*1 (No. 68199. ILLINOIS, THE OF
THE PEOPLE OF STATE Aрpel- lee, GERSCH, F. v. WILLIAM Appellant. 22, 1990.
Opinion March filed *2 MILLER, J., concurring. specially Cohn, F. for of Chicago, appellant. Frederick Partee, Chicago Attorney, (Inge A. State’s Cecil Carroll, D. Quinlivan Marie Czech William Fryklund, for the counsel), People. State’s Attorneys, Assistant STAMOS delivered opinion JUSTICE court: for the
Defendant, Gersch, F. was indicted William trial, wife, his Gersch. Prior Gwendolyn murder re his waived expressly re trial. State defendant’s opposed a bench quested *3 a trial un asserted its quest statutory Procedure of 115—1 of the Code of Criminal der section trial 115-1). ch. The par. Rev. Stat. (Ill. a jury. for trial Fol the State’s motion granted court the the trial in the circuit court Cook County, lowing Rev. of murder Stat. (Ill. found defendant guilty a homici concealing par. 1) guilty 9— 3.1). Thе 1985, ch. (Ill. par. dal Rev. Stat. death 9— terms of to concurrent impris court sentenced defendant for and three con onment —23 for murder years years a cealment of homicidal death. review, this case on pending defendant’s was
While ex in 115—1 unconstitutional court held section After defend rel. Ill. 2d 209. Daley court, court the appellate ant filed an appeal had granting cause by over assumed jurisdiction motion Rule pursuant Supreme 302(b) State’s Court Ill. 2d R. (107 302(b)).
FACTS Defendant shot fatally evening his wife of Feb- 27, 1987. Defendant testified at trial that his mar- ruary had riage long plagued by been what he characterized his wife’s incessant He also stated while nagging. he never his she often wife, had struck aggravate him him the their by hitting argu- head during many ments.
Defendant testified that on the night February 1987, his wife him haranguing was his inabil- regarding to find ity meaningful their employment, family prob- lems, and his drinking. When defendant told her stop she threw a nagging, him, hairbrush at him in striking the head. He it threw back. She then grabbed brush and used it to strike defendant As face. she came at him a time, testified, second he started “see control,” “lost reached a spots,” for nearby gun, and shot her. The State evidence that presented showed Mrs. Gersch sustained three gunshot wounds.
Defendant disposed leaving body by beside desolate road. The next he reported his wife miss- day, authorities, ing. however, had already found When confronted body. evidence, with the defendant con- fessed to his wife. shooting trial,
Prior defense counsel had notified State that defendant an might present defense. insanity This defense was based on a psychologist’s opinion the defendant was insane at the time of the legally At shooting. time, this same defendant asserted his wish *4 his waive to a trial. The right trial court denied jury defendant’s for a trial de request bench when the State manded a jury trial under section 115—1 of the Code 1987, 38, Criminal Procedure of (Ill. Rev. Stat. ch. In (section before this par. 1) 1). arguments 115 — 115 — court, defense counsel that defendant sensed explained that a to his strat- would not be trial jury sympathetic Therefore, he his affirmative defense egy. withdrew insanity.
The (Ill. found defendant of murder Rev. jury guilty 38, a concealing Stat. ch. and homicidal par. 1) 9— 3.1). ch. (Ill. death Rev. Stat. On Oсto par. 9— 14, 1988, the denial of defendant’s following post- ber trial and a hearing mitiga motions and aggravation tion, trial to 23 years’ court sentenced defendant for imprisonment imprisonment murder and three years’ death, for a homicidal sentences to run concealing both concurrently.
THE JOYCE DECISION ex rel. Daley Joyce In held 222, we section 115—1 was unconstitu right tional. Section 115—1 the State with the provided to a in certain criminal trials. See Rev. Stat. jury murder, first degree 115—1 par. (including felonies, assault, X criminal sexual and vio felony Class lations two the sale and designed prohibit statutes drugs). use illicit
Joyce -consolidated
several
cases which involved
situated
to defendant
the case
similarly
defendants
had been indictеd for a
drug-
bar. Each
The
related
had submitted
waivers.
offense
jury.
