specially concurring:
Although I agree with the result the court reaches, I write separately to note my disagreement with the analysis utilized with respect to whether amended section 201(k) applies retroactively to this case.
In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27 (2001), this court adopted the retroactivity test developed 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). According to these cases, the first step in undertaking the retroactivity analysis is to determine whether the legislature has prescribed the statute’s proper reach. If there is no legislative directive on the temporal reach of the statute, we must then establish whether the application of the statute to the conduct at issue would result in a retroactive effect. If so, then we must presume that the statute does not apply to that conduct. See Commonwealth Edison, 196 Ill. 2d at 38, citing Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505.
Despite the fact that the United States Supreme Court has warned that “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task” (Landgraf, 511 U.S. at 268, 128 L. Ed. 2d at 254, 114 S. Ct. at 1498), my colleagues today hold that, in Illinois, the task is indeed simple: “[Application of the Landgraf approach *** should prove uneventful.” 207 Ill. 2d at 92. This is so “because, as this court recently acknowledged in People v. Glisson, 202 Ill. 2d 499 (2002), the legislature has clearly indicated the ‘temporal reach’ of every amended statute.” (Emphasis in original.) 207 Ill. 2d at 92. The legislature does so either expressly in the new legislative amendment or by default in section 4 of the Statute on Statutes, which serves, according to the court, as a “clear legislative directive as to the temporal reach of statutory amendments.” 207 Ill. 2d at 92. The court concludes that “it is virtually inconceivable that an Illinois court will ever go beyond step one of the Landgraf approach.” 207 Ill. 2d at 94. In this way, “for purposes of Landgrafs first step, the legislature always will 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.” (Emphasis in original.) 207 Ill. 2d at 95. I am wary of this expansive holding for several reasons, which I address seriatum.
As an initial matter, the application of section 4 of the Statute on Statutes to this case is not before us. The appellate court did not rely on the statute in reaching its conclusion, and none of the parties have ever argued that the statute has any bearing on this case. I further note that, even though we entertained oral argument in this case in November 2002 and our decision in People v. Glisson, 202 Ill. 2d 499 (2002), was handed down just weeks later, neither party has moved to cite Glisson as supplemental authority in this case. If Glisson holds that “the legislature has clearly indicated the ‘temporal reach’ of every amended statute,” as the court says it does (emphasis in original) (207 Ill. 2d at 92), then I find it somewhat surprising that the case has not been cited to us, especially by the State, because it has been the position of both parties in this appeal that the legislature did not clearly express the temporal reach of the amended section 201(k).
Moreover, the attorneys representing both parties in this matter have prepared very thorough and comprehensive briefing, so I do not believe that the failure to cite Glisson as supplemental authority was an oversight. Rather, I believe that the parties did not cite Glisson because, with all due respect to my colleagues in the majority, Glisson does not contain the statement that the court today says it contains, as a review of the case amply demonstrates. In Glisson, the defendant was convicted of chemical breakdown of illicit controlled substance pursuant to section 401.5(a — 5) of the Illinois Controlled Substances Act. Glisson, 202 Ill. 2d at 501. Several weeks after the defendant’s conviction was entered, the General Assembly added a subsection to the Illinois Controlled Substances Act that exempted the defendant’s conduct from criminal liability. Glisson, 202 Ill. 2d at 501. In essence, the new subsection repealed the crime of which the defendant had been convicted. The question presented for this court was what effect, if any, the repealer had on the conviction. We held that section 4 “bars retroactive application of the statutory change repealing the offense of which defendant was convicted.” Glisson, 202 Ill. 2d at 508. Our specific holding in Glisson was “retroactive application of amendments or repeals in criminal statutes is permissible only if such changes are procedural in nature.” Glisson, 202 Ill. 2d at 507. In my view, our holding comports with the second prong of the Landgraf test, not the first, as the court today suggests.2 Furthermore, we, in Glisson, did not intimate, in any way, that there existed a relationship between section 4 and the Landgraf test. Nor did we expressly hold that section 4 speaks to the temporal reach of every amendment.
