Johnson v. Edgar
Annotate this Case
Johnson v. Edgar, Nos. 81019, 81249 cons.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket Nos. 81019, 81249 cons.--Agenda 12--March 1997.
DONALD JOHNSON et al., Appellees, v. JIM EDGAR et al.,
Appellants.--IRV LANGA, Appellee, v. MARY A. GADE et al.,
Appellants.
Opinion filed May 22, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
At issue in these consolidated appeals is the
constitutionality of Public Act 89--428, enacted by the Illinois
General Assembly on December 13, 1995. The plaintiffs in each case
challenged the Act as violative of the "single subject rule"
contained in article IV, section 8(d), of the Illinois Constitution
of 1970. The circuit court in each case ruled that the Act was
unconstitutional on this ground and ordered that the appellants are
permanently enjoined from enforcing any provision of the Act. We
now affirm in part and reverse in part the circuit courts'
judgments.
FACTS
The single subject rule concerns the method by which
legislation is enacted. We therefore begin with a review of the
procedural history and substance of Public Act 89--428.
Public Act 89--428
Public Act 89--428 was introduced as Senate Bill 721 on March
2, 1995. At that time, the bill was entitled "An Act in relation to
prisoners reimbursement to the Department of Corrections for the
expenses incurred by their incarceration, amending named Acts." The
bill was eight pages long and addressed only this specific topic.
The Senate passed the bill on April 25, 1995, with no amendments.
When Senate Bill 721 reached the House of Representatives,
amendments four through sixteen were placed on the bill. These
amendments addressed an array of different subjects, including,
inter alia, expulsion of school students for bringing weapons to
school, increasing the penalties for the possession of cannabis,
and providing for privatization of some services of the State
Appellate Defender's Office. One amendment retitled the bill as "An
Act in relation to crime." With these amendments, Senate Bill 721
passed the House of Representatives and was sent back to the
Senate.
The Senate and House could not agree as to which of the 13
House amendments to the bill should stand. As a result, a
conference committee was formed. The conference committee changed
the title of the bill and replaced everything after the enacting
clause. What had started out as an eight-page bill became a bill of
over 200 pages. The bill became so voluminous that even the broad
title of "An Act in relation to crime" could not cover all the
subjects contained in the bill. Thus, the committee renamed the
bill "An Act in relation to public safety."
The bill encompassed a multitude of subject matters, contained
in six articles. Article 1, entitled "The Child Sex Offender
Community Notification Law," created a statewide database for the
purpose of identifying child sex offenders and provided for
community notification of registration of child sex offenders.
Article 1 also amended the Sex Offender Registration Act to change
the definition of "sex offender" and to expand the definition of
"sex offense."
Article 2 amended the Criminal Code of 1961 to create the
offense of predatory criminal sexual assault of a child. This
article also amended numerous other acts, including the Alcoholism
and Other Drug Abuse and Dependency Act, the Children and Family
Services Act, the Military Code of Illinois, the Metropolitan
Transit Authority Act, the School Code, the Health Care Worker
Background Check Act, and the Illinois Vehicle Code, to include
references to the offense of predatory criminal sexual assault of
a child.
Article 2 also contained provisions amending the Juvenile
Court Act to allow the prosecution as an adult of juveniles who are
at least 15 years old and who are charged with committing
aggravated vehicular hijacking with a firearm, and juveniles who
are at least 13 years old and who are charged with committing first
degree murder during the course of certain other crimes. In
addition, article 2 amended the Unified Code of Corrections to make
life imprisonment the sentence for a defendant who, while under the
age of 17, murders a person under the age of 12 during the course
of certain other crimes.
Article 3 created the Environmental Impact Fee Law. Beginning
on January 1, 1996, this law imposed an environmental impact fee of
$60 per 7,500 gallons of fuel sold or used in Illinois to be paid
by the "receiver" of the fuel. The fees collected were to be
deposited in the Underground Storage Tank Fund created by the
Environmental Protection Act and ultimately used to reimburse
eligible owners of underground storage tanks for costs incurred in
remedying contamination caused by leaking tanks. Article 3 also
amended the Civil Administrative Code of Illinois, the Motor Fuel
Tax Law, and the Environmental Protection Act.
Article 4 amended the Cannabis Control Act to enhance the
felony classifications for the possession and delivery of certain
amounts of cannabis.
Article 5 amended the Unified Code of Corrections to decrease
the frequency of parole hearings for prison inmates.
Article 6 amended section 14--3 of the Criminal Code of 1961,
which governs exemptions from the offense of eavesdropping. This
amendment added subsection (j) to section 14--3, providing that the
following activity would be exempt from the offense of
eavesdropping:
"(j) The use of a monitoring system by any
corporation or other business entity engaged in the
provision of products or services to the public, or to
the officers, employees, or agents thereof, when the acts
otherwise prohibited herein are for the purpose of
service quality control or for educational, training, or
research purposes and such acts are performed with the
consent of one party to the communication being
intercepted.
No communication or conversation or any part,
portion, or aspect of the communication or conversation
made, acquired, or obtained, directly or indirectly,
under this exemption (j), may be, directly or indirectly,
furnished to any law enforcement officer, agency, or
official for any purpose or used in any inquiry or
investigation, or used, directly or indirectly, in any
administrative, judicial, or other proceeding, or
divulged to any third party." Pub. Act 89--428 601, eff.
December 13, 1995.
Article 6 also amended the Code of Criminal Procedure of 1963
to provide that a criminal defendant who is receiving psychotropic
drugs is entitled to a fitness hearing only where the court finds
there is a bona fide doubt of the defendant's fitness. This article
also added a new provision to the law governing the admission of
the hearsay statements of child victims.
In addition, article 6 amended the Unified Code of
Corrections' provision regarding the Truth-in-Sentencing Commission
and rewrote its provision requiring convicted persons committed to
the Department of Corrections to reimburse the Department for the
expenses incurred as a result of their incarceration.
Public Act 89--428 provided that its provisions would take
effect upon becoming law, except that article 1 would take effect
June 1, 1996, and article 3 would take effect January 1, 1996.
Public Act 89--428 was passed by both the House and the Senate and
was signed into law on December 13, 1995. Shortly thereafter, the
two declaratory judgment actions that are the subject of these
consolidated appeals were instituted.
Johnson v. Edgar
In Johnson v. Edgar, No. 81091, the plaintiffs filed a three-
count complaint for declaratory judgment and injunction in the
circuit court of Cook County on December 15, 1995. The named
plaintiffs were the Illinois State Federation of Labor and Congress
of Industrial Organizations (Illinois AFL-CIO), its president,
Donald Johnson, and its secretary-treasurer, Margaret Blackshere.
The Illinois AFL-CIO is an unincorporated labor organization
representing over 1.2 million Illinois workers employed by private
and municipal corporations and other business entities. The Johnson
complaint named as defendants Governor Jim Edgar, Attorney General
Jim Ryan, and the State of Illinois. The State was dismissed by
agreement of the parties.
The Johnson plaintiffs' complaint was directed primarily at
the portion of article 6 of Public Act 89--428, which amended
section 14--3 of the Criminal Code to create a new exemption for
the offense of eavesdropping. As stated, this exemption allowed
employers to monitor their employees' conversations in some
circumstances. Count I of the plaintiffs' complaint charged that
Public Act 89--428 violated the single subject rule of the Illinois
Constitution because it contained more than one subject. Count II
charged that the eavesdropping provision in article 6 was so vague
that it violated the plaintiffs' rights to due process of law under
the Illinois and United State Constitutions. Count III charged that
the eavesdropping provision was overbroad and violated privacy
rights in violation of the Illinois and United States
Constitutions. The complaint sought a declaration on the
constitutionality of the provision and an injunction against its
enforcement.
On January 16, 1996, the plaintiffs filed a motion for summary
judgment. On January 25, 1996, the defendants filed a motion to
dismiss the plaintiffs' complaint, arguing that the plaintiffs had
no standing, the complaint failed to state a claim upon which
injunctive relief could be granted, and the complaint should be
dismissed on the ground of sovereign immunity. On May 7, 1996, the
circuit court granted the plaintiffs' motion for summary judgment
and denied the defendants' motion to dismiss. The circuit court
ruled that the plaintiffs had standing and that Public Act 89--428
was unconstitutional in its entirety because it encompassed more
than one subject, in violation of article IV, section 8(d), of the
Illinois Constitution. The court permanently enjoined the
defendants from enforcing any provision of Public Act 89--428. The
defendants appealed directly to this court, pursuant to Supreme
Court Rule 302(a) (134 Ill. 2d R. 302(a)), from the declaration
that Public Act 89--428 is unconstitutional. The defendants have
not appealed the circuit court's ruling on the standing issue.
