concurring in part and dissenting in part:
I write separately to note my limited concurrence with the majority’s application of Supreme Court Rule 315(b), and to voice my dissent concerning the majority’s interpretation of the Rule 315(b) “affidavit” requirement. The majority concludes that since the document filed by defendant was not, strictly speaking, an “affidavit,” it was a nullity and insufficient to extend the time for filing the petition for leave to appeal. 202 Ill. 2d at 497.
I agree that the document filed by defendant is not an affidavit within the meaning of Rule 315(b) because it contains no recital that it was made under oath. This court, however, recently approved as minimally sufficient under Rule 191(a) an affidavit containing no notary attestation or other independent evidence that an oath was administered to the person who signed it. Robidoux v. Oliphant, 201 Ill. 2d 324, 340 (2002). Accordingly, today’s decision conflicts with this court’s holding in Robidoux. The majority provides no sufficient rationale for its willingness to relax the formal requirements of an affidavit in Robidoux and not in this case. The majority attempts to distinguish Robidoux, reasoning that Rule 191(a) sets out specific requirements for the form of an affidavit, unlike Rule 315(b). That distinction does not, however, resolve the conflict. The requirements of Rule 191(a) relate solely to the factual assertions in support of, or in opposition to, a summary judgment motion and not to oath, signature, or attestation requirements. Neither Rule 191(a) nor Rule 315(b) refers directly to notarization or oaths of averment or any other attestation requirement necessary to render the subject document an “affidavit.” Nonetheless, the majority chooses to strictly enforce these nonspecified attestation requirements with respect to Rule 315(b) when we did not in Robidoux.
The majority concludes that because the document was insufficient, we lack jurisdiction to hear the appeal. 202 Ill. 2d at 497. Despite a defective affidavit, under Rule 315(b) this court has exercised its discretion to extend the time for petitioning for leave to appeal under “extreme and compelling” circumstances. See Telegraph Savings & Loan Ass’n of Chicago v. Schilling, 105 Ill. 2d 166 (1984).
The majority reasons that we have merely declined to exercise jurisdiction under the facts in this case. 202 Ill. 2d at 497. I reluctantly concur with that portion of the decision because Rule 315(b), in its present form, requires a minimally sufficient affidavit and the defendant did not seek an extension of time for petitioning for leave to appeal. Nonetheless, the majority applies Rule 315(b) as a strict jurisdictional rule while acknowledging that this court possesses the power to decline or accept jurisdiction under the same rule. I find it difficult to reconcile the treatment of Rule 315(b) as jurisdictional when Rule 315(b) is frequently not applied on a strict jurisdictional basis.