dissenting:
I must respectfully dissent from the court’s opinion because I believe the circuit court incorrectly denied plaintiffs motion for leave to file their complaint in quo warranto.
In reaching its conclusion that the lack of contiguity does not impact on the subject matter jurisdiction of the court (206 Ill. 2d at 558), the court relies heavily on the analyses contained in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), and Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001). I dissented in Belleville, 199 Ill. 2d at 365 (Freeman, J., dissenting, joined by McMorrow, J.), and in Steinbrecher, 197 Ill. 2d at 533 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.), and am compelled to again register my disagreement with the court’s position in this area.
As it did in Belleville, the court today insists that the 1970 constitution changed the concept of jurisdiction in Illinois. While I agree that the changes made to the judicial article in both 1964 and 1970 affected jurisdiction, I do not believe the changes lessened the legislature’s power to define the statutory causes of action that it creates. Contrary to the suggestion in both Belleville and Steinbrecher that this court has overlooked the changes made to the judicial article (see Belleville, 199 Ill. 2d at 335-36; Steinbrecher, 197 Ill. 2d at 529-30), this court has consistently recognized that the “jurisdiction” of our circuit courts is conferred by our constitution. In re M.M., 156 Ill. 2d 53, 65 (1993). In my view, the court today, as it did in Belleville and Steinbrecher, has placed too much emphasis on the changes to the judicial article. Prior to the amendment, article VI read as follows:
“The circuit courts shall have original jurisdiction of all causes in law and equity, and such appellate jurisdiction as is or may be provided by law ***.” Ill. Const. 1870, art. VI, §12.
To be sure, the Judicial Article of 1962, effective January 1, 1964, changed the language of article VI:
“The circuit court shall have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law.” Ill. Const. 1870, art. VI (1964), § 9.
However, the word “unlimited” was eliminated from the article in the Constitution of 1970, and it currently reads as follows:
“Circuit courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of the General Assembly and to the ability of the Governor to serve or resume office. Circuit courts shall have the power to review administrative action as provided by law.” Ill. Const. 1970, art. VI, § 9.
In my view, the biggest change resulting from the 1964 amendment was the elimination of the distinction between courts of law and equity, which means that our circuit courts have the power to hear all justiciable matters, whether the causes of action arose from common law, in equity or by statute in derogation of the common law. This change, however, did not alter the fact that a court cannot act in excess of its authority. Nor did it change the way we are to view statutory conditions precedent.
In Belleville, this court identified three cases as being illustrative of the case law which recognized the view that “the legislature, in defining a justiciable matter, may impose ‘conditions precedent’ to the court’s exercise of jurisdiction that cannot be waived.” Belleville, 199 Ill. 2d at 335 (citing In re Marriage of Fields, 288 Ill. App. 3d 1053 (1997), People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420 (1994), and In re Estate of Mears, 110 Ill. App. 3d 1133 (1982)). The court rejected the viewpoint espoused in those cases because “it is contrary to article VI” of the 1970 constitution. Belleville, 199 Ill. 2d at 336. The court stated that ‘‘ Characterizing the requirements of a statutory cause of action as nonwaivable conditions precedent to a court’s exercise of jurisdiction is merely another way of saying that the circuit court may only exercise that jurisdiction which the legislature allows. We reiterate, however, that the jurisdiction of the circuit court is conferred by the constitution, not the legislature. Only in the area of administrative review is the court’s power to adjudicate controlled by the legislature.” Belleville, 199 Ill. 2d at 336.
Notwithstanding the rejection of cases like Mears, the court in Belleville nevertheless went on to cite Mears, among other authorities, as support for its proposition that the 1964 amendments to the judicial article “radically changed the legislature’s role in determining the jurisdiction of the circuit court.” Belleville, 199 Ill. 2d at 337, citing In re M.M., 156 Ill. 2d 53, 74 (1993) (Miller, C.J., concurring, joined by Bilandic, J.); Mears, 110 Ill. App. 3d at 1137. Indeed, the court pointed to that portion of the Mears analysis that traced the development of jurisdiction from the 1818 constitution to the 1970 constitution. The court concluded that “[i]n light of these changes, the precedential value of case law which examines a court’s jurisdiction under the pre-1964 judicial system is necessarily limited to the constitutional context in which those cases arose.” Belleville, 199 Ill. 2d at 337. The point made in Belleville, and reiterated today, is that the 1970 concept of jurisdiction changed the way in which we are to regard statutory conditions precedent and the consequences of a failure to comply with them.
