People v. Ramsey

JUSTICE FREEMAN, also specially concurring:

I agree with the court that defendant is entitled to a new trial. I also agree that on retrial any insanity defense raised by defendant must be done so in accordance with section 6 — 2 of the Criminal Code of 1961 as it existed prior to the amendments contained in Public Act 89— 404.1 do so, however, for reasons other than those stated in today’s opinion.

The record reveals that defendant sought to refute the State’s murder charges by asserting the affirmative defense of insanity, i.e., he was not guilty because he was insane at the time of the crimes. At trial, defendant challenged the constitutionality of Public Act 89 — 404 in its entirety by claiming that the Act had been passed in violation of the single subject rule contained in our state constitution. See Ill. Const. 1970, art. § 8(d). Defendant’s motive in challenging the Act is not difficult to discern — section 15 of Public Act 89 — 404 amended the Illinois insanity provision to make it more difficult for criminal defendants to establish the defense. Specifically, the amendment (i) disallowed a claim of insanity premised on the defendant’s inability to conform conduct to the requirements of the law, and (ii) increased the defendant’s burden of proof from a preponderance of the evidence to clear and convincing evidence. Thus, if Public Act 89 — 404 were to be declared unconstitutional on single subject grounds, the law would be void, and the changes it wrought to the insanity statute would not apply to defendant. In essence, defendant argued that because the Act was a nullity by virtue of its unconstitutional passage, he should be tried under the former version of the law with its broader definition of insanity and its less stringent burden of proof. The circuit court rejected defendant’s single subject rule challenge, and eventually the jury rejected defendant’s claim that he was insane.

On appeal, defendant raises a number of issues that he believes mandate the reversal of his convictions. First among these is his renewal of his single subject rule challenge to Public Act 89 — 404. In fact, as originally briefed by the parties, the issue was simply whether Public Act 89 — 404 was enacted in contravention of the single subject rule. Defendant argued in his brief that the rule was violated because the Act contains discordant provisions that have no legitimate relation to each other. The State, in its brief, responded that all of the measures within the Act are legitimately interrelated because each of the sections addresses governmental matters that fall under the purview of the various county State’s Attorneys. If this court were to find that the Act violated the single subject rule, the State alternatively asked that this court hold that the Act’s subsequent codification served to close the window of time within which single subject rule challenges can be made. In other words, the State invited this court to adopt the so-called “codification rule,” a rule adopted by the judiciary in some states where the state constitution requires that legislation relate to a single subject.

On January 22, 1999, while this case was pending, we issued our opinion in People v. Reedy, 186 Ill. 2d 1 (1999). Reedy presented this court with the very same arguments vis á vis Public Act 89 — 404 and the single subject rule. After considering those arguments, we declared Public Act 89 — 404 unconstitutional on the ground that it was passed in violation of the single subject rule. Reedy, 186 Ill. 2d at 11-12 (rejecting notion that single subject rule met where all sections related to matters within control of county State’s Attorneys). Moreover, we refused to adopt the “codification rule.” See Reedy, 186 Ill. 2d at 12-13 (declining to adopt codification rule).

In light of Reedy, Public Act 89 — 404 is invalid. This means, as the court today correctly observes, that it is as “ ‘ “though no such law had ever been passed.” ’ ” 192 Ill. 2d at 156, quoting People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People v. Schraeberg, 347 Ill. 392, 394 (1932). Defendant’s trial was conducted in accordance with the changes to the insanity defense contained in Public Act 89 — 404 because those provisions were in effect at the time defendant allegedly committed the crimes in question. 2 We now know, however, that those provisions were enacted in contravention of our state constitution. Due to the constitutional infirmity, we must act as though those provisions had never been passed. Based on these principles, we must conclude that the insanity defense provisions applicable in the present case are not the more stringent amendments of Public Act 89 — 404, but the more lenient provisions of the Criminal Code of 1961. Compare 720 ILCS 5/6 — 2 (West 1996) with 720 ILCS 5/6 — 2 (West 1992). Thus, defendant, as it turns out, was correct all along when he argued to the trial judge that the “tougher” insanity provisions should not have been used due to the single subject violation.

