specially concurring:
I agree with the majority that a plenary guardian of a disabled adult has standing to proceed with a dissolution of marriage action filed by the ward prior to the adjudication of the ward’s disability. I cannot, however, join the majority’s analysis, which is wholly unnecessary and irrelevant.
The majority spends 24 paragraphs resolving a simple issue that already has been decided. The molehill beneath the majority’s mountain is section 11a — 17(a—5) of the Probate Act of 1975 (Pub. Act 91 — 139, eff. January. 1, 2000 (amending 755 ILCS 5/1 la — 17 (West 1998)), which provides that:
“If the ward filed a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act before the ward was adjudicated a disabled person under this Article, the guardian of the ward’s person and estate may maintain that action for dissolution of marriage on behalf of the ward.”
This amendment was added by the legislature while this appeal was pending. The provision has an effective date of January 1, 2000.
When the legislature changes the law while an appeal is pending, a reviewing court will apply the new law unless to do so would interfere with a vested right. First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289 (1996); see also Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 295 (1999) (McMorrow, J., writing). Vested rights are interests protected from legislative interference by the due process clause (Ill. Const. 1970, art. I, § 2). Armstead, 171 Ill. 2d at 289. A right has not vested until it is “so far perfected that it cannot be taken away by legislation,” and so “complete and unconditional” that it “may be equated with a property interest.” Armstead, 171 Ill. 2d at 290-91.
Clearly, no vested right is impaired by application of the amended statute. The legislature merely clarified that the scope of a guardian’s powers includes maintaining dissolution suits that were filed before the ward became disabled. Donald had a valid dissolution action pending against Sharron for over a year before he was adjudicated disabled. The legislation simply allows Donald’s guardian to continue this action. Further, Sharron has not identified any vested right with which application of the new statute would interfere. Although the statute was not yet effective when the parties filed their appellate briefs, Donald noted in his brief that the legislature had proposed amendments to the statute and that applying the new statute would not interfere with a vested right. Sharron could have addressed this argument in her response brief but chose to ignore it. Sharron has not argued that a vested right would be impaired by application of the current law, and I am unable to discern one.
Nor is this the situation presented in In re Marriage of Cohn, 93 Ill. 2d 190 (1982), where the legislature violated separation of powers principles by passing legislation to overrule a decision of a reviewing court. In Cohn, we explained that, although the legislature may change the law as interpreted by the courts prospectively, it cannot retroactively alter a statute in such a way that the statute itself overrules a decision of a reviewing court. In that case, the legislature sought to validate a bifurcated judgment in a divorce case by passing a statute allowing for such judgments. The statute was passed following the appellate court’s decision vacating the judgment and included a provision that said, “ ‘All judgments for dissolution of marriage reserving any such questions entered prior to the effective date of this amendatory Act of 1981 are declared to be valid as of the date of entry.’ ” Cohn, 93 Ill. 2d at 201, quoting Ill. Rev. Stat. 1981, ch. 40, par. 401(3). Thus, the legislation itself would have changed the appellate court’s decision. This court held that the legislature “invaded the province of the judiciary by retroactively overruling a decision of a reviewing court.” Cohn, 93 Ill. 2d at 204.
Here, by contrast, the legislature did not attempt to change the decision of the appellate court. Although the amendment might have been proposed in response to the appellate court’s decision, the legislature made no attempt to apply the statute to pending cases and gave the statute an effective date of January 1, 2000. In Cohn, we reiterated that the legislature can enact legislation for prospective application in pending cases so long as it does not attempt to tell a court how to apply the new law to the facts of a particular case. Cohn, 93 Ill. 2d at 205-06. What the legislature cannot do is attempt “to attribute to a statute, at the time of the reviewing court’s opinion, a meaning different than that declared in the opinion.” Cohn, 93 Ill. 2d at 206.
This case was argued at the September 1999 term of court. If the opinion had been issued before the end of the year, the new statute would not have been applicable. The case was not decided until January 2000, and by that time the new statute was in effect. The legislature did not try to attempt to alter the meaning of the statute at the time the appellate court’s opinion was issued and did not try to dictate to the courts how to apply the new law to pending cases. Accordingly, there is no separation of powers problem in applying the current law.
The majority’s only reason for failing to apply the current law is that “Neither party has argued *** that this new section should have any application to the facts before us.” 189 Ill. 2d at 281. I am unaware of any rule which holds that this state’s highest court can apply the controlling law only if the parties cite it in their briefs. There never has been, and hopefully never will be, such a rule.
In sum, I concur with the majority’s conclusion that a plenary guardian of a disabled adult has standing to maintain a dissolution action filed by the ward prior to the adjudication of the ward’s disability. I do so not for the reasons stated in the majority opinion, but because a controlling statute specifically answers this question.