Langa v. Gade
In Langa v. Gade, No. 81249, the plaintiff, Irv Langa,
individually and d/b/a Langa Air, Inc. (Langa), initiated his
declaratory judgment and injunction action in the circuit court of
Madison County on January 3, 1996. Langa filed his two-count,
first-amended complaint on March 6, 1996, naming as defendants the
Illinois Environmental Protection Agency, State Comptroller Loleta
Didrickson, State Treasurer Judy Baar Topinka, and Director of
Revenue Ken Zehnder.
Langa's complaint was directed primarily at article 3 of
Public Act 89--428. As stated, article 3 created the Environmental
Impact Fee Law. Langa's complaint alleged that he owned and
operated Langa Air, Inc., in the course of which he buys aviation
fuel from "receivers" that are required to pay the environmental
impact fee imposed by article 3. Langa claimed to be adversely
affected by the additional costs imposed on receivers by article 3.
Count I of Langa's first-amended complaint charged that Public Act
89--428, in its entirety, was unconstitutional because it violated
the single subject rule of the Illinois Constitution. In count II,
Langa alleged that article 3 violated the constitutional guarantee
of equal protection because it exempted certain airports from
paying the fee.
The defendants filed a motion to dismiss Langa's complaint on
April 17, 1996. The defendants argued that Langa did not have
standing because he was not a "receiver" subject to the fee and
further argued that Public Act 89--428 did not violate either the
single subject rule or the guarantee of equal protection. On May 2,
1996, Langa filed a motion for summary judgment. The Cook County
circuit court's decision in Johnson v. Edgar, declaring Public Act
89--428 unconstitutional, was handed down on May 7, 1996. The
Madison County circuit court in Langa v. Gade was apprised of the
Johnson decision. On May 24, 1996, the defendants filed a second
motion to dismiss Langa's complaint based on the May 22, 1996,
enactment of a separate Environmental Impact Fee Law in Public Act
89--457. The defendants argued that, as a result of Public Act 89--
457, Langa's constitutional challenge to Public Act 89--428 was
moot and his complaint should be dismissed.
The circuit court issued an order on June 3, 1996, granting
Langa's motion for summary judgment and denying the defendants'
motions to dismiss. The court ruled that Langa had standing to
bring this action, his challenge to Public Act 89--428 was not
moot, and Public Act 89--428 violated the single subject rule of
the Illinois Constitution. The court permanently enjoined the
defendants from enforcing any provision of Public Act 89--428. The
defendants appealed directly to this court pursuant to Rule 302(a).
The defendants have not appealed the circuit court's ruling on the
standing issue.
Subsequent Legislation
Questions are raised in these appeals with regard to the
effect of subsequent legislation passed by the Illinois
legislature. We briefly discuss that legislation. Following the
circuit court of Cook County's decision in Johnson, the General
Assembly began revisiting different portions of Public Act 89--428
in separate pieces of legislation. Public Act 89--457, mentioned
above, was enacted on May 22, 1996. Public Act 89--457 recodified
the Environmental Impact Fee Law that was contained in article 3 of
Public Act 89--428. Public Act 89--457, like Public Act 89--428,
imposed the fee to begin on January 1, 1996. Public Act 89--457
also contained a provision validating all actions taken in reliance
on article 3 of Public Act 89--428.
Public Act 89--452 was enacted on May 17, 1996. Public Act 89-
-452 contained an exemption from the offense of eavesdropping for
employers similar to that contained in article 6 of Public Act 89--
428. The exemption established by Public Act 89--452, however, was
more limited than that contained in Public Act 89--428 and
contained far more details concerning its application.
On May 29, 1996, the General Assembly enacted Public Act 89--
462, which created the Child Sex Offender and Murderer Community
Notification Law. That law is substantially similar to the Child
Sex Offender Community Notification Law created by article 1 of
Public Act 89--428. Public Act 89--462 also recodified the
provisions of article 2 of Public Act 89--428.
Public Act 89--689 was enacted on December 31, 1996. That Act
addressed three provisions that had been contained in Public Act
89--428: (1) the timing of parole hearings, formerly addressed in
article 5; (2) the Truth-in-Sentencing Commission, formerly
addressed in article 6; and (3) fitness hearings for criminal
defendants receiving psychotropic drugs, formerly addressed in
article 6.
Several provisions of Public Act 89--428 have not been
addressed in subsequent legislation. Those provisions include the
enhanced felony classifications for possession and delivery of
cannabis contained in article 4, the addition to the child hearsay
exception contained in article 6, and the provision regarding
prisoners' reimbursement for incarceration expenses contained in
article 6.
ANALYSIS
We consolidated the defendants' direct appeals in each case
for our consideration. The defendants in each case have filed one
joint brief. We therefore refer to all the defendants collectively
as "the defendants," without differentiating between the two cases.
Only the plaintiffs in Johnson have filed an appellees' brief. We
therefore refer to the Johnson plaintiffs as "the plaintiffs."
Mootness
The defendants first urge this court not to reach the
substantive issue of whether Public Act 89--428 is
unconstitutional. They contend that the subsequent reenactment of
many of the provisions of Public Act 89--428 renders the
plaintiffs' constitutional challenge to the Act moot. The
defendants therefore ask that we vacate the circuit court decisions
and lift the injunctions. We do not agree that the mootness
doctrine applies in this case.
A matter is moot when the issues involved in the trial court
no longer exist because intervening events have rendered it
impossible for the reviewing court to grant the complaining party
effectual relief. In re A Minor, 127 Ill. 2d 247, 255 (1989). As
the defendants point out, this court has held that where a
challenged statute is amended while the cause is pending, the
question of the statute's validity becomes moot. Forest Preserve
District v. City of Aurora, 151 Ill. 2d 90, 94 (1992); People v.
B.D.A., 102 Ill. 2d 229, 233 (1984). Thus, in those cases where,
during the pendency of the case, an amendment removed or altered
the potentially unconstitutional language or aspect of a challenged
statute, we have held that the constitutional challenge to the
statute is moot. See Forest Preserve District, 151 Ill. 2d at 94-
95; Arrington v. City of Chicago, 45 Ill. 2d 316 (1970). For
example, in Forest Preserve District, the plaintiff challenged an
amendment that added certain language to a provision of the
Downstate Forest Preserve District Act. The plaintiff contended
that the added language rendered the provision unconstitutional
special legislation and violative of equal protection guarantees.
The trial court agreed and declared the provision unconstitutional.
During the pendency of the defendant's direct appeal, the
legislature amended the provision to effectively nullify the
language which had been held unconstitutional. Under these
circumstances, this court determined that the case was moot. Forest
Preserve District, 151 Ill. 2d at 94-95.
This rule is not applicable in this case. The constitutional
challenge pursued here is that Public Act 89--428 was enacted in
violation of the single subject rule of the Illinois Constitution.
As we discuss in detail later in this opinion, the single subject
rule prohibits the enactment of bills that encompass more than one
subject. Thus, a challenge that an act violates the single subject
rule is, by definition, directed at the act in its entirety. There
is no one provision or feature of the act that is challenged as
unconstitutional, such that the defect could be remedied by a
subsequent amendment which simply deleted or altered that provision
or feature. In fact, a single subject challenge does not address
the substantive constitutionality of the act's provisions at all.
Rather, a single subject challenge goes to the very structure of
the act, and the process by which it was enacted. If we determine
that Public Act 89--428 in its structure is invalid, the Act may
not be permitted to stand. The legislature is, of course, free to
revisit the provisions contained in the Act in other legislation.
Subsequent legislation, however, will not remedy the constitutional
defect in Public Act 89--428 if it was passed in violation of the
single subject rule.
Moreover, we note that Public Act 89--428 has not been
replaced in its entirety. Some provisions of Public Act 89--428
have not been revisited in separate legislation. Because a single
subject violation would render invalid each and every provision of
Public Act 89--428, the fact that some provisions of Public Act 89-
-428 have not been readdressed also defeats the defendants'
mootness argument. Further, with regard to those provisions of
Public Act 89--428 that have been reenacted in some form, in most
instances, the effective dates of the new legislation postdate the
effective date of the corresponding provision in Public Act 89--
428. Thus, a window of time exists when the allegedly invalid
provisions of Public Act 89--428 were in effect and had not been
superseded by subsequent legislation.