State
trial by
indicated that
waive
lan
however,
from the express
trial
deviated
judge,
the State’s
guage
request
of section 115—1
denied
for a
trial.
then
this court
The State
petitioned
allowed
the orders which
compel
judge
expunge
Joyce,
389 and State However, Constitutions. this court also ob served that Federal constitutional law a statute permits consent to a requires by government jury waiver. (Joyce, 126 Ill. 2d at v. citing United Singer States 380 (1965), U.S. 13 L. Ed. 2d 85 S. Ct. 783 Federal Rule (upholding of Criminal Procedure 23(a), which is similar to section The court therefore 1).) 115— detеrmined that section 115—1 would survive an attack based Federal upon constitutional principles. this, the court
Despite
did not limit its
analysis
section 115—1 to Federal
If
constitutional
law.
the lan
guage
our State constitution, or the debates or com
mittee reports from the
convention,
constitutional
indi
cates that a provision of our constitution is intended to
be construed
from similar
differently
provisions of the
Federal Constitution,
then this court should not be lim
ited
construction
on
placed
the Federal constitu
tional provisions. (Joyce, 126 Ill. 2d at
court
carefully analyzed the provisions of our State constitu
tion dealing with the right to a
trial. It
jury
also exam
ined the
of those
history
provisions,
with all the in
along
fоrmation which
lead it
might
to ascertain the intent of
the drafters of
constitution,
including the debates
and committee reports as well as the common law inter
pretation of the right to a
trial
as embodied in deci
sions of this court which the debates reveal the drafters
intended to
adopt
constitutional principles. (See Joyce,
ANALYSIS The crux of defendant’s argument to this appeal court is that he was denied his constitutional to a bench trial. The us, issue before therefore, is whether we
should decision in Joyce, retroactively apply held section 115—1 unconstitutional, con- defendant’s victions. People Manuel
In
(1983),
242, 244-45,
Ill. 2d
which neither
in the case at
party
us,
bar cited to
court stated that “[wjhen a statute is held unconstitu
is void ab initio.” In
tional
its
words,
entirety,
other
“
”
Driel
invalid law is no law at all.’
(Van
Drug
‘[a]n
Store, Inc. v. Mahin
378, 381,
Ill. 2d
quoting
*6
People ex rel. Barrett v.
Sbarbaro
581,
590; see
Constitutional Law
16 Am. Jur. 2d
generally
(1979).) The effect of
an
enacting
unconstitutional
§256
amendment
to a statute is to leave the law in
as it
force
Mahin,
was before the
of
the amendment.
47
adoption
381; Sbarbaro,
Ill. 2d at
Prior to its date, 1987 amendment July effective sec tion 115—1 stated that on a prosecutions except “[a]ll of or ill plea guilty but shall be tried guilty mentally by the court and a оr the court when a is waived jury jury the defendant by 1985, court.” Rev. Stat. open (Ill. ch. 38, This version of par. 1.) section 115—1 would 115— withstand under the sections of the Illinois scrutiny Con stitution that deal the to a right trial, with because of the statute express language gives defendant to waive a no right jury, giving parallel while such Joyce, right (See 213-22.) to the State. 126 Ill. 2d at of version section 115—1 would also have preamendment been valid under the common law in effect at the time the 1970 Illinois Constitution was which this adopted, in court determined the framers of the constitution tended to as the adopt meaning phrase “[t]he of trial as heretofore shall remain by jury enjoyed inviolate,” I, the Illinois found article section 126 see Joyce, I, §13; Constitution. Ill. Const. art. Ill. 215-19. 2d at
391
In
sec-
the General
amend
Assembly began
amendments,
tion
The first of
115—1.
these
effected by
section
of Child
Privacy
Victims
Criminal
Act,
in-
Sexual Offenses
trial
in cases
required
by jury
violations of
volving felony
designed
pro-
two statutes
sale
use
hibit the
and
of illicit
unless both the
drugs,
State
(Pub.
