*1 (No. 105050. the Estate Adm’r of O’CASEK, Special
MARJORIE CHIL Deceased, Appellee, Thompson, Carla ILLI OF AID SOCIETY HOME AND DREN’S al., et (OSF Ap Center Medical Joseph St. NOIS pellants). filed,June
Opinion *2 of & Culbertson Lischer, Hinshaw of Nancy G. LLf^ OSF (Paul counsel), appellants for Estes, of C. Chicago Castillo. Richard and Systems Healthcare and Gammelgard Ryan D. Nyweide, L. Christopher Schroe- Brandt & Taft, Barger, Livingston, G. Barbara Emmerson. G. Susan Bloomington, appellant for der, of Terrace, appellee. Tancredi, Oakbrook Nicola S. judgment delivered FITZGERALD JUSTICE court, opinion. with Kilbride, Burke concurred Freeman, Justices opinion. judgment dissented, opinion, joined Karmeier with Justice Thomas and Justice Garman. Chief Justice
OPINION (OSF), Richard Defendants, Systems OSF Healthcare Emmerson, M.D., Castillo, M.D., appeal D. and Susan G. reversing the court judgment from *3 action. At is malpractice medical plaintiffs dismissal O’Casek, special plaintiff, Marjorie sue is whether deceased, Thompson, of Carla administrator of the estate in to file a 90-day to a extension was entitled action, merit, malpractice in of her support certificate of the Code of Civil by section 2—622 of required 2002)). (West (735 Resolution Procedure ILCS 5/2 —622 Public Act 90—579 on whether of this issue turns 2—622 which this court that version of section reenacted in Best unconstitutional, severability principles, on held ap Works, Ill. 2d 367 Machine Taylor that, to Public according held court pellate Best “disappeared with of section 2—622 that version Ac App. reenacted.” 374 and was never 90-day extension entitled to a plaintiff was cordingly, her complaint should be proceed. allowed to 374 Ill. 3d at 515.
For the follow, reasons that we affirm the judgment of the appellate court.
BACKGROUND History Section 2—622 Before section 2—622 of the Code of Civil Procedure (commonly known as the Art Healing Malprac- Act) tice stated relevant part, as follows: (a) “§2 Healing malpractice, any action, art In —622. tort, otherwise,
whether contract or in which the plaintiff damages injuries seeks or death reason of medical, hospital, healing or other malpractice, art plaintiff’s attorney plaintiff, or the if the is se, proceeding pro affidavit, shall file an attached to the original copies and all complaint, declaring one of following:
1. That the affiant has consulted and reviewed the facts of the case with a professional health who the affiant (i) reasonably knowledgeable believes: is in the relevant is- (ii) particular action; sues involved in the practices or has practiced years within the taught last 6 or or teaches has years within the last 6 in the same area of health care or (iii) particular action; medicine that at is issue qualified by experience or competence demonstrated subject case; reviewing that the profes- health sional has determined in report, a written after a review of the medical record and other relevant material involved in particular action that there is a reasonable and filing action; meritorious for the cause of such and that the affiant has concluded on the reviewing basis of the health professional’s review and consultation that there is a filing reasonable and meritorious cause for of such action. If the affidavit is filed as to a physician defendant who is a licensed to treat human drugs ailments without the use of dentist, or medicines and operative surgery, without podiatrist, psychologist, report or a the written must be *4 professional from a profession, health licensed in the same For af- license, the defendant. same class with the defendants, report the written other filed as to all fidavits medicine in practice licensed to physician from a must be identify event, must In either the affidavit all its branches. copy A reviewing professional. health of the profession the clearly identifying the report, of the written professional’s determi- reviewing health for the the reasons fil- for the meritorious cause a reasonable and nation that affidavit, exists, to the must be attached ing of the action identify reviewing health but information which would may copy from the so attached. professional be deleted consultation unable to obtain a 2. That the affiant was of limitations a statue required by paragraph because required the consultation impair the action and would expiration statute not be obtained before could to this pursuant If affidavit is executed of limitations. an required report and written paragraph, the certificate days filing after the 1 shall filed within 90 paragraph be be excused from complaint. The defendant shall days being pleading until 30 after answering or otherwise by paragraph 1.” 735 required with a certificate served 1994). (West ILCS 5/2—622 622, upon filing of section Under this version 2— affidavit, malpractice plaintiff an a medical appropriate required to file the 90-day entitled to a extension merit, the plaintiff certificate of of whether irrespective his or her cause of voluntarily had dismissed previously Czelatdko, Ill. 3d App. action. Cargill 37-38 (2004); Burstein, Neuman v. (Pub. Amendments of 1995 The Civil Justice Reform 1995) amended section 2—622 eff. March 622(a)(1) First, the in section respects. language two reviewing profes- health identity permitting from was stricken report sional to be deleted from “The was added: following language and the statute address of the include the name and the report shall Second, appeal, relevant to this professional.” health 622(a)(2) require- to add another was amended section 2— *5 ment affidavit, to the attorney namely, that the “plaintiff has not previously voluntarily dismissed an action based upon the same substantially or acts, the same omissions, or Thus, occurrences.” under Public Act a plaintiff 89— precluded from obtaining 90-day extension to file a certificate of merit if plaintiff previously voluntarily dismissed the same or substantially the same cause of ac- tion.
On December
1997, this court held Public Act
89— 7 void in its entirety. Best,
§2 Healing malpractice. art —622. (a) action, tort, In otherwise, whether in contract or plaintiff which the damages injuries seeks or death medical, hospital, reason of healing or other art malpractice, plaintiffs attorney plaintiff, or the if the se, proceeding pro affidavit, is shall file an at- original copies complaint, and all the of the tached to declaring following: one of the
1. That the affiant has consulted and reviewed the professional facts of the case with a health who the af- (i) reasonably knowledgeable is in the fiant believes: (ii) action; particular relevant issues involved in the practices practiced years or has within or the last taught years in the teaches or has within the last same area of health care or medicine that is at issue in (iii) particular action; qualified experi- subject or in the competence ence demonstrated case; reviewing professional health has determined in written report, after a review of the medical record and other relevant material involved particular action that there is a reasonable and *6 filing action; meritorious cause for of such and that the affiant reviewing has concluded on the basis of the professional’s health review and consultation that there is a reasonable and meritorious filing cause for such action. If the affidavit is filed as to a defendant physician who is a licensed to treat human ailments drugs without the use of or medicines and without operative surgery, dentist, podiatrist, psycholo- or a gist, naprapath, or a report written must be from a professional health profession, licensed the same license, with the same class of as the defendant. For af- defendants, fidavits filed as to all other the written report physician must be from a practice licensed to event, medicine in all its branches. In either the af- identify fidavit must profession reviewing of the professional. health copy report, A of the written clearly identifying plaintiff and the reasons for the reviewing professional’s health determination that a filing reasonable and meritorious cause for the of the exists, action must be attached to the affidavit. The report shall include the name and the address professional. health previously voluntarily
2. That the has not upon dismissed an action based the same or substan- omissions, tially acts, the same or occurrences and that the affiant was to required unable obtain a consultation paragraph because a statute of limitations would
impair required could action and consultation expiration not be obtained before the of the statute of pursuant If limitations. an affidavit is executed paragraph, report required the certificate and written by paragraph days filed after the shall be within 90 filing complaint. The be defendant shall excused answering days pleading from or otherwise until 30 being required by certificate after served with a paragraph 1.