Even if we were to find the mootness doctrine technically
applicable here, the public interest exception to that doctrine
would save the constitutional issue for our review. Both the
plaintiffs, in their appellees' brief, and the defendants, in their
response to a motion filed by the plaintiffs, have argued that the
issue of the validity of Public Act 89--428 satisfies the
requirements for the public interest exception. The criteria for
the public interest exception are: (1) the public nature of the
question, (2) the desirability of an authoritative determination
for the purpose of guiding public officers, and (3) the likelihood
that the question will generally recur. In re A Minor, 127 Ill. 2d 247, 257 (1989). We agree with the parties that the constitutional
issue in this case falls within the public interest exception. The
issue of whether the legislature enacted this broad-sweeping
legislation in a manner that violates our constitution is a matter
of public importance. Further, the issue of whether Public Act 89--
428 violated the single subject rule is likely to recur. The record
indicates that the issue has been raised in at least one other case
currently pending at the trial level. Moreover, the single subject
issue will likely recur with respect to the provisions of Public
Act 89--428 that have not been reenacted in other legislation.
Consequently, resolution of the single subject challenge by this
court will be of assistance to both the lower courts and the public
officers who will be faced with questions regarding the validity of
the Act's many provisions. In short, this court's ruling will
remove the uncertainty surrounding the Act and its continued
validity.
We note that a motion by the Johnson plaintiffs to dismiss the
appeal, on the ground that there is no longer a controversy as to
the eavesdropping provision because it was replaced by new
legislation, was taken with the case. The defendants filed
objections to dismissal of the appeal, and continue to object to
dismissal in their appellants' brief. Given our holding that the
mootness doctrine does not apply here, we deny the Johnson
plaintiffs' motion.
We therefore turn to the substantive issue of the
constitutionality of Public Act 89--428.
Single Subject Rule
We must decide whether the legislature, in enacting Public Act
89--428, violated the single subject rule of the Illinois
Constitution. Article IV, section 8(d), of the Illinois
Constitution of 1970 provides, in pertinent part, as follows:
"Bills, except bills for appropriations and for the
codification, revision or rearrangement of laws, shall be
confined to one subject." Ill. Const. 1970, art. IV,
8(d).
The single subject rule is a substantive requirement for the
passage of bills and is therefore subject to judicial review.
People v. Dunigan, 165 Ill. 2d 235, 254 (1995). This court
discussed the historical purpose of the single subject rule in
Fuehrmeyer v. City of Chicago, 57 Ill. 2d 193, 201 (1974), stating:
" `The history and purpose of this constitutional
provision are too well understood to require any
elucidation at our hands. The practice of bringing
together into one bill subjects diverse in their nature,
and having no necessary connection, with a view to
combine in their favor the advocates of all, and thus
secure the passage of several measures, no one of which
could succeed upon its own merits, [is] one both
corruptive of the legislator and dangerous to the
State.' " Fuehrmeyer, 57 Ill. 2d at 202, quoting People
ex rel. Drake v. Mahaney, 13 Mich. 481, 494-95 (1865).
Thus, one reason for the single subject rule is to prevent
legislation from being passed which, standing alone, could not
muster the necessary votes for passage. Geja's Cafe v. Metropolitan
Pier & Exposition Authority, 153 Ill. 2d 239, 258 (1992). The rule
also serves to facilitate orderly legislative procedure. "By
limiting each bill to a single subject, the issues presented by
each bill can be better grasped and more intelligently discussed."
M. Rudd, No Law Shall Embrace More Than One Subject, 42 Minn. L.
Rev. 389, 391 (1958). In sum, the single subject rule ensures that
the legislature addresses the difficult decisions it faces directly
and subject to public scrutiny, rather than passing unpopular
measures on the backs of popular ones.
The term "subject," in this context, is to be liberally
construed and the subject may be as broad as the legislature
chooses. Dunigan, 165 Ill. 2d at 255; Cutinello v. Whitley, 161 Ill. 2d 409, 423-24 (1994). Nonetheless, the matters included in
the enactment must have a natural and logical connection.
Cutinello, 161 Ill. 2d at 423-24; People ex rel. Ogilvie v. Lewis,
49 Ill. 2d 476, 487 (1971). The rule prohibits the inclusion of
" `discordant provisions that by no fair intendment can be
considered as having any legitimate relation to each other.' "
Ogilvie, 49 Ill. 2d at 487, quoting People ex rel. Gutknecht v.
City of Chicago, 414 Ill. 600, 607-08 (1953).
As the above principles elucidate, the single subject rule
does not impose an onerous restriction on the legislature's
actions. Rather, the rule leaves the legislature with wide latitude
in determining the content of bills. In fact, this court has on
numerous occasions rejected single subject challenges brought
against various pieces of legislation. See, e.g., Cutinello, 161 Ill. 2d at 423-24 (all provisions of challenged act pertained to
the subject of transportation); Geja's Cafe, 153 Ill. 2d at 257-59
(all provisions of challenged act pertained to the McCormick Place
Expansion Project); Stein v. Howlett, 52 Ill. 2d 570, 582-83 (1972)
(all provisions of challenged act related to the subject of
ethics); Ogilvie, 49 Ill. 2d at 487-88 (all provisions of
challenged legislation pertained to the subject of transportation
bonds). These decisions demonstrate not only the principles which
we apply in evaluating a single subject challenge, but also that
the legislature must indeed go very far to cross the line to a
violation of the single subject rule. In enacting Public Act 89--
428, the legislature clearly crossed that line. No matter how
liberally the single subject rule is construed, Public Act 89--428
violates that rule.
Public Act 89--428 began its legislative life as an eight-page
bill addressing the narrow subject of reimbursement by prisoners to
the Department of Corrections for the expense of incarceration. As
enacted on December 13, 1995, however, Public Act 89--428 had
experienced an extraordinary growth, from 8 pages to over 200
pages. While the length of a bill is not determinative of its
compliance with the single subject rule, the variety of its
contents certainly is. Here, "An Act in relation to prisoner's
reimbursement to the Department of Corrections for the expenses
incurred by their incarceration" became a bill which created a law
providing for the community notification of child sex offenders,
created a law imposing fees on the sale of fuel, and enhanced the
felony classifications for the possession and delivery of cannabis.
This bill also created an exemption from prosecution for
eavesdropping applicable to employers who wish to monitor their
employees' conversations, amended the law to allow the prosecution
of juveniles as adults in certain cases, and created the new crime
of predatory criminal sexual assault of a child. This bill further
changed the law governing the timing of parole hearings for prison
inmates, changed the law governing when a defendant who is
receiving psychotropic drugs is entitled to a fitness hearing, and
added a provision to the law governing child hearsay statements.
Finally, Public Act 89--428 addressed the subject of prisoners'
reimbursement to the Department of Corrections for the expenses of
their incarceration. In sum, Public Act 89--428 amended a multitude
of provisions in over 20 different acts, and created several new
laws. By no fair intendment may the many discordant provisions in
Public Act 89--428 be considered to possess a natural and logical
connection. See Ogilvie, 49 Ill. 2d at 487. The enactment of Public
Act 89--428 therefore violated the single subject rule.
This court has previously invalidated a statute that violated
the single subject rule. At issue in Fuehrmeyer v. City of Chicago,
57 Ill. 2d 193 (1974), was the constitutionality of Public Act 77--
1818. That act purported to grant exclusively to the state, and to
take away from units of local government, the power to regulate the
professions and occupations listed in 30 separate acts, ranging
from architects to funeral directors to water well contractors.
This court first rejected the contention that the act was for
"codification, revision or rearrangement" and was therefore exempt
from the single subject rule. Fuehrmeyer, 57 Ill. 2d at 202. This
court went on to find that the act violated the single subject rule
because each of the 30 regulated professions or occupations was a
separate subject. Fuehrmeyer, 57 Ill. 2d at 203-05.
The Act at issue in this case presents an even more egregious
example of the legislature ignoring the single subject rule. As
noted above, Public Act 89--428 encompassed subjects as diverse as
child sex offenders, employer eavesdropping, and environmental
impact fees imposed on the sale of fuel. Under no interpretation of
the single subject rule could it reasonably be concluded that
Public Act 89--428 was passed in accordance with that rule.
The defendants argue that the Act is constitutional because
all of its provisions are confined to the single subject of public
safety. We cannot accept the defendants' contention. Were we to
conclude that the many obviously discordant provisions contained in
Public Act 89--428 are nonetheless related because of a tortured
connection to a vague notion of public safety, we would be
essentially eliminating the single subject rule as a meaningful
constitutional check on the legislature's actions.
For the reasons stated, we hold that Public Act 89--428 was
enacted in violation of the single subject rule of our state
constitution and is therefore invalid.
