Perlstein v. Wolk ( 2006 )

Docket No. 98909.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
DEENA PERLSTEIN et al., Appellees, v. MAURICE WOLK et al.,
Appellants.
Opinion filed February 17, 2006.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Justices Freeman, McMorrow, Garman, and Karmeier concurred
in the judgment and opinion.
Justice Kilbride, joined by Chief Justice Thomas, dissenting.
OPINION
Plaintiffs Deena Perlstein and Scott Schneider filed a legal
malpractice action against defendants Maurice Wolk and Ross &
Hardies. Plaintiffs relied on the limitations period for malpractice
actions set forth in section 13B214.3 of the Code of Civil Procedure,
as amended by Public Act 89B7 (commonly referred to as the Tort
Reform Act). See Pub. Act 89B7, eff. March 9, 1995 (amending, inter
alia, 735 ILCS 5/13B214.3 (West 1994)). Defendants moved to
dismiss the complaint, arguing that this court=s decision in Best v.
Taylor Machine Works, 179 Ill. 2d 367 (1997), which held Public Act
89B7 void in its entirety, rendered plaintiffs= complaint untimely. The
trial court, relying on the void ab initio doctrine, agreed with
defendants and dismissed the complaint with prejudice. The appellate
court reversed. 349 Ill. App. 3d 161. We allowed defendants= petition
for leave to appeal (177 Ill. 2d R. 315) and now affirm the judgment
of the appellate court.
BACKGROUND
I. Limitations and Repose Periods for Attorney Malpractice
Prior to the adoption of Public Act 89B7, section 13B214.3 of the
Code of Civil Procedure established a two-year limitations period and
a six-year repose period for attorney malpractice actions. 735 ILCS
5/13B214.3(b), (c) (West 1994). Subsection (d) of the statute
contained an exception to the repose period:
AWhen the injury caused by the act or omission does not
occur until the death of the person for whom the professional
services were rendered, the action may be commenced within
2 years after the date of the person=s death unless letters of
office are issued or the person=s will is admitted to probate
within that 2 year period, in which case the action must be
commenced within the time for filing claims against the estate
or a petition contesting the validity of the will of the deceased
person, whichever is later, as provided in the Probate Act of
1975.@ 735 ILCS 5/13B214.3(d) (West 1994).
Public Act 89B7, effective March 9, 1995, removed subsection
(d), but otherwise left intact the balance of section 13B214.3. With
the removal of subsection (d), the statute then requiredBwithout
exceptionBthat all legal malpractice actions be brought within two
years from the date the complaining party knew or reasonably should
have known of the injury, but in any event, not more than six years
after the act or omission occurred. 735 ILCS 5/13B214.3(b), (c) (West
1996).
On December 18, 1997, this court entered its decision in Best v.
Taylor Machine Works, 179 Ill. 2d 367 (1997). In Best, we held
certain Acore provisions@ of Public Act 89B7 violated the separation
of powers clause and the prohibition against special legislation. Best,
179 Ill. 2d at 416, 433, 449, 467. Because the core provisions were
inseparable from the remainder of Public Act 89B7, we concluded
that the act must fail in toto. We thus declared Public Act 89B7 Avoid
in its entirety.@ Best, 179 Ill. 2d at 467. That portion of Public Act
89B7 which removed the exception to the statute of repose for
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attorney malpractice actions set forth in section 13B214.3(d) was not
one of the core provisions held substantively unconstitutional.
Nonetheless, because we held Public Act 89B7 void in its entirety,
that portion of the act was also rendered invalid.
Against this statutory backdrop, we consider the nature and
timing of the malpractice action at issue here.
II. The Malpractice Action
Plaintiffs= cause of action for legal malpractice stems from
defendants= preparation, on October 23, 1992, of the last will and
testament of Lawrence A. Perlstein, Deena Perlstein=s husband.
Generally, plaintiffs alleged that defendants negligently prepared the
will, thereby preventing the Lawrence A. Perlstein Trust from
disbursing $300,000 to Scott Schneider, Deena Perlstein=s son, and
causing other damages.
Lawrence Perlstein died on September 23, 1995. On October 16,
1995, the circuit court of Lake County admitted the will to probate
and issued letters of office to Deena Perlstein. On January 8, 1996,
the attorneys for the trustees of the Lawrence A. Perlstein Trust
rendered an opinion that the trustees should not fund the trust on the
ground that Lawrence Perlstein had not properly exercised the power
of appointment in his will. On January 26, 1996, the trustees notified
Deena Perlstein that the trust would not be funded.
