People v. Bywater

JUSTICE FREEMAN, dissenting:

The court’s opinion states that it reaffirms People v. Schaefer. That is not the case. The court, in fact, reads out from Schaefer the requirement that a petitioner serve the petition on the State. This may be unintentional— the court offers no explanation for its elimination of the requirement — but it is certainly what the court’s opinion does. The result is twofold: (i) Schaefer, rather than being reaffirmed, is overruled, and (ii) confusion will almost certainly result in determining exactly when the 30-day clock for rescission hearings begins to run. I therefore dissent.

In Schaefer, this court answered a number of questions that had arisen under section 2 — 118.1(b) of the Vehicle Code. The case involved three consolidated appeals, the facts of which provide an insight into the confusion that existed in this area of the law. See Schaefer, 154 Ill. 2d at 258-68. Principal among those problems was the question of who shouldered the burden of scheduling the rescission hearing because section 2 — 118.1(b) was silent as to that question. See Schaefer, 154 Ill. 2d at 259, 263. Until Schaefer, the appellate court had struggled with the language of the statute with respect to this question and its effect on the 30-day time computation. Schaefer, 154 Ill. 2d at 254. This court resolved the issue by holding as follows:

“[T]he 30-day statutory period commences on the date of the filing of a proper petition to rescind in the circuit court of venue, with service on the State, in accordance with the rules of this court. The burden to set the court hearing date would then shift to the State.’’(Emphases added.) Schaefer, 154 Ill. 2d at 261.

Thus, completed service, in accordance with our rules, and the filing of a “proper petition to rescind” 1 would shift the burden to the State to set the rescission hearing and start the 30-day clock under section 2 — 118.1(b). Given Schaefer’s interpretation of the statute, there can be no question service on the State is a crucial part of the 30-day computation in light of the State’s obligation to set the hearing.

The notion that completed service is required to start the 30-day clock has never been questioned in the time since Schaefer. Indeed, Justice Miller, writing separately in Schaefer, emphasized this service requirement and specifically agreed with it: “I agree with the majority that the time period provided by the statute begins to run when the driver submits and properly serves a written request for a hearing, in accordance with our rules regarding service.” Schaefer, 154 Ill. 2d at 271 (Miller, C.J., specially concurring). Three years later, in People v. Smith, this court reiterated the point by holding that the “hearing on a petition to rescind must be held within 30 days of the date of filing the petition in the circuit court with venue, with service on the State.” People v. Smith, 172 Ill. 2d 289, 295 (1996). And just last year, in People v. Cosenza, we repeated the same point: “[T]he time provision set forth in section 2 — 118.1(b) of the Vehicle Code is satisfied when the hearing begins 30 days after receipt of defendant’s written request (and service on the State) unless delay is occasioned by the defendant.” (Emphasis added.) People v. Cosenza, 215 Ill. 2d 308, 315-16 (2005). Since 1993, service on the State is a condition that a petitioner must satisfy in order to trigger the 30-day time period of section 2 — 118.1(b).

Thus, to put an even finer point on it, Schaefer acknowledged that section 2 — 118.1(b) did not itself address anything more than the mere filing of a petition and that its silence on other areas caused confusion in statutory summary suspension proceedings. Among other possible options, the court held that the State must be served with the petition in order to meet its burden— which Schaefer contemporaneously created — of setting a timely rescission hearing. To that end, Schaefer referenced Supreme Court Rules ll 2 and 12 with respect to service. Schaefer, 154 Ill. 2d at 268. Rule 11 allows for service by four methods, including mail. 3 145 Ill. 2d R. 11. Rule 12 states that when “service of a paper is required, proof of service shall be filed with the clerk.” 145 Ill. 2d R. 12(a). Rule 12(c) provides that service by mail “is complete four days after mailing.” 145 Ill. 2d R. 12(c). Because Schaefer holds that the clock does not begin to run until the petition is filed and service is complete, the time-period calculation depends upon the method of service chosen by the petitioner in accordance with our rules. For example, if a petition is filed with the circuit court on November 1 and the proof of service reveals that the State was served personally on that same date, then the 30-day period starts on November 1. If a petition is filed with the circuit court on November 1 and the proof of service reveals that the State was served by mail on that date, then the 30-day period starts on November 5, because service under the rule is effective four days after mailing. 4

Under this court’s construction of section 2 — 118.1(b) in Schaefer and the application of Rules 11 and 12, the resolution of this case is as straightforward as the appellate court found. That court concluded that to ignore the date that service on the State is complete “would improperly burden the State’s obligation to set a timely hearing date.” 358 Ill. App. 3d at 200. This was especially so, the court noted, in light of the importance the court in Schaefer placed on providing notice to the State as the “necessary antecedent in setting summary suspension hearings.” 358 Ill. App. 3d at 200, citing Schaefer, 154 Ill. 2d at 261. In this case, Brian Bywater elected to serve the State by mail. The petition’s proof of service states that it was mailed on July 11, 2002, the date on which the petition was filed. Service was therefore not complete until July 15, 2002. The hearing, held on August 14, 2002, was, in fact, timely. I would therefore affirm the appellate court based on Schaefer and Supreme Court Rules 11 and 12.

