dissenting:
The majority has declined to follow the clear precedent of this court on the effect of the void ab initio doctrine, choosing rather to join what it perceives to be the “modern trend” allowing equitable considerations to overcome the harsh result of its strict application. Although the majority declines to abandon the doctrine entirely, it has effectively limited its application to criminal cases involving fundamental rights. In my view, this is an unjustified substantial departure from precedent, not consonant with the principle of stare decisis. Finding the result of its application in this case inequitable, the majority allows the plaintiffs action, untimely filed, and then refiled after a voluntary dismissal, to proceed. I believe our precedent establishes the applicability of the doctrine in civil cases, and I do not believe equitable considerations mandate a departure from it. Accordingly, I respectfully dissent.
Until today, Illinois has consistently applied the ab initio doctrine, as enunciated in Norton, over a period of 92 years in both civil and criminal cases. In Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 176 (1911) this court, citing Norton, upheld the right of the board of highway commissioners to recoup moneys received by the city. The roads and bridges statute entitled the city to the taxes. That statute was later declared unconstitutional by this court after the initial collection and payment of the taxes. See People ex rel. City of Danville v. Fox, 247 Ill. 402 (1910). This court held that Fox required the court not to consider the unconstitutional statute in determining whether the taxing body was entitled to recoup the payment.
In Mills v. Peoples Gas Light & Coke Co., 327 Ill. 508, 535 (1927), citing Norton and City of Bloomington, the court upheld the right of a litigant not initially asserting the unconstitutionality of a ratemaking statute to challenge it because it had been held void in a previous decision. The court amplified the holding in Norton, observing:
“When a statute is adjudged to be unconstitutional, rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made.” Mills, 327 Ill. at 535.
In People v. Schraeberg, 347 Ill. 392, 393-94 (1932), the court reversed the conviction of a criminal defendant who challenged the array of jurors chosen based on a statute later held unconstitutional in another case. The court, citing City of Bloomington, upheld defendant’s challenge even though the jury commissioners presumed the statute to be valid.
In Keslick v. Williams Oil-O-Matic Heating Corp., 360 Ill. 552, 554 (1935), the court affirmed judgment for an employer on a widow’s claim for damages under the Occupational Diseases Act where the statute was declared unconstitutional and void in a series of cases decided after the entry of judgment in Keslick. The court held that a reversal of the judgment would serve no useful purpose because plaintiffs right of action was predicated on a violation of the unconstitutional statute. Although the court did not cite to Norton or Illinois precedent, it is apparent that it applied the void ab initio doctrine when the statute had not been declared invalid until after entry of the trial court judgment. In Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378 (1970), the court gave retroactive application to its opinion in Fiorito v. Jones, 39 Ill. 2d 531 (1968). Fiorito had declared the 1967 amendments to the Service Occupation and Service Use Tax Acts unconstitutional and void. Van Driel held that “[w]hen House Bill 2482 was declared unconstitutional in Fiorito, it was void ab initio. [Citation.] It was at that point wholly inoperative as though it had never been passed ***.” Van Driel, 47 Ill. 2d at 381-82. Accordingly, an earlier version of the tax statute purportedly repealed by House Bill 2482 remained in effect.
In People v. Gersch, 135 Ill. 2d 384 (1990), we again applied the ab initio doctrine, invalidating the conviction of a defendant in a jury trial pursuant to the State’s assertion of a statutory right to a jury trial. We held that our judgment in a prior case declaring the statute unconstitutional rendered it void ab initio. Gersch, 135 Ill. 2d at 390, 399 (citing Schraeberg and Van Driel). We recognized that scholars had been critical of the doctrine, and noted that courts have struggled with the potentially harsh results of its application, particularly where there has been a good-faith reliance on the validity of a statute. Gersch, 135 Ill. 2d at 399. As noted by the majority, we also acknowledged the concerns expressed by the United States Supreme Court in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 84 L. Ed. 329, 60 S. Ct. 317 (1940). 218 Ill. 2d at 461. Nevertheless, we found no persuasive reason to depart from our established precedent. Gersch, 135 Ill. 2d at 401.