One of the problems, in my view, with the Steinbrecher/Belleville analysis is that this court runs the risk of improperly legislating in the area of statutory causes of action. For example, in Belleville, the court addressed whether the time limitations contained in the Motor Vehicle Franchise Act constituted an “ordinary” limitations period, i.e., an affirmative defense, as opposed to a condition precedent to suit. A majority of the court concluded that the limitations period was not “a jurisdictional prerequisite to suit.” Belleville, 199 Ill. 2d at 342. Having so concluded, the court proceeded to construe the statute as an ordinary statute of limitations that provides a technical defense which may be waived. Belleville, 199 Ill. 2d at 344-45. As a result, the failure to fulfill a statutory condition precedent has no effect on the validity of any order rendered by the circuit court. Belleville, 199 Ill. 2d at 340-41. Such an analysis, which allows this court to transform an element of a plaintiffs statutory cause of action into an affirmative matter that must be pleaded and proved by the defendant, raises, in my mind, serious questions regarding the separation of powers.
My research has found no legal authority that supports the court’s view that the changes to the judicial article made in both 1964 and again in 1970 eliminated the legislature’s ability to establish conditions precedent to statutory causes of action it creates. Indeed, the authorities that do speak to the jurisdictional “revolution” the court so strongly embraces do so while acknowledging the continued ability of the legislature to establish nonwaivable conditions precedent to statutory cases of action. An example, of course, is Mears. As I have noted, the court in Belleville cited to Mears with approval for the proposition that the 1970 constitution changed the way in which we are to view the term “jurisdiction.” However, the court rejected key portions of the analysis in Mears that spoke to the precise issue of the legislature’s ability to define statutory causes of action. A review of the case illustrates this.
At issue in Mears was the last will and testament of Frances Mears. Mears, 110 Ill. App. 3d at 1133. The principal beneficiary of Mears’ will was Illinois Wesleyan University, which was to receive all of the residue of the estate after several monetary legacies had been paid out. Mears, 110 Ill. App. 3d at 1133. Mears, a widow, died childless, and her heirs were 53 known nieces and nephews and various other collateral descendants. Mears, 110 Ill. App. 3d at 1133-34. One of the heirs, within the time provided by law, petitioned to contest the validity of the will. The petition named as respondents all the heirs and legatees, but did not name the executor of the will. Mears, 110 Ill. App. 3d at 1134. The executor filed a special and limited appearance for the purpose of contesting the jurisdiction of the circuit court. Mears, 110 Ill. App. 3d at 1134. He successfully argued that the failure to name him as a party respondent was fatal and that the time to file a proper petition had expired. Mears, 110 Ill. App. 3d at 1134. The appellate court reversed. After noting the history of article VI of our constitution, the court stated that its inquiry in light of the 1970 constitution was “whether there exists a justiciable controversy, and if so, are there any statutory conditions precedent to judicial intervention.” (Emphasis added.) Mears, 110 Ill. App. 3d at 1138. The court went on to hold that the “only condition precedent to the exercise of jurisdiction is that [the petition] be filed within the time limited by statute after the admission of the will to probate. [Citation.] It is uncontroverted that the petition was filed within the statutory period in the instant case. The circuit court then had jurisdiction.” Mears, 110 Ill. App. 3d at 1138.