% % % (i) amendatory apply This 1997 does not to or pending actions at the time itsof affect date, effective applies its but to cases on or filed after effective (Strikeouts original.) Pub. Act date.” italics 1,May eff. further amend During years, the next several no adopted, published ments to section 2—622 were and no directly ad from the court or this court opinion of Public Act 90— 579 on section dressed effect Center, v. Condell Medical Giegoldt 2—622. But see (2002) (where Ill. 3d the Second District that Public Act 90—579 reenacted implicitly recognized 622). 2004, however, In the 1995 version of section 2— interlocutory an appeal, the Fourth District entertained (155 308(a) 308(a)), to Rule R. which pursuant asked: “Did EA. 90—579 resurrect the amend expressly ments 2—622 of the Code of Civil Procedure [s]ection (inserted 7) had found unconsti by EA. been *7 Supreme Court’s decision Best tutional the Illinois Czelatdko, v. 353 Ill. Taylor Cargill Machine Works?” 654, The court answered App. appellate 3d at 661. App. the affirmative. 353 Ill. Cargill, legisla appellate In court noted Cargill, prevailing of the knowledge ture is to act with presumed Accordingly, App. 353 Ill. 3d at 658. Cargill, case law. was aware appellate presumed court Act 89—7. and its on Public ruling impact of the Best Cargill, 353 Ill. 3d at App. appellate 658. The court held 579, that when the legislature passed Public Act 90— 7, with the same language Public Act 89— legislature intended it to have the same effect and was simply following supreme court’s pronouncement Best that desirable provisions could be reenacted. Cargill, App. Ill. 3d at 660. The appellate rejected court plaintiffs argument that Public Act 90—579 was defec tive because the operative language was not italicized. Cargill, App. 3d at 660-61. The explained court (5 that section 5 of the Statute on Statutes ILCS 70/5 (West 2002)), on relied, which the “does not require italics for new matters to be valid.” Cargill, Ill. App. 3d at 660. appellate that, The court concluded “in looking at the plain statute, language if a physician’s report is not attached to the complaint, plaintiff must attach an affidavit indicating he ‘has not previously voluntarily dismissed an action based upon ” the same or substantially the same acts.’ Cargill, 353 App. 661, 622(a)(2) (West 3d at quoting 735 ILCS 5/2 — 2002). court further held that in a refiled art healing malpractice case the circuit court has no discretion to waive the affidavit requirement, and that failure to comply mandates dismissal of the complaint prejudice. with Cargill, 353 Ill. 3d at Approximately seven months following the Cargill opinion, the General Assembly passed Public Act 94— 25, 677. Effective August 2005, Public Act 94—677 made various changes Illinois law with the stated purpose of addressing the “health care crisis” and instituting “reforms to the justice civil system” and to “the current medical malpractice situation.” Pub. Act art. §101, August eff. 2005. Relevant appeal, to this sec- tion 330 of Public Act 94—677 amended the Code of Civil Procedure by “reenacting changing” section 2—622. Pub. Act 3, §330, art. August 25, eff. 2005. Un- *8 the 1995 version of which used like Public 90— pre-1995 used the 622, Public Act 94—677 section 2— exception the it also of section with version 2— in amendment contained naprapath the incorporated the clarity, we set forth below Public Act 90— 579. For of Public Act 94—677: provisions pertinent by reenacting amended “The Code of Civil Procedure is 2501, by changing changing Sections 2—622 and and 8— and by adding Sections 2—1704.5 and Section 8— as follows: 2—1706.5 622) (735 622) (from 110, par. Ch. ILCS 5/2— (Text changes made PA. of Section WITHOUT unconstitutional) held which has been Healing malpractice. 2—622. art Sec. (a) tort, otherwise, action, or contract In whether injuries or death damages seeks plaintiff in which the medical, healing art hospital, or other by reason of if the attorney plaintiff, or the plaintiffs malpractice, affidavit, se, at- shall file an proceeding pro is copies complaint, of the original and all tached to the declaring following: one reviewed the consulted and
1. That the affiant has the af- professional who with a health facts of the case (i) knowledgeable in the reasonably is believes: fiant (ii) action; particular involved relevant issues years or the last 5 6 practiced within practices or has in the years 5 6 taught within the last teaches or has medicine that is at issue of health care or same area (iii) action; expert witness meets particular (d) (a) through paragraphs standards set forth 2501; demon- by experienee--or qualified Section 8— case; subject of the in the competence strated in writ- determined a professional has reviewing health medical record review of the report, after a ten ac- particular in the material involved other relevant cause meritorious a reasonable and that there is tion action; the affiant has and that filing of for the such reviewing profes- health on the basis concluded is a reason- that there and consultation review sional’s A action. filing of such cause for meritorious able and report single written each must be to cover filed in the action. As to who are defendants defendant individuals, filed the If affidavit is as to a defendant physician a -licensed who-is to treat-human ailments of-drugs or medicines and without-the use without dentist, operative-surgery, podiatrist, psycholo- a *9 gist7-or-a-naprapath, report The from written must be professional a health in the same profession, licensed license, with the same of as the For class defendant. reports written affidavits filed as to all other defen- dants, individuals, report who are not the written must physician from a in all practice be licensed to medicine qualified by experience branches is its who with the methods, care, procedures standard and treatments of allegations relevant to the at in the In either issue case. event, report identify the written must the affidavit profession professional. of reviewing copy the health A clearly of the written report, identifying plaintiff the the reviewing professional’s and reasons for the health determination a reasonable and cause meritorious filing exists, the including of the action the review- name, address, ing professional’s health care current number, licensure, license state and must be attached of affidavit, identify to the but information which would the-reviewing professional-may- health be delcted-from :. regarding the Information preparation report a by reviewing written health of professional against shall not be used to discriminate professional liability medical issuance of setting professional’s insurance or in medi- of liability premium. professional cal No insurance organization may against reviewing discriminate professional reviewing health on the that the basis professional prepared health has report. a written 2. That the affiant was to obtain unable a consulta- required by paragraph tion of because a statute impair limitations would the action the consulta- required expira- tion not could be obtained before the of tion the statute of limitations. If an affidavit pursuant executed to paragraph, this the affidavit report by paragraph certificate and written required days filing shall filed within after of be complaint. 90-day pursuant No additional extensions paragraph granted, except shall where there this be plaintiff’s has The been withdrawal counsel. answering defendant shall be excused from or other- days being wise until after with an pleading served report by para- and a a certificate required affidavit graph 1.
