specially concurring:
Although I agree with the result reached by the majority in these consolidated cases, I do not join the majority’s reasoning. In my view, the better, and more direct, analysis is simply to acknowledge the apparent conflict between the clear language of the amended statute, on one hand, and the equally clear language used in the preamble and in the legislative debates, on the other hand, and to recognize that the statute, as enacted, fails to convey the legislature’s intended meaning. The preamble and the legislative debates plainly demonstrate that the legislature did not intend for the repeal of the Structural Work Act (740 ILCS 150/0.01 through 9 (West 1994)) to affect existing causes of action, and we should construe the repealer accordingly.
The majority invokes what it terms a rebuttable presumption of retroactivity and then uses the preamble to the repealing statute, Public Act 89 — 2, to rebut the presumption. The ultimate source cited by the majority for the presumption, however, is Randall v. Wal-Mart Stores, Inc., 284 Ill. App. 3d 970 (1996), whose rationale the majority declines to follow. Randall, which addressed the same question posed here, construed the text of the present statute as ambiguous (Randall, 284 Ill. App. 3d at 973 ("A repealing act which does not state whether it is to be applied retroactively or prospectively is ambiguous to that extent”)) and then employed the language of the preamble to resolve the ambiguity.
By characterizing the rule of retroactivity as a presumption, the court in Randall was able to devise a way to surmount the plain language of the repealer. The rule of retroactivity applicable to the repeal of remedial provisions is generally expressed in stronger terms, however. It is difficult to reconcile the majority’s view of the presumption of retroactivity, and how it may be rebutted, with the statements in the case law explaining the typical operation of a statute that repeals a remedial provision. As this court has previously observed, and as the majority notes elsewhere in today’s opinion (177 Ill. 2d at 226-27), "the unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them.” People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 373 (1939). In Isenstein v. Rosewell, 106 Ill. 2d 301, 310 (1985), this court explained:
"In the absence of a general saving clause or a saving clause within the repealing act, the effect of the repeal of a statute 'is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.’ (1A J. Sutherland,
Statutory Construction sec. 23.33, at 279 (4th ed. 1972).)” The repealing statute, Public Act 89 — 2, does not contain a saving clause within its text; moreover, the general saving clause found in section 4 of the Statute on Statutes (5 ILCS 70/4 (West 1996)) is not applicable to legislation that repeals special statutory remedies like the Structural Work Act (Shelton v. City of Chicago, 42 Ill. 2d 468, 473-74 (1969)).
The means by which the majority permits its presumption of retroactivity to be rebutted should also be contrasted with the means that may be used to rebut the presumption of prospectivity that typically attends legislative enactments. Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 309 (1988). The latter presumption is said to be rebuttable not by extrinsic evidence, as the majority allows here, but only by the statute itself. Rivard, 122 Ill. 2d at 309 ("The presumption of prospectivity is rebuttable, but only by the act itself. Either by express language or necessary implication, the act must clearly indicate that the legislature intended a retroactive application”). By relying on sources outside the language of the act, the majority makes its presumption of retroactivity much weaker than the analogous presumption of prospectivity described in Rivard.
Another problematic link in the majority’s reasoning is its attempt to explain how a preamble may be used for purposes other than to clarify ambiguities— here, to rebut the presumption of retroactivity described above. The majority takes aim at the proposition that a preamble may be used to clarify ambiguities but may not be used to create them. In its discussion of this point, the majority focuses solely on Triple A Services, Inc. v. Rice, 131 Ill. 2d 217 (1989), attempting to show that the opinion in that case did not foreclose the use of preambles for purposes other than the clarification of ambiguities. The majority’s analysis is incomplete, however: what the majority overlooks is that Triple A Services is not the only case to suggest that the role of a preamble is limited to clarifying existing ambiguities. Other authorities contain similar statements, and the majority, under the approach it adopts here, needs to account for the other decisions as well. See, e.g., Brown v. Kirk, 64 Ill. 2d 144, 152-53 (1976). Indeed, the limitation under challenge by the majority seems entirely consistent with courts’ normal practice of employing interpretive aids, such as a preamble, only when the legislative text is less than clear — that is, when the language of the statute is ambiguous — yet here the majority finds the statute unambiguous.
Although I disagree with the majority’s mode of analysis, I agree with the majority’s ultimate conclusion and holding. I believe that the statute at issue here should be placed in that select group of cases in which courts are permitted to supply missing language to correct oversights by the legislature. See, e.g., Carey v. Elrod, 49 Ill. 2d 464, 470 (1971); People v. Hudson, 46 Ill. 2d 177,181 (1970); People ex rel. Cason v. Ring, 41 Ill. 2d 305, 312-15 (1968). In the present consolidated cases, we know from the preamble that the legislature actually intended for the repeal of the Structural Work Act to apply only prospectively. As the majority notes, a preamble is a particularly authoritative statement of legislative intent, having accompanied the underlying bill on its journey through the legislative process. Here, the preamble clearly demonstrates that the legislature did not intend for the repeal of the Structural Work Act to eliminate existing causes of action. Further confirmation for this interpretation, as the majority notes, may be found in the debates of the amendatory legislation, in which the legislative sponsors gave assurances that the repeal would operate only prospectively and would not affect existing causes of action.
In appropriate circumstances, a court construing a statute may supply critical language that is necessary to carry out the legislature’s true intent. Thus, it is well established that "this court has the authority to insert into a statute language omitted through legislative oversight” (People v. Shephard, 152 Ill. 2d 489, 498 (1992). To be sure, "this technique of construction is to be exercised with caution.” Gill v. Miller, 94 Ill. 2d 52, 58 (1983). In the present case, however, obedience to the literal language of the statute would produce a result that is clearly and demonstrably at odds with the legislature’s intent. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Henry v. St. John’s Hospital, 138 Ill. 2d 533, 541 (1990); Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 341 (1987). Consistent with that principle, I believe that the correct course in this case is to insert within the statutory text the saving clause that the legislature obviously intended to include as part of the new provision yet mistakenly omitted from the enacted version of the bill.
The approach suggested here is consistent with familiar principles of our jurisprudence. In People v. McCoy, 63 Ill. 2d 40, 44 (1976), we quoted the following comments by Judge Learned Hand:
" 'Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.’ ” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945).
It requires but little imagination in the present case to see that the legislature intended for the repeal of the Structural Work Act to operate only prospectively, as we know from the preamble to the statute and from the legislative debates of the provision. Because the language used in the body, or purview, of the statute was not equal to that purpose, we should supply the language omitted by the legislature. The legislature clearly intended for the repeal of the Structural Work Act to apply only prospectively. Rather than make a fortress out of the dictionary, we should attempt to carry out the legislature’s intended goal.