At the time Deena Perlstein learned that her late husband=s trust
would not be funded, the changes wrought by Public Act 89B7 had
been on the statute books for almost a year. As noted above,
following the passage of Public Act 89B7, a two-year limitations
period and a six-year repose period appliedBwithout exceptionBto all
attorney malpractice actions. See 735 ILCS 5/13B214.3(b), (c) (West
1996). According to defendants, the two-year limitations period
would have expired, at the latest, on January 26, 1998 (two years
from the date Deena Perlstein purportedly had knowledge that the
trust would not be funded), and the six-year repose period would
have expired October 23, 1998 (six years after the date defendants
prepared the will). Plaintiffs filed their legal malpractice action in the
circuit court of Cook County on January 8, 1998, clearly within the
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limitations and repose periods. 1
Defendants moved to dismiss the complaint with prejudice,
arguing that it was time-barred. See 735 ILCS 5/2B619(a)(5) (West
2002). According to defendants, because Best declared Public Act
89B7 unconstitutional, the act was void ab initio. In effect, Public Act
89B7 Anever was.@ Thus, defendants argued that the exception to the
statute of repose set forth in section 13B214.3(d), which Public Act
89B7 sought to remove, Anever ceased to have validity.@ Under
subsection (d), plaintiffs cause of action should have been
commenced Awithin the time for filing claims against the estate or a
petition contesting the validity of the will of the deceased person,
whichever is later.@ 735 ILCS 5/13B214.3(d) (West 1994). In this
case, the later date was the claims-filing date: April 26, 1996. See
755 ILCS 5/18B3 (West 1996). In defendants= view, plaintiffs=
complaint, filed January 8, 1998, was 20 months late.
Plaintiffs countered that the void ab initio doctrine does not
govern this case. Plaintiffs relied on Illinois case law holding that
where a legislative change in a statute of repose would otherwise
instantaneously bar a plaintiff=s cause of action, the plaintiff will be
allowed a reasonable period of time in which to file its cause of
action. See, e.g., Moore v. Jackson Park Hospital, 95 Ill. 2d 223
(1983); Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684
(1995). Plaintiffs posited that the result should be no different where
the change in the statute of repose results from a judicial decision,
rather than legislative action. Thus, plaintiffs argued that their
complaint, filed just three weeks following this court=s decision in
1
Plaintiffs voluntarily dismissed the Cook County suit on September 5,
2001, and refiled it in the circuit court of Lake County on April 10, 2002.
Defendants admit that the refiled action relates back to the earlier filed
action. Thus, for purposes of determining the timeliness of plaintiffs=
complaint, the parties agree that the relevant filing date is January 8, 1998.
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Best, was filed within a reasonable period of time following the
change in the law.
The circuit court acknowledged that the result might be harsh, but
nonetheless applied the void ab initio doctrine and dismissed
plaintiffs= complaint with prejudice. The appellate court reversed,
holding that such a result would be fundamentally unfair. The
appellate court found that the filing of plaintiffs= complaint, just three
weeks after the Best decision, was within a reasonable period of time
after the change in the repose period for malpractice actions and that
the complaint was not time-barred. 349 Ill. App. 3d at 169-70. The
appellate court remanded the cause for additional proceedings. 349
Ill. App. 3d at 171. This appeal followed.
ANALYSIS
The classic formulation of the void ab initio doctrine, and the one
followed in Illinois, is found in the early case of Norton v. Shelby
County, 118 U.S. 425, 30 L. Ed. 178, 6 S. Ct. 1121 (1886). There, the
Court considered whether an unconstitutional state statute that
created a county board could give validity to the acts of the board.
The Court answered in the negative, stating in relevant part:
AAn unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, as inoperative as though it
had never been passed.@ Norton, 118 U.S. at 442, 30 L. Ed. at
186, 6 S. Ct. at 1125.
See People v. Gersch, 135 Ill. 2d 384, 399 (1990) (AAn
unconstitutional law >confers no right, imposes no duty and affords
no protection. It is *** as though no such law had ever been passed,@
quoting People v. Schraeberg, 347 Ill. 392, 394 (1932), in turn citing
Board of Highway Commissioners v. City of Bloomington, 253 Ill.
164, 176 (1911), in turn citing Norton, 118 U.S. 425, 30 L. Ed. 178, 6
S. Ct. 1121). Thus, under the Norton rule, an unconstitutional statute
is void ab initio, i.e., void Afrom the beginning.@ See Black=s Law
Dictionary 1604 (8th ed. 2004).
Defendants argue that our case law mandates strict application of
the void ab initio doctrine in both civil and criminal cases,
irrespective of the consequences, and that the appellate court erred in
failing to apply the doctrine in this civil case. Plaintiffs argue that the
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better approach takes into account the equities of a case, and that
under the equities here, their complaint should be allowed to proceed.
We consider these arguments in turn.
I. Strict Application of the Void Ab Initio Doctrine
In support of their argument for strict application of the void ab
initio doctrine, defendants rely principally on the Gersch opinion. In
Gersch, we considered whether our earlier decision in People ex rel.
Daley v. Joyce, 126 Ill. 2d 209 (1988), should apply retroactively to
Gersch=s case. In Joyce, we held that section 115B1 of the Code of
Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115B1),
which granted the State a right to demand a jury in certain criminal
trials, was unconstitutional. Gersch argued in his direct appeal that
the State=s jury demand in his case violated his constitutional right to
a bench trial. In holding that Joyce would apply retroactively to
Gersch=s case, we stated:
AA constitutionally repugnant enactment suddenly cuts off
rights that are guaranteed to every citizen (Ill. Const. 1970,
art. I, '1 (>All men *** have certain inherent and inalienable
rights=)), and instantaneously perverts the duties owed to
those citizens. To hold that a judicial decision that declares a
statute unconstitutional is not retroactive would forever
prevent those injured under the unconstitutional legislative
act from receiving a remedy for the deprivation of a
guaranteed right. This would clearly offend all sense of due
process under both the Federal and State Constitutions.
