also dissenting:
I do not agree that the Secretary of State (Secretary) has standing, as a nonparty appellant, to appeal a judicial order directing him to issue a judicial driving permit (JDP). Accordingly, I dissent.
. The majority concludes that the Secretary has standing as a nonparty to appeal the order of the circuit court directing him to issue a JDP pursuant to section 6— 206.1 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1). This conclusion is based on the Secretary’s broad authority to administer the State’s laws governing the conduct of drivers on the roads (Ill. Rev. Stat. 1987, ch. 951/2, pars. 2 — 101, 2— 104), and the majority’s interpretation of section 6— 206.1(B)(d) as requiring the Secretary to review orders of circuit courts directing the Secretary to issue JDPs.
Section 6 — 201(c) provides that “[ejxcept as provided in Section 6 — 206.1, the Secretary of State shall have exclusive authority to grant, issue, deny, cancel, suspend and revoke driving privileges, drivers’ licenses and restricted driving permits.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 201(c).) Section 6 — 206.1(d) previously provided for the circuit clerk, upon direction from the circuit court, to issue a JDP to a successful petitioner. (Ill. Rev. Stat. 1985, ch. 951/2, par. 6 — 206.1(d).) As section 6— 206.1(B)(d) now reads, the circuit clerk no longer issues JDPs; rather, “[t]he Secretary of State shall, upon receiving a court order from the court of venue, issue a JDP.” (Ill. Rev. Stat. 1987, ch. 95½, par. 6-206.1(B)(d).) Section 6 — 206.1(B)(d) also provides, in pertinent part:
“Any submitted court order that contains insufficient data or fails to comply with this Code shall not be utilized for JDP issuance or entered to the driver record but shall be returned to the issuing court indicating why the JDP cannot be so entered. A notice of this action shall also be sent to the JDP petitioner by the Secretary of State.” Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1(B)(d) (as amended by Pub. Act 84 — 1394, §5, eff. September 18,1986).
According to the majority, the Secretary is “intricately involved in the judicial driving permit proceedings held pursuant to section 6 — 206.1.” (129 Ill. 2d at 93.) The Secretary argues that he seeks to appeal an order “to vindicate and protect important interests of the people of this State and to conscientiously discharge a role that was contemplated by the legislature, as demonstrated by its inclusion of the Secretary in the JDP process.”
My reading of section 6 — 206.1 leads me to the conclusion that no such intricate involvement on the part of the Secretary in a JDP proceeding under section 6— 206.1(B)(d) was intended by the legislature. I do not agree that the legislature intended to vest the Secretary with the authority to review the substantive determination by a circuit court to order a JDP in a proceeding held pursuant to section 6 — 206.1.
Comments made during the House of Representatives’ debate on the amendment of section 6 — 206.1 support this conclusion.
“[Representative] Cullerton: *** [A]ny JDP which contains insufficient data or does not comply with the law cannot be entered into the driver’s file; further stipulates that the Secretary of State must return the document to the issuing court with a copy to the effected driver. It says, that beginning January 1, 1987, instead of the courts issuing the JDP document itself, they will merely issue a court order directing the Secretary of State to issue the JDP. So, the JDP will actually be issued by the Secretary of State pursuant to that court order.
* * *
[Representative] Cullerton: *** If the Judge orders that it be given, under this Amendment, we’re saying that the Secretary of State will actually issue it.
* * *
[Representative] Cullerton: *** [I]t doesn’t require a hearing at the Secretary of State, it’s just a paperwork. It’s just a matter of the court order being received by the Secretary of State. They enter it on the computer and they send... and they send back the judicial driving permit.” 84th Ill. Gen. Assem., House Proceedings, June 25, 1986, at 42-44 (statements of Representative Cullerton).
During the debate, the following discussion was had:
“[Representative] Homer: *** [T]he portion that deals with the authority to grant a judicial driving permit, under current law, the court now, as a result of legislation we passed last year, the Judge has the authority to off... to grant a judicial driving permit to a DUI offender who has been suspended. What the Bill now in its final form would do, as I understand it, would be to say that the Judge retains the right to make that determination, but that the Secretary of State would be ordered to grant the permit when the Judge has so indicated. Is that the...
[Representative] Cullerton: Right. *** It changes ‘authorize’ to ‘directed.’ So, in other words ... instead of ... we’re not authorizing the Secretary of State to issue a JDP. We are directing him through court order to issue the JDP.
[Representative] Homer: Okay.
[Representative] Cullerton: The reason for the ... and the Secretary of State’s Office agrees with this Amendment because they did not want to act as an Appellate Court to the trial Judge who issues a [judicial] driving permit. They just wanted to have a better handle in their computer as to who it is that has-a JDP and who doesn’t. And so, they wanted to be the ones to actually issue it, but it’s only for that purpose.