Act 84—
waived
jury.
1428, §6,
amendment,
eff.
The second
ef-
July
section
of “An
fected
Act
amend Section 115—1
***,”
criminal
murder,
added first degree
assault,
sexual
X
list
Class
felonies
of offenses where a
defendant,
trial,
could not waive a
without
463, §1,
1,1988.
State’s assent.
Act
Jan.
Pub.
eff.
85—
Thus, when
stated,
this court
Joyce,
“[t]he
statute entitled Method of Trial (Ill.
Stat.,
Rev.
***
115—1
Supp.,
par.
(effective
vi
July
1987))
***
olates
Illinois Constitution”
(Joyce, 126
[the]
222),
declared that both the 1987-
merely
and 1988-
effective аmendments to section 115—1 were unconstitu
tional.
(The reasoning
to the
applies equally
amendment,
1988-effective
even
though Joyce did
amendment,
hold that
expressly
affects
directly
the defendant, unconstitutional.) This left the
version
*7
section 115—1 in force as it existed
to
1987.
prior
July
(Sbarbaro,
The ah initio rule of Manuel
is
to
applicable
equally
the
at
Both
case
bar.
the 1987-
1988-effective
amendments to section 115—1 violate the Illinois Consti
tution. Both amendments were accomplished by separate
which,
fаr
statutes
as
as
section
they amended
115—
in Joyce.1
this court
held unconstitutional
effectively
Therefore,
statutes,
insofar as
affected section
they
both
invalid, and we must
section
interpret
were
115—
(Manuel,
Alternatively, we down section 115— Joyce striking the decision as preted Stat., Ill. Ann. (See in its entirety. par. 115— 1989).) at 3 (Smith-Hurd Supp. Comment on Validity, However, to a also note that the constitutional we (See has existеd since statehood. bench trial Illinois provi 213-14 constitutional Joyce, (basic at to a have remained un sions trial regarding right v. Lobb since changed 1818); is same as it existed un trial (right “as the time of the der common law and at enjoyed The constitutions”).) the Illinois adoption respective give Joyce have prospective applica State would us only not cloak the right this court did arguably tion because until trial authority a bench with constitutional analysis, Joyce initio declared the 1987 amendment void 1 Under our ah Therefore, amendment, inception. did from its 1988-effective address, already expressly in the form the added to a statute that was void Assembly using was was time the 1988 amendment enacted. General dealing “phantom” legislature actually a 1987 amendment was with —the void, recognize This though did not such. made was the lawmakers illogi specific in Public Act 85 —463 both to section 115 —1 contained additions logical analysis impossible. metaphysical conse syntactically This cal and unconstitutional, quence Joyce’s holding amendment 1987-effective However, is void as well. the 1988 amendment reinforces conclusion that be unconsti Joyce's holding, the 1988-effective amendment would because of purported Assembly it and had reworded had tutional even if General pre-1987 directly version of section 115 —1. amend
393
Joyce
However,
decision.
the State’s view
disregards
of this court which
that
prior
suggested
decisions
is
to waive a
trial is
based and
right
constitutionally
de
a
reserved for
informed
personal right
accused’s
v.
211, 214-22;
(People Spegal (1955),
cision.
5 Ill. 2d
see
Singer,
The State also argument bases its for exclusively pro v. Joyce on our spective application decision Erickson, Erickson stated, In (1987), 271. we “Judicial opinions new constitutional rules announcing to criminal applicable cases are retroactive to all cases on direct pending review at the time the new constitu tional rule is declared.” (Erickson, Ill. 2d cit 117 Kentucky 479 ing U.S. 93 L. Griffith 649, 661, Ed. 2d 107 S. 716.) Ct. We determined that factors must two be present trigger retroactivity under the case to which (1) we are asked to ap Griffith: the new ply rule was not final or was pending direct when new declared, review rule was the rule (2) we are asked to apply retroactively of constitutional Erickson, dimension. 2d at 289.