More fundamentally, however, I believe the court errs when it holds that section 4 serves as the clear expression of legislative intent that is contemplated in the first step of the Landgraf analysis. Under Landgraf, the initial inquiry is fairly straightforward — did the legislative body identify, with clarity, the conduct, past or future, to which the newly enacted statute was to apply? Stated differently, we must ask whether the legislature expressed an intent that the statute be applied to events which occurred before the statute was enacted.3 This inquiry must be distinguished from the second step of the analysis, which is whether the statute will have an impermissible retroactive impact or effect on past conduct. This comports with the Supreme Court’s observation in Landgraf:
“A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment [citation] or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have ‘sound ... instinct[s],’ [citation] and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Landgraf, 511 U.S. at 269-70, 128 L. Ed. 2d at 254-55, 114 S. Ct. at 1499.
I must point out that just because a newly enacted statute might reach back to antecedent events does not mean that the statute is impermissibly retroactive. Therefore, the first step of the Landgraf analysis is concerned with fixing the temporal reach of the statute while the second step, undertaken only if the temporal reach extends to past events, examines the impact the newly enacted statute will have on the past conduct. If that impact is “impermissibly retroactive,” it will not be allowed. Section 4 of the Statute on Statutes does not expressly prescribe the temporal reach of every amendment in any way. Rather, the section is concerned with whether the new legislation will impact upon past conduct in an impermissibly retroactive manner.
In addition, I think it important to stress that the United States Supreme Court has not utilized the federal general savings statute (1 U.S.C. § 109 (2000)), a statute similar to our section 4, in cases where the language of the statute in question failed to denote legislative direction as to the temporal reach of a statute. In other words, the Supreme Court has not looked to the general savings statute as a “default” expression of legislative intent in cases where the language of the statute was silent as to temporal reach. The recent case Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001), illustrates this point. In that case, St. Cyr, who had been admitted to the United States as a lawful permanent resident, pleaded guilty, in state court, to selling a controlled substance. The subsequent conviction on the charge made him eligible for deportation. However, at the time of his conviction, St. Cyr would have been eligible, under a section of the Immigration and Nationality Act, for a waiver of deportation at the discretion of the United States Attorney General. At the time the removal proceedings had commenced against St. Cyr, the section of the Immigration and Nationality Act that had allowed for the waiver had been repealed and the Attorney General no longer possessed the discretion to waive the alien’s deportation. St. Cyr petitioned for a federal writ of habeas corpus, alleging that, because he pleaded guilty before the waiver statute was repealed and the new legislation went into effect, the new legislation did not apply to him. The Immigration and Naturalization Service (INS) argued that the statute itself resolved the issue because its language unambiguously communicated Congress’ intent to apply the new provisions to all removals initiated after the effective date of the statute.
In addressing these arguments, the Supreme Court noted that “the first step in determining whether a statute has an impermissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively.” St. Cyr, 533 U.S. at 316, 150 L. Ed. 2d at 372, 121 S. Ct. at 2288. The Supreme Court rejected the INS’s arguments that the comprehensiveness of the legislation, its effective date, and the inclusion of a saving provision within the legislation itself dictated the temporal reach of the amendment in question. St. Cyr, 533 U.S. at 317-20, 150 L. Ed. 2d at 372-74, 121 S. Ct. at 2288-90. Critically, the Supreme Court did not resort to the federal general saving statute in the absence of the requisite clear expression of congressional intent. Rather, the Supreme Court “proceed[ed] to the second step of Landgraf s retroactivity analysis in order to determine whether depriving removable aliens of consideration for [discretionary] relief produces an impermissible retroactive effect for aliens who, like respondent, were convicted pursuant to a plea agreement at a time when their plea would not have rendered them ineligible for [discretionary] relief.” St. Cyr, 533 U.S. at 320, 150 L. Ed. 2d at 374, 121 S. Ct. at 2290.