Our decision in Reedy, however, was not the only event that occurred during the pendency of this appeal. A new wrinkle developed when our General Assembly sought to reenact the amendments to the insanity defense statute that were contained in Public Act 89— 404. This legislative action took place on June 19, 1998, well after defendant had filed his opening brief in this court on April 3, 1998. Although the State filed its responding brief on October 30, 1998, and defendant filed a reply brief on December 14, 1998, none of these briefs that post-dated the passage of the new legislation, Public Act 90 — 593, mentioned the General Assembly’s action. As a result, this court on its own motion ordered the parties to file supplemental briefs. Specifically, our order, entered October 21, 1999, directed the parties to address “whether Public Act 90 — 593 applies retroactively to appellant and, if so, whether retroactive application of Public Act 90 — 593 would violate the constitutional prohibition against ex post facto application of the law.”

In response to our query, the State asserted that because Public Act 89 — 404 was void at the time of trial, the changes it wrought to the insanity statute were inapplicable to defendant. Moreover, the State conceded that the application of the newly enacted Public Act 90 — 593 “to any retrial of Defendant on the same charges would violate ex post facto principles.” The defendant agreed with the State, but posited that the constitutional ex post facto question need not be addressed because Public Act 90 — 593 cannot be given a retroactive application. Defendant maintained that the statute does not contain language, express or implied, indicative of anything other than a legislative intent for forward application of the amendments. He pointed out that section 99 of Public Act 90 — 593 provides that “[t]his Act takes effect upon becoming law [June 19, 1998], except that the amendatory changes to Sec. 18 — 5 of the Criminal Code of 1961 take effect January 1, 1999.” Pub. Act 90 — 593, § 99 (eff. June 19, 1998). The excepted “amendatory changes” referred to in section 99 are the insanity defense provisions at issue in this case.

In light of the above, the question we must resolve now is which insanity provisions will apply at defendant’s retrial. Our task has been made easier because the State and the defendant both agree that the law as it existed prior to the enactment of Public Act 89 — 404 applies. Despite the agreement of the parties, the court today nevertheless undertakes an ex post facto analysis and concludes that the ex post facto clause prohibits application of the amendments to defendant on retrial. As an initial matter, I question whether, in view of the fact that neither party argues that the provisions are to be applied on retrial, the court’s discussion is warranted. In other words, should this court decide the constitutional issue in the absence of a legal question disputed by the parties? Notwithstanding the apparent absence of a legally disputed issue in this case, the court reaches and considers the constitutional ex post facto question without first determining whether the amendments at issue even apply to conduct occurring before their enactment. Stated differently, if the amendments do not apply to the events in question in the first instance, then, necessarily, no ex post facto problem would exist in this case. Thus, if the court wishes to consider the matter further (despite the State’s concession), then the court’s initial consideration should rest upon the temporal reach of the amendments of question, which is a question of statutory retroactivity.

As I noted several months ago in my special concurrence in Premier Property Management, Inc. v. Chavez, 191 Ill. 2d 101, 116-17 (2000) (Freeman, J., specially concurring, joined by McMorrow, J.), however, our case law on the issue of statutory retroactivity is unclear. This is so because one line of cases in our jurisprudence espouses a “vested rights” approach while another line of cases embraces a “legislative intent” approach to the same question. Compare First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), with People v. Digirolamo, 179 Ill. 2d 24 (1997); see also Premier, 191 Ill. 2d at 115-17 (Freeman, J., specially concurring, joined by McMorrow, J.) (discussing cases). One could argue that the conflict between Armstead and Digirolamo is reason enough for this court to address the retroactivity issue in this case even in the face of the concession made by the State. I have previously pointed out the dichotomy between Armstead and Digirolamo and have noted that other courts and jurists have commented upon it as well. Premier, 191 Ill. 2d at 117-18 (Freeman, J., specially concurring, joined by McMorrow, J.), citing White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296 , 299 (1998); Kopec v. City of Elmhurst, 193 F.3d 894, 906 (7th Cir. 1999) (Posner, C.J., dissenting). To resolve the conflict, I suggested in Premier that this court follow the lead of the United States Supreme Court in this area because that Court had addressed a similar conflict within its own jurisprudence. See Premier, 191 Ill. 2d at 120 (Freeman, J., specially concurring, joined by McMorrow, J.), quoting Landgraf v. USI Film Products, 511 U.S. 244, 280 , 128 L. Ed. 2d 229, 261-62 , 114 S. Ct. 1483, 1505 (1994). 3 I continue to believe that our adoption of the federal principles would go a long way in settling the question of which rule will apply in the face of legislative silence on the issue. The federal rule looks first to the language of the statute to determine whether the legislative branch has defined the statute’s temporal reach. If it has, the court’s inquiry ends. Premier, 191 Ill. 2d at 121 (Freeman, J., specially concurring, joined by McMorrow, J.). As I stated in Premier, the presumption against statutory retroactivity discussed in Landgraf has no force in cases where the legislature’s intent is clear. See Premier, 191 Ill. 2d at 121 (Freeman, J., concurring, joined by McMorrow, J.). In the absence of any express indication as to the statute’s proper reach, Landgraf directs a court to resort to a series of judicial default rules to determine whether the new provision should have retroactive effect. See Landgraf, 511 U.S. at 280 , 128 L. Ed. 2d at 262 , 114 S. Ct. at 1505 . (“[I]f the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result”).