In whether determining the second of these factors the Erickson was case, present defendant’s we noted that which the con sought protect accused not a constitutional, right. Therefore, cеrned statutory, (Erickson, we held was not controlling. Griffith Ill. 2d at The State an Joyce similarly argues a new procedure nounced rule criminal which was *9 of The State ar Federal constitutional dimension. also then the gues that allow us use same test would for as we in retroactive used determining application Erickson, Joyce to a that holding which would lead See Erick would receive only prospective application. son, Ill. 2d 288-92. at
However, Erickson is the at from case distinguishable bar. The considerations the court discussed public policy Erickson rule, in the new reli a regarding purpose rule, an effect rule ance on old the a new have no justice application have on administration in considering decision is retroactive. whether Erickson, while Erick 290-92.) Also, (See son what we should retroactivity principles determined the new rule of law was statu ascertaining apply by Erickson did not involve an unconstitu origin, in tory statute, a constitu might implicated tional have Erickson, at 311 (See based claim. tionally v. Illinois dissenting); Lego J., 488 U.S. (Simon, 240, 242, 251, 253 102 L. Ed. 2d 109 S. Ct. cert.) J., (because denial (Marshall, dissenting from did Erickson issue, in involve a constitutional but Erickson has been in statute, a State stead implicated standard distinguished have terpreted Griffith here —both of a as revealed State-Federal dichotomy, Erickson to mean interpret these dissenting opinions will Federal only apply the Illinois Court Supreme new is question when the rule retroactivity principles Rather, new dimension).) of Federal constitutional rule the Erickson inter court was a court’s considered rules and valid pretation procedural how apply Erickson, 2d at (See common law principles. decision which judicial This distinction between and a judi of common law established principles changes is cial which declares a statute unconstitutional decision are understanding compelled give we key why Joyce retroactive application. actions makes retroac- nature very legislative un- course when a statute declared
tivity proper constitutional. & P. (See Eskridge Frickey, W. generally Cases and Materials on Statutes and the Legislation: Creаtion of (hereinafter Public 240-41 Policy (1988) & constitu- Eskridge for Frickey, Legislation).) Except tional statutes have treated as provisions, generally been source of supreme leg- law this country, giving Const., islature preeminence lawmaking power. (U.S. I, art. vested in (“All legislative Congress).) Powers” §1 The executive can enforce only these implement Const., II, statutes art. President “shall (U.S. (the §3 *10 take that Care the Laws while faithfully executed”)), be the courts are to and empowered only interpret apply them Const., cases controversies specific (U.S. and Ill, art. §2).