Validating Legislation
The defendants make an additional argument solely with respect
to the lower courts' injunctions against the enforcement of the
environmental impact fee law of Public Act 89--428. The defendants
ask that we lift the injunctions against enforcement of this
provision on the ground that the reenactment of the environmental
impact fee law in Public Act 89--457 validated the imposition of
the fees under Public Act 89--428. We agree that application of
Public Act 89--457 requires that the injunctions be lifted to the
extent that those injunctions proscribe the use, pursuant to Public
Act 89--457, of environmental impact fees already collected under
Public Act 89--428.
This court has recognized the legislature's power to pass
curative legislation. See Bates v. Board of Education, Allendale
Community Consolidated School District No. 17, 136 Ill. 2d 260, 268
(1990). The general rule is that the legislature "may by a curative
act validate any proceeding which it might have authorized in
advance, provided the power be so exercised as not to infringe on
or divest property rights and vested interests of the parties
involved." Bates, 136 Ill. 2d at 268; see also Worley v. Idleman,
285 Ill. 214, 219 (1918). The test is whether the legislature might
have authorized the act which it attempts to validate before it
took place. People ex rel. Shore v. Helmer, 410 Ill. 420, 427
(1951).
Generally, where the legislature changes the law while an
appeal is pending, the case must be disposed of by the reviewing
court under the law as it then exists, not as it was when the
decision was made by the lower court. Envirite Corp. v. Illinois
Environmental Protection Agency, 158 Ill. 2d 210, 215 (1994).
Accordingly, the fact that curative legislation is enacted during
the pendency of an appeal does not preclude its application by the
reviewing court. See Bates, 136 Ill. 2d at 264; People ex rel.
Bauer v. Elmhurst-Villa Park-Lombard Water Comm'n, 20 Ill. 2d 139,
142 (1960); People ex rel. Patterson v. Woodruff, 280 Ill. 472, 475
(1917). In Bates, the plaintiffs challenged the defendant school
district's issuance of bonds carrying an interest rate of 9.75%.
The plaintiffs charged that the bonds were invalid because the
applicable provision of the School Code set an interest rate
ceiling of 7%. The defendant contended that the bonds were valid
because the applicable provision of the Bond Authorization Act
authorized an interest rate of 9.75%. The circuit court dismissed
the plaintiffs' claim and the appellate court reversed. While the
defendant's appeal was pending before this court, the legislature
enacted new legislation that, inter alia, validated bonds which
exceeded the authority granted by the provision under which they
were issued, but were within the authority granted by the Bond
Authorization Act. This court held that this legislation validated
the bonds challenged by the plaintiffs. In so holding, this court
noted that, at the time the bonds were issued, the legislature
possessed the authority to authorize an interest rate above 7%.
Therefore, because the legislature could have originally authorized
the higher rate, it could validate the rate after the fact by means
of curative legislation. Bates, 136 Ill. 2d at 267-68.
Similarly, in Woodruff, the plaintiffs brought a quo warranto
action against a school district and its members charging that the
district was organized pursuant to a statute which had been held
unconstitutional by this court. While the case was pending before
this court, the General Assembly enacted legislation that validated
school districts, including the one challenged by the plaintiffs,
which met certain requirements. This court determined that, because
the legislature had the power to create the school districts in the
first instance, the legislature could, by curative act, validate
districts which had been organized under the unconstitutional act.
Woodruff, 280 Ill. at 475-77; see also Bauer, 20 Ill. 2d at 142-44
(curative legislation enacted during pendency of appeal acted to
validate water commission whose establishment had been challenged
by the plaintiffs).
Curative legislation has been held effective to validate tax
levies which, when made, did not comply with statutory
requirements. See Schlenz v. Castle, 84 Ill. 2d 196 (1981); People
v. Holmstrom, 8 Ill. 2d 401 (1956). In Schlenz, the plaintiffs
challenged tax levies made by the defendants on the ground that
they failed to publish the real estate assessment lists within the
time frames set by section 103 of the Revenue Act. This court had
previously held that the publication dates of section 103 were
mandatory. While the plaintiffs' action was pending in the circuit
court, the legislature enacted legislation that validated
assessments that had not been timely published under section 103.
This court held that, because there was no lack of power to make
the assessments in the first instance, the subsequent legislation
acted to validate the challenged assessments. Schlenz, 84 Ill. 2d
at 204-09.
In this case, the injunctions issued by the lower courts had
the effect of prohibiting the defendants from collecting or
disbursing environmental impact fees under Public Act 89--428.
Prior to May 7, 1996, the date the first injunction was issued in
Johnson, fees had already been collected under that law. According
to the defendants, the injunctions issued in each of these cases
prohibit the defendants from disbursing, in accordance with the
terms of the statute, any of these collected fees to reimburse
underground tank owners for corrective action. The defendants argue
that Public Act 89--457 validated all fees collected and actions
taken pursuant to the environmental impact fee law of Public Act
89--428. As a result, the defendants maintain, this court should
lift the injunctions to the extent that they prohibit the
disbursement of fees already collected under Public Act 89--428.
For the reasons stated below, we agree.
As noted, Public Act 89--457 recodified the environmental
impact fee law contained in article 3 of Public Act 89--428. Public
Act 89--457, like Public Act 89--428, imposed the fee beginning
January 1, 1996. Public Act 89--457 also stated that the fee
imposed under that law replaced the fee imposed under Public Act
89--428 and that fees paid under Public Act 89--428 shall satisfy
the receiver's corresponding liability under Public Act 89--457. In
addition, Public Act 89--457 contained the following provision:
"Validation. All actions taken in reliance on or
pursuant to Article 3 of Public Act 89--428 by the
Department of Revenue, the Environmental Protection
Agency, the Pollution Control Board, or any other person
or entity are hereby validated." Pub. Act 89--457, 385.
Public Act 89--457 thus expressly states the legislature's
intention to validate fees collected and other actions taken under
article 3 of Public Act 89--428. There is no contention made here
that the legislature did not possess the authority, in the first
instance, to impose the environmental impact fee. The defect we
identified in Public Act 89--428 was in the structure of the Act,
not in its substantive provisions. No argument has been made to
this court that the environmental impact fee law of Public Act 89--
428 is substantively invalid. Curative legislation is properly used
to validate an irregular or defective exercise of authority. See
Bates, 136 Ill. 2d at 270. Consequently, because there is no
contention that the legislature lacked the authority to impose the
fees before the fact, the legislature could, by curative
legislation, validate the fees already collected under the invalid
act. See Bauer, 20 Ill. 2d at 144.
We note that no argument has been advanced here that the
application of Public Act 89--457 to validate the fees collected
under Public Act 89--428 interferes with vested rights or is
otherwise unconstitutional. In fact, the party who would have been
most interested in pursuing such an argument, the plaintiff in
Langa, has declined to file a brief in this court. The Johnson
plaintiffs, in their brief, have stated that they "take no position
as to the collection of fees under the Environmental Impact Fee
Act." Legislative enactments are, of course, presumed to be
constitutional. Bernier v. Burris, 113 Ill. 2d 219, 227 (1986).
Consequently, because we determine that Public Act 89--457 meets
the test for curative legislation and because no party in this case
has challenged the constitutionality of applying it as curative
legislation, we find that Public Act 89--457 applies to validate
the fees collected under the environmental impact fee law of Public
Act 89--428. The lower courts' injunctions in these cases should
therefore be lifted to the extent that they proscribe the use of
fees already collected under Public Act 89--428. We caution,
however, that by this holding we have not decided any issues
regarding the constitutionality of Public Act 89--457, as no such
constitutional challenge has been raised before us.
This holding does not impact our decision above that Public
Act 89--428, in its entirety, is unconstitutional and
unenforceable. As the defendants concede, curative legislation may
validate only actions taken in reliance on an unconstitutional
statute. Curative legislation cannot validate or legalize the
unconstitutional legislation itself. See People ex rel. Patterson
v. Woodruff, 280 Ill. 472, 476 (1917).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County in cause No. 81019, declaring Public
Act 89--428 unconstitutional and enjoining its enforcement, except
that we vacate that portion of the injunction which prohibits the
use, pursuant to Public Act 89--457, of environmental impact fees
already collected under Public Act 89--428. We likewise affirm the
judgment of the circuit court of Madison County in cause No. 81249,
declaring Public Act 89--428 unconstitutional and enjoining its
enforcement, except that we vacate that portion of the injunction
which prohibits the use, pursuant to Public Act 89--457, of
environmental impact fees already collected under Public Act 89--
428.
