dissenting:
The day before the court issued its original judgment, new legislation took effect which amended the Tort Immunity Act to eliminate the problem created by the judgments of the circuit and appellate courts in this case. Under the new version of the law, the Tort Immunity Act cannot be invoked by public entities to avoid liability for willful and wanton conduct in supervising activities on public property. Accordingly, even if my colleagues were correct that count I of plaintiffs complaint is subject to the Tort Immunity Act rather than the School Code, that count is no longer subject to dismissal on grounds of statutory immunity. We should therefore grant the petition for rehearing, reverse the judgment of the appellate court, and remand the cause to the circuit court for further proceedings.
The majority’s refusal to apply the new version of the law to the present case is wholly improper. Our court has repeatedly held that where the legislature changes the law pending an appeal, the case must be disposed of by the reviewing court under the law as it then exists, not as it was when the judgment was entered in the lower court. Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill. 2d 210, 215 (1994); Bates v. Board of Education, Allendale Community Consolidated School District No. 17, 136 Ill. 2d 260, 268-69 (1990).
Although an exception to this rule exists where application of the change in the law would affect a vested right (First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996)), that exception is inapplicable here. It is inapplicable because it is founded on the due process clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2) (see First of America Trust Co., 171 Ill. 2d at 289), and political subdivisions of the state, including school districts, have no due process rights.
The reason that political subdivisions of the state cannot claim due process protection against action by the General Assembly is legislative supremacy. That doctrine holds that because counties, cities, school districts and other local governmental entities are created by authority of the legislature, their rights and powers may be enlarged, diminished, modified or revoked by the legislature at any time at its pleasure. Under the doctrine, the state may apportion the common property and common burdens of such entities however it wishes, with or without notice, regardless of whether the inhabitants approve, and without any need to pay just compensation. People ex rel. Gutknecht v. City of Chicago, 414 Ill. 600, 621-22 (1953). Properly speaking, these entities have no property of their own. In fact and in law, their property is the property of the state and subject to legislative will. That being so, the entities have no property rights of which they may be deprived in violation of the due process clause of our constitution. People ex rel. Dixon v. Community Unit School District No. 3, 2 Ill. 2d 454, 466 (1954).
There is nothing novel about these principles. Had my colleagues checked the law after 1895, they would have discovered that the doctrine of legislative supremacy is well established and has been frequently applied by our court. Only two years ago, in East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 413 (1997), we specifically held that because school boards are “municipal corporations” created by the legislature and wholly within the legislature’s control, they cannot assert due process claims against legislation enacted by the General Assembly. This holding followed an established line of cases from our court (see, e.g., Village of Riverwoods v. Department of Transportation, 77 Ill. 2d 130, 136 (1979); Meador v. City of Salem, 51 Ill. 2d 572, 578 (1972); Supervisors of the County of Boone v. Village of Rainbow Gardens, 14 Ill. 2d 504, 507-08 (1958); People ex rel. Taylor v. Camargo Community Consolidated School District No. 158, 313 Ill. 321, 324-25 (1924)) and from the appellate court (see, e.g., City of Evanston v. Regional Transportation Authority, 202 Ill. App. 3d 265, 278 (1990); Franciscan Hospital v. Town of Canoe Creek, 79 Ill. App. 3d 490, 496-97 (1979); People v. Valentine, 50 Ill. App. 3d 447, 452-53 (1977)).
The majority’s analysis is also infirm because it overlooks the language and purpose of the due process clause. That provision applies, by its terms to “persons” and was intended to protect the property of individuals and corporations. Governmental entities do not constitute such “persons” (see Franciscan Hospital, 79 Ill. App. 3d at 496-97), and due process guarantees do not extend to the sovereign or subsidiaries of the sovereign (see City of Evanston, 202 Ill. App. 3d at 278). See also Cronin v. Lindberg, 66 Ill. 2d 47, 55-56 (1976) (school board and superintendent had no right to raise due process challenge to statutory amendment because “[d]ue process guarantees, in the ordinary sense, do not extend to them”); Village of Schaumburg v. Doyle, 277 Ill. App. 3d 832, 836 (1996) (municipalities cannot assert due process claims). Accordingly, there is no constitutional impediment to application of the amended version of the Tort Immunity Act here.
Contrary to my colleagues’ assertion, section 1 — 101.1(b) of the Tort Immunity Act (745 ILCS 1 — 101.1(b) (West 1994)) does not alter this conclusion. That provision is inapposite. The statute refers to private individuals as a way to define the range of defenses available to a local public entity. Its point is simply to make clear that if a defense is available to a private person, it is available to a governmental entity as well. For example, when comparative negligence was adopted as a defense in Illinois, this section served as authority for the proposition that the defense could be invoked by municipalities just as it could be used by any other tort defendant. Wagner v. City of Chicago, 166 Ill. 2d 144, 152 (1995).