This is also true of Illinois law. The is for legislature as a to that of mally recognized having superior position in courts common rules of decision. estаblishing law The Illinois General has the inherent Assembly power or repeal change law, the common or do all or away with 597, of it. See v. 1 part (1953), 600; Davis Ill. 2d City 941, v. Nielsen Ill. Chicago (1976), 38 3d App. 946; Nardi v. Segal 432, 90 Ill. 2d 437-38. (1967), App. contrast
We this pervasive power legislature alter the common law with historical view of judicial that decisions establish or alter common law principles. of the common law development Illinois applicable was a gradual State, When Illinois became a process. legislature common law adopted applicable general and most pre-1606 England, statutes of which other States had as the rule of decision for Il already adopted, 1, 801; linois courts. Rev. Stat. see (Ill. рar. 130, 135; Lasier v. 304 Ill. v. Wright (1922), Bulpit 396
Matthews (1893), 350.) These common law rules and decisions basis for all de judicial became terminations this State. law, this a
Where court establishes rule other courts in the State must follow it unless it can be shown cause detriment or prejudicial it will serious be (Maki v. Frelk Ill. interests. 40 public (1968), stare decisis gener This as (see known principle, v. Williams Crickman Ill. 2d (1980), 111), 81 ally to rely and the bar of Illinois causes both people rules court without fear that the decisions Title Trust & Co. Chicago (See will suddenly change. law Shellaberger Over 343; Eskridge, 399 (1948), Precedents, 76 Statutory ruling L.J. 1361 Georgetown Precedents).) Statutory (hereinafter (1988) Eskridge, on rare occasions will courts determine Only in the to reflect societal common law needеd change Alvis v. Ribar or vindicate interests. See changes public rule Ill. 2d law (abolishing common a new rule of com and contributory negligence adopting Precedents, Statutory parative negligence); Eskridge, decisis often (stare must yield growth change). roles
The distinct separate judiciary what the com- and legislature perform determining is, and of reliance the degree pub- mon law the different lic on a to a opposed legislatively, may place judicially, of law, created rule are what mandate a strict adherence *11 ab void rule that statutes are to the unconstitutional initio. The has the inherent alter legislature power therefore, Statutes, time. may the common law at any unexpected create new and alter and polity sharply & at Legislation, and duties. (Eskridge Frickey, rights law statutory generally The “suddenness” very same retrospectively, makes it unfair apply charac- ought corresponding “suddenness” to bear that, if teristic the statute fails to constitutional pass muster, it dies as of its rather than void inception, being as of the date of & only Eskridge See adjudication. at 240-41 Federal Constitution Frickey, Legislation, (the contains several the ex and bill provisions, e.g., post facto clause, that restrict clause, attainder and the contract from retroactive legislature enacting statutes). decisions, hand,
Judicial
on the other
are declarations
of what the law
was
&
already
(see Eskridge
Frickey,
Legislation,
241), or are incremental
adjustments
the law to meet
conditions—the
changing
evolutionary
nature that
is the genius of the common law (see, e.g.,
Alvis,
stitution. enactment sud constitutionally repugnant cuts off denly rights that are citizen guaranteed every *** (Ill. I, Const. art. (“All men certain have §1 inherent and inalienable rights”)), instantaneously perverts duties owed those citizens. To hold that a judicial decision that declares a statute unconstitutional is not retroactive would prevent forever those injured under the unconstitutional act from legislative receiving for the This remedy right. of a deprivation guaranteed
398 offend all sense of due under both clearly process v. Mc (See the Federal and State Constitutions. Wolff Donnell 557-58, 935, 41 2d 539, 418 U.S. L. Ed. (1974), 952, 2963, (due ag 94 S. Ct. 2975 process requires Anti hearing); Joint receive some kind of grieved party Fascist v. Refugee Committee McGrath 341 U.S. (1951), 123, 168, 817, 852, 624, 95 Ed. 71 S. 646-47 L. Ct. J., (Frankfurter, (due defines concurring) process legislative constitutional limits on the enforcement of City Pure Oil Co. v. decisions); and executive Northlake 241, Ill. 2d 245 of due (1956), (purpose pro 10 is all in their cess clause citizens protect personal or rights by person from action property arbitrary any Cuesta, v. Co. Rey & authority); Murphy 381 Ill. (1942), 162, citizen have (due 166-67 each process requires gen his court and the benefit of the day protection considerations, these note that law).) Along eral with we court cannot be has held that expressly Manuel, 94 Ill. an unconstitutional act. under prosecuted v. citing People Meyerowitz (1975), Ill. 2d 61 200. also to strike down unconstitu duty-bound
We are The Constitution of the legislature. tional acts of the Su of the United States United States and decisions land, and bind supreme Court are the law preme v. (People 400 (1948), court in the land. every Loftus supreme the State constitution is 436.) Similarly, v. Gas (Sutter People’s the realm of State law. within & Coke Light Co. In cases 640-41.) 284 Ill. (1918), is we determine that a statute repugnant where Constitution, void, the law order our declare duty guarantees, which that document rights protect mandated function of and constitutionally a paramount v. Kerner Droste Ill. 2d (1966), 34 our court system. law, any enact (General Assembly basically may 498-99 constitutional provi- some is not inhibited provided v. sion); City Henson 415 Ill. Chicago (1953), has decide (judiciary power whether law is within legislature); constitutional scope powers Bruner of stat (interpretation utes their are determining judicial validity inherently *13 functions vested in Marbury courts see Constitution); 177, v. 5 2 (1803), (1 Cranch) 137, Madison U.S. L. Ed. 60, 73 (“an act to the legislature, repugnant con stitution, void,” is and is province emphatically “[i]t and duty judicial department say what law is”).
