specially concurring:
I concur in the conclusion that this court has jurisdiction to review this appeal and the ultimate holding that the District’s ordinance is enforceable against Stonewall. While I agree with the outcome of this appeal, I write separately because I believe the County’s affidavit of intent to file a petition for leave to appeal complies with Rule 315(b).
The “Affidavit of Intent to File Petition for Leave to Appeal to the Illinois Supreme Court” in this case reads as follows:
“Petitioner-Appellee, LAKE COUNTY, ILLINOIS, by and through its attorneys MICHAEL J. WALLER, State’s Attorney of Lake County, and DANIEL L. JASICA and JOSEPH B. CHERVIN, Assistant State’s Attorneys, hereby states that it intends to file a Petition for Leave to Appeal to the Illinois Supreme Court from the Order dated October 2, 2003.
JOSEPH B. CHERVIN hereby states under oath that it is the intention of the Petitioner-Appellee to file a Petition for Leave to Appeal to the Illinois Supreme Court.” (Emphasis added.)
The document was signed by Joseph B. Chervin, one of the assistant State’s Attorneys representing the County.
Today’s opinion contains no analysis of the specific language of this affidavit. Rather, it assumes that the affidavit was noncompliant with Rule 315(b) because the attorney’s signature was not notarized.
In Rohidoux, this court found that an affidavit stating it was signed “under oath” met the requirements of Rule 191(a). Robidoux v. Oliphant, 201 Ill. 2d 324, 340-43 (2002). In Roth, I concurred with the majority’s holding that the affidavit of intent to file petition for leave to appeal “[was] not an affidavit within the meaning of Rule 315(b) because it contain[ed] no recital that it was made under oath.” Roth, 202 Ill. 2d at 498 (Kilbride, J., concurring in part and dissenting in part). However, in Roth, I disagreed with the majority’s strict enforcement of Rule 315(b)’s nonspecific attestation requirements when this court “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.” Roth, 202 Ill. 2d at 498 (Kilbride, J., concurring in part and dissenting in part), citing Robidoux, 201 Ill. 2d at 340. I specifically noted:
“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.’ ” Roth, 202 Ill. 2d at 498 (Kilbride, J., concurring in part and dissenting in part).
Here, the attorney signed the document asserting it was made under oath. The affidavit in this case is more akin to the affidavit in Robidoux, asserting it was made under oath, than the affidavit in Roth, lacking any such averment. Accordingly, I would hold that the affidavit in this case sufficiently complied with Rule 315(b) and, therefore, this court has jurisdiction to review the appeal.
This court has treated compliance with Rule 315(b) as jurisdictional. See 214 Ill. 2d at 425; 214 Ill. 2d at 442-43 (Freeman, J., dissenting, joined by McMorrow, C.J.). I agree with Justice Freeman that compliance with our supreme court rules is jurisdictional under section 4 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, § 4), and the analysis in today’s decision improperly turns to section 16 of article VI (Ill. Const. 1970, art. VI, § 16) (214 Ill. 2d at 427). 214 Ill. 2d at 446-47 (Freeman, J., dissenting, joined by McMorrow, C.J.). Justice Freeman correctly points out that this court’s “power to hear and decide cases is separate and distinct from our supervisory power.” 214 Ill. 2d at 447 (Freeman, J., dissenting, joined by McMorrow, C.J.). Accordingly, I believe that this court has unnecessarily invoked its supervisory authority to reach the merits of this appeal. I disagree, however, with Justice Freeman’s conclusion that the appeal should be dismissed because this court lacks jurisdiction. 214 Ill. 2d at 454 (Freeman, J., dissenting, joined by McMorrow, C.J.).
At the heart of the jurisdictional issue in this appeal is the uncertainty of the affidavit requirement. Filing an affidavit of intent to file a petition for leave to appeal is, technically speaking, jurisdictional.
I agree with Justice Freeman, however, that this court’s discretionary enforcement of Rule 315(b) is “profoundly unfair.” 214 Ill. 2d at 440, 451 (Freeman, J., dissenting, joined by McMorrow, C.J.). In my view, this court is attempting to overcome the unfairness of strictly enforcing a nonspecific affidavit requirement by unnecessarily exercising its supervisory authority. The real issue is not the application or enforcement of Rule 315(b). Rather, the unfortunate dilemma is this court’s inconsistent interpretation of the nonspecific affidavit requirements of our supreme court rules. See Robidoux, 201 Ill. 2d 324; Roth, 202 Ill. 2d at 498 (Kilbride, J., concurring in part and dissenting in part).
Justice Freeman has offered a number of alternative proposals to amend Rule 315(b). While I may agree with one or more of his suggestions, I believe it may be more prudent merely to abolish the “affidavit of intent” provision. Instead, Rule 315(b) should be amended to provide that all petitions for leave to appeal must be filed within 35 days unless extended upon order entered pursuant to a timely motion as already provided by Rule 315(b). In the end, a simple overhaul of affidavit requirements in general would be preferable to this court’s inconsistent interpretations of affidavits in Robidoux and Roth. Litigants should not be required to search case law and incur unnecessary fees and costs in unraveling the intricacies of our practice rules to determine the affidavit requirements under a particular rule. Rather, our rules should be clear and straightforward.
For the foregoing reasons I specially concur.