s=* * (j) changes amendatory The to this made Section Assembly apply Act the 94th General to causes action (Strikeouts accruing date.” on or its ital after effective August eff. original.) ics Pub. Public 94 —677 The effect of Acts 90 —579 and on present dispute, subject section 2—622 is which we now turn.1 Dispute Present August
On filed an amended County in the circuit court complaint alleg at law Cook with ing medical defendants connection malpractice *10 decedent, Thompson, tonsillectomy performed a on Carla complaint August 2000.2 Attached to the amended on attorney stating provided by plaintiff’s an affidavit with a that he had been unable to obtain consultation professional expiration health before the statute of limitations, report and required and that certificate so, Plaintiff to do days. would be filed within 90 failed 13, 2007, County, circuit court 1On November of Cook portion of Public Act case No. 2006 L declared a 94—677 entirety. ruling act in its That has unconstitutional and the invalid directly pursuant Supreme Court appealed to this court to been (210 302(a)(1)) currently pending. Leb Rule 302 Ill. 2d R. and is Hospital, cons. Nos. rón v. Gottlieb Memorial complaint, complaint, as the refiled 2The amended as well against the Home and Aid negligence included a count Children’s facility Society, operated the residential where which owned and party appeal. entity This is not a to this the decedent resided. and defendant Emmerson filed a section 2—619 motion 2002)). (735 (West Plaintiff to dismiss ILCS 5/2—619 voluntarily responded with a dismiss the motion (735 (West 2002)). complaint ILCS The trial 5/2—1009 granted plaintiffs prejudice. court motion without year February plaintiff later, 23, 2004, on refiled One Although her cause of action. the refiled action was brought County, transferred, in Cook the cause was later County. motion, on OSF’s McLean Attached to the re- complaint plaintiffs filed was an affidavit from counsel stating that had he been unable to obtain a consultation professional required with a health and that the certifi- report days. cate would be filed within 90 Within the days, plaintiffs attorney filed certificate of merit physician’s report. with a OSF
Defendants and Castillo filed a section 2—619 arguing, part, plaintiff motion to dismiss in relevant that satisfy requirements had failed to of section 2—622. Relying opinion Cargill, on the court’s defendants maintained where, here, a certificate complaint, plaintiffs of merit is not attached to the attorney stating, pertinent part, must file an affidavit “ previously voluntarily ‘has not dismissed upon substantially an action based the same or the same ” Cargill, quoting acts.’ 3d at 735 ILCS (West 622(a)(2) 2002). argued Defendants 5/2 — light voluntary plaintiff’s of the earlier dismissal of complaint, plaintiff satisfy require could not the affidavit plaintiff’s ments of section 2 — 622 cause action should be dismissed. Defendant Emmerson filed a similar response, plaintiff argued dismissal motion. In that the requirement affidavit on which defendants relied violates equal protection clause of the federal and state by imposing constitutions an excessive restriction on *11 malpractice plaintiffs’ judicial medical access to the system, compelling a without state interest. See U.S. XTV¡ 1970, I, §2. The
Const., §1; Ill. art. amend. Const. argument rejected plaintiffs equal protection trial court granted defendants’ dismissal motions. reconsideration, arguing for filed motion Plaintiff passed time Public Act 90—579 was for first that Illinois three-readings clause of the violation §8(d)). (Ill. 1970, IV( Plaintiff art. Constitution Const. 2—622 time, for the first that section argued, further (U.S. §1; Ill Const., amend. process violates due XIY §2) I, impermissible art. and constitutes Const. (Ill. §13). IV( 1970, art. Plaintiff Const. special legislation challenge. her Defendant equal protection also reasserted plaintiffs filed a to strike reconsidera Emmerson motion new motion, raised arguing plaintiff improperly tion Electric Cooperative theories. See Coles-Moultrie legal Sullivan, City of Public pending, motions were foregoing
While later, sought plaintiff A month Act 94—677 became law. In her motion. leave to her reconsideration supplement Public Act 94—677 argued that supplement, plaintiff did not Assembly the General clearly establishes changes to substantive intend 90—579 make Public to naprapaths than to add to section other plaintiff, According professionals. list of health reenacted Public Act 90— 579 holding Cargill —that error, made section 2—622—was the 1995 version of section version pre-1995 and that under to file a 90-day extension was entitled to obtain she voluntary merit, her notwithstanding prior certificate of objected plaintiffs supplement, dismissal. Defendants issues, raising new improperly arguing by Cargill, plaintiffs bound circuit court was should be stricken. supplement for motion plaintiff’s court denied circuit the basis not disclose The record does reconsideration. ruling. court’s *12 and complaint the dismissal of her appealed Plaintiff her The Fourth the denial of reconsideration motion. dissent, District, App. with 374 Ill. 3d 507. The reversed. that, to Act held Public the majority according 94— Best “disappeared 1995 version of section 2—622 with and was never reenacted.” 374 Ill. 3d at 512. The App. majority parenthetical language ap focused on the that 677, prior in Public Act the pears to text of 94— amendment. Ill. 512. App. language 3d at This states: “(Text PA. of Section WITHOUT made changes unconstitutional).” (Empha has been held which 677, §330, sis in original.) Pub. Act eff. August majority explicit 2005. The viewed this as an language rejection of the 1995 2—622. Ill. version section App. 3d at 512. The majority also concluded that legislature’s use the pre-1995 version of section 2—622 template as a for the amendments made Public 94—677 should be as a construed continuation of an old not law and as a new App. enactment. 374 Ill. 3d at 513. The majority “[t]he concluded that legislature recognized amendment, Public Act for naprapath 90—579 its but not, in contradiction to Cargill’s assessment of Public effect, Act 90—579’s for reenactment civil- reform language.” (Emphasis original.) 374 Ill. App. 3d at pre-1995 513. Because the version of section 2—622 a 90-day allowed extension to file the certificate required and physician’s report, regard without whether had previously voluntary dismissal, taken appellate court reversed the of plaintiff’s dismissal complaint and remanded the matter to the trial court. App. at Knecht,
Justice in dissent, maintained that the circuit properly court relied precedent on the established decided, Cargill, correctly that majority’s approach was majority proposes flawed. “The to reverse that careful to precedent by adherence defer-
ring legislative attempts say to a later enactment is not because that not what what law was interpret it does its wanted to be. not enactments —the courts do.” 374 Ill. 3d at 515 (Knecht, J., dissenting). an petition rehearing ap
Defendants filed a plication for a certificate of See Const. importance. VI, §4(c); art. 155 Ill. 2d R. 316. The granted the rehearing petition, ap court denied the but plication importance. for a certificate of The certificate it is “to the issue of whether granted states review *13 version Public 90—579 resurrected civil-reform of 2—622 of the Code of Civil Procedure.” Under section 316, however, comes us Rule “the whole case before and People v. Distribut a just particular not issue.” Crawford (1979). Co., ing 73
ANALYSIS of a motion to dispose The section 2—619 is purpose of issues of fact easily proved early of issues law District, v. Park Van Meter Darien litigation. (2003). Here, 2d the basis for defendants’ 367 to plaintiff’s alleged dismissal motions was the failure requirements with the affidavit and certificate comply litigation section Throughout 2— 622. section that the failure to file a certificate 622(g) provided has grounds section 2—622 shall be for dismissal required See, e.g., 622(g) under section 2— 619. 735 ILCS 5/2 — (West 2002). motion, a the review appeal
On from section 2—619 whether existence of ing court “must consider fact have genuine precluded issue of material should fact, an whether or, absent such issue dismissal & 103rd Kedzie as matter law.” dismissal proper Exchange, Hodge, Inc. v. Ill. 2d 116-17 Currency 156 2—619 motion disposition A of a section court’s Meter, 2d novo. Van Ill. is reviewed de at Whether dismissal was this case turns on proper statutory an reach this issue of construction. Before we issue, however, we must consider two mat- preliminary (1) ters forfeited defendants raise: whether issue, as statutory review of the construction well as other plaintiffs issues first raised in reconsideration mo- (2) tion and supplement; principles whether of stare precluded decisis court from appellate reexamining its earlier decision Cargill.