This
to review and invalidate the
duty
unconstitu
tional actions of our
is also
legislature
exhibited
strong
langüage
precedents
our
declaring the ab
initio
“When a statute
principlе:
is held unconstitutional
in its
it is void ab
entirety,
(Manuel,
initio."
We must that courts been have strug- with gling potentially harsh results of the ab initio doctrine, particularly where law enforcement officials on good have relied in faith of a validity statute (see Chicot v. County Drainage District Baxter State Bank 371, 374, 308 84 Ed. (1940), 329, 332-33, U.S. L. 60 S. an (statute Ct. 318 fact with operative conse- quences which must be taken into consideration); Reich Fire Board & Police Commissioners the con (requiring prejudge
App. police of a criminal statute before enforcing stitutionality enforcement disci would law totally disrupt police Singer, Sutherland Construc pline); Statutory N. tion at 35 4th Suth §2.07, (Sands 1985) (hereinafter ed. of an erland); Field, O. Effect Unconstitutional (1935) (hereinafter Field) (ab initio theory does Statute 3 into relied on the unconsti people take account tutional or the invalidation of rules crimi act)), where nal otherwise criminals guilty allow procedure Tribe, American (see win their frеedom L. Constitutional to avoid (2d 1988)). Attempting Law at 30 ed. §3— ab attempted temper these courts have problems, initio doctrine’s harsh results by the kind considering this court used in Erickson to minimize unfair factors Tribe, Law ness. American Constitutional (L. §3— However, 30-32 ed. scholars have noted (2d 1988).) the ab initio princi in the area of criminal prosecution, *14 35; §2.07, at (Sutherland is ple especially appropriate. Also, involving at in cases criminal Field, 3.) procedure, has declared recently the States Court Supreme United be applied that new criminal cases must involving rules re cases pending to all defendants with retroactively at 479 U.S. (Griffith, at the time of decision. view 661, S. Ct. at While 328, 93 Ed. 2d at 107 L. in the the case at bar is from distinguishable Griffith as Erickson 93 316, at 479 U.S. (Griffith, same manner at 710 (Griffith involved 654, S. 2d at 107 Ct. L. Ed. that the use of declaring pe aof decision retroactivity defend members strike challenges remptory prima case established a race from the jury ant’s facie striking discrimination, involve the and did of racial the principle we believe statute)), of an unconstitutional alike (Griffith, situated defendants of treating similarly 716) at 107 S. Ct. 661, L. 2d at 93 Ed. 479 U.S. at no can with our rule that one be comports prosecuted under an unconstitutional 94 Ill. 2d (Manuel, statute at 245), after a court has declared that statute particularly unconstitutional. We therefore can see no persuasive pol for arguments from the ab initio doctrine. icy departing Therefore, this becаuse court determined Joyce that the 1987 and 1988 amendments section 115— gave which State the to demand a trial right jury cases, certain criminal unconstitutional, were and be- cause denial retroactive application Joyce the ab initio rule of ignore invalidation and de- statutory trial, to waive prive right which jury is guaranteed Constitution, the Illinois hold we that the decision in is to be applied retroactively.