Here, the majority attempts to distinguish Gersch on the basis that its holding was mandated because it was necessary to correct the “wrongs wrought” by the unconstitutional statute. Conversely, the limitations provision at issue here did not perpetrate a wrong against defendants requiring correction. 218 Ill. 2d at 456. The majority dismisses the declaration of the limitations provision’s invalidity as simply “collateral damage” from the force of the determination in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), that the core provisions of Public Act 89 — 7 were unconstitutional. 218 Ill. 2d at 456. This statement ignores the analysis in Best supporting the holding that the entire Act was unconstitutional.
Best held that the core provisions declared unconstitutional were inseparable from the remainder of Public Act 89 — 7 and, therefore, the legislation must fail in toto. Best, 179 Ill. 2d at 467. The residual provisions, including the limitations period at issue here, were unenforceable because to hold otherwise would amount to judicial legislation in violation of the separation of powers provisions of our constitution (see Ill. Const. 1970, art. II, § 1). Best, 179 Ill. 2d at 467. We thus were compelled to invalidate the entire Act because of a constitutional requirement sharing importance, in my view, with the determination of special legislation and privacy rights violations supporting our rejection of the Act’s core provisions. Thus, the rationale for holding the limitations provision invalid rests on the same firm constitutional foundation as our analysis on the core provisions. Accordingly, the void ab initio doctrine’s applicability should not be determined by the reason a statute is declared unconstitutional, and the distinction drawn by the majority does not support a departure from our holding in Gersch.
The majority also fears a “Catch-22” if individuals must suffer the consequences of relying on the presumptive validity of a legislative enactment later held unconstitutional. 218 Ill. 2d at 459-60. This fear is unwarranted. Presumptive statutory validity is overcome every time we declare a statute unconstitutional. Further, individuals know that legislative powers are limited and that laws enacted outside the range of those powers are void. Thus, prospective litigants must always be aware of the potential for judicial determinations affecting the validity of legislation.
As the majority correctly observes, we implicitly applied the void ab initio doctrine in Petersen v. Wallach, 198 Ill. 2d 439 (2002), a case involving the same limitations statute at issue here. 218 Ill. 2d at 458. The complaint in Petersen was filed on November 9, 1998, alleging attorney malpractice in estate planning services rendered in 1989 and 1991 for plaintiff’s mother, who died on November 10, 1996. Best was decided on December 18, 1997. We observed in a footnote:
“Public Act 89 — 7 [citation] partially amended section 13 — 214.3 by repealing subsection (d). The public act was held unconstitutional in its entirety by this court in Best v. Taylor Machine Works [citation]. As of this writing, however, the General Assembly has not addressed our holding in Best with regard to section 13 — 214.3 and the text of that section remains in its form prior to our decision in Best.” Petersen, 198 Ill. 2d at 443 n.l.
We then construed section 13 — 214.3(d) and determined the plain language of that section required application of its provisions to all cases of attorney malpractice when the injury did not occur until the death of the client, not just those involving probate distributions. Hence, we determined paragraph (d) of the section created an exception to the six-year repose period established in paragraph (c) of the same section (735 ILCS 5/13 — 214.3(c) (West 1994)). We therefore concluded plaintiffs claim was not time-barred, even though it was not asserted within the six-year repose period. Petersen, 198 Ill. 2d at 448. We made this determination despite defendant’s argument that our disposition could lead to an absurd or unjust result, noting “[t]he possibility of an unjust or absurd result is generally not enough to avoid the application of a clearly worded statute.” Petersen, 198 Ill. 2d at 447.
The majority dismisses the significance of our holding in Petersen, arguing that we were not asked to consider whether it is appropriate to temper the doctrine’s harsh results. 218 Ill. 2d at 458. Yet the version of the limitations period held unconstitutional in Best did not contain the probate exception to the statute of repose, and would thus have extinguished plaintiff’s action a year before filing it. Presumably, defendant’s attorneys were aware of the application of the void ab initio doctrine, and thus asserted the earlier version of the statute as a defense, rather than attempting to rely on an unconstitutional statute.