Forfeiture argue that, Defendants with the exception of her equal protection argument, plaintiff forfeited consider ation of the raised in her issues reconsideration motion and supplement by failing to raise such issues earlier. See Gardner Navistar Transportation International (1991) Corp., (stating that litigants permitted mute, should not be to stand lose a motion, gather and then material new show court erred in ruling). its court rejected defen dants’ argument, forfeiture citing duty the “court’s maintain a body sound precedent,” as well the oft- cited proposition that forfeiture is a limitation on the parties and not court. Ill. App. 3d at 514. For the reasons, following reject also defendants’ forfeiture argument. *14 argument
The lead in to plaintiffs supplement her reconsideration motion the of concerned effect Public Act 94—677 on section 2—622. Plaintiff could have not raised in argument this response to defendants’ dismissal mo- tions or in her initial reconsideration motion because Public Act 94—677 yet had not been enacted. While plaintiff’s reconsideration motion pending, was Assembly passed General and, Public Act 94—677 within date, month of its plaintiff sought effective leave to supplement her plaintiff reconsideration motion. Because raised argument so, this at the first opportunity to do we
438
decline defendants’ invitation to find this issue forfeited based on a claim untimeliness.
Plaintiff also raised new issues on reconsideration independent of Public Act 94—677. Plaintiff were Act argued legislative history of Public 90—579 did not intend to demonstrated reenact the 1995 of section 2—622. Plaintiff also version To challenges raised new constitutional to the statute. consideration of these issues extent forfeited sooner, raise to them we will overlook failing and maintaining forfeiture in the interest of sound Raben, uniform Hux v. body precedent. Stokovich, 211 (1967);
225
Lake
v.
Village
accord
Villa
(2004).
below, the
Ill. 2d
As discussed
law within
to
regarding
the Fourth District
various amendments
potential
is confused and the
exists for
section 2—622
among
conflict
districts.
appellate
case
in this
being
We note that while this
briefed
court,
of the Fourth District “overruled”
panel
another
v.
court
now under review. Crull
judgment
Ill.
Crull states:
Sriratana, 376
3d 803
App.
clarify
regarding
to
our
position
need
this court’s
“[W]e
here,
rely
Cargill, upon
earlier decision
incorrectly
court concluded was
decided.
which the O’Casek
adhere
disagree
We
with that conclusion and
both
analysis. To
that O’Casek is
Cargill’s result and
the extent
case,
hereby
Cargill
with
or
O’Casek
inconsistent
Crull,
App. 3d
Ill.
at 817.
overruled.”
J.,
Crull,
(Myerscough,
3d
App.
But see
at
(stat
part)
concurring
dissenting
specially
part
“is at
disagreement with O’Casek
ing
majority’s
that the
dicta”).
and mere
inappropriate
best
District,
Zim
Additionally,
Beauchamp
the First
(2005),
given
has
a favor
merman,
Beauchamp states:
Cargill opinion.
able nod
regarding the effect
been
confusion
“[T]here has
some
Act
argued
have
that Public
Some
Public
90—579.
*15
only
requirements
intended
to extend the
90—579 was
practice
healing
art of
section 2—622 to those who
[i.e., 1995]
‘naprapathy,’
pre-Besi
rather than to reenact the
622; however,
argument
version
section rejected
squarely
Cargill,
App.
this court in
353 Ill.
3d
Thus,
provisions
at
Stare Decisis argue Defendants also that this court should reverse the appellate judgment court in order to affirm principles of stare decisis. Defendants maintain that adherence to precedent required is it unless can be shown that “seri ous detriment likely to arise that will prejudice the public Worden, interest.” People (1998). According defendants, majority’s “the overturning of its own Cargill decision does not advance public Instead, interest. the decision does a disservice courts, to all of the lower litigants courts of review and that relied on the Cargill decision over the course of the last years.” few
“The doctrine of stare decisis is the means by courts merely ensure that the law will not errati- change cally, but develop intelligible will in a principled Bar Ass’n v. Illinois State Board Chicago
fashion.”
Elections,
Where
court of
and ar
already
upon
review reexamines
an issue
ruled
*16
of stare
decision,
straight path
rives at an
the
inapposite
decisis is
affected,
as well as the reliance interests
concerns,
bench,
These
litigants,
the
and the bar.
however,
basis on which to reverse
provide an insufficient
present
the
court in the
case.
appellate
“
‘[Sitare decisis
courts to follow the deci
requires
courts,
to
higher
sions of
but does not bind courts
follow
”
v. State
Gillen
courts.’
equal
decisions of
or inferior
Co.,
381,
Farm Mutual Automobile Insurance
Motorola,
Inc., (2005),
quoting
392 n.2
Schiffner
(1998).
1099,
Thus,
opinion
Ill.
3d
the
of one
district, division,
the
court
is not
panel
appellate
or
Gillen,
districts, divisions,
binding
panels.
on other
or
here
not
appellate
We our a fundamental rule statutory construction: “Statutes are to be construed they they as were intended to be construed when were passed.” People Boreman, v. legislative
Thus, the
intent that controls the construc
legislature
public
tion of a
passed
act is the intent of the
which
subject
legisla
act,
and not the intent of the
Boreman,
ture which amends the act.