[Representative] Homer: Okay. The ... But the Amendment analysis that we do have indicates that ... that Amendment #1 removed the authority of a Judge to grant JDPs, but you’re saying Amendment 3 put ... put that authority back.
[Representative] Cullerton: Well, the Judges still have the authority to grant the judicial driving permit. That’s why it’s called the judicial driving permit. They still have that authority. It’s not going back to the Secretary of State. That was, as you know, the major portion of the Bill that we passed last year. *** [T]he only purpose of this change is to say, that when a Judge issues a judicial driving permit, he notifies and directs the Secretary of State to actually issue it. The Judge orders it to be issued by the Secretary of State.” 84th Ill. Gen. Assem., House Proceedings, June 25, 1986, at 47-48 (statements of Representatives Homer & Cullerton).
Representative Cullerton also noted that:
“[W]e have had an extensive debate on which indicates and reflects an agreement between the Secretary of State’s Office and the Chicago Bar Association Committee on Traffic. And for those reasons, I would appreciate your support and send this Bill to the Governor.” 84th Ill. Gen. Assem., House Proceedings, June 25, 1986, at 49 (statements of Representative Cullerton).
In an article entitled Application of the Illinois Summary Suspension Law & Constitutional Implications, author Larry A. Davis noted that, “As originally proposed, summary suspension hearings were to be conducted as administrative hearings by the Office of the Secretary of State. Relief from an order of suspension, in the form of a hardship license, was only to be granted by the secretary of state.” (Davis, Application of the Illinois Summary Suspension Law & Constitutional Implications, 76 Ill. B.J. 494, 494 (1988).) Mr. Davis, a member of the Chicago Bar Association Traffic Committee, participated as one of the representatives of the Chicago Bar Association in negotiations with the office of the Secretary of State concerning the summary suspension law. Mr. Davis also stated:
“Concern over that office’s [the Secretary of State] ability to conduct prompt administrative hearings resulted in an agreement [between the office of the Secretary of State and members of the Chicago Bar Association] to amend the proposed legislation to provide that all hearings, both petitions for rescission of suspensions as well as petitions for hardship relief from suspensions, were to be conducted by the circuit court.
To reach that point, it was necessary to reconsider the historical concept of the licensing of drivers in Illinois. In the past, suspension or revocation of driving privileges, as well as the granting of hardship relief to individuals whose licenses had been suspended or revoked, has been an exclusive function of the Office of the Secretary of State. The only route of appeal from an adverse decision of that office was under the Administrative Review Act.
Under the Illinois summary suspension laws, this is no longer the case. Summary suspension is now a judicial withdrawal of driving privileges by the circuit court and the consideration of hardship relief from such a suspension is, similarly, an exclusive function of the circuit court. Under this statutory scheme, the secretary of state acts primarily as a record keeper entering suspensions on drivers’ records, issuing hardship licenses as ordered by the courts and processing reinstatement fees and orders.” (Emphasis in original.) 76 Ill. B.J. at 495-96.
I conclude that the legislature did not intend to vest the Secretary with power to review the exercise of judicial discretion by a circuit court which results in a court order directing the Secretary to issue a JDP. If that were the intention of the legislature, however, I would consider the vesting of such power in the Secretary to be a violation of the doctrine of separation of powers.
The separation of powers clause of our constitution provides: “The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const. 1970, art. II, §1.) The doctrine of separation of powers does not mandate the division of powers into “rigidly separated compartments.” (In re Estate of Barker (1976), 63 Ill. 2d 113, 119.) Neither does the doctrine “forbid every exercise of functions by one branch of government that is conventionally exercised by another.” (People v. Inghram (1987), 118 Ill. 2d 140, 148.) That one branch of the government is not inexorably precluded from exercising powers which could also have been given to another branch of the government does not mean, however, that the executive branch may share concurrent authority with the judicial branch in the determination of who is and who is not to receive a JDP pursuant to section 6— 206.1.
This court has previously been faced with the issue whether “section 6 — 206.1 violates the doctrine of separation of powers, because it improperly grants the Secretary authority to review a circuit court’s decision to issue a JDP,” but declined to address the issue because the proponent of the argument lacked standing. (People v. Esposito (1988), 121 Ill. 2d 491, 512.) This court has upheld the constitutionality of other sections of the statutory summary suspension scheme against the challenge that such sections violated the doctrine of separation of powers.