Judgments affirmed, as modified.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket Nos. 81019, 81249 cons.--Agenda 12--March 1997.
DONALD JOHNSON et al., Appellees, v. JIM EDGAR et al.,
Appellants.--IRV LANGA, Appellee, v. MARY A. GADE et al.,
Appellants.
Opinion filed May 22, 1997.
JUSTICE BILANDIC delivered the opinion of the court:
At issue in these consolidated appeals is the
constitutionality of Public Act 89--428, enacted by the Illinois
General Assembly on December 13, 1995. The plaintiffs in each case
challenged the Act as violative of the "single subject rule"
contained in article IV, section 8(d), of the Illinois Constitution
of 1970. The circuit court in each case ruled that the Act was
unconstitutional on this ground and ordered that the appellants are
permanently enjoined from enforcing any provision of the Act. We
now affirm in part and reverse in part the circuit courts'
judgments.
FACTS
The single subject rule concerns the method by which
legislation is enacted. We therefore begin with a review of the
procedural history and substance of Public Act 89--428.
Public Act 89--428
Public Act 89--428 was introduced as Senate Bill 721 on March
2, 1995. At that time, the bill was entitled "An Act in relation to
prisoners reimbursement to the Department of Corrections for the
expenses incurred by their incarceration, amending named Acts." The
bill was eight pages long and addressed only this specific topic.
The Senate passed the bill on April 25, 1995, with no amendments.
When Senate Bill 721 reached the House of Representatives,
amendments four through sixteen were placed on the bill. These
amendments addressed an array of different subjects, including,
inter alia, expulsion of school students for bringing weapons to
school, increasing the penalties for the possession of cannabis,
and providing for privatization of some services of the State
Appellate Defender's Office. One amendment retitled the bill as "An
Act in relation to crime." With these amendments, Senate Bill 721
passed the House of Representatives and was sent back to the
Senate.
The Senate and House could not agree as to which of the 13
House amendments to the bill should stand. As a result, a
conference committee was formed. The conference committee changed
the title of the bill and replaced everything after the enacting
clause. What had started out as an eight-page bill became a bill of
over 200 pages. The bill became so voluminous that even the broad
title of "An Act in relation to crime" could not cover all the
subjects contained in the bill. Thus, the committee renamed the
bill "An Act in relation to public safety."
The bill encompassed a multitude of subject matters, contained
in six articles. Article 1, entitled "The Child Sex Offender
Community Notification Law," created a statewide database for the
purpose of identifying child sex offenders and provided for
community notification of registration of child sex offenders.
Article 1 also amended the Sex Offender Registration Act to change
the definition of "sex offender" and to expand the definition of
"sex offense."
Article 2 amended the Criminal Code of 1961 to create the
offense of predatory criminal sexual assault of a child. This
article also amended numerous other acts, including the Alcoholism
and Other Drug Abuse and Dependency Act, the Children and Family
Services Act, the Military Code of Illinois, the Metropolitan
Transit Authority Act, the School Code, the Health Care Worker
Background Check Act, and the Illinois Vehicle Code, to include
references to the offense of predatory criminal sexual assault of
a child.
Article 2 also contained provisions amending the Juvenile
Court Act to allow the prosecution as an adult of juveniles who are
at least 15 years old and who are charged with committing
aggravated vehicular hijacking with a firearm, and juveniles who
are at least 13 years old and who are charged with committing first
degree murder during the course of certain other crimes. In
addition, article 2 amended the Unified Code of Corrections to make
life imprisonment the sentence for a defendant who, while under the
age of 17, murders a person under the age of 12 during the course
of certain other crimes.
Article 3 created the Environmental Impact Fee Law. Beginning
on January 1, 1996, this law imposed an environmental impact fee of
$60 per 7,500 gallons of fuel sold or used in Illinois to be paid
by the "receiver" of the fuel. The fees collected were to be
deposited in the Underground Storage Tank Fund created by the
Environmental Protection Act and ultimately used to reimburse
eligible owners of underground storage tanks for costs incurred in
remedying contamination caused by leaking tanks. Article 3 also
amended the Civil Administrative Code of Illinois, the Motor Fuel
Tax Law, and the Environmental Protection Act.
Article 4 amended the Cannabis Control Act to enhance the
felony classifications for the possession and delivery of certain
amounts of cannabis.
Article 5 amended the Unified Code of Corrections to decrease
the frequency of parole hearings for prison inmates.
Article 6 amended section 14--3 of the Criminal Code of 1961,
which governs exemptions from the offense of eavesdropping. This
amendment added subsection (j) to section 14--3, providing that the
following activity would be exempt from the offense of
eavesdropping:
"(j) The use of a monitoring system by any
corporation or other business entity engaged in the
provision of products or services to the public, or to
the officers, employees, or agents thereof, when the acts
otherwise prohibited herein are for the purpose of
service quality control or for educational, training, or
research purposes and such acts are performed with the
consent of one party to the communication being
intercepted.
No communication or conversation or any part,
portion, or aspect of the communication or conversation
made, acquired, or obtained, directly or indirectly,
under this exemption (j), may be, directly or indirectly,
furnished to any law enforcement officer, agency, or
official for any purpose or used in any inquiry or
investigation, or used, directly or indirectly, in any
administrative, judicial, or other proceeding, or
divulged to any third party." Pub. Act 89--428 601, eff.
December 13, 1995.
Article 6 also amended the Code of Criminal Procedure of 1963
to provide that a criminal defendant who is receiving psychotropic
drugs is entitled to a fitness hearing only where the court finds
there is a bona fide doubt of the defendant's fitness. This article
also added a new provision to the law governing the admission of
the hearsay statements of child victims.
In addition, article 6 amended the Unified Code of
Corrections' provision regarding the Truth-in-Sentencing Commission
and rewrote its provision requiring convicted persons committed to
the Department of Corrections to reimburse the Department for the
expenses incurred as a result of their incarceration.
Public Act 89--428 provided that its provisions would take
effect upon becoming law, except that article 1 would take effect
June 1, 1996, and article 3 would take effect January 1, 1996.
Public Act 89--428 was passed by both the House and the Senate and
was signed into law on December 13, 1995. Shortly thereafter, the
two declaratory judgment actions that are the subject of these
consolidated appeals were instituted.
Johnson v. Edgar
In Johnson v. Edgar, No. 81091, the plaintiffs filed a three-
count complaint for declaratory judgment and injunction in the
circuit court of Cook County on December 15, 1995. The named
plaintiffs were the Illinois State Federation of Labor and Congress
of Industrial Organizations (Illinois AFL-CIO), its president,
Donald Johnson, and its secretary-treasurer, Margaret Blackshere.
The Illinois AFL-CIO is an unincorporated labor organization
representing over 1.2 million Illinois workers employed by private
and municipal corporations and other business entities. The Johnson
complaint named as defendants Governor Jim Edgar, Attorney General
Jim Ryan, and the State of Illinois. The State was dismissed by
agreement of the parties.
The Johnson plaintiffs' complaint was directed primarily at
the portion of article 6 of Public Act 89--428, which amended
section 14--3 of the Criminal Code to create a new exemption for
the offense of eavesdropping. As stated, this exemption allowed
employers to monitor their employees' conversations in some
circumstances. Count I of the plaintiffs' complaint charged that
Public Act 89--428 violated the single subject rule of the Illinois
Constitution because it contained more than one subject. Count II
charged that the eavesdropping provision in article 6 was so vague
that it violated the plaintiffs' rights to due process of law under
the Illinois and United State Constitutions. Count III charged that
the eavesdropping provision was overbroad and violated privacy
rights in violation of the Illinois and United States
Constitutions. The complaint sought a declaration on the
constitutionality of the provision and an injunction against its
enforcement.
On January 16, 1996, the plaintiffs filed a motion for summary
judgment. On January 25, 1996, the defendants filed a motion to
dismiss the plaintiffs' complaint, arguing that the plaintiffs had
no standing, the complaint failed to state a claim upon which
injunctive relief could be granted, and the complaint should be
dismissed on the ground of sovereign immunity. On May 7, 1996, the
circuit court granted the plaintiffs' motion for summary judgment
and denied the defendants' motion to dismiss. The circuit court
ruled that the plaintiffs had standing and that Public Act 89--428
was unconstitutional in its entirety because it encompassed more
than one subject, in violation of article IV, section 8(d), of the
Illinois Constitution. The court permanently enjoined the
defendants from enforcing any provision of Public Act 89--428. The
defendants appealed directly to this court, pursuant to Supreme
Court Rule 302(a) (134 Ill. 2d R. 302(a)), from the declaration
that Public Act 89--428 is unconstitutional. The defendants have
not appealed the circuit court's ruling on the standing issue.