“It enough, figure is difficult at out what one legislature by particular provision. ‘intended’ statute or all, Assembly After our person General is not an actual feels, reasons, intends, who and acts as a unit. Instead it is entity, up a collective made of 118 flesh-and-blood individu- who, minds, may privacy by als of their own mean any particular provision anything nothing. or The collec- legislative body impels tive of a nature us to seek ‘intent’ statutes, objective in the informed words of its our sense, judgment own common than in the rather inevitably subjective thoughts of individual members. complicated enough. complicate
This task is We it still when infer one further we seek to what subsequent legislature, intended from the of a action later composed perhaps working of different members and Hicks, purposes.” People towards different 119 Ill. 2d (1987) J.). (Clark, C.J., Simon, dissenting, joined by (1979) (“it See also Roth v. Yackley, difficult and the logically perceive how declaration can Assembly simply amendments 80th General be Assembly of the intent clarification 77th General originally years enacted the statute seven earlier only comprised since a fraction of the individuals who times”). Assembly were the same at both General Thus, proceed cautiously examining courts must when legislative past legisla future enactments for evidence of tive intent. case,
In the court examined present the 94th General As passed by Public intent General As sembly, to determine the 90th years seven sembly passed when it Public Act 90— 579 *18 following earlier. The court first focused on the 94— that in Public Act parenthetical language appears “(Text of Sec to the text of the amendment: prior 7, by made PA. changes tion WITHOUT the 89— unconstitutional).” (Emphasis original.) has been held 677, §330, 25, August appel eff. 2005. Pub. Act 94— by language explicit rejection late court read this as an Assembly the of the 1995 version of section General at 2—622. 374 maintain, however, that language
Defendants this by by Legislative not but legislature, was added duties, Bureau, statutory of its after part Reference adopted. argue Public Act 94—677 was Defendants merely part is shown for reference and is not a language (West 2004) of the act. See 25 ILCS et seq. 135/0.01 duties); Legisla the Bureau and its (establishing defining Bureau, tive Reference Illinois Bill Manual Drafting 2007) 02, (January at at 206-07 §25 §70 — — references). (discussing parenthetical Defendants argue that, in the if legislature alternative even added this it akin language, preamble title, is to a or which is not dispositive legislative intent. See Atkins v. Deere & Co., assume,
We will arguendo, parenthetical if language, not added the legislature, was at least before the when it adopted Public Act 94— said, 677. That agree with defendants parenthetical language legislative does not evince intent. Rather, informational, ¡Le., this language the text of the amendment parenthetical language follows the is, fact, the text of changes section 2—622 without the made Public Act held which was unconstitu- tional. To the extent language could be read as some most, legislative intent, evidence of at it to the speaks intent of the 94th Assembly General when it adopted Public Act 94—677 and not the intent of 90th Assembly adopted General when it Public Act 90—579. The appellate court’s determination that Public Act 90—579 did not reenact the 1995 version of section 2—622 was also based on its conclusion that Public 94—677 “continued” pre-1995 version of section *19 622, recognizing only Public Act 90— 579 for its
naprapath amendment. 374 Ill. 3d at 513. While we agree recognize that Public Act 94— 677 appears amendment, only naprapath Public Act 90—579 for its we are reluctant to conclude that Public Act 94—677 merely pre-1995 continued the version of section 2—622. We note that section 330 of Public Act 94—677 plainly by states: “The Code of Civil Procedure is amended reenacting changing (Empha Section[ ] 2—622 ***.” added.) 3, §330, Act art. August sis Pub. eff. (as law) 2005. “Reenact” means “to enact again.” Web Dictionary ster’s Third New International Thus, any “To reenact” does not mean “to continue.” the intent legislature’s conclusion about based on continuation is not on purported pre-1995 law ground. firm above, difficulty discerning encountered the Assembly
intent of the 90th General
based on the actions
Assembly,
of the 94th
is
the situation
precisely
General
Hicks,
Justice Clark warned.
119 Ill. 2d at
about which
J.).
(Clark, C.J.,
Simon,
Thus,
dissenting,
joined by
we
statutory
rule of
construction
return
with
analysis:
are to be construed as
began
our
“Statutes
they
they
intended
to be construed when
were
were
Boreman,
passed.”
Public Act 90—579 was weeks Best. We legislature presume court’s decision Best decision, including this court’s was aware reenact it was free to whatever pronouncement ap deemed desirable or in Public Act 89—7 it provisions Paz, La v. De People See propriate.
(2003) knowledge to act with (legislature presumed law). of this Application presumption case prevailing did inference that support lends to the Act 89—7 it provision that —reenacted a of Public just however, new mat- plaintiff argues, deemed As desirable. or amendatory by act is indicated italics ter an Assembly underscoring. regard, In this the General expressly Act states: Operations Act, amendatory changes made “In the case of an amendatory Act shall indicated in the session laws be (i) new matter shall be following in the manner: all (ii) amendatory underscored; deleted all matter 10/10(1) be crossed with a line.” 25 ILCS shall shown (West 2004). addition, provides:
In the Statute on Statutes *20 construing amendatory any printed
“In an Act published January after 1, 1969, volume session laws printed matter in italics shall be construed as new matter amendatory Act, added the and matter shown crossed line with a shall be construed as matter deleted from the (West 2004). amendatory law the Act.” 5 ILCS 70/5 Similarly, the Illinois and Senate currently House rules provide, as did Act they when Public 90—579 was adopted, that in bill that amends a statute new “[a]ll matter shall be underscored” and matter that is to “[a]ll be omitted or superseded shall be shown crossed awith 37(e), line.” 95th Ill. Gen. Assem. House R. Senate R. 1(e); 37(e), 90th Ill. Gen. Assem. House R. Senate R. 5— 1(e).3 5—
Because the Illinois requires Constitution that a “bill expressly amending a law shall set forth the completely (111. 1970, §8(d)), sections amended” Const. art. I\^ requirement of italics or underscoring highlight new matter an plays important discerning legislative role Here, intent. only highlighted words Public Act 90—579 are the adding naprapaths words to the list of health professionals, lending support inference only change was intended. 1, Act May Pub. eff. 90— interchange underscoring note that used
3We italics and are ably. generally System See The Bluebook:A Uniform of Citation (18th 2005) conventions). (discussingtypeface ed. To resolve these inferences competing regarding legislature, go intent of the we will outside the language of Public Act 90—579 and examine legislative history. its argue language Defendants of Public Act 90— aids, unambiguous 579 is resort to extrinsic like legislative history, is inappropriate. agree We intent can “[w]hen drafters’ be ascertained from the statutory it must be effect resort language, given without to other aids construction.” Illinois Co. v. Graphics Nickum, Here we cannot discern the drafters’ intent from the language Public it plain may however be. As the court explained: question “The is not whether the civil- resurrected, validly reform version of section if plainly prohibits 90-day extension where a has previously voluntarily question dismissed. The is whether Public Act 90—579 did in resurrect the civil-reform fact (Emphasis original.) version of section 2—622.” at 514-15. began Public Act 90—579 its life as Senate Bill 120. 29, 1998, On six after January approximately weeks Best decided, Senator Robert addressed Senate Madigan Bill 120: *** Madigan: “Senator The Conference Committee *21 puts naprapaths 1 Bill or the
Report No. to Senate profes practice naprapathy of in line with other medical malpractice stating [a] when it comes to suit sions against naprapath malpractice an affidavit a in a suit has naprapath. simply all completed to be another That’s opposition that it does. I—I am aware of no to this bill and Commit would ask favorable consideration Conference Assem., Report tee 1 to Bill 120.” 90th Ill. Gen. No. Senate (statements 29, 1998, Proceedings, January at Senate Madigan). Senator vote, immediately
The Senate thereafter took a unani mously Report. the Conference Committee Sen adopting Assem., passed. ate Bill 120 declared 90th Ill. Gen. was 29, 1998, at 46. Less than a Proceedings, January Senate spoke Representative on Senate Daniel Burke later, week colleaguesin the House: Bill 120 to his *** out having passed Bill Senate “Burke: committee, Executive in our just considered Senate practice Committee, to do with yesterday, has state, and, when a particular, in in the Naprapathy any in the against naprapath brought action is malpractice be asked to state, currently, only medical doctor would asking that the statute be testify in that action. We are naprapaths profes as the suggest and include amended ***.” 90th testify malpractice in actions sional that would 4, 1998, February at Assem., Proceedings, Ill. Gen. House Burke). (statements Representative Representatives vote, thereafter took The House of Report. unanimously adopting Conference Committee passed. As 90th Ill. Gen. Senate Bill 120 was declared Proceedings, February 4, 1998, at 11. sem., House history legislative discussion of is devoid of that it or the Civil Justice Reform Amendments Best affirmatively legislative history addition, struck. In Assembly’s intent, when demonstrates that the General simply napra- adopted it Public Act was to add paths coverage 2—622. This is consistent to the of section language only naprapath with the fact highlighted. Although, giving context, the amendment legislature the 1995 version of section used Accordingly, regard legislative oversight. as a we we hold Public Act 90—579 did not reenact the version held invalid in Best. To of section 2—622 that this court Cargill, Crull, cases hold the extent that and other they hereby otherwise, are overruled. opinion holding is consistent this court’s
Our with Clark, National Ass’n v. U.S.Bank legislature considered, alia, There inter whether charges certain limitations on lender intended to reenact (815 la 4.1a of the Interest Act ILCS section 205/4. (West2002)), implicitly repealed had been in 1991. See amended that section when *22 448 496,
Pub. Act
January 1,
eff.