In People v. O’Donnell (1987), 116 Ill. 2d 517, this court rejected the argument that section 6 — 208.1(c) (Ill. Rev. Stat. 1985, ch. 95½, par. 6 — 208.1(c)) violated the doctrine of separation of powers because section 6— 208.1(c) directed that reinstatement fees be paid to the circuit court and then forwarded to the Secretary of State. The circuit court, in holding section 6 — 208.1(c) unconstitutional, stated that the collection of fees was a ministerial function, and was not a proper matter for the judiciary. The O’Donnell court did “not consider the collection of reinstatement fees to be an ‘essential power’ belonging exclusively to one branch ***. Rather, the reinstatement procedure calls for the judicial and executive branches to cooperate for the sake of administrative convenience. Such an arrangement is not prohibited by the constitution.” O’Donnell, 116 Ill. 2d at 528.
In People v. Inghram (1987), 118 Ill. 2d 140, this court held the authorization of the circuit court, pursuant to section 6 — 206.1 (Ill. Rev. Stat. 1985, ch. 95½, par. 6 — 206.1), to issue JDPs was not an unconstitutional delegation of executive power to the judiciary. (Inghram, 118 Ill. 2d at 150.) The circuit court in Inghram had concluded: “[Sjection 6 — 206.1 improperly gives circuit courts a power over the issuance of hardship licenses that the Secretary already possesses.” Inghram, 118 Ill. 2d at 150.
This court, in upholding the constitutionality of section 6 — 206.1, stated: “The General Assembly apparently concluded that it was preferable that the determination of whether a first-time offender whose license has been suspended for. DUI can responsibly exercise limited driving privileges for necessary activities should be made in a judicial hearing rather than in an administrative proceeding.” (Inghram, 118 Ill. 2d at 150.) Additionally, the court in Inghram, after noting that the “revocation” of license referred to in section 6 — 205(c) (Ill. Rev. Stat. 1985, ch. 951/2, par. 6 — 205(c)) differed from the “statutory summary suspension” contemplated in section 6— 206.1, concluded: “Both sections provide a type of hardship license but by different authorities under. different circumstances. We do not perceive this as presenting a separation of powers violation.” Inghram, 118 Ill. 2d at 152.
The argument that granting the judiciary the power to rescind statutory summary suspension under section 2 — 118.1(b) (Ill. Rev. Stat. 1985, ch. 951/2, par. 2— 118.1(b)) violated the doctrine of separation of powers because the rescission of driving privileges had been statutorily vested in the Secretary of State was rejected by the court in People v. Hamilton (1987), 118 Ill. 2d 153. The court in Hamilton noted that the Secretary’s traditional authority in the area of licensing was established by statute, and the legislature could reasonably choose to diminish the scope of that authority. Hamilton, 118 Ill. 2d at 162.
The doctrine of separation of powers “only comes into play when one branch of the government seeks to exert a substantial power belonging to another branch, or when the exercise of a function of another branch of government detracts from the performance of essential judicial activities.” (Hamilton, 118 Ill. 2d at 162.) The Hamilton court did not find that an “essential function of the Secretary of State’s office ha[d] been transferred to the judiciary,” and concluded that there was no violation of the doctrine of separation of powers on that basis. Hamilton, 118 Ill. 2d at 162.
I consider it to be an essential judicial function, at a hearing pursuant to section 6 — 206.1, for the circuit court to determine whether or not a first offender may receive a JDP. To the extent that section 6 — 206.1(B)(d) is construed as granting authority to the Secretary to review the substantive judicial determination whether a petitioner is to be issued a JDP, that construction is unconstitutional as a violation of the doctrine of the separation of powers. Such authority on the part of the Secretary to review court orders does not merely require ‘the judicial and executive branches to cooperate for the sake of administrative convenience.” (O’Donnell, 116 Ill. 2d at 528.) Such authority on the part of the Secretary would stem directly from section 6 — 206.1, the same statute which vests the circuit court with jurisdiction to determine who, according to the Code, is eligible to receive a JDP. Such authority on the part of the Secretary to review a JDP order “ confer[s] powers to one branch of government [the Secretary] which properly should be exercised by another branch [the circuit court]” and violates the doctrine of the separation of powers. (See Inghram, 118 Ill. 2d at 146, 147.) Moreover, requiring the Secretary to review the court order would be requiring the Secretary to “exert a substantial power belonging to another branch” and would be unconstitutional. Hamilton, 118 Ill. 2d at 162.
In each of these consolidated cases, the Secretary disagrees with the determination of the circuit courts that a JDP should be issued. Presumably the Secretary disagrees with the circuit court because the Secretary has concluded the court order “fails to comply with this Code.” The Secretary has reached the conclusion that the circuit court has either (1) failed to exercise the discretion placed with the circuit court in JDP proceedings in a manner consistent with the Secretary’s interpretation of the Code, or (2) attempted to exercise jurisdiction over nonfirst offenders.
