relied on the prior law, and whether the
taxpayer had adequate notice of the change in the law. Under the facts
of this case, these considerations are inconsequential. While Public
Act 94–692 pertained to a tax levy made seven years earlier, its
enactment did not alter plaintiffs’ position. They had already paid the
taxes for the year in question. The new law did not increase the tax
rate, eliminate deductions or exemptions, or affect in any way the
amount of taxes for which plaintiffs had originally been billed by the
county’s collector of revenue. It merely cured a technical problem
with the manner in which the taxes had been authorized. In light of the
-16-
appellate court’s decision in Ceres One Corp., decided before the new
law took effect, plaintiffs may have hoped for a refund of their 1997
taxes. That hope, however, had not yet ripened into a final judgment
in their favor. To the contrary, at the time the new legislation was
enacted, all the appellate court had done is reverse summary judgment
in favor of the Road District and remand for further proceedings.
Under the appellate court’s decision, there remained a possibility that
the 1997 tax levy would still be valid under the prior version of the
law.
So far as we can tell, there is but one thing plaintiffs might have
done differently had they known earlier that the Public Act 94–692
would be enacted. They might have decided against filing an objection
to the 1997 hard-road tax levy in the first place. Had no such
challenge been brought, however, plaintiffs would still have been
required to pay the tax, just as they are required to pay it under the
judgment we render today. The only difference is that they would have
saved whatever money they expended for fees and costs in
prosecuting their objection. In the end, those legal fees yielded them
no benefit. That, however, is an inherent risk in all litigation. It is not
a sufficient justification for nullifying otherwise valid curative
legislation. We therefore do not believe that plaintiffs have sustained
their burden of clearly showing that Public Act 94–692 is
unconstitutional.
CONCLUSION
Public Act 94–692 cured the defects on which plaintiffs’ challenge
to the Road District’s 1997 hard-road tax levy was based. Retroactive
application of that curative legislation statute was permissible under
Illinois law. It did not violate principles of separation of powers or
deprive plaintiffs of their rights to due process under the state or
federal constitutions. The Road District was therefore entitled to
summary judgment, and the appellate court erred in reversing the
circuit court’s entry of summary judgment in favor of the Road
District and against plaintiffs.
For the foregoing reasons, the judgment of the appellate court is
reversed. The judgment of the circuit court is affirmed. The cause is
-17-
remanded to the circuit court for further proceedings consistent with
this opinion.
Appellate court judgment reversed;
circuit court judgment affirmed;
cause remanded.
JUSTICE BURKE took no part in the consideration or decision
of this case.
-18-