[Citations.] Along with these considerations, we note that this
court has expressly held that a defendant cannot be
prosecuted under an unconstitutional act.@ Gersch, 135 Ill. 2d
at 397-98.
We concluded that Awhere a statute is violative of constitutional
guarantees, we have a duty not only to declare such a legislative act
void, but also to correct the wrongs wrought through such an act by
holding our decision retroactive.@ Gersch, 135 Ill. 2d at 399. To
correct the wrong wrought in Gersch=s case, we reversed his
conviction and remanded the cause for a new trial. Gersch, 135 Ill. 2d
at 401-02.
Unlike the statute at issue in Gersch, the portion of Public Act
89B7 that removed section 13B214.3(d) from the attorney malpractice
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statute of limitations did not Asuddenly cut off rights guaranteed to
every citizen@ or even to these particular defendants. Attorneys in this
state possess no constitutional guarantee of a particular limitations or
repose period for malpractice actions. Thus, the change made in the
repose period by Public Act 89B7 did not perpetrate a Awrong@
against defendants requiring correction. Indeed, the amendment to the
repose period was rendered invalid simply because it could not be
severed from the balance of Public Act 89B7, and not because it
contravened any constitutional principle. In other words, the
invalidity of the amendment to section 13B214.3 was simply
Acollateral damage@ from the force of this court=s declaration in Best
that the core provisions of Public Act 89B7 were substantively
unconstitutional. Under these circumstances, and in contrast to the
Gersch case, failing to adhere strictly to void ab initio principles
would not deprive defendants of a remedy for the deprivation of a
constitutional right because no such right is implicated.
Notwithstanding these important factual distinctions between
Gersch and the present case, defendants argue that the void ab initio
doctrine must be strictly applied in this civil case just as it was in
Gersch. Defendants note that Gersch, itself, contains citation to civil
cases from this court applying the doctrine. E.g., Gersch, 135 Ill. 2d
at 390, citing Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378
(1970). The civil cases cited in the Gersch opinion establish, at most,
that the void ab initio doctrine can be applied to a civil case; they do
not establish that the doctrine should be applied to civil cases
generally, or to this civil case in particular. Moreover, the Gersch
opinion left open the issue of whether application of the void ab initio
doctrine is always appropriate in cases outside the area of criminal
prosecutions:
AWe must note, however, that courts have been struggling
with the potentially harsh results of the ab initio doctrine,
particularly where law enforcement officials have relied in
good faith on the validity of a statute [citations], or where the
invalidation of rules of criminal procedure would allow
otherwise guilty criminals to win their freedom [citation].
Attempting to avoid these problems, courts have attempted to
temper the ab initio doctrine=s harsh results *** to minimize
unfairness. [Citation.] However, scholars have noted that in
the area of criminal prosecution, the ab initio principle is
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especially appropriate.@ (Emphasis added.) Gersch, 135 Ill. 2d
at 399-400.
We are, therefore, reluctant to extend the reach of Gersch beyond
cases involving criminal prosecutions.
Defendants also cite our more recent decisions in Petersen v.
Wallach, 198 Ill. 2d 439 (2002), and Jorgensen v. Blagojevich, 211
Ill. 2d 286 (2004). Defendants argue that Petersen and Jorgensen
establish that the void ab initio doctrine must be applied in this case
despite the possibility of harsh results. We disagree.
As defendants note, Petersen and the present case involve the
same statute. At issue in Petersen, however, was the proper
construction of section 13B214.3(d). Petersen states: AThe sole issue
presented by this appeal is whether the exception to the six-year
statute of repose for attorney malpractice actions *** applies only in
cases where the assets of the deceased pass by way of the Probate Act
***.@ Petersen, 198 Ill. 2d at 441. In the course of deciding that issue,
we quoted with favor the following passage from an earlier case:
A > AWhere the words employed in a legislative enactment are
free from ambiguity or doubt, they must be given effect by
the courts even though the consequences may be harsh,
unjust, absurd or unwise. [Citations.] Such consequences can
be avoided only by a change of the law, not by judicial
construction.@ = @ Petersen, 198 Ill. 2d at 447, quoting County
of Knox ex rel. Masterson v. The Highlands, L.L.C., 188 Ill.
2d 546, 557 (1999), quoting People ex rel. Pauling v.
Misevic, 32 Ill. 2d 11, 15 (1964).
Whether, under our rules of statutory construction, an absurd or
unjust result should impact our reading and application of a clearly
worded statute is unrelated to the issue of whether the void ab initio
doctrine should be applied in a given case.
Defendants are correct that, in a footnote, the Petersen opinion
implicitly applies the void ab initio doctrine. Petersen, 198 Ill. 2d at
443 n.1. We note, however, that neither the plaintiff nor the defendant
attorney argued that the void ab initio doctrine should not apply in
that case. Consequently, we were not asked to consider whether it is
ever appropriate to temper the doctrine=s harsh results. Any harsh
results in Petersen resulted from our construction of the statute, not
from application of the void ab initio doctrine. Defendants= reliance
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on Petersen is misplaced.