1992. The 1991 amend
ment added
provisions,
two
but otherwise left unchanged
the text of the statute that had
implicitly
been
repealed.
argued
defendants
if the
portion
relevant
of
section 4.1a
implicitly repealed
1981,
was
then the
amendment
of that
section in 1991 constituted
its
Bank,
“readoption.” U.S.
rejected
at 353. We
argument:
provides
“Our Statute on
provisions
Statutes
that ‘the
statute,
any
of
they
so far as
are the
same as those of
statute,
prior
shall be construed as a continuation of such
prior provisions, and not as a new enactment.’ 5 ILCS 70/2
(West 2004).
general
While this
rule is not limited to cases
implicit repeal,
of
it
analysis
is relevant
to our
in that
Specifically addressing
context.
requirements
reenacting
implicitly repealed statute,
an
this court
explained
Lily
Lake Road
County
Defenders
1,
McHenry,
(1993),
Ill. 2d
8
that the
‘must
expressly reenact a statute
repealed by
which has been
implication to
again.’
render
it valid and enforceable
added.)
(Emphasis
***
Here,
portion
[relevant]
of section 4.1a
was not
changed by the 1991 amendment. The text of
Act
Public
clearly designated
consisting
87—496
the amendment as
(e)
(f),
subparts
highlighting
addition of
those
provisions
merely
while
reprinting, unchanged, the remain
ing,
preexisting
January
text. See
Pub.
eff.
87-—
6406).
(amending
Ill. Rev. Stat.
par.
ch.
Nothing in
or
amendatory
the text
structure of the
act
any legislative
reveals
‘express’ intent to ‘reenact’ the ceil
ing
charges
Indeed,
on lender
in section 4.1a.
our Statute
specifically precludes
on Statutes
that conclusion. See 5
(West 2004);
Lake,
Lily
ILCS
2d at 7.” U.S.
70/2
Bank,
In rejected U.S. Bank we also argu defendants’ ment legislature, adopted when it the 1991 amendment, to overcome the attempting implicit repeal provisions section 4.la’s limitation that was v. Diamond Il recognized Mortgage Corp. Currie 1988). (7th Bank, 216 Ill. U.S. Cir. linois, F.2d 1538 *23 argument, rejecting considered, we In 2d at 356. history things, legislative among other any wholly finding devoid of it amendment, that was considering rulings the issue of cases or discussion of repeal. implicit 2d 356. We held Bank, 216 Ill. at U.S. in either the indication in the absence history, legislative language could we or its of the statute implicitly legislature reenacted the that the not conclude repealed portion amendment, of section 4.1a its charge rendering limitation in section the lender thus again. Bank, 2d at 216 Ill. and valid U.S. 4.1a enforceable implicit recognize involved the that U.S. Bank We repeal present statute, case involves of a whereas express public Accord- act this court. invalidation of legisla- ingly, applied in the rule we U.S. Bank—that expressly which has been ture must reenact statute repealed by implication to render it valid and enforceable recognize, again inapplicable however, here. We also —is was, bottom, the task in Bank at same that our task U.S. today discerning legislative in intent connec- we face — the indicia of such tion with a claimed reenactment —and ap- equally in Bank are intent that we examined U.S. notwithstanding plicable Thus, the dif- to the case at bar. comparisons cases, favorable ference between two may be drawn. (Public Act
Here, Bank, in the amendment as U.S. 579), reenacted the invalid which defendants claim 90— (the 622), highlighted of section statute 1995 version 2— (the naprapath addition of the a minor amendment merely unchanged, language) reprinting, the bal while nothing Bank, of the text. As we observed U.S. ance an indicates or structure” of the amendment the “text Bank, reenact the invalid statute. U.S. intent to history legislative Bank, Further, 2d at 354. like U.S. of the public act at issue contains no discussion of the (Best) opinion rendered the underlying statute (Public 7) Bank, U.S. invalid. Finally, we will not construe the mere iteration of a prior law as a (West new enactment. See 5 ILCS 2004); 735 ILCS 70/2 (West 2004). Thus, the conclusion we reach here 5/1 —102 is necessarily the same conclusion U.S. we reached Bank: did not intend a reenactment.
Based on the foregoing, agree with her medical malpractice complaint governed by the pre-1995 version of section as amended with the addition of the naprapath language found in Public Act 90— 579. That version contains no limitation on obtain ing a 90-day extension to file a certificate merit in a (West refiled action. See 735 ILCS 1994); 5/2 —622 Cargill, Neuman, 657; 353 Ill. App. 3d at *24 at 37-38. dispute No exists that filed plaintiff her certificate of merit within 90 days of her refiled com plaint. Therefore, affirm judgment we the of appel the late reversing court the circuit court’s dismissal of plaintiffs complaint.
Separation Powers and Due Process of Defendants argue that affirmance appellate of the court judgment would effect a violation of our state constitution. Specifically, argue defendants ap the pellate court opinion permits to both enact them, statutes and interpret running afoul of separa (Ill. §1). tion of powers II, clause Const. art. In ad dition, argue defendants court appellate opinion effectively holds that Public Act 94—677 changed the years earlier, law enacted seven stripping defendants of defense,” “vested in violation process rights of their due (Ill. §2). I, Const. art.
Although affirm appellate we court judgment, above, discussed we do not adopt reasoning ap- pellate appellate court. The court’s determination of version the 1995 reenacted Act 90—579 Public whether an examination upon based 2—622 was section issue, of this determination Our Act 94—677. Public of Public examination rests on our however, ultimately provisions the constitutional Accordingly, Act 90—579. holding, and by our not implicated cite are defendants constitu- defendants’ consider unnecessary to find it further. arguments tional
CONCLUSION discussed, judgment we affirm reasons For the s of plaintiff the dismissal reversing court complaint.