Like this court today and in Belleville, the appellate court in Mears cited the changes wrought by the 1970 constitution in concluding that the concept of “jurisdiction” had changed over time. However, the court in Mears, unlike this court, nevertheless continued to recognize the power of the General Assembly to impose conditions to relief in the statutory causes of action it creates. Indeed, the court in Mears acknowledged that even in light of the 1970 constitution:
“[T]he legislature may still impose substantive conditions precedent to the exercise of jurisdiction. While this may sometimes erroneously be called a lack of jurisdiction, it is in reality an inability to exercise jurisdiction because the court cannot waive the condition.” (Emphases added.) Mears, 110 Ill. App. 3d at 1138.
Contrary to the view expressed in Belleville, it is clear to me that this statement in Mears was not “merely another way of saying that the circuit court may only exercise that jurisdiction which the legislature allows.” Belleville, 199 Ill. 2d at 336. The court was expressing the view that notwithstanding the “revolutionized” concept of jurisdiction, a court cannot act beyond its statutory authority. A similar view was also espoused in published legal commentary following the judicial article amendment in 1964. See H. Fins, Re-Examination of “Jurisdiction” in Light of New Rlinois Judicial Article, 53 Ill. B.J. 8 (1964). I also note that in the concurring opinion in M.M., to which the court in Belleville also cited for support of the effect of the changes to the judicial article, the concurring justices cited, with approval, to the portion of Mears that recognized the continued viability of statutory conditions precedent. In re M.M., 156 Ill. 2d at 75 (Miller, C.J., concurring, joined by Bilandic, J.).
In light of the above, I do not agree that the conclusion reached in Belleville was “firmly rooted in our constitution.” Belleville, 199 Ill. 2d at 341. As I review our case law in this regard in order to address the issues raised in the present case, I can find no authority for linking the changes to the judicial article with the notion that statutory conditions precedent are somehow incompatible with article VI. In fact, the authority that the court points to as hailing the revolutionary constitutional changes to jurisdiction is the same authority the court is willing to “reject” in the context of statutory conditions precedent. The court’s use of only selective portions of the very case law it relies on diminishes the persuasiveness of its legal analysis.
In addition, I am compelled to point out another matter that deserves comment. The court today echoes Belle-ville’s rejection of applying pre-1964 case law to the question of a circuit court’s jurisdiction. 206 Ill. 2d at 552-53. In Belleville, the court pointedly criticized the fact that “pre-1964 rules of law continue to be cited by Illinois courts, without qualification, creating confusion and imprecision in the case law” (Belleville, 199 Ill. 2d at 338) when addressing whether the circuit court had jurisdiction under the 1970 constitution. Nevertheless, this court committed the very same infraction in Reichert v. Court of Claims, 203 Ill. 2d 257, 261-62 (2003) in which the court, citing to a 1908 case, held that the circuit court lacked jurisdiction over a certiorari petition. The court in Reichert made no attempt to harmonize its holding with the doctrine espoused in Belleville and Steinbrecher, nor is Reichert in harmony with today’s opinion. The court’s inability to apply the principles it announced in these cases in a consistent fashion reinforces my belief that continued debate on the question is necessary. It also convinces me that this court has not charted an entirely clear course in this area of our jurisprudence. Therefore, I continue to be of the view that when a court’s power to act in a particular manner is controlled by statute, the defects that arise from the court’s acting beyond its power cannot be waived. Mears, 110 Ill. App. 3d at 1137-38. Thus, in exercising jurisdiction over matters made justiciable by statute and having no counterpart in common law or equity, courts must proceed within the strictures of the statute. Stated differently, a court may not exceed its statutory authority. In re M.M., 156 Ill. 2d 53, 64-66 (1993). We recently reaffirmed, in the criminal context, that orders entered by a court without legal authority have been viewed as void and can be subject to collateral attack. See People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002); People v. Arna, 168 Ill. 2d 107, 113 (1995). I can see no principled distinction between criminal cases and civil cases in this matter.