The Jorgensen case is also distinguishable from the present
dispute. At issue in Jorgensen was Awhether the General Assembly
and the Governor violated the Illinois Constitution when they
attempted to eliminate the cost-of-living adjustments [COLAs] to
judicial salaries provided by law for the 2003 and 2004 fiscal years.@
Jorgensen, 211 Ill. 2d at 287. We answered that question in the
affirmative and refused to Asuspend@ constitutional requirements for
economic reasons, namely, the impact on the state=s budget.
Jorgensen, 211 Ill. 2d at 316. In the course of our decision, we held
Public Act 92B607, which suspended the 2003 COLA,
constitutionally infirm and void ab initio. Jorgensen, 211 Ill. 2d at
309. Here, plaintiffs do not request that we Asuspend@ constitutional
requirements by enforcing an unconstitutional statute. Rather,
plaintiffs ask that we consider the equities of this case and allow their
complaint to proceed. Jorgensen does not aid in our resolution of this
issue.
We acknowledge that defendants= positionBadvocating strict
application of the void ab initio doctrineBhas a certain surface appeal,
creating as it would a bright-line rule which could be applied with
relative ease. Defendants= position, however, unduly discounts the
real life consequences flowing from a statutory enactment. When the
General Assembly enacts legislation such as Public Act 89B7, that
legislation is presumptively valid. See, e.g., In re Marriage of Bates,
212 Ill. 2d 489, 509 (2004) (AStatutes are presumed constitutional@);
Beaubien v. Ryan, 198 Ill. 2d 294, 298 (2001) (statutory enactments
are Acloaked with the presumption of validity@). Individuals,
including plaintiffs here, Aare entitled to rely on State statutes when
>making decisions and in shaping their conduct.= @ Board of
Commissioners of the Wood Dale Public Library District v. County
of Du Page, 103 Ill. 2d 422, 429 (1984), quoting Lemon v. Kurtzman,
411 U.S. 192, 199, 36 L. Ed. 2d 151, 160, 93 S. Ct. 1463, 1468
(1973). See also Adukia v. Finney, 315 Ill. App. 3d 766, 770 (2000)
(recognizing, in a post-Best case, that Aa party should not be
penalized for his good-faith reliance on existing law@). Individuals
are not required or empowered to determine whether the law is
constitutional; that duty belongs to the judiciary. Gersch, 135 Ill. 2d
at 398-99. Strict application of the void ab initio doctrine fails to take
into account these realities, creating a ACatch-22.@ Individuals are
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entitled to rely on a legislative enactment, presuming it is valid, but
must suffer the consequences of doing so should this court later hold
that law unconstitutional.
Although defendants note that courts in other jurisdictions strictly
apply the void ab initio doctrine (e.g., Spanish Cove Sanitation, Inc.
v. Louisville-Jefferson County Metropolitan Sewer District, 72
S.W.3d 918, 921 (Ky. 2002); McGuire v. C&L Restaurant Inc., 346
N.W.2d 605, 614 (Minn. 1984)), our research reveals that courts do
not do so universally. As discussed below, courts in other
jurisdictions frequently consider the equities of a case and will take
steps to ameliorate the harsh results from the doctrine=s strict
application. Whether Illinois should adopt a similar approach is the
issue we now consider.
II. An Equitable Approach
As noted above, Illinois= void ab initio doctrine has its roots in the
early case of Norton v. Shelby County, 118 U.S. 425, 30 L. Ed. 178, 6
S. Ct. 1121 (1886). Under the Norton rule, the invalid statute is
Aeliminated entirely from the consideration of a case.@ O. Field, The
Effect of an Unconstitutional Statute 3 (1935). No weight is given to
the fact that the statute was enacted by the legislature, approved by
the Governor, and relied upon by the people prior to it being declared
invalid by a court. O. Field, The Effect of an Unconstitutional Statute
3 (1935). Under this approach, some courts have gone so far as to
rule that Aan unconstitutional statute could not protect an officer who
executed it or a person who acted in reliance upon it for personal
liability for the consequences of their actions.@ 1 N. Singer,
Sutherland on Statutory Construction '2:7, at 47 (6th ed. 2002).
The failure of the Norton rule to consider the reliance interests of
individuals was described early on by the New Jersey Supreme Court
as follows:
AThe vice of the doctrine of Norton v. Shelby County ***
is that it fails to recognize the right of the citizen, which is to
accept the law as it is written, and not to be required to
determine its validity. The latter is no more the function of
the citizen than is the making of the law. *** To require the
citizen to determine for himself, at his peril, to what extent, if
at all, the legislature has overstepped the boundaries defined
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by the constitution *** would be to place upon him an
intolerable burden.@ Lang v. Mayor & Chief of Police, 74
N.J.L. 455, 459 (1907).
The United States Supreme Court has also recognized that
inequities can result from strict application of the Norton rule. See
Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371,
84 L. Ed. 329, 60 S. Ct. 317 (1940); Lemon v. Kurtzman, 411 U.S.
192, 36 L. Ed. 2d 151, 93 S. Ct. 1463 (1973). In Chicot County, Chief
Justice Hughes, writing for a unanimous Court, noted that Abroad
statements,@ such as those in Norton, Aas to the effect of a
determination of unconstitutionality must be taken with
qualifications.@ Chicot County, 308 U.S. at 374, 84 L. Ed. at 332, 60
S. Ct. at 318. The Court explained that A[t]he actual existence of a
statute, prior to such a determination, is an operative fact and may
have consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration.@ Chicot County, 308
U.S. at 374, 84 L. Ed. at 333, 60 S. Ct. at 318.
