specially concurring in part and dissenting in part:
Although I agree with the majority’s decision regarding the second certified question, I respectfully dissent from its answer to the first certified question.
In Illinois the statute of limitations generally applicable to claims based upon the rights and liabilities of stockholders is the residual five-year period under section 13 — 205 of the Code of Civil Procedure (the Code) (735 ILCS 5/13 — 205 (West 2000)). However, on occasion, we must also consider the applicability of other limitations provisions. On this occasion, our supreme court has directed us to consider the applicability of the Illinois “borrowing statute” to the circumstances before us in the present case. See 735 ILCS 5/13 — 210 (West 1994). The borrowing statute provides:
“When a cause of action has arisen in a state *** out of this State *** and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.” 735 ILCS 5/13 — 210 (West 1994).
The borrowing statute has three conditions, two of which are apparent from the face of the statute: the cause of action must arise outside Illinois, and the cause of action must be barred by the law of the state where the cause of action arose. See 735 ILCS 5/12 — 210 (West 1994); Employers Insurance of Wausau v. Ehlco Liquidating Trust, 309 Ill. App. 3d 730, 737 (1999). In the present case, neither party disputes that the cause of action arose in Nebraska. Also, neither party disputes that the Nebraska limitations period applicable to plaintiff’s cause of action has expired now. See Neb. Rev. Stat. § 25 — 205 (1994).
One requirement remains for consideration: as a matter of judicial construction, all parties must have been non-Illinois residents at the time the cause of action accrued and all parties must have remained non-Illinois residents until the foreign limitations period expired. Ehlco, 309 Ill. App. 3d at 737. The record reflects and neither party disputes that defendant Petersen established Illinois residency prior to the expiration of the Nebraska limitations period. Thus, at first blush, the conclusion seems rather obvious — the Illinois borrowing statute does not apply because defendant Petersen failed to maintain a continuous residency in Nebraska until the expiration of the limitations period.
In an effort to avoid the obvious, however, the majority concludes that both the appellate court and our supreme court have been misinterpreting Hyman v. Bayne, 83 Ill. 256 (1876), for the past 125 years. The majority notes that cases following Bayne have merely reiterated the non-Illinois residency requirement without questioning its underpinnings in legal analysis or policy. The majority has also failed to find any Illinois case that has offered a colorable policy justification for the continuous non-Illinois residency requirement.
Judicial construction, left undisturbed by the legislature, fairly can be said to reflect legislative intent in that respect. See Miller v. Lockett, 98 Ill. 2d 478, 483 (1983). In Miller, the court found persuasive two purposes of the residency requirement — to promote uniformity of periods of limitation and to discourage forum shopping. Miller, 98 Ill. 2d at 486. In this case, despite the majority’s vigorous assertions to the contrary, I believe that Illinois possesses an interest in discouraging the use of its borrowing statute. See 27th Ill. Gen. Assem., Senate Proceedings, 1871-72, at 378, 513, 618, 837, 843, 870.
The continuous non-Illinois residency requirement promotes uniformity by treating all parties from every state in the same fashion. The residency requirement does not compel us to determine in each circumstance whether a particular forum state has a tolling statute and whether it applies to any particular defendant. The residency requirement prevents a potential defendant from taking advantage of the forum state’s tolling statute. In Nebraska, absence from the state generally does not toll the limitations period. See Neb. Rev. Stat. § 25 — 213 (1994). The residency requirement discourages forum shopping by not allowing parties with unclean hands to flee the forum state in an effort to elude a potential plaintiff, making their whereabouts known only after the limitations period has run, thereby allowing an automatic affirmative defense based upon their own deceit. Plaintiffs are therefore required to diligently pursue their claims against their wrongful party. The result is that potential defendants must avail themselves in their forum state to potential plaintiffs for the requisite period of time. The potential defendants may relocate; however, they are then subject to the laws of this forum. In this case the applicable law has been in existence since 1876 and remains good law.
I believe the courts’ interpretation throughout the years of the continuous non-Illinois residency requirement of the Illinois borrowing statute balances a nonresident plaintiffs interest in pursuing its claim with the defendant’s interest in being amenable to suit for a finite period of time.
The majority notes that the continuous non-Illinois residency requirement draws an arbitrary distinction between parties who move to Illinois on a Monday rather than a Tuesday. I agree. But that is the nature of the beast with respect to statutes of limitation. Statutes of limitation are simple on their face because the time period that the legislature affixes to an action can be measured by the clock. See 735 ILCS 5/13 — 101 et seq. (West 2000). Courts are therefore left with the choice of watching the clock or inquiring into the purpose of the statute. In many cases courts follow the letter of the statute and bar a cause of action if it was not timely filed. To alleviate the hardship in some cases, parties may find relief by applying the tolling statute enacted by our legislature. See 735 ILCS 5/13 — 208 (West 2000).
The majority recognizes that the state of the law regarding the Illinois borrowing statute is unsettled. Unless and until the legislature amends it contrary to our interpretation, the courts’ construction of the Illinois borrowing statute is considered a part of the statute itself. See Kroger Co. v. Department of Revenue, 284 Ill. App. 3d 473, 480 (1996), citing Miller, 98 Ill. 2d at 483. I believe that, rather than our reevaluation, it is up to the legislature to modify its enactment.
In the present case, I would hold that the Illinois borrowing statute for limitations periods is inapplicable even though no party to the cause of action was an Illinois resident at the time the action accrued but because one of the parties later became an Illinois resident within the foreign limitations period.
Therefore, for the foregoing reasons, I would answer the first certified question in the affirmative.