In the matter before us here, defining the scope of the applicable immunity is not at issue. Under the majority’s disposition, the immunity rules have been set out by the legislature in section 3 — 108. The real question in this case is which version of section 3 — 108 should apply. That is an issue which section 1 — 101.1(b) does not address and was not intended to address.
To say that a local governmental entity may avail itself of the same defenses available to a private individual, as section 1 — 101.1(b) does, is not the same as saying that a local governmental entity is a private individual, or is equivalent to a private individual for any other purposes. The Tort Immunity Act merely grants immunities and defenses. It is not a source of rights. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412-13 (1991); 745 ILCS 10/1 — 101.1(a) (West 1994). Moreover, because it is in derogation of the common law, it must be strictly construed against the public entity involved. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 44 (1998). Accordingly, it cannot be interpreted as bestowing on public entities due process or any other constitutional protections. Local governmental entities can assert defenses where authorized by law, but where the legislature sees fit to change the law and eliminate an immunity, as it has done here, the governmental entities have no basis under the due process clause of the Illinois Constitution of 1970 to complain.
Even if we could ignore the language and purpose of the due process clause and revoke the legislative supremacy doctrine, the majority’s analysis would still be untenable. My colleagues’ “vested right” analysis presumes that before the recent statutory amendment, school districts were, in fact, immune from liability arising from willful and wanton conduct. As I pointed out in my original dissent, however, such was not the case. Prior to this litigation, the law was well established that a public school student could bring an action to recover damages for injuries he sustained as a result of teachers or coaches who exhibited a reckless disregard for his welfare. It was not until our original judgment here that this court determined that school districts could invoke the Tort Immunity Act to avoid liability in such cases. By that time, however, the Tort Immunity Act had already been amended to provide that public entities are not, in fact, immune from liability for willful and wanton conduct in supervision of activities on public property. As a result, there was never a time when the defendant school district could claim a settled expectation that it would be immune from liability arising from circumstances such as those present here.
Although the circuit and appellate courts had ruled in favor of the defendant school district before the amended version of the Tort Immunity Act took effect, that is of no consequence. Contrary to the majority’s unsupported assertion, the school district’s right to invoke immunity under the old law did not vest when the circuit court dismissed count I of the complaint. Under this court’s precedent, the district could only claim a vested right after final judgment was entered. At the time the amended law took effect in this case, there was no final adjudication because the cause remained on appeal. The new law should therefore apply. Bates v. Board of Education, 136 Ill. 2d at 269.
Given the absence of a final adjudication, the majority’s claim that the legislature was attempting to breathe life into a previously barred claim is nonsensical. Nor can my colleagues legitimately object to application of the new legislation on separation of powers principles. Unlike In re Marriage of Cohn, 93 Ill. 2d 190, 202-07 (1982), there has been no showing that the legislature acted as it did with the express intention of overruling the appellate court’s decision in this case. Moreover, unlike In re Petition of Kirchner, 164 Ill. 2d 468, 496-98 (1995), the case does not present a situation where the legislature was attempting to alter the rights of parties after this court had finally adjudicated those rights. As previously noted, the change in the law here came before our decision, not afterwards.
Aside from the technical flaws in the majority’s disposition, it is unworthy of support for one final and inarguable reason. It is utterly lacking in basic fairness. The injured students who preceded Joshua Henrich could recover under the law as previously construed by our court. The injured students who follow Joshua Henrich will be able to recover under the law as revised by the General Assembly. It is only Joshua Henrich who is without redress. Why?
When the legislature establishes a political entity such as a school district and then expressly decrees that the entity may no longer invoke immunity, our court has no legitimate basis for refusing to honor the legislature’s will. To cling to the old law, as my colleagues do today, is the sorriest form of judicial obstructionism. It is an insult to the legislature and an insult to the people of Illinois.
For a court with any notion of justice, the legislature’s amendment of the law following the lower court’s actions here would at least give pause to reconsider whether our construction of the original statute was correct. See People v. Brooks, 158 Ill. 2d 260, 270 (1994) (where amendment to statute is enacted soon after controversy arises regarding statute’s interpretation, amendment may be indicative of legislative intent even where the law is not ambiguous). For my colleagues, however, the amendment is nothing more than an unwelcome impediment to denying another child’s claims.1 The law means nothing. Fairness means nothing. Justice means nothing. All that matters to them is that this one school district be protected from this one crippled boy. Poor Joshua. Poor us.
With all due respect to Justice Rathje, I do not accuse my colleagues of disregard for the rights of children simply because they do not agree with me. I accuse them of disregard for the rights of children based upon their consistent pattern of denying recovery to children no matter how shocking the facts or how compelling the law might be. Examples are cited in my original dissent..