The Court again took up the shortcomings of the Norton rule in
the Lemon case. There, Chief Justice Burger (in a plurality opinion)
acknowledged the difficulty in attempting to reconcile Athe
constitutional interests reflected in a new rule of law with reliance
interests founded upon the old.@ Lemon, 411 U.S. at 198, 36 L. Ed. 2d
at 160, 93 S. Ct. at 1468. Chief Justice Burger recognized that
although the logic of Norton may have been appealing Ain the
abstract,@ Astatutory or even judge-made rules of law are hard facts on
which people must rely in making decisions and in shaping their
conduct.@ Lemon, 411 U.S. at 199, 36 L. Ed. 2d at 160, 93 S. Ct. at
1468.
Numerous courts are in agreement that Norton represents the old
rule as to the effect of an unconstitutional statute. See, e.g., Ryan v.
County of Du Page, 45 F.3d 1090, 1094 (7th Cir. 1995)
(acknowledging that the Aold doctrine,@ under Norton, pursuant to
which unconstitutional statutes are void ab initio Ahas been
abandoned@); Trucke v. Erlemeier, 657 F. Supp. 1382, 1391 (N.D.
Iowa 1987) (observing that the United States Supreme Court
abandoned the Norton rationale and suggesting that Aif Norton and its
progeny were decided today, the outcome would be different@);
United States v. DePoli, 628 F.2d 779, 782 (2d Cir. 1980)
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(recognizing that the Norton view, under which an unconstitutional
law is treated as having had no effects whatsoever from the date of its
enactment, has been replaced by a more Arealistic approach@); W.R.
Grace & Co. v. Department of Revenue, 137 Wash. 2d 580, 594 &
n.10, 973 P.2d 1011, 1017 & n.10 (1999) (rejecting parties= reliance
on the now-abandoned void ab initio doctrine and referring to Norton
as Aantiquated Supreme Court authority@); American Manufacturers
Mutual Insurance Co. v. Ingram, 301 N.C. 138, 147-50, 271 S.E.2d
46, 51-52 (1980) (stating that, A[d]epending on the circumstances,
courts have employed other rules which avoid the hard and fast
consequences of the rule enunciated in Norton,@ and that North
Carolina has retreated from that rule); Wagshal v. Selig, 403 A.2d
338, 341-42 (D.C. App. 1979) (discussing the decline of the Aonce-
popular >void ab initio= rule@ and following the Arecent trend in
adopting a test of reasonableness and good faith in determining the
effect which the judicial invalidation of a statute or regulation should
have on the rights and obligations of the parties who have taken
action pursuant to an invalid provision@); Perkins v. Eskridge, 278
Md. 619, 627-37, 366 A.2d 21, 27-32 (1976) (discussing the
development of the void ab initio rule and other approaches used
when determining the status of a statute declared unconstitutional,
and joining those jurisdictions which have refused to apply the void
ab initio rule in all situations), overruled on other grounds by Parrott
v. State, 301 Md. 411, 483 A.2d 68 (1984).
Further, at least one legal scholar has recognized that, in light of
the injustice and inconvenience which may follow when the void ab
initio doctrine is strictly applied, the Amodern trend@ is away from
void ab initio toward a more equitable and realistic approach that is
tempered by considerations of reasonableness and good-faith reliance
on the purportedly valid statute. 1 N. Singer, Sutherland on Statutory
Construction '2:7, at 47-49 (6th ed. 2002). See also E. Plave, Note,
The Phenomenon of Antique Laws: Can a State Revive Old Abortion
Laws in a New Era?, 58 Geo. Wash. L. Rev. 111 (1989) (discussing
the development and decline of the void ab initio doctrine and
alternative approaches); O. Field, The Effect of an Unconstitutional
Statute 91 (1935) (suggesting that Norton=s dogmatic statement is not
true, i.e., ACourts have held that unconstitutional statutes have
imposed duties, have granted rights, have created offices, and have
some operative effect@).
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The circumstances under which state courts have found it
appropriate to reject the void ab initio doctrine, in favor of a more
realistic and equitable approach, are varied. For example, in Downs v.
Jacobs, 272 A.2d 706 (Del. 1970), the Delaware Supreme Court
declined to apply the Norton rationale in a landlord and tenant
dispute involving a distraint for unpaid rent:
AThe Delaware Landlord Distress Law has never been
adjudged unconstitutional. Therefore, it is clothed by a
presumption of constitutionality. [Citations.] The [defendants]
in the instant case were entitled to rely upon that presumption
of constitutionality and validity, and to act reasonably and in
good faith under the provisions of the Law as it then existed.
Citizens and public officials have a right to accept the law as
it is written until it is repealed or judicially condemned. They
are not required to speculate upon the validity of a statute or
to act under it at their peril. Until legislatively or judicially
excised, a statute is an operative fact. Courts presume every
legislative act constitutional and indulge every intendment in
favor of validity. No penalty may be visited upon citizens for
doing likewise.@ Downs, 272 A.2d at 707.