Most recently, we applied the doctrine in Jorgensen v. Blagojevich, 211 Ill. 2d 286, 309 (2004), holding that a statute purportedly eliminating cost-of-living adjustments (COLA) to judicial salaries in 2003 was unconstitutional and void ab initio. The majority distinguishes Jorgensen because it involved the enforcement of an unconstitutional statute rather than a determination of the equities. 218 Ill. 2d at 458-59. Nonetheless, the legislature and the Governor relied on the COLA curtailments in budget planning, and our decision undoubtedly impacted those budgetary presumptions. Our opinion rested, however, purely on constitutional grounds and we did not find the budgetary impact dispositive.
Our appellate court has also recently applied the void ab initio doctrine in two persuasive opinions. In Hurst v. Capital Cities Media, Inc., 323 Ill. App. 3d 812 (2001), the court applied the void ab initio doctrine to another statute amended by Public Act 89 — 7, section 13 — 217 of the Code of Civil Procedure (735 ILCS 5/13 — 217 (West 2002)). Before the amendment, section 13 — 217 allowed refiling after voluntary dismissal within the later of one year or the expiration of the statute of limitations. Prior to the passage of Public Act 89 — 7, this court held that only one refiling was permitted, despite expiration of the statute of limitations. Flesner v. Youngs Development Co., 145 Ill. 2d 252 (1991). Upon enactment of Public Act 89 — 7, the statute allowed refiling after voluntary dismissal only if the limitations period had not expired.
The plaintiff, having twice voluntarily dismissed his case, argued the amendments to section 13 — 217 permitted multiple refilings and were intended to overcome the Flesner holding. The defendant asserted the void ab initio doctrine revived the earlier version of the statute and Flesner was still applicable. The Hurst court rejected plaintiff’s argument that Best should not be applied because he relied in good faith on the new statute, and retroactive application would result in an injustice.
The appellate court noted Gersch recognized courts have struggled with the potentially harsh results of the void ab initio doctrine, but nevertheless found no persuasive policy argument for departing from the doctrine and gave no indication that the application of the long-established principle is inapplicable in civil cases. Hurst, 323 Ill. App. 3d at 821. Despite the potential for harsh results, the court held: “[t]he effect of enacting an unconstitutional act is to leave the law in force as it was before the enactment of the unconstitutional act.” Hurst 323 Ill. App. 3d at 822. Consequently, the court held the provisions of section 13 — 217 in effect prior to the enactment of Public Act 89 — 7 were applicable. Hurst, 323 Ill. App. 3d at 822.
In Poullette v. Silverstein, 328 Ill. App. 3d 791 (2002), the court applied the earlier version of the limitations statute at issue here to a claim against an attorney who had rendered estate planning services to a client who died in 1997, the same year as Best. The court noted in a footnote that Best had repealed Public Act 89 — 7 in its entirety and, therefore, the prior version of section 13— 214.3 remained in effect. Poullette, 328 Ill. App. 3d at 795 n.l. The court then construed paragraph (d) of the statute to require plaintiff to file suit within six months after admission of the testator’s will to probate, even though it shortened the time to file her claim. Poullette, 328 Ill. App. 3d at 796.
It is apparent from this review of Illinois precedent that this court and our appellate court have consistently applied the void ab initio doctrine in both civil and criminal cases from 1912 until 2004, when the appellate court in this case departed from the doctrine on equitable grounds. Despite our Illinois precedent, the majority reviews cases from federal and foreign jurisdictions, finding equitable considerations mandate abandonment of the void ab initio doctrine. 218 Ill. 2d at 461-66. As the majority concedes, other jurisdictions have, however, strictly applied it. 218 Ill. 2d at 460. My research discloses no clear majority rule. I sympathize with the concern for equitable considerations expressed in several opinions critical of the doctrine. Nevertheless, I discern no compelling reason to depart from the void ab initio doctrine.
The majority places particular emphasis on the United States Supreme Court’s Chicot County discussion of the potential inequities of a strict application of the doctrine. 218 Ill. 2d at 461. In Chicot County, the Supreme Court was considering whether to apply the doctrine in a collateral challenge to a bankruptcy decree when the bankruptcy court’s determination depended on a statute later held unconstitutional. The Supreme Court noted that lower courts had proceeded on the theory that the unconstitutional statute was inoperative, conferring no rights and imposing no duties. The Court observed:
“It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly he ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.” Chicot County, 308 U.S. at 374, 84 L. Ed. at 332-33, 60 S. Ct. at 318-19.