As I pointed out in my dissent in Steinbrecher, this court had, until then, recognized that a “ ‘judgment or decree may be void where a court has exceeded its authority.’ ” Steinbrecher, 197 Ill. 2d at 549 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.), quoting People v. Davis, 156 Ill. 2d 149, 156 (1993), citing Armstrong v. Obucino, 300 Ill. 140, 142-43 (1921). It appears to me that a majority of this court is uncomfortable with the notion of leaving open to collateral attack judgments made by a court acting beyond or in excess of its authority. Indeed, the court said as much as in Belle-ville. After concluding that the limitations period was not a condition precedent, the court observed:
“Our conclusion, while firmly rooted in our constitution, is also consistent with the trend of modern authority favoring finality of judgments over alleged defects in validity. See In re Marriage of Mitchell, 181 Ill. 2d 169, 175-77 (1998), citing Restatement (Second) of Judgments § 12 (1982); see also Fields, 288 Ill. App. 3d at 1060, citing Restatement (Second) of Judgments § 12 (1982). Labeling the requirements contained in statutory causes of action ‘jurisdictional’ would permit an unwarranted and dangerous expansion of the situations where a final judgment may be set aside on a collateral attack. [Citation.] Even if the statutory requirement is considered a nonwaivable condition, the same concern over the finality of judgments arises. Once a statutory requirement is deemed ‘nonwaivable,’ it is on equal footing with the only other nonwaivable conditions that would cause a judgment to be void, and thus subject to collateral attack — a lack of subject matter jurisdiction, or a lack of personal jurisdiction. [Citation.] As our appellate court has observed, ‘[b]ecause of the disastrous consequences which follow when orders and judgments are allowed to be collaterally attacked, orders should be characterized as void only when no other alternative is possible.’ In re Marriage of Vernon, 253 Ill. App. 3d 783, 788 (1993) ***.” (Emphasis added.) Belleville, 199 Ill. 2d at 341.
The emphasized language demonstrates that the court’s concern in this area is primarily with preserving the finality of judgments. However, as Mears demonstrates, nothing in our constitution prevents the legislature from imposing nonwaivable conditions precedent to the statutory causes of action that it creates.
The fact that members of this court are concerned about the finality of judgments is not objectionable, in and of itself — the excess-of-authority approach has received criticism. See 1B Moore, Federal Practice 648 n.41 (2d ed. 1948); H. Cox, The Void Order and the Duty to Obey, 16 U. Chi. L. Rev. 86, 90-92 (1948). As one court has put it, the application of the rule “necessarily require[s] the drawing of distinctions between subject matter jurisdiction, excess of jurisdiction, and mere error. These distinctions have often proved difficult to draw.” Hartt v. Hartt, 121 R.I. 220, 226, 397 A.2d 518, 522 (1979). This court has chosen to resolve this problem by holding that the changes in the judicial article of our constitution narrowed the definition of “jurisdiction.” However, as I have demonstrated, the changes to the judicial article cited by the court do not support the view that orders made by a court in excess of its authority are shielded from collateral review. The amendments did not speak to whether jurisdiction includes the power of a court to act in excess of its authority. The court errs in its reliance on those amendments in support of its policy decision to uphold the finality of judgments. In so doing, the court has created confusion — rejecting the legislature’s ability to create conditions precedént in some cases (see Belleville, 199 Ill. 2d at 341), but reaffirming the legislature’s prerogative of imposing limitations and conditions on the availability of relief in statutory causes of action in other cases (see In re Marriage of Kates, 198 Ill. 2d 156 (2001)). See also Belleville, 199 Ill. 2d at 371 (Freeman, J., dissenting, joined by McMorrow, J.) (noting inconsistencies in this area).
I am not unsympathetic to the concerns of finality cited by the court. Nonetheless, I believe the better approach is to acknowledge the problem and attempt to balance what I consider to be the two competing policy concerns that are in tension in this area, i.e., “insuring that judgments are rendered only by courts having the power to do so (the policy of validity) and enforcing a termination point for litigation after the opportunity for full and fair litigation (the policy of finality).” K. Moore, Collateral Attack on Subject Matter Jurisdiction: A Critique of the Restatement (Second) of Judgments, 66 Cornell L. Rev. 534 (1981). In my view, the court’s solution to the problem is overly broad and fraught with inconsistencies. See, e.g., Steinbrecher 197 Ill. 2d at 547 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.) (noting different application in the context of criminal proceedings). I need not, for purposes of this case, delve further into this matter because (i) it does not matter whether contiguity is classified as jurisdictional and (ii) the issue of finality with respect to contiguity has been definitively addressed by our legislature in the Municipal Code.