More recently, in Dutch Point Credit Union, Inc. v. Caron Auto
Works, Inc., 36 Conn. App. 123, 648 A.2d 882 (1994), a Connecticut
appeals court declared a statute unconstitutional on due process
grounds and then considered the effect of its ruling on the plaintiff=s
claim for damages. The plaintiff held a lien on a motor vehicle which
the defendant repair facility had sold, pursuant to the invalid statute,
without notifying the plaintiff. The Connecticut court declined to
award damages. The court observed that, in response to the Supreme
Court=s statements in Chicot County and Lemon,
Aa number of jurisdictions have adopted tests of
reasonableness and good faith to determine the consequences
of conduct undertaken pursuant to a statute subsequently
deemed invalid. [Citations.] Those jurisdictions have
concluded that, generally, it would be an injustice to penalize
a person for actions taken under a statute that was valid at the
time of the conduct. We join those jurisdictions, and
recognize that citizens have the right to accept statutory law
as written until it is repealed or invalidated; citizens are not
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required to speculate on the constitutionality of a statute
before acting under it. We, therefore, hold that citizens will
not face personal liability for acting reasonably and in good
faith reliance on the provisions of a statute that is later
declared unconstitutional.@ Dutch Point, 36 Conn. App. at
134-35, 648 A.2d at 888.
Of particular relevance here is a Missouri case, State ex rel.
Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583
S.W.2d 107, 118 (Mo. 1979). There, the Missouri Supreme Court
held that medical malpractice claims, timely submitted under a statute
later held unconstitutional, were not time-barred under the void ab
initio doctrine. The statute at issue required that all medical
malpractice claims be submitted first to a review board which would
make a nonbinding recommendation on liability and damages.
Submission of the claim to the board, with appropriate notice to the
defendants, tolled the running of the limitations period for
malpractice claims during the time required for the board to consider
the matter. The Missouri Supreme Court held the statute invalid in
that it imposed a procedure as a precondition to access to the courts,
in violation of the Missouri constitution. Cardinal Glennon, 583
S.W.2d at 110.
A month after Cardinal Glennon was decided, the Missouri
Supreme Court, in a supplemental opinion, addressed the status of the
numerous claims that were pending before the review board.
Cardinal Glennon, 583 S.W.2d at 118. The court noted that the
claimants Aundoubtedly relied on the protection afforded them by the
tolling provision.@ Cardinal Glennon, 583 S.W.2d at 118. Citing
Norton and other case law, the court acknowledged that, in the past,
an unconstitutional statute conferred no rights from the date the
statute was enacted, and not merely from the date of the decision
holding it invalid. The court concluded, however, that the Amodern
view@ rejects this rule Ato the extent that it causes injustice to persons
who have acted in good faith and reasonable reliance upon a statute
later held unconstitutional.@ Cardinal Glennon, 583 S.W.2d at 118.
The court observed that, if the tolling provisions are viewed as
retroactively unconstitutional, those claimants who reasonably and in
good faith relied upon the statute to protect their right to submit their
claims to the courts would suffer a Amanifest injustice.@ Cardinal
Glennon, 583 S.W.2d at 118. Accordingly, the court ordered that the
-14-
statute of limitations would be tolled for claims submitted to the
review board between the effective date of the statute and the
effective date of the court=s declaration of invalidityBan
approximately two-year period. Cardinal Glennon, 583 S.W.2d at
118. 2
Although this court is not bound by trends in the law occurring
outside our jurisdiction, this court has considered whether Illinois law
is consistent with our sister states and, where appropriate, has
adopted the views of other jurisdictions. See, e.g., American Family
Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378, 385-86 (2000)
(overruling, in part, a prior decision of this court because Athe modern
trend@ in favor of according estoppel effect to criminal convictions
was correct); River Park, Inc. v. City of Highland Park, 184 Ill. 2d
290, 311 (1998) (noting that our adoption of the transactional test to
determine whether identity of causes of action exists for purposes of
res judicata is consistent with Athe trend of decisions in other
jurisdictions@); Wilson v. Clark, 84 Ill. 2d 186, 195 (1981)
(explaining that A[t]his court=s following of Federal Rules 703 and
705 comports with the modern trend liberalizing certain trial
procedures@). Upon careful review, we are persuaded by the
foregoing authorities that this court should adopt a more moderate
approach when determining the effect of a declaration by this court
that a statute is unconstitutional.
We do not, however, abandon the Norton rule. In cases such as
Gersch, where a defendant=s constitutionally guaranteed rights are in
need of vindication, strict application of the void ab initio doctrine is
appropriate. In other cases, however, where no such rights are at
stake, other equitable and practical factors are appropriate for
consideration by this court. The issue is not so much a matter of
2
The Missouri Supreme Court later clarified the operation of its decision
tolling the limitations period by considering three particular malpractice
claims. State of Missouri ex rel. Knipschild v. Bellamy, 615 S.W.2d 38 (Mo.
1981).
-15-
applying or not applying the void ab initio doctrine, as it is
determining whether a particular set of circumstances justifies a
court=s exercise of its equitable powers to ameliorate the doctrine=s
sometimes harsh results. Consideration of the circumstances in this
case leads us to conclude that plaintiffs= complaint should be allowed
to proceed.
III. The Present Dispute
At the time Deena Perlstein learned that her husband=s trust would
not be funded, Public Act 89B7 had been in effect for almost a year.