The Court then determined that a decision invalidating a statute relied on by the district bankruptcy court did not subject the court’s decree to a collateral attack and that res judicata applied to bar the asserted claim. The Court noted the issue of the validity of the statute was not raised in the bankruptcy proceeding and there was no attempt to review the decree. Chicot County, 308 U.S. at 375-76, 84 L. Ed. at 333, 60 S. Ct. at 319.
This case, however, does not involve a collateral attack on a judgment. This is a direct review of the dismissal of a complaint where the application of section 13 — 214.3(d) was raised and fully argued by the parties. Thus, despite the recognition in Chicot County of potential problems caused by the automatic application of the void ab initio doctrine, the holding in that case is not applicable. Issues regarding the finality of judgments are not implicated under the circumstances of this case.
The majority also cites a plurality opinion from Chief Justice Burger in Lemon v. Kurtzman, acknowledging the difficulty in attempting to reconcile “ ‘the constitutional interests reflected in a new rule of law with reliance interests founded upon the old.’ ” 218 Ill. 2d at 461, quoting Lemon v. Kurtzman, 411 U.S. 192, 198, 36 L. Ed. 2d 151, 160, 93 S. Ct. 1463, 1468 (1973). This difficulty, however, does not compel abandoning the void ab initio doctrine in favor of a case by case ad hoc determination of the importance of equitable concerns. Departure from the doctrine in this case, where the balance of the equities is not as clear-cut as the majority suggests, would create uncertainty in gauging the continued vitality of statutes declared unconstitutional. Inevitably, the majority’s approach will result in holding statutes void in some circumstances, but not in others. Thus, stability in statutory construction will be adversely impacted.
In my view, departure from the doctrine is unwarranted because even if it were conceded that it should not be applied in cases where the litigants reasonably relied on statutes later held unconstitutional, the plaintiffs in this case have not demonstrated that their reliance was reasonable. The facts simply do not establish plaintiffs’ reasonable reliance on the limitations provision in Public Act 89 — 7. Plaintiffs could have filed their action after learning of the alleged malpractice anytime prior to the estate claim date, April 26, 1996. They chose not to file, even though constitutional challenges to Public Act 89 — 7 were filed immediately after its passage and were widely reported in legal publications. See, e.g., C. Rodin, With “Tort Reform” Rush Over, Judicial Review Can Proceed, Chi. Daily L. Bull., April 22, 1995, at 22; J. Zimmerman, A Review of the Illinois Civil Justice Reform Act of 1995, 83 Ill. B.J. 282 (1995). Further, the circuit court of Madison County, in two cases consolidated for review by this court in Best, held the entire Act unconstitutional, noting that the Act constituted a “wholesale reconstruction of the judiciary.” See Best, 179 Ill. 2d at 380. Thus, long before a definitive pronouncement by this court, a prudent attorney could have taken notice that reliance on any provisions of the Act could be problematic.
Additionally, plaintiffs’ action remained pending in the circuit court of Cook County from its filing on January 8, 1998, until they voluntarily dismissed it on September 5, 2001, nearly three years later and four years after publication of Best. The case was refiled in Lake County on April 10, 2002. Our decision in Petersen, applying the void ab initio doctrine, was filed January 25, 2002. Thus, it is not surprising that defendants pleaded the earlier statute of limitations as a defense in response to the refiled complaint. It cannot be reasonably suggested that defendants’ assertion of the limitations defense was unwarranted when this court had again applied the void ab initio doctrine and validated the earlier version of the statute just three months before plaintiffs’ refiling. Indeed, it would seem that plaintiffs might have avoided the entire problem presented by this case had they not dismissed the Cook County action. Under these circumstances, I do not believe the equities weigh so heavily in favor of plaintiffs that departure from the long established void ab initio doctrine is merited. Accordingly, I respectfully dissent.
CHIEF JUSTICE THOMAS joins in this dissent.