We must now consider the for proper remedy trial court’s denial of defendant’s constitutional right to waive a trial. The General Assembly has declared that a subsequent prosecution a defendant is not barred because of former conviction in the same cause if proceedings subsequent reversal, resulted unless the reversal determined defendant was not guilty. Rev. (Ill. Stat. par. 4(d)(2).) Our prece 3— dent is in agreement. (People Ramirez (1986), rule (general retrial is proper does not offend of double unless con principles jeopardy viction was reversed because evidence was insuf legally ficient); People v. Woodall (fur ther prosecution not barred if reversal does not judge defendant not in the Specifically, decision of guilty).) court an governing accused’s to waive a trial controlling was law the time defendant’s took trial this court place, determined that the proper *15 for denial of the remedy waive a jury was re verse conviction and rеmand the cause a for new trial. Ill. 2d 222. Spegal, and re
Therefore,
defendant’s
convictions
we reverse
of
for a
County
mand the cause to the circuit court
Cook
trial,
compli
to conduct
the trial
in
new
with directions
rel.
Daley
ex
in
court’s decision
ance with this
Joyce
Judgment directions. cause remanded with MILLER, specially concurring: JUSTICE the defendant I the court’s holding with agree a for My reaching must new trial. reasons granted be on by are from those relied that conclusion different however, sepa- therefore I write opinion, majority rately. in the case was originally
The defendant present murder, count armed of one of charged with two counts a violence, of concealment of homicidal and one count The the defendant’s murder his alleged death. charges 1987. during evening February wife 1988 and a by September defendant was tried jury and of the of the two murder counts guilty was found death; a of concealment homicidal one count charge. violence not tried the armed defendant was the Code of trial, At the time of section 115—1 of Rev. Stat. (Ill. Criminal Procedure consent to a defend 1) State’s required par. 115 — 115—1 instances. Section ant’s waiver in certain jury provided: guilty guilty or prosecutions plea
“All on a except jury court and a un- ill tried mentally but shall be or, writing trial in such less the defendant waives charged first where the offense prosecution a criminal sexual assault murder, felony, a X criminal Class degree or the Control Act or of the Cannabis violation felony State and the Act Illinois Controlled Substances both writing.” such trial defendant waive *16 notes, theAs the of majority requirement prosecutorial consent a defendant’s in waiver the instances the was of two amendments section specified product 115—1. The limited to cases requirement originally was which in offenses only charged were violations felony of the Cannabis or Control Act the Illinois Controlled Substances Act. (See Stat., Rev. Supp., par. Effective January 1, Act Public 85— 115— 463 amended section by adding degree 115—1 first mur der, felonies, Class X and criminal sexual assault to the list of prosecutions where the State could insist on а jury time, trial. At the same legislature deleted language of the limiting application statute to cases in which the only offenses were those in charged the stat specified ute. It under was this version section 115—1 that the present was tried. face,
On its the requirement of prosecutorial consent contained in section 115—1 is limited to in cases at least one of offenses, the enumerated or a felony the class is It specified, charged. is not apparent statute was in this The applicable case. defendant con tends that he was not tried for an offense or class of of fense in listed provision. defendant stood trial charges murder and concealment of a homicidal dеath, which, neither of to the is according defendant, an offense or is included in a class of specified offense section 115—1. The only made response State regard that the offense murder differs from the offense of first degree murder name and that the only, two crimes are otherwise identical. The State therefore would construe reference to of statutory the current fense of degree first murder as including the former of fense of however, murder. That argument, cannot be rec onciled with our decision in Shumpert which held that application statute occur- first-degree the offense murder acts