Langa v. Gade
In Langa v. Gade, No. 81249, the plaintiff, Irv Langa,
individually and d/b/a Langa Air, Inc. (Langa), initiated his
declaratory judgment and injunction action in the circuit court of
Madison County on January 3, 1996. Langa filed his two-count,
first-amended complaint on March 6, 1996, naming as defendants the
Illinois Environmental Protection Agency, State Comptroller Loleta
Didrickson, State Treasurer Judy Baar Topinka, and Director of
Revenue Ken Zehnder.
Langa's complaint was directed primarily at article 3 of
Public Act 89--428. As stated, article 3 created the Environmental
Impact Fee Law. Langa's complaint alleged that he owned and
operated Langa Air, Inc., in the course of which he buys aviation
fuel from "receivers" that are required to pay the environmental
impact fee imposed by article 3. Langa claimed to be adversely
affected by the additional costs imposed on receivers by article 3.
Count I of Langa's first-amended complaint charged that Public Act
89--428, in its entirety, was unconstitutional because it violated
the single subject rule of the Illinois Constitution. In count II,
Langa alleged that article 3 violated the constitutional guarantee
of equal protection because it exempted certain airports from
paying the fee.
The defendants filed a motion to dismiss Langa's complaint on
April 17, 1996. The defendants argued that Langa did not have
standing because he was not a "receiver" subject to the fee and
further argued that Public Act 89--428 did not violate either the
single subject rule or the guarantee of equal protection. On May 2,
1996, Langa filed a motion for summary judgment. The Cook County
circuit court's decision in Johnson v. Edgar, declaring Public Act
89--428 unconstitutional, was handed down on May 7, 1996. The
Madison County circuit court in Langa v. Gade was apprised of the
Johnson decision. On May 24, 1996, the defendants filed a second
motion to dismiss Langa's complaint based on the May 22, 1996,
enactment of a separate Environmental Impact Fee Law in Public Act
89--457. The defendants argued that, as a result of Public Act 89--
457, Langa's constitutional challenge to Public Act 89--428 was
moot and his complaint should be dismissed.
The circuit court issued an order on June 3, 1996, granting
Langa's motion for summary judgment and denying the defendants'
motions to dismiss. The court ruled that Langa had standing to
bring this action, his challenge to Public Act 89--428 was not
moot, and Public Act 89--428 violated the single subject rule of
the Illinois Constitution. The court permanently enjoined the
defendants from enforcing any provision of Public Act 89--428. The
defendants appealed directly to this court pursuant to Rule 302(a).
The defendants have not appealed the circuit court's ruling on the
standing issue.
Subsequent Legislation
Questions are raised in these appeals with regard to the
effect of subsequent legislation passed by the Illinois
legislature. We briefly discuss that legislation. Following the
circuit court of Cook County's decision in Johnson, the General
Assembly began revisiting different portions of Public Act 89--428
in separate pieces of legislation. Public Act 89--457, mentioned
above, was enacted on May 22, 1996. Public Act 89--457 recodified
the Environmental Impact Fee Law that was contained in article 3 of
Public Act 89--428. Public Act 89--457, like Public Act 89--428,
imposed the fee to begin on January 1, 1996. Public Act 89--457
also contained a provision validating all actions taken in reliance
on article 3 of Public Act 89--428.
Public Act 89--452 was enacted on May 17, 1996. Public Act 89-
-452 contained an exemption from the offense of eavesdropping for
employers similar to that contained in article 6 of Public Act 89--
428. The exemption established by Public Act 89--452, however, was
more limited than that contained in Public Act 89--428 and
contained far more details concerning its application.
On May 29, 1996, the General Assembly enacted Public Act 89--
462, which created the Child Sex Offender and Murderer Community
Notification Law. That law is substantially similar to the Child
Sex Offender Community Notification Law created by article 1 of
Public Act 89--428. Public Act 89--462 also recodified the
provisions of article 2 of Public Act 89--428.
Public Act 89--689 was enacted on December 31, 1996. That Act
addressed three provisions that had been contained in Public Act
89--428: (1) the timing of parole hearings, formerly addressed in
article 5; (2) the Truth-in-Sentencing Commission, formerly
addressed in article 6; and (3) fitness hearings for criminal
defendants receiving psychotropic drugs, formerly addressed in
article 6.
Several provisions of Public Act 89--428 have not been
addressed in subsequent legislation. Those provisions include the
enhanced felony classifications for possession and delivery of
cannabis contained in article 4, the addition to the child hearsay
exception contained in article 6, and the provision regarding
prisoners' reimbursement for incarceration expenses contained in
article 6.
ANALYSIS
We consolidated the defendants' direct appeals in each case
for our consideration. The defendants in each case have filed one
joint brief. We therefore refer to all the defendants collectively
as "the defendants," without differentiating between the two cases.
Only the plaintiffs in Johnson have filed an appellees' brief. We
therefore refer to the Johnson plaintiffs as "the plaintiffs."
Mootness
The defendants first urge this court not to reach the
substantive issue of whether Public Act 89--428 is
unconstitutional. They contend that the subsequent reenactment of
many of the provisions of Public Act 89--428 renders the
plaintiffs' constitutional challenge to the Act moot. The
defendants therefore ask that we vacate the circuit court decisions
and lift the injunctions. We do not agree that the mootness
doctrine applies in this case.
A matter is moot when the issues involved in the trial court
no longer exist because intervening events have rendered it
impossible for the reviewing court to grant the complaining party
effectual relief. In re A Minor, 127 Ill. 2d 247, 255 (1989). As
the defendants point out, this court has held that where a
challenged statute is amended while the cause is pending, the
question of the statute's validity becomes moot. Forest Preserve
District v. City of Aurora, 151 Ill. 2d 90, 94 (1992); People v.
B.D.A., 102 Ill. 2d 229, 233 (1984). Thus, in those cases where,
during the pendency of the case, an amendment removed or altered
the potentially unconstitutional language or aspect of a challenged
statute, we have held that the constitutional challenge to the
statute is moot. See Forest Preserve District, 151 Ill. 2d at 94-
95; Arrington v. City of Chicago, 45 Ill. 2d 316 (1970). For
example, in Forest Preserve District, the plaintiff challenged an
amendment that added certain language to a provision of the
Downstate Forest Preserve District Act. The plaintiff contended
that the added language rendered the provision unconstitutional
special legislation and violative of equal protection guarantees.
The trial court agreed and declared the provision unconstitutional.
During the pendency of the defendant's direct appeal, the
legislature amended the provision to effectively nullify the
language which had been held unconstitutional. Under these
circumstances, this court determined that the case was moot. Forest
Preserve District, 151 Ill. 2d at 94-95.
This rule is not applicable in this case. The constitutional
challenge pursued here is that Public Act 89--428 was enacted in
violation of the single subject rule of the Illinois Constitution.
As we discuss in detail later in this opinion, the single subject
rule prohibits the enactment of bills that encompass more than one
subject. Thus, a challenge that an act violates the single subject
rule is, by definition, directed at the act in its entirety. There
is no one provision or feature of the act that is challenged as
unconstitutional, such that the defect could be remedied by a
subsequent amendment which simply deleted or altered that provision
or feature. In fact, a single subject challenge does not address
the substantive constitutionality of the act's provisions at all.
Rather, a single subject challenge goes to the very structure of
the act, and the process by which it was enacted. If we determine
that Public Act 89--428 in its structure is invalid, the Act may
not be permitted to stand. The legislature is, of course, free to
revisit the provisions contained in the Act in other legislation.
Subsequent legislation, however, will not remedy the constitutional
defect in Public Act 89--428 if it was passed in violation of the
single subject rule.
Moreover, we note that Public Act 89--428 has not been
replaced in its entirety. Some provisions of Public Act 89--428
have not been revisited in separate legislation. Because a single
subject violation would render invalid each and every provision of
Public Act 89--428, the fact that some provisions of Public Act 89-
-428 have not been readdressed also defeats the defendants'
mootness argument. Further, with regard to those provisions of
Public Act 89--428 that have been reenacted in some form, in most
instances, the effective dates of the new legislation postdate the
effective date of the corresponding provision in Public Act 89--
428. Thus, a window of time exists when the allegedly invalid
provisions of Public Act 89--428 were in effect and had not been
superseded by subsequent legislation.