It has been noted that the authority to grant JDPs and restricted driving permits stems from neither the constitution nor the common law; rather, the authority is granted by statute. (Hamilton, 118 Ill. 2d at 162.) The legislature has determined the jurisdiction to grant JDPs to first offenders shall lie in the circuit courts. The circuit court does not have jurisdiction over non-first-time offenders. When a judgment is entered by a court which does not have jurisdiction over the parties or the subject matter, or lacks “the inherent power to make or enter the particular order involved,” that judgment is void. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309; City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 112.) A void order may be attacked at any time or in any court, either directly or collaterally. People v. Wade (1987), 116 Ill. 2d 1, 5; Barnard v. Michael (1945), 392 Ill. 130, 135.
There is nothing to prevent the Secretary from petitioning a circuit court for leave to intervene after the Secretary receives the order directing him to issue a JDP and moving the circuit court to vacate the order on the ground that the circuit court was without jurisdiction to enter the order. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 408(a)(2).) If the circuit court does not allow the Secretary’s petition to intervene, the Secretary could, as a party, appeal that decision. If the circuit court allows the Secretary’s petition to intervene, and agrees with the Secretary’s argument that the circuit court was without jurisdiction to issue a JDP, then the circuit court could vacate its order, making appeal by the Secretary unnecessary. If the circuit court rejects the Secretary’s argument that the circuit court is without jurisdiction and refuses to vacate the order, the Secretary could then, as a party, appeal the decision. This would place the issue of whether a petitioner is a first offender (thus potentially eligible to receive a JDP) or a nonfirst offender (thus not eligible to receive a JDP) before a reviewing court. This would be done, however, not under the guise of nonparty appellant status, but pursuant to recognized procedure of one attempting to intervene in a matter which has resulted in an order directing him to act, or as one who asserts that an order of the court is beyond its statutory authority, and is, for that reason, void.
The majority states that the Secretary will have non-party appellant status, entitling him to proceed directly to the appellate court, to “insure that the Illinois Vehicle Code, and, more specifically, that the JDP and hardship license provisions, are properly and uniformly applied throughout the State.” (129 Ill. 2d at 101.) Further, the majority states that under section 6 — 206.1(B)(d), the Secretary has the duty to “review the court order and his records to insure that the driver is entitled to a JDP, and that the order is in conformance with the law.” 129 111. 2d at 98.
According to the majority, the Secretary has standing to appeal, as a nonparty appellant, any exercise of judicial discretion by a circuit court in granting first-time offenders JDPs with which the Secretary disagrees. If the Secretary disagrees with a judicial determination that a person is likely to obey the limited provisions of the JDP, he would have standing to appeal the JDP order directly to the appellate court. (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 206.1(B)(b)(5).) If the Secretary disagrees with a judicial determination that a person must drive to secure medical treatment for a family member, he would have standing to appeal a JDP order directly to the appellate court. (Ill. Rev. Stat. 1987, ch. 95½, par. 6— 206.1(B)(b)(2).) If the Secretary is not satisfied, after considering the results of a current professional evaluation of the person’s alcohol or other drug use, that to grant the privilege of driving a motor vehicle on the highways will not endanger the public safety or welfare, he would have standing to appeal directly to the appellate court. (Ill. Rev. Stat. 1987, ch. 95½, par. 6— 206.1(B)(a)(3)(i).) If the Secretary concludes the circuit court has failed to properly exercise its discretion in determining any of the above factors, or any other factor of section 6 — 206.1, then the Secretary will have concluded that the judicial order directing him to issue a JDP “fails to comply with [the] Code,” and as such, the Secretary will have standing to appeal the order directly to the appellate court.
I do not agree that the legislature intended this result when it amended section 6 — 206.1 by Public Act 84— 1394. According to Representative Cullerton, the amendment resulted from negotiations which included a representative from the Secretary of State’s office, representatives from the Chicago Bar Association’s Committee on Traffic, and legislators. It was explained during the debate on the amendment to section 6 — 206.1 that the Secretary “did not want to act as an Appellate Court to the trial judge who issues a [judicial] driving permit.” (84th Ill. Gen. Assem., House Proceedings, June 25, 1986, at 47 (statement of Representative Cullerton).) I conclude that a construction of section 6— 206.1(B)(d) which allows the Secretary of State standing as a nonparty to appeal a judicial order directing him to issue a JDP any time the Secretary does not agree with the order is unconstitutional in that it violates the doctrine of the separation of powers.
“A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity.” (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 363.) I therefore dissent from the holding of the majority that the Secretary has standing to appeal, as a nonparty appellant, a judicial order directing him to issue a JDP.
CLARK and STAMOS, JJ., join in this dissent.