Under section 13B214.3, as amended by Public Act 89B7, Deena
Perlstein and her son were required to file their malpractice action
within two years from the date they knew or reasonably should have
known of the injury but, in any event, not more than six years after
the act or omission occurred. 735 ILCS 5/13B214.3(b), (c) (West
1996). Before either period expired, this court decided Best, holding
Public Act 89B7 void in its entirety. Best, 179 Ill. 2d at 467. Plaintiffs
filed their complaint three weeks after Best was decided, but still
within the limitations and repose periods.
Defendants argue that these circumstances do not justify a
departure from the void ab initio doctrine. In other words, the
equities are not in plaintiffs= favor. Defendants note that nothing in
Public Act 89B7 Acompelled@ plaintiffs to delay in filing their claim.
Defendants also note that Public Act 89B7 and the immediate
constitutional challenges to the act received Aconsiderable public
attention.@ Defendants thus question plaintiffs= reliance on a Anew,
controversial statute.@
We agree with defendants that nothing in Public Act 89B7
Acompelled@ plaintiffs to wait almost two years before filing their
complaint. Numerous legitimate reasons, however, may exist for not
filing sooner. We will not assume that plaintiffs were less than
diligent in pursuing their claim or otherwise acted unreasonably
simply because they did not file their complaint within the first three
months of what was then a two-year limitations period.
Furthermore, plaintiffs were entitled to rely on the two-year
limitations period and six-year repose period because Public Act
89B7 was presumptively valid. See Wood Dale Public Library
District, 103 Ill. 2d at 429. From the date of its inception, to the date
of this court=s decision invalidating it, Public Act 89B7 was, for all
-16-
intents and purposes, Athe law.@ The changes wrought by Public Act
89B7 were Ahard facts@ on which individuals, including plaintiffs,
necessarily relied Ain making decisions and in shaping their conduct.@
Lemon, 411 U.S. at 199, 36 L. Ed. 2d at 160, 93 S. Ct. at 1468.
Whether Public Act 89B7 was Acontroversial,@ as defendants
maintain, is inapposite. This court, when it considered the challenges
to Public Act 89B7 raised in Best, began its analysis with the
presumption that the act was constitutional. Best, 179 Ill. 2d at 377.
That presumption was not lessened or compromised simply because
the legislationBor more correctly, certain key provisions of the
legislationBmight be described as Acontroversial.@ Similarly, the fact
that constitutional challenges to Public Act 89B7 received
Aconsiderable public attention@ did not require plaintiffs to anticipate
with certainty that the change to the repose period for legal
malpractice actionsBwhich was not itself under reviewBwould fall,
along with the key provisions of the act, ultimately barring their
complaint. Indeed, in light of the express severability provision
contained in Public Act 89B7 (Pub. Act 89B7, '990, eff. March 9,
1995), plaintiffs should not be faulted for relying on the continuing
validity of section 13B214.3(d), notwithstanding the fact that
constitutional challenges had been made to other sections of the act.
Our case law firmly establishes that a change in the law
shortening a limitations period will not be applied retroactively so as
to terminate a cause of action unless the claimant has had a
reasonable period of time after the effective date of the change in
which to file an action. Guzman v. C.R. Epperson Construction, Inc.,
196 Ill. 2d 391, 402 (2001); Mega v. Holy Cross Hospital, 111 Ill. 2d
416, 420 (1986); Arnold Engineering, Inc. v. Industrial Comm=n, 72
Ill. 2d 161, 166 (1978); Meegan v. Village of Tinley Park, 52 Ill. 2d
354, 359 (1972). The reasonable-time rule also applies to a change in
the law affecting a period of repose. M.E.H. v. L.H., 177 Ill. 2d 207,
216-17 (1997); Mega, 111 Ill. 2d at 420-22. Underlying the
reasonable-time rule are Abasic concepts of justice, fairness and
equity.@ Phillips v. Johnson, 231 Ill. App. 3d 890, 895 (1992).
Although this judicial Asafety valve@ was created in response to
changes in the law resulting from legislative action (People v. Bates,
124 Ill. 2d 81, 87 (1988)), no reasoned basis exists for distinguishing
between that situation and the one present here where a change in the
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law results from a judicial decision. As our appellate court observed:
AA change in a statute of repose by either legislative enactment or
judicial decision yields the same result.@ 349 Ill. App. 3d at 169.
Moreover, this court has held that the reasonable-time rule will apply
Aeven in those instances in which the legislature has expressed an
intent that the limitations period be applied retroactively.@ Guzman,
196 Ill. 2d at 402; accord Bates, 124 Ill. 2d at 87. If the rule applies in
those instances, then it should also apply where a change in a
limitation or repose period results from one of this court=s own
decisions. See Adukia, 315 Ill. App. 3d at 770-71 (holding that
defendant had a reasonable time after Best in which to file her
contribution action).