Even if we were to find the mootness doctrine technically
applicable here, the public interest exception to that doctrine
would save the constitutional issue for our review. Both the
plaintiffs, in their appellees' brief, and the defendants, in their
response to a motion filed by the plaintiffs, have argued that the
issue of the validity of Public Act 89--428 satisfies the
requirements for the public interest exception. The criteria for
the public interest exception are: (1) the public nature of the
question, (2) the desirability of an authoritative determination
for the purpose of guiding public officers, and (3) the likelihood
that the question will generally recur. In re A Minor, 127 Ill. 2d 247, 257 (1989). We agree with the parties that the constitutional
issue in this case falls within the public interest exception. The
issue of whether the legislature enacted this broad-sweeping
legislation in a manner that violates our constitution is a matter
of public importance. Further, the issue of whether Public Act 89--
428 violated the single subject rule is likely to recur. The record
indicates that the issue has been raised in at least one other case
currently pending at the trial level. Moreover, the single subject
issue will likely recur with respect to the provisions of Public
Act 89--428 that have not been reenacted in other legislation.
Consequently, resolution of the single subject challenge by this
court will be of assistance to both the lower courts and the public
officers who will be faced with questions regarding the validity of
the Act's many provisions. In short, this court's ruling will
remove the uncertainty surrounding the Act and its continued
validity.
We note that a motion by the Johnson plaintiffs to dismiss the
appeal, on the ground that there is no longer a controversy as to
the eavesdropping provision because it was replaced by new
legislation, was taken with the case. The defendants filed
objections to dismissal of the appeal, and continue to object to
dismissal in their appellants' brief. Given our holding that the
mootness doctrine does not apply here, we deny the Johnson
plaintiffs' motion.
We therefore turn to the substantive issue of the
constitutionality of Public Act 89--428.
Single Subject Rule
We must decide whether the legislature, in enacting Public Act
89--428, violated the single subject rule of the Illinois
Constitution. Article IV, section 8(d), of the Illinois
Constitution of 1970 provides, in pertinent part, as follows:
"Bills, except bills for appropriations and for the
codification, revision or rearrangement of laws, shall be
confined to one subject." Ill. Const. 1970, art. IV,
8(d).
The single subject rule is a substantive requirement for the
passage of bills and is therefore subject to judicial review.
People v. Dunigan, 165 Ill. 2d 235, 254 (1995). This court
discussed the historical purpose of the single subject rule in
Fuehrmeyer v. City of Chicago, 57 Ill. 2d 193, 201 (1974), stating:
" `The history and purpose of this constitutional
provision are too well understood to require any
elucidation at our hands. The practice of bringing
together into one bill subjects diverse in their nature,
and having no necessary connection, with a view to
combine in their favor the advocates of all, and thus
secure the passage of several measures, no one of which
could succeed upon its own merits, [is] one both
corruptive of the legislator and dangerous to the
State.' " Fuehrmeyer, 57 Ill. 2d at 202, quoting People
ex rel. Drake v. Mahaney, 13 Mich. 481, 494-95 (1865).
Thus, one reason for the single subject rule is to prevent
legislation from being passed which, standing alone, could not
muster the necessary votes for passage. Geja's Cafe v. Metropolitan
Pier & Exposition Authority, 153 Ill. 2d 239, 258 (1992). The rule
also serves to facilitate orderly legislative procedure. "By
limiting each bill to a single subject, the issues presented by
each bill can be better grasped and more intelligently discussed."
M. Rudd, No Law Shall Embrace More Than One Subject, 42 Minn. L.
Rev. 389, 391 (1958). In sum, the single subject rule ensures that
the legislature addresses the difficult decisions it faces directly
and subject to public scrutiny, rather than passing unpopular
measures on the backs of popular ones.
The term "subject," in this context, is to be liberally
construed and the subject may be as broad as the legislature
chooses. Dunigan, 165 Ill. 2d at 255; Cutinello v. Whitley, 161 Ill. 2d 409, 423-24 (1994). Nonetheless, the matters included in
the enactment must have a natural and logical connection.
Cutinello, 161 Ill. 2d at 423-24; People ex rel. Ogilvie v. Lewis,
49 Ill. 2d 476, 487 (1971). The rule prohibits the inclusion of
" `discordant provisions that by no fair intendment can be
considered as having any legitimate relation to each other.' "
Ogilvie, 49 Ill. 2d at 487, quoting People ex rel. Gutknecht v.
City of Chicago, 414 Ill. 600, 607-08 (1953).
As the above principles elucidate, the single subject rule
does not impose an onerous restriction on the legislature's
actions. Rather, the rule leaves the legislature with wide latitude
in determining the content of bills. In fact, this court has on
numerous occasions rejected single subject challenges brought
against various pieces of legislation. See, e.g., Cutinello, 161 Ill. 2d at 423-24 (all provisions of challenged act pertained to
the subject of transportation); Geja's Cafe, 153 Ill. 2d at 257-59
(all provisions of challenged act pertained to the McCormick Place
Expansion Project); Stein v. Howlett, 52 Ill. 2d 570, 582-83 (1972)
(all provisions of challenged act related to the subject of
ethics); Ogilvie, 49 Ill. 2d at 487-88 (all provisions of
challenged legislation pertained to the subject of transportation
bonds). These decisions demonstrate not only the principles which
we apply in evaluating a single subject challenge, but also that
the legislature must indeed go very far to cross the line to a
violation of the single subject rule. In enacting Public Act 89--
428, the legislature clearly crossed that line. No matter how
liberally the single subject rule is construed, Public Act 89--428
violates that rule.
Public Act 89--428 began its legislative life as an eight-page
bill addressing the narrow subject of reimbursement by prisoners to
the Department of Corrections for the expense of incarceration. As
enacted on December 13, 1995, however, Public Act 89--428 had
experienced an extraordinary growth, from 8 pages to over 200
pages. While the length of a bill is not determinative of its
compliance with the single subject rule, the variety of its
contents certainly is. Here, "An Act in relation to prisoner's
reimbursement to the Department of Corrections for the expenses
incurred by their incarceration" became a bill which created a law
providing for the community notification of child sex offenders,
created a law imposing fees on the sale of fuel, and enhanced the
felony classifications for the possession and delivery of cannabis.
This bill also created an exemption from prosecution for
eavesdropping applicable to employers who wish to monitor their
employees' conversations, amended the law to allow the prosecution
of juveniles as adults in certain cases, and created the new crime
of predatory criminal sexual assault of a child. This bill further
changed the law governing the timing of parole hearings for prison
inmates, changed the law governing when a defendant who is
receiving psychotropic drugs is entitled to a fitness hearing, and
added a provision to the law governing child hearsay statements.
Finally, Public Act 89--428 addressed the subject of prisoners'
reimbursement to the Department of Corrections for the expenses of
their incarceration. In sum, Public Act 89--428 amended a multitude
of provisions in over 20 different acts, and created several new
laws. By no fair intendment may the many discordant provisions in
Public Act 89--428 be considered to possess a natural and logical
connection. See Ogilvie, 49 Ill. 2d at 487. The enactment of Public
Act 89--428 therefore violated the single subject rule.
This court has previously invalidated a statute that violated
the single subject rule. At issue in Fuehrmeyer v. City of Chicago,
57 Ill. 2d 193 (1974), was the constitutionality of Public Act 77--
1818. That act purported to grant exclusively to the state, and to
take away from units of local government, the power to regulate the
professions and occupations listed in 30 separate acts, ranging
from architects to funeral directors to water well contractors.
This court first rejected the contention that the act was for
"codification, revision or rearrangement" and was therefore exempt
from the single subject rule. Fuehrmeyer, 57 Ill. 2d at 202. This
court went on to find that the act violated the single subject rule
because each of the 30 regulated professions or occupations was a
separate subject. Fuehrmeyer, 57 Ill. 2d at 203-05.
The Act at issue in this case presents an even more egregious
example of the legislature ignoring the single subject rule. As
noted above, Public Act 89--428 encompassed subjects as diverse as
child sex offenders, employer eavesdropping, and environmental
impact fees imposed on the sale of fuel. Under no interpretation of
the single subject rule could it reasonably be concluded that
Public Act 89--428 was passed in accordance with that rule.
The defendants argue that the Act is constitutional because
all of its provisions are confined to the single subject of public
safety. We cannot accept the defendants' contention. Were we to
conclude that the many obviously discordant provisions contained in
Public Act 89--428 are nonetheless related because of a tortured
connection to a vague notion of public safety, we would be
essentially eliminating the single subject rule as a meaningful
constitutional check on the legislature's actions.
For the reasons stated, we hold that Public Act 89--428 was
enacted in violation of the single subject rule of our state
constitution and is therefore invalid.