Affirmed. KARMEIER, dissenting: JUSTICE the circuit I hold that majority, to the would Contrary malpractice medical plaintiffs dismissed properly court with comply her failure based on prejudice action with the Code of Civil 2—622 of of section provisions (West 2004)). (735 theAs ILCS Procedure 5/2 —622 taken previously had majority’s opinion explains, she refiled her When voluntary complaint. dismissal of to her 2004, she failed to attach February the action 622(a)(1) by section required the affidavit complaint 2004)) 622(a)(1) (West (735 declar ILCS of the Code 5/2 — professional a health consulted with that she had ing meritorious that she had reasonable who believed of the Code 622(g) the action. Section filing cause for 2004)) (West (735 expressly provides 622(g) ILCS 5/2 — be a certificate “shall include such the failure to the Code 2—619” of under Section for dismissal grounds *25 2004)). (West (735 defendants When ILCS 5/2 —619 on the 2—619 based under section to dismiss moved therefore certification, the court requisite absence of the Dismissal proceed. regarding how had no discretion Hospital Illinois mandatory. See Hull v. Southern (2005). 300, 305 Services, 3d App.
Plaintiff believed that she could avoid this result by including an affidavit from her lawyer indicating that he had been unable to obtain a consultation with a health professional expiration before of the statute of limita- tions and indicating the required certificate report would be filed within 90 days. That approach was 622(a)(2) untenable. Although section of the Code 2— (735 622(a)(2) (West 2004)) ILCS authorizes the use 5/2 — of such an affidavit to defer compliance with the certifica- tion requirement 622(a)(1), section the statute 2— expressly limits use of the affidavit option to situations where plaintiff had not previously taken a voluntary dismissal of an action based on the same or substantially acts, the same omissions or occurrences underlying the current action. Because had previously taken such a voluntary dismissal, option this was not available to her.
Faced with
predicament,
plaintiff argued that
the “no previous dismissal” limitation
set forth
sec
622(a)(2)
tion
should be read out of the statute.
In
view,
her
the legislature
never
intended to adopt
portion of the law and it should
given
not be
any legal ef
Instead,
fect.
she urged reliance of the version of the
statute
as it existed prior
to the Civil Justice Reform
(Pub.
1995)
Amendments of 1995
eff. March
invalidated
this court’s
Best v. Taylor
decision
Works,
Machine
Arguments similar to plaintiffs have been considered and rejected by the appellate court. See Cargill v. Czelatd ko, Sriratana, accord Crull v. (2004); 353 Ill. App. (2007) 3d 803 (applying different provision
453 result endorsing Cargill’s specifically but of 2—622 Zimmerman, Ill. 359 Beauchamp see also analysis); (2005) (following Cargill); Giegoldt 143, 148 n.l 3d App. 907, 3d Center, Medical v. Condell of (2002) deciding, that version (assuming, without the version case, rather than at issue in this the statute of Amendments Justice Reform the Civil in effect before insufficient 1995, complaint render plaintiffs applied law). as a matter of case was court decision
The the major While contrary reach a conclusion.4 the first to it can be result, I do not believe ity with that agrees ap did not bar majority correct that stare decisis 4The reaching past precedent. In departing from pellate court from conclusion, however, they distinguish between vertical fail to decisis of vertical stare horizontal stare decisis. The doctrine superior of ones. tribunals to follow the decisions requires inferior pertains court’s to a The doctrine of horizontal stare decisis precedent of precedent or the responsibility to follow its own Solomon, Simple Prescription Texas’sAil coequal A. A courts. for 417, Decisis, Mary’s L.J. System: Stronger Stare 37 St. ing Court (2006). decisis which is at is It is this latter form of stare 424-25 viewed, decisis, been stare which has sue here. Unlike vertical been historically, obligation, stare decisis has an horizontal Consovoy, Rehn policy. See W. regarded as a matter of sound Casey, Decisis: Stare quist Court and the End Constitutional of Adjudication, 2002 Consequences Pragmatic Dickerson and the of 53, in those decisions approach This is reflected Utah L. Rev. is not an inexorable held that stare decisis of our court which have principle our is, instead, recognition It a command. change does not errati system justice best when the law works See, intelligible fashion. develops principled, cally, but rather Gross, (2007); Colon, 125, Iseberg v. 145-46 e.g., People v. (2007). question under Illinois law There is no 227 Ill. 2d 94-95 precedent precedent or the may depart their own that courts from good they they coequal believe have by a court when established so, they doing e.g., where believe compelling for cause or a reason badly People v. reasoned. existing are unworkable or decisions (2005). Sharpe, 216 Ill. 2d squared with fundamental principles of statutory con struction. It is axiomatic that in interpreting statute, the primary construction, rule of to which all other rules subordinate, are is to ascertain and give effect to the true intent and meaning In re Applica legislature. tion Judgment & Sale Delinquent Properties for Tax Year The best evidence of that is, course, intent the language of the *27 statute itself. U.S. Bank Clark, National Ass’n v. 216 Ill. (2005). 334, 2d 346 When language is unambiguous, the statute must be applied as written without resorting to other aids of construction. v. People Bywater, 223 Ill. (2006). 477,
2d In this case legislation enacted the General Assembly clearly and unambiguously limited the use of 622(a)(2) (735 the affidavit in option of the Code ILCS 2— 622(a)(2) (West 2004)) to situations where the 5/2 — not previously “ha[d] voluntarily dismissed an action based upon same or substantially the same acts, omissions, or occurrences.” This provision could not be more straightforward. We have no authority depart (see from the Solich v. George & plain law’s meaning Anna Portes Cancer Prevention Center Chicago, Inc., 76, 158 Ill. 2d (1994)), nor may we alter the statute’s language “a way constitutes a change plain meaning of the words actually adopted by the legislature” (U.S. Clark, Bank National Ass’n v. 346). 216 Ill. 2d at
The majority’s opinion stands direct conflict with these principles. It that, likewise violates the rule possible, whenever a court should construe a statute to give effect to each paragraph, sentence, clause, and word. (2001). See People Maggette, 195 Ill. 336, Under rule, this a court is to construe a if required statute, pos sible, so that no term is rendered or superfluous meaning less. See Ultsch v. Illinois Municipal Fund, Retirement Rather give meaning than however, case, in this issue statute at of the the full text ef- have no of it portions that critical holds majority fect whatever. is set limitation dismissal” previous
The “no 622(a)(2) predicate and which was in section forth 2— complaint plaintiffs dismissal of court’s the circuit majority theAs nor controversial. novel neither was years before five recounts, originally enacted it was Justice part of Civil litigation rise to giving events (Pub. 7, eff. March Act of 1995 Amendments Reform 89— 1995). ren temporarily Although provision v. Taylor in Best court’s decision by this dered void (1997), that action was Works, 2d 367 179 Ill. Machine 622(a)(2) It itself. merits of section to the unrelated 2— determination instead, of the court’s was, byproduct of the Civil core provisions invalidation (Pub. Act of 1995 Amendments Justice Reform 1995) of that the remainder rendered eff. March Best, 2d at 467. invalid as well. See statute Assembly from the General Nothing precluded Best of the Civil Justice the noncore reenacting provisions (Pub. 7, March eff. Amendments of 1995 Reform *28 1995). held there that because contrary, To challenged of the statute were not remaining provisions severability solely on invalid based and were deemed reenact Assembly was “free to the General principles, or appropri desirable deem[ed] it provisions whatever to section Best, respect Ill. 2d at 471. With ate.” Assembly the General 622(a)(2), that is what precisely decided, the after Best was than months did. Less two legislation That Public Act 90—579. legislature passed 622(a)(2) state the same precisely restored section 2— decision, its “no including the Best it had been before dis previous The “no limitation. dismissal” previous and effect in full force was therefore missal limitation” tonsillectomy which had Thompson at the time Carla led to her death and Marjorie O’Casek brought this ac- tion special administrator of Thompson’s estate.