In this case, by virtue of our decision in Best, no period of time
remained in which plaintiffs could file their complaint. Their
complaint was instantaneously barred when the prior version of
section 13B214.3 became operative again. Accordingly, plaintiffs
should have been allowed a reasonable period of time in which to file
their complaint. No fixed rule exists for determining what constitutes
a reasonable time following a change in the law in which a plaintiff
must initiate litigation. Rather, our court has adopted a case-by-case
approach. M.E.H., 177 Ill. 2d at 218-19. Using the unexpired portion
of the limitations or repose period on which a plaintiff relied to define
what constitutes a reasonable time for bringing suit may be
appropriate where the unexpired portion is relatively short. M.E.H.,
177 Ill. 2d at 218. Here, by defendants= calculations, 52 weeks of the
two-year limitations period and approximately 10 months of the
repose period remained at the time Best was decided. Plaintiffs filed
their complaint within three weeks of Best. Under these
circumstances, we hold that plaintiffs filed their complaint within a
reasonable period of time following the change in the law, and that
their complaint is not time-barred.
Allowing plaintiffs= complaint to proceed does not mean, as
defendants suggest, that this court is enforcing an unconstitutional
statute. Plaintiffs= complaint will proceed not because the amended
version of section 13B214.3 governs this dispute, but because the
circumstances here justify the exercise of our equitable powers to
ameliorate the harsh results from this court=s declaration that Public
Act 89B7 is void.
-18-
Allowing plaintiffs= complaint to proceed also does not mean, as
defendants argue, that courts in future cases may now effectively
ignore the void ab initio doctrine and, with it, the Illinois
Constitution. We reiterate that our decision in this case does not
signal an abandonment of the void ab initio doctrine. Public Act 89B7
remains void in its entirety. Our decision simply recognizes that
although this court may declare a statute unconstitutional, it cannot
erase the fact of the statute=s existence. See Chicot County, 308 U.S.
at 374, 84 L. Ed. at 333, 60 S. Ct. at 318 (AThe past cannot always be
erased by a new judicial declaration@); L.Tribe, American
Constitutional Law '3B3, at 28 (2d ed. 1988) (A >the courts have no
real power to repeal or abolish a statute, and ... notwithstanding a
decision holding it unconstitutional a statute continues to remain on
the statute books= @), quoting 39 Ill. Att=y Gen. Op. 22 (1937). Finally,
our decision in this case does not require courts in other cases
involving different litigants, different statutes, and different
circumstances, to rule in favor of the party claiming reliance on a
statute later held unconstitutional. Each case must be judged on its
own merits.
CONCLUSION
For the reasons discussed above, we affirm the judgment of the
appellate court reversing the judgment of the circuit court and
remanding the cause to the circuit court for further proceedings.
Affirmed.
JUSTICE KILBRIDE, 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 Amodern 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 plaintiff=s action, untimely filed, and then
-19-
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:
AWhen 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
-20-
cases decided after the entry of judgment in Keslick. The court held
that a reversal of the judgment would serve no useful purpose
because plaintiff=s 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 A[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). Slip op. at 11.
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
Awrongs wrought@ by the unconstitutional statute. Conversely, the
limitations provision at issue here did not perpetrate a wrong against
defendants requiring correction. Slip op. at 7. The majority dismisses
the declaration of the limitations provision=s invalidity as simply
Acollateral damage@ from the force of the determination in Best v.
Taylor Machine Works, 179 Ill. 2d 367 (1997), that the core
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provisions of Public Act 89B7 were unconstitutional. Slip op. at 7.
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 89B7 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 ACatch-22@ if individuals must suffer the
consequences of relying on the presumptive validity of a legislative
enactment later held unconstitutional. Slip op. at 9-10. 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. Slip op. at 8.
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:
APublic Act 89B7 [citation] partially amended section
13B214.3 by repealing subsection (d). The public act was held
-22-
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 13B214.3 and the text of that section
remains in its form prior to our decision in Best.@ Petersen,
198 Ill. 2d at 443 n.1.
We then construed section 13B214.3(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 5/13B214.3(c) (West 1994)). We
therefore concluded plaintiff=s 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 A[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. Slip op. at 8-9. 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. Slip op. at 9. Nonetheless, the legislature and the Governor
relied on the COLA curtailments in budget planning, and our decision
-23-
undoubtedly impacted those budgetary presumptions. Our opinion
rested, however, purely on constitutional grounds and we did not find
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 89B7, section
13B217 of the Code of Civil Procedure (735 ILCS 5/13B217 (West
2002)). Before the amendment, section 13B217 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 89B7, 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 89B7, 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 13B217 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: A[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 13B217 in effect prior to the
enactment of Public Act 89B7 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
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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 89B7 in its entirety
and, therefore, the prior version of section 13B214.3 remained in
effect. Poullette, 328 Ill. App. 3d at 795 n.1. 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.
Slip op. at 11-15. As the majority concedes, other jurisdictions have,
however, strictly applied it. Slip op. at 10. 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. Slip op at 11. 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:
AIt 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 be 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
-25-
considered in various aspectsBwith 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 13B214.3(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 A >the constitutional interests reflected in a
new rule of law with reliance interests founded upon the old.= @ Slip
op. at 11, 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.
-26-
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 89B7.
Plaintiffs could have filed their action after learning of the alleged
malpractice any time prior to the estate claim date, April 26, 1996.
They chose not to file, even though constitutional challenges to
Public Act 89B7 were filed immediately after its passage and were
widely reported in legal publications. See, e.g., C. Rodin, With ATort
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 Awholesale 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.
-27-
CHIEF JUSTICE THOMAS joins in this dissent.
-28-