The court, however, rejects this approach for several reasons. Initially, the court notes that section 2 — 118.1(b) “does not mention the State at all.” 223 Ill. 2d at 485. The court’s point may be true, but it also completely disregards that the key holding of Schaefer was to judicially read into the language of section 2 — 118.1(b) the State’s burden to set a timely hearing. In the 13 years since this court’s decision in Schaefer, the General Assembly has not altered that interpretation by amendment, and the legislature’s inaction must be deemed acquiescence in the holding. See Miller v. Lockett, 98 Ill. 2d 478, 483 (1983) (noting that when this court has interpreted a statute, that interpretation is considered as part of the statute itself unless and until the legislature amends it contrary to the interpretation).

The court’s second observation similarly fails. The court states that its decision today is supported by the fact that when the legislature wants to indicate that a time period commences upon receipt of service, it makes that point explicit in the statute, and that was not done in section 2 — 118.1(b). 223 Ill. 2d at 484. Again, that the statute did not contain such language was the point of Schaefer. This court judicially read the service requirement into the statute as a counterpart to the determination that it was the State that had the burden to timely set the rescission hearing. And like the State’s burden to set the hearing, the General Assembly has not altered, by amendment, the requirement that a petitioner serve the State.

If the court today means to disagree with the judicial creation of the burden and service requirements in Schaefer, this would be a different dissent, because I agree with the approach fashioned in Schaefer, which was a unanimous opinion on these points. But that is not what I understand the court’s position to be. The court purports to reaffirm Schaefer, while in the same breath, entirely ignoring Schaefer’s service requirement. The court’s resolution of this case does not “comport” with the holding in Schaefer (223 Ill. 2d at 486) but, rather, eviscerates it. Today’s opinion serves to hold the State to the obligation Schaefer imposed upon it while at the same time excusing petitioners from the very requirement that was designed by the court to go hand-in-hand with that obligation.

At the outset of this dissent, I stated that today’s opinion will cause confusion to those who practice in this area of the law. That is because, toward the end of its opinion, the court “emphasize[s]” that “a defendant has a duty to properly serve the State with any request to - rescind the statutory summary suspension of that defendant’s driver’s license under section 2 — 118.1(b).” 223 Ill. 2d at 486. The court’s emphasis is rather meaningless because, up until that point in its opinion, the court has done nothing but stress that the key point, under the statute, is the date of filing. For this reason, I do not know what to make of the court’s language about service. It made sense, of course, in Schaefer, for the court to emphasize the need for service because of the nature of the court’s holding. After all, Schaefer created an unusual situation in that the petitioner’s taking of an action, i.e., the filing of the petition to rescind, created, under the statute, an affirmative obligation on the part of the State to do something, i.e., set a rescission hearing within a 30-day period. Because the court in Schaefer chose to place that affirmative duty on the State, it was not only fair, but logical, that the petitioner must also serve the State in accordance with our rules of service. To hold otherwise would have unfairly started the 30-day clock against the State without first ensuring that the State had been legally apprised of the fact that its obligation to so act had been triggered by the petitioner. Today’s opinion divorces the petitioner’s service requirement from the State’s obligation to set the hearing. Because of this, I believe the opinion will cause undue confusion in our trial courts when both judges and practitioners try to reconcile the notion of “proper service” in this context. I therefore dissent.

JUSTICE BURKE joins in this dissent.

Schaefer did not further define what constitutes a “proper” petition. There can be no doubt that a “proper” petition is one that raises a statutory (625 ILCS 5/2 — 118.1(b)(2) (West 2002)) or other ground for rescission. See, e.g., People v. Palacios, 266 Ill. App. 3d 341, 342 (1994) (holding that a defective sworn report may provide a ground for rescission). Closer to this case, this court, in Schaefer, indicated that a petition that did not include a certificate of service “establishing that the petition had been served on the State in accordance with Supreme Court Rules 11 and 12” could not serve to trigger the 30-day time period contained in section 2 — 118.1(b). Schaefer, 154 Ill. 2d at 268.

Rule 11 addresses the manner of serving papers other than process and complaint on parties not in default in the trial and reviewing court. 145 Ill. 2d R. 11. This rule should not be confused with section 2 — 201(a) of the Code of Civil Procedure (735 ILCS 5/2 — 201(a) (West 2002)), which provides that every action shall be commenced by the filing of a complaint with service according to the rules. The court cites section 2 — 201(a) in its discussion of the petitioner’s duty to serve. 223 Ill. 2d at 486. If the court means to suggest section 2 — 118.1(b) contemplates that the petition to rescind acts as the equivalent of a complaint that commences the statutory summary suspension action, it is mistaken. In People v. McClain, this court held that it is the officer’s sworn report which functions as the complaint in statutory summary suspension proceedings. People v. McClain, 128 Ill. 2d 500, 507 (1989). Thus, if anything might be considered a “complaint” in this context, it is certainly not the petition to rescind. In my view, much of the confusion wrought to this area of the law stems from analogizing the proceedings under the statute to ordinary civil actions in all instances. It would be more accurate to recognize that rescission hearings under section 2 — 118.1(b) are noncriminal, statutory proceedings that are informed by the rules of civil practice, to the extent that those rules are applicable.

Rule 11(b) also allows for (i) service on the party or the party’s attorney personally, (ii) service by leaving the papers with certain other persons, and (iii) service by facsimile transmittal to the office of the party or the party’s attorney if that party has consented to receive service by facsimile transmission. 145 Ill. 2d R. 11(b).

Of course, under Rule 12(c), the clock may begin to run even though the State may not have actually received the petition. For example, if a petition is mailed November 1, Rule 12(c) renders service “complete” on November 5 notwithstanding the actual date of receipt, which may in fact be later. Rule 12(c) was designed to establish a bright-line rule to account for delays in mailing. See 145 Ill. 2d R. 12, Committee Comments.