Contrary to the I majority, do not believe that inclu previous sion of the “no dismissal” limitation in Public Act 90— 579 can be dismissed “legislative as mere oversight.” “legislative oversight” theory presumes that the General Assembly somehow failed to realize that Best affected the prior version of the law. Under Illinois law, however, we must presume the opposite, namely, amending statute, the General Assembly was fully aware of judicial interpreting decisions the statute William, and that it acted with this knowledge. Morris v. Center, L. Inc., Dawson Nursing Best, In the case of this presumption legal is no mere fiction. Many of our decisions are little known anyone litigants besides the and lawyers. their Such was not the case with Best. At the Best was decided, time it was highly publicized and vigorously debated. It perhaps one of the most well-known decisions issued by this court in the 1990s. The reality is that no legislator conscientious Illinois could possibly have been unfamiliar with it or its effects on the Assembly’s initiatives, General tort reform of which the “no previous dismissal” limitation was a part.
The remarks of Senator Madigan Representative scarcely Burke suffice to overcome this presumption. Although their statements regarding Public Act 90—579 deal with the naprapaths addition of to the list of health- 622(a)(1) professionals care covered section of the (735 622(a)(1) (West Code 2004)), ILCS that may be 5/2 — naprapaths because addition of was the only genu- inely legislation. new aspect previous The “no simply dismissal” limitation was a reenactment of a provision previously which had been debated time adopted. Given allotted for floor debate is
457 considering not did Best decision that the limited and provi- question of that merits the substantive call into may simply that Madigan have believed Burke and sion, legislation aspect unneces- the on elaboration sary. Madigan Repre and moreover, note, that Senator
I the members of 2 of the 177 Burke are but sentative assuming Assembly. have no basis We General only legislators they with the contents familiar were personal impute their 579, nor can we of Public Here, in most as a whole. views to their can be made that kind, no claim instances of this majority by of their shared of the law was assessment colleagues why colleagues. any That is their or even guide unhelpful and are such an unreliable floor debates by ascertaining legislative cannot, them and intent to legisla affirmatively intent of the establish the selves, (1994). People R.L., 158 Ill. ture. See v. Madigan Repre any case, In whatever Senator they may stood had in mind when Burke have sentative respective and addressed the floor of their chambers on colleagues 579, their views about Public Act their ultimately supercede statute that was cannot or undo the Assembly. Hadley adopted by v. Illinois the General (2007). Department Corrections, language the statute is clear Indeed, because referring unambiguous, we should not even be aids of construction. or other extrinsic floor debates obligation apply as written. Alvarez is to the law Our Pappas, Ill. 2d majority,
Contrary I not believe do by repeal governing implicit precedent of statutes Assembly us in the issue before is relevant to General challenge presented is how those cases this case. legislative As- taken General action to reconcile appears sembly That dilemma inconsistent. to be *30 is not before us here. To the contrary, the changes to sec- 622(a)(2) tion of the Code which would result from 2— applying plain language of Public Act 90— 579 are entirely consistent with the prior amendments to the statute included in the Civil Justice Reform Amendments (Pub. 1995). Act eff. March Rather than 89— implicit repeal, this case involves explicit reenactment of a law under circumstances we specifically sanctioned.
The fact that the “no previous dismissal” limitation was not underscored or italicized in Public Act 90—579 is of no consequence. Section 5 of the Statute on Statutes does state that construing
“[i]n amendatory an printed in volume of the published session laws January 1,1969, after printed matter in italics shall be construed as new matter by added amendatory Act, and matter shown crossed with a line shall be construed as matter deleted from the (West 2004). amendatory law the Act.” 5 ILCS 70/5 As the appellate court correctly noted in Cargill v. Cze latdko, 660-61, however, 3d at in nothing provision this makes the use of italics a prerequisite to the validity of new matter added an amendment. The when items are simply statute means that italicized, such items shall be construed adding as new matter to the law.
The Illinois House and Senate have enacted rules go beyond statutory requirement by specify that in ing any bill amending statute, “[a]ll new matter shall be underscored” “[a] matter that is to be omitted or superseded shall be shown crossed with a line.” 95th Ill. Gen. Assem. 37(e); House R. Senate R. 1(e); 90th Ill. 37(3); Gen. Assem. House R. Senate R. 1(e). Compliance is, with these rules the first instance, a matter for the Assembly judge. General There is no evidence Assembly that the General found (S.B. the bill which culminated Public Act 90— 579 120) to be problematic, can we infer none. The Speaker of the House and the President of the Senate procedural requirements passage certified for the bill had been satisfied. Under the enrolled-bill conclusively presumed doctrine, the bill is therefore procedural requirements passage. met have all Chicago Friends District, the Parks v. Park 312, 329 any deficiency Nor can find Public Act 90—579 8(d), under this state’s constitution. Article section IY (Ill. Illinois Constitution of 1970 Const. art. IV §8(d)) requires only expressly “[a] amending bill completely law shall set forth the sections amended.” requirement dispute That was met here. There is no complete printed law, text of amended, *31 adopted by legislature. the bill considered and may speculate Assembly One as to what the General thinking proceeded it when as it did with Public Act 90—579. It established, is well however, that we cannot ignore plain language conjecture. of a statute based on Wallach, Petersen Under ultimately the clear plaintiffs of terms the statute here, enacted fatally refiled cause of action was defective. properly The circuit court therefore acted when it granted defendants’ motion to dismiss.
I do not see how we can countenance other 622(a)(2) (735 conclusion. Section of the Code ILCS 622(a)(2) (West 2004)), as amended Public Act 5/2 — 579, was considered 118 members of the House approved by and 59 members of the Senate and majority’s opinion ultimately Governor. The stands on proposition government that these branches of they their constituent officers did not realize what were doing they may when enacted Public 90—579. Pundits government assume that the other branches of are inat- highest duties, tentive to their we, but as the court of may state, not. language give plain of we refuse to effect to the When passage conjecture that its must have a statute on the inadvertent, invite courts to accidental or been they purposes disregard legislative do enactments whose they question. This is or whose wisdom not understand position only puts presumptuous, in it courts not separa- undermining principles super legislators, basic powers. tion of culminating by observing that the events
I close place August plaintiffs decedent took the death of years complaint later, her two When filed required by the certificate of merit she failed to obtain Procedure. When 2—622 of the Code of Civil section complaint years plaintiff attempted after to refile her two requisite certificate. that, she still failed to obtain ongoing plaintiff’s difficulties The reason for delay may complying unknown. The be the law is with simply may, justified. hand, be a function It on other plaintiffs underlying problem the merits of some with explana- any event, further of action. In without cause application law, as tion, can be made that no claim particular any way written, unfair under the be would of this case. facts foregoing respectfully reasons, I dissent.
For the THOMASand JUSTICE CARMAN CHIEF JUSTICE join in this dissent.