The Supreme Court’s analysis in St. Cyr is instructive on the type of analysis a court is to employ in the first step of the Landgraf test. It would appear that a court is to focus on the language of the Act itself (St. Cyr, 533 U.S. at 317-19, 150 L. Ed. 2d at 372-73, 121 S. Ct. at 2288-89) and its legislative history (St. Cyr, 533 U.S. at 320 n.44, 150 L. Ed. 2d at 374 n.44, 121 S. Ct. at 2290 n.44). I note that the Supreme Court did not look to the federal savings statute after it determined that the language of the amendment was silent as to temporal reach. This suggests that a general savings statute, such as section 4, has little relevance in this step of the analytical process. In fact, my independent research has failed to unearth a single case in which a savings statute such as section 4 has been used in the manner advanced by the court today. This court adopted the Landgraf analysis in Commonwealth Edison just two years ago; however, the analysis has been applied in the federal courts since 1994. It would seem to me that if a general savings statute has the applicability to the analysis that the court posits here, some federal jurist would have noted it over the course of time. The fact that not one has done so, coupled with the inapplicability of Glisson, causes me to regard the broad conclusions reached today with a skeptical eye.
In view of the foregoing, I believe the better approach in this case is to apply the Landgraf test as suggested by the parties and in the manner set forth by the United States Supreme Court. As I noted previously, neither party contends that the General Assembly provided a clear expression of the temporal reach of the amended section 201(k). Indeed, it is difficult to argue to the contrary, as the amendment itself contains the following statement: “No inference shall be drawn from this amendatory Act *** in construing this Section for taxable years beginning before January 1, 1999.” 35 ILCS 5/20 l(k) (West 2000). I agree with the appellate court that this language is neutral — it indicates neither prospective nor retrospective application. 326 Ill. App. 3d at 4. In light of the fact that the General Assembly did not unambiguously direct that the amendment should be applied retroactively, the question becomes “ ‘whether the new statute would have retroactive effect’ ” if applied to past tax years. Commonwealth Edison, 196 Ill. 2d at 37, quoting Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505. As we stated in Commonwealth Edison, “ ‘[a] statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute’s enactment [citation] or upsets expectations based in prior law.’ ” Commonwealth Edison, 196 Ill. 2d at 39, quoting Landgraf, 511 U.S. at 269, 128 L. Ed. 2d at 254-55, 114 S. Ct. at 1499. Instead, we “ ‘must ask whether the new provision attach[es] new legal consequences to events completed before its enactment.’ ” Commonwealth Edison, 196 Ill. 2d at 39, quoting Landgraf, 511 U.S. at 269-70, 128 L. Ed. 2d at 254-55, 114 S. Ct. at 1499.
After reviewing the arguments of the parties in this case, I believe that to grant a retroactive tax credit would “attach new legal consequences” to completed events. See Commonwealth Edison, 196 Ill. 2d at 39. Retroactive application of the amendment would give plaintiffs new rights to tax credits, take away the Department’s old rights to tax revenues, and impose new obligations on the Department to refund taxes. As the United States Seventh Circuit Court of Appeals has recognized, “[c]hanging today’s financial consequences of an earlier transaction is the paradigm of retroactivity.” Jahn v. 1-800 Flowers.com, Inc., 284 F.3d 807, 811 (7th Cir. 2002). Therefore, in the absence of a clear legislative indication of retroactivity, I would employ the traditional presumption against retroactivity in this case.
CHIEF JUSTICE McMORROW and JUSTICE KIL-BRIDE join in this special concurrence.
Our interpretation of section 4 in Glisson is consistent with this court’s historical use of the statute. See Merlo v. Johnston City & Big Muddy Coal & Mining Co., 258 Ill. 328, 338 (1913) (explaining that the doctrine of earlier cases, including Connell v. Crosby, 210 Ill. 380 (1904), was the “well established rule that no one has a vested right in a particular remedy or mode of procedure for the redress of grievances, and the legislature may change these, and the changed procedure may be applied to pending cases”).
In Landgraf, the Supreme Court gave an example of the type of language that might be used to convey such intent: “[T]he new provisions ‘shall apply to all proceedings pending on or commenced after the date of enactment ***.’ ” Landgraf, 511 U.S. at 260, 128 L. Ed. 2d at 249, 114 S. Ct. at 1494.