defining before that effective date would violate ring provision’s ex post fаcto legis- the constitutional prohibition against lation. I note that the defendant was although X of armed vio- charge also indicted on a Class originally offense, lence, trial on that and the go he did not charge no use that for State makes effort basis section 115—1 in the case. applying present consent if we conclude that Only prosecutorial *17 to the of section 115—1 is applicable present provision to the ef case does it then become determine necessary ex to to this court’s decision fect accorded be 209., Joyce rel. Daley Joyce invali the dated, original on State constitutional grounds, the added to section 115—1 require amendment that tо waivers defend by ment consent prosecutorial The present certain felonies. charged drug ants with the constitu in the circuit court challenged applica avoid its tionality sought statute deci the rationale this court’s tion his case. Given Joyce, the later it that readily apparent sion 115—1 enlarging scope amendment section Thus, it be also fall. should consent must requirement to hold that the subsequent in the case enough present defendant, that amendment was invalid and similarly again. tried that must be tried regime, under that the statu- nevertheless concludes majority in the court’s decision invalidated tory language initio, ab thus of no effect must be considered void acknowledges, As from its inceptiоn. majority ab initio effects, harsh theory invalidity may produce reliance that has society it the justified as does ignoring leg- previously unchallenged in a reposed quite properly Sutherland on Stat- Singer, 1 N. (See islative enactment. 1985) 4th ed. §2.07, (Sands at 34-35 Construction utory cases, mostly there are analogies, on (“Based superficial older ones, in which it been asserted that in legal has an unconstitutional act is as contemplation inoperative if it had been passed. never However difficult may have act been to that an unconstitutional had deny pro- duced results of fact, actual as a matter courts many have felt that act has declare such an been compelled initio, void from was ab which it to follow that thought such an act could not any legal be allowed have ef- statute, To that a uncon- fects”).) say declared eventually stitutional, effect, had as the legal no absolutely majority asserts, cannot be at face simply accepted value. of ab
Moreover, the notion transmutes majority initio into a invalidity constitutional declar requirement, ing due commands that a invalidat process decision ing statute grounds constitutional be accorded com plete retroactivity. (135 Ill. 2d at Such an 397-98.) interpretation alters the re dramatically traditional view garding the of such potential effects decisions. Discus sing the of a significance declаration of statutory invalid ity, Court has Supreme stated:
“The courts below proceeded have on the theory Congress, the Act of having been found to be unconstitu- tional, law; was not a that it was inoperative, conferring *18 no rights duties, and imposing no and affording hence no basis for the challenged decree. It is' quite [Citations.] clear, however, that as such broad statements to the ef- fect of a unconstitutionality determination of must be qualifications. taken with The actual of a existence stat- ute, determination, to such a prior operative is an fact and may have consequences justly ig- cannot be past nored. The always judi- cannot be erased a new cial ruling declarаtion. The effect of the subsequent as to may invalidity have to considered in aspects,— be various relations, with respect particular and corpo- individual rate, conduct, Ques- particular private and and official. vested, status, tions of claimed to have of rights become prior finality of determinations deemed have and acted of public policy light of in the
upon accordingly, application, and of its previous nature both the statute questions among examination. These are demand difficult engaged which have the attention most those courts, federal, from state and is manifest nu- of a prin- that an all-inclusive statement merous decisions justi- cannot be ciple invalidity absolute retroactive Drainage District v. Baxter State County fied.” Chicot 329, 332-33, 371, 374, (1940), 84 L. Ed. Bank 308 U.S. S. Ct. 318-19. that all unconsti
Rather than conclude automatically void from statutes must deemed have been tutional be course, it seems to their the more inception, appropriate case or that determine an me, we requires individual of cases the effect should be accorded a category When, for of statutory invalidity. declaration subsequent a criminal offense is declared defining a statute example, unconstitutional, initio often invoked. principle the ab 42; Ill. 2d (1988), People Zeisler People v. (See, e.g., 242; (1973), v. Manuel Sarelli however, This is 170-71.) say, inevitable consequence every effect must such be resolves broad-ranging discussion majority’s case. herald serves nothing, except appeal, only further problems.