Validating Legislation
The defendants make an additional argument solely with respect
to the lower courts' injunctions against the enforcement of the
environmental impact fee law of Public Act 89--428. The defendants
ask that we lift the injunctions against enforcement of this
provision on the ground that the reenactment of the environmental
impact fee law in Public Act 89--457 validated the imposition of
the fees under Public Act 89--428. We agree that application of
Public Act 89--457 requires that the injunctions be lifted to the
extent that those injunctions proscribe the use, pursuant to Public
Act 89--457, of environmental impact fees already collected under
Public Act 89--428.
This court has recognized the legislature's power to pass
curative legislation. See Bates v. Board of Education, Allendale
Community Consolidated School District No. 17, 136 Ill. 2d 260, 268
(1990). The general rule is that the legislature "may by a curative
act validate any proceeding which it might have authorized in
advance, provided the power be so exercised as not to infringe on
or divest property rights and vested interests of the parties
involved." Bates, 136 Ill. 2d at 268; see also Worley v. Idleman,
285 Ill. 214, 219 (1918). The test is whether the legislature might
have authorized the act which it attempts to validate before it
took place. People ex rel. Shore v. Helmer, 410 Ill. 420, 427
(1951).
Generally, where the legislature changes the law while an
appeal is pending, the case must be disposed of by the reviewing
court under the law as it then exists, not as it was when the
decision was made by the lower court. Envirite Corp. v. Illinois
Environmental Protection Agency, 158 Ill. 2d 210, 215 (1994).
Accordingly, the fact that curative legislation is enacted during
the pendency of an appeal does not preclude its application by the
reviewing court. See Bates, 136 Ill. 2d at 264; People ex rel.
Bauer v. Elmhurst-Villa Park-Lombard Water Comm'n, 20 Ill. 2d 139,
142 (1960); People ex rel. Patterson v. Woodruff, 280 Ill. 472, 475
(1917). In Bates, the plaintiffs challenged the defendant school
district's issuance of bonds carrying an interest rate of 9.75%.
The plaintiffs charged that the bonds were invalid because the
applicable provision of the School Code set an interest rate
ceiling of 7%. The defendant contended that the bonds were valid
because the applicable provision of the Bond Authorization Act
authorized an interest rate of 9.75%. The circuit court dismissed
the plaintiffs' claim and the appellate court reversed. While the
defendant's appeal was pending before this court, the legislature
enacted new legislation that, inter alia, validated bonds which
exceeded the authority granted by the provision under which they
were issued, but were within the authority granted by the Bond
Authorization Act. This court held that this legislation validated
the bonds challenged by the plaintiffs. In so holding, this court
noted that, at the time the bonds were issued, the legislature
possessed the authority to authorize an interest rate above 7%.
Therefore, because the legislature could have originally authorized
the higher rate, it could validate the rate after the fact by means
of curative legislation. Bates, 136 Ill. 2d at 267-68.
Similarly, in Woodruff, the plaintiffs brought a quo warranto
action against a school district and its members charging that the
district was organized pursuant to a statute which had been held
unconstitutional by this court. While the case was pending before
this court, the General Assembly enacted legislation that validated
school districts, including the one challenged by the plaintiffs,
which met certain requirements. This court determined that, because
the legislature had the power to create the school districts in the
first instance, the legislature could, by curative act, validate
districts which had been organized under the unconstitutional act.
Woodruff, 280 Ill. at 475-77; see also Bauer, 20 Ill. 2d at 142-44
(curative legislation enacted during pendency of appeal acted to
validate water commission whose establishment had been challenged
by the plaintiffs).
Curative legislation has been held effective to validate tax
levies which, when made, did not comply with statutory
requirements. See Schlenz v. Castle, 84 Ill. 2d 196 (1981); People
v. Holmstrom, 8 Ill. 2d 401 (1956). In Schlenz, the plaintiffs
challenged tax levies made by the defendants on the ground that
they failed to publish the real estate assessment lists within the
time frames set by section 103 of the Revenue Act. This court had
previously held that the publication dates of section 103 were
mandatory. While the plaintiffs' action was pending in the circuit
court, the legislature enacted legislation that validated
assessments that had not been timely published under section 103.
This court held that, because there was no lack of power to make
the assessments in the first instance, the subsequent legislation
acted to validate the challenged assessments. Schlenz, 84 Ill. 2d
at 204-09.
In this case, the injunctions issued by the lower courts had
the effect of prohibiting the defendants from collecting or
disbursing environmental impact fees under Public Act 89--428.
Prior to May 7, 1996, the date the first injunction was issued in
Johnson, fees had already been collected under that law. According
to the defendants, the injunctions issued in each of these cases
prohibit the defendants from disbursing, in accordance with the
terms of the statute, any of these collected fees to reimburse
underground tank owners for corrective action. The defendants argue
that Public Act 89--457 validated all fees collected and actions
taken pursuant to the environmental impact fee law of Public Act
89--428. As a result, the defendants maintain, this court should
lift the injunctions to the extent that they prohibit the
disbursement of fees already collected under Public Act 89--428.
For the reasons stated below, we agree.
As noted, Public Act 89--457 recodified the environmental
impact fee law contained in article 3 of Public Act 89--428. Public
Act 89--457, like Public Act 89--428, imposed the fee beginning
January 1, 1996. Public Act 89--457 also stated that the fee
imposed under that law replaced the fee imposed under Public Act
89--428 and that fees paid under Public Act 89--428 shall satisfy
the receiver's corresponding liability under Public Act 89--457. In
addition, Public Act 89--457 contained the following provision:
"Validation. All actions taken in reliance on or
pursuant to Article 3 of Public Act 89--428 by the
Department of Revenue, the Environmental Protection
Agency, the Pollution Control Board, or any other person
or entity are hereby validated." Pub. Act 89--457, 385.
Public Act 89--457 thus expressly states the legislature's
intention to validate fees collected and other actions taken under
article 3 of Public Act 89--428. There is no contention made here
that the legislature did not possess the authority, in the first
instance, to impose the environmental impact fee. The defect we
identified in Public Act 89--428 was in the structure of the Act,
not in its substantive provisions. No argument has been made to
this court that the environmental impact fee law of Public Act 89--
428 is substantively invalid. Curative legislation is properly used
to validate an irregular or defective exercise of authority. See
Bates, 136 Ill. 2d at 270. Consequently, because there is no
contention that the legislature lacked the authority to impose the
fees before the fact, the legislature could, by curative
legislation, validate the fees already collected under the invalid
act. See Bauer, 20 Ill. 2d at 144.
We note that no argument has been advanced here that the
application of Public Act 89--457 to validate the fees collected
under Public Act 89--428 interferes with vested rights or is
otherwise unconstitutional. In fact, the party who would have been
most interested in pursuing such an argument, the plaintiff in
Langa, has declined to file a brief in this court. The Johnson
plaintiffs, in their brief, have stated that they "take no position
as to the collection of fees under the Environmental Impact Fee
Act." Legislative enactments are, of course, presumed to be
constitutional. Bernier v. Burris, 113 Ill. 2d 219, 227 (1986).
Consequently, because we determine that Public Act 89--457 meets
the test for curative legislation and because no party in this case
has challenged the constitutionality of applying it as curative
legislation, we find that Public Act 89--457 applies to validate
the fees collected under the environmental impact fee law of Public
Act 89--428. The lower courts' injunctions in these cases should
therefore be lifted to the extent that they proscribe the use of
fees already collected under Public Act 89--428. We caution,
however, that by this holding we have not decided any issues
regarding the constitutionality of Public Act 89--457, as no such
constitutional challenge has been raised before us.
This holding does not impact our decision above that Public
Act 89--428, in its entirety, is unconstitutional and
unenforceable. As the defendants concede, curative legislation may
validate only actions taken in reliance on an unconstitutional
statute. Curative legislation cannot validate or legalize the
unconstitutional legislation itself. See People ex rel. Patterson
v. Woodruff, 280 Ill. 472, 476 (1917).
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County in cause No. 81019, declaring Public
Act 89--428 unconstitutional and enjoining its enforcement, except
that we vacate that portion of the injunction which prohibits the
use, pursuant to Public Act 89--457, of environmental impact fees
already collected under Public Act 89--428. We likewise affirm the
judgment of the circuit court of Madison County in cause No. 81249,
declaring Public Act 89--428 unconstitutional and enjoining its
enforcement, except that we vacate that portion of the injunction
which prohibits the use, pursuant to Public Act 89--457, of
environmental impact fees already collected under Public Act 89--
428.
Judgments affirmed, as modified.
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