Section 7 — 1—46 of the Code specifically addresses actions contesting completed annexations. The statute provides that
“Neither the People of the State of Illinois nor any person, firm or corporation, public or private, nor any association of persons shall commence an action contesting either directly or indirectly the annexation of any territory to a municipality unless initiated within one year after the date such annexation becomes final ***. The limitation set forth in this section shall apply to any annexation, even where the judge, body or officer annexing the territory did not at the time of such annexation have jurisdiction of the subject matter, and irrespective of whether such annexation may otherwise be defective or void, except that the limitation of this Section shall not apply to annexations of territory which was not contiguous at the time of annexation and is not contiguous at the time an action is brought to contest such annexation.” (Emphasis added.) 65 ILCS 5/7— 1 — 46 (West 2000).
In my view, this section obviates the court’s concerns for finality in this area. The plain language of the statute indicates that contiguity, whether it be considered “jurisdictional” or not, is not subject to a time bar. That is to say, the legislature has allowed an unqualified right to attack a completed annexation on contiguity grounds. I note that the court dismisses the statute as “irrelevant” to the issue because defendant did not raise the time bar (206 Ill. 2d at 558). I agree that defendant did not raise the issue of timeliness, but the statute nevertheless contradicts the court’s view that contiguity challenges cannot be made in quo warranto actions. The court states that
“the legislature expressly authorized the trial court to make that determination [contiguity] in a hearing under section 7 — 1—4 of the Code. The trial court clearly made a contiguity finding. There is no basis, therefore, to allow another court to revisit that same issue in a quo warranto proceeding when the correctness of the original ruling could have been challenged by direct appeal or by a timely petition for post-judgment relief.” 206 Ill. 2d at 557.
This ruling overlooks the fact that the legislature has expressly provided for such challenges in section 7 — 1— 46. There is no question that quo warranto is the only proper means of challenging a completed annexation. In re Petition of the Village of Kildeer to Annex Certain Territory, 124 Ill. 2d 533 (1988). If, as the court holds, quo warranto will not lie to contest contiguity in an annexation process that has been given final judicial approval, then by what legal means can a party raise the contiguity challenge left available by the legislature in section 7 — 1—46?
In my view, the court’s holding today does an end run around section 7 — 1—46 and renders it meaningless. One of the fundamental principles of statutory construction is to view all provisions of an enactment as a whole. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493 (2000). A court is not at liberty to depart from the plain language of a statute by reading in exceptions, limitations, or conditions that the legislature did not express. Lulay v. Lulay, 193 Ill. 2d 455 (2000). I remind my colleagues that annexations were not recognized at common law, and the legislature alone has the authority to allow or require the alteration of municipal boundaries by annexation or otherwise. In re Petition to Annex Certain Territory to the Village of North Barrington, 144 Ill. 2d 353, 361 (1991). Section 7 — 1—1 of the Municipal Code allows for annexation as provided by statute. 65 ILCS 5/7 — 1—1 (West 2000). I note that annexations are governed strictly by statute. The policy considerations that attend to whether an annexation may be collaterally challenged on contiguity grounds years after the fact have been answered by our General Assembly, which has seen fit to allow such challenges to be made. That we, as members of this court, may disagree is of no consequence. In any event, the quo warranto remedy is subject to defenses such as laches or acquiescence (see People ex rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420, 425-26 (1994); People ex rel. Freeport Fire Protection District v. City of Freeport, 58 Ill. App. 3d 314 (1978)), thereby alleviating some of the concerns that attend to allowing annexations to be challenged years after the fact.
In light of the foregoing, I believe the circuit court erred in denying plaintiffs’ leave to file their amended complaint.
CHIEF JUSTICE McMORROW joins in this dissent.