I strongly believe that the need for guidance from this court is manifold and goes beyond mere confusion in our lower courts. I note that prior to the United States Supreme Court’s issuance of Landgraf, one of the federal courts of appeal pointed out that the federal judiciary’s lack of a clear, definitive retroactivity rule provided incentive for Congress to avoid explicitly addressing whether a new statute will have prospective or retroactive effect. See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 227 (7th Cir. 1992) (noting that when Congress could not agree on retroactivity, it “dumped the question into the judiciary’s lap without guidance,” a “politically convenient solution” “facilitated by the fact that the courts do not have a consistent rule for deciding [retroactivity]” thereby allowing “[e]ither of the contending factions in Congress” to “hope that statutory silence would work in its favor”). Two years later, the Supreme Court provided the needed definitiveness in Landgraf when it reaffirmed the traditional presumption in favor of prospectivity. It is my hope that this court will soon do likewise.

In addition, by failing to clarify which analysis is to be utilized in the face of legislative silence on the temporal operation of a statute, i.e., Armstead’s vested rights analysis or Digirolamo’s legislative intent approach, this court runs the risk of blurring the line between vested rights concerns and ex post facto concerns, a point on which the United States Supreme Court has specifically warned state courts against. The Court spoke to this problem at length in Weaver v. Graham, 450 U.S. 24 , 67 L. Ed. 2d 17 , 101 S. Ct. 960 (1981). At issue in that case was whether a Florida statute that reduced the amount of “gain time” to be deducted from a convicted prisoner’s sentence was unconstitutional as applied to those prisoners whose crimes were committed before the statute’s enactment. The Florida Supreme Court had previously held that the statute could be given a retroactive application because the “ ‘gain time’ ” allowance was “ ‘an act of grace rather than a vested right and may be withdrawn, modified, or denied.’ ” Weaver, 450 U.S. at 28 , 67 L. Ed. 2d at 22 , 101 S. Ct. at 963 , quoting Harris v. Wainwright, 376 So. 2d 855, 856 (Fla. 1979). In reversing the Florida Supreme Court, the Court noted the following:

“In using the concept of vested rights [citation], the Florida court apparently drew on the test for evaluating retrospective laws in a civil context. See 2 C. Sands, Sutherland on Statutory Construction § 41.06 (4th ed. 1973); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692 , 696 (1960); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 , 782 (1936). Discussion of vested rights has seldom appeared in ex post facto analysis, as in identifying whether the challenged change is substantive rather than procedural. [Citation.] When a court engages in ex post facto analysis, which is concerned solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred, it is irrelevant whether the statutory change touches any vested rights. Several state courts have properly distinguished vested rights from ex post facto concerns. [Citations.].” (Emphasis added.) Weaver, 450 U.S. at 29 n.13, 67 L. Ed. 2d at 23 n.13, 101 S. Ct. at 964 n.13.

The Court stated that, in contrast to the Florida Supreme Court’s reasoning, “a law need not impair a ‘vested right’ to violate the ex post facto prohibition.” Weaver, 450 U.S. at 29 , 67 L. Ed. 2d at 23 , 101 S. Ct. at 964 . The court explained this at length:

“Evaluating whether a right has vested is important for claims under the Contracts or Due Process Clauses, which solely protect pre-existing entitlements. [Citations.] The presence or absence of an affirmative, enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” Weaver, 450 U.S. at 29-31 , 67 L. Ed. 2d at 23-24 , 101 S. Ct. at 964-65 .

Weaver thus demonstrates that a judicial default rule premised solely on vested rights will not always ensure against an ex post facto violation. This case then, like Premier before it, presents us with the opportunity to bring needed clarity to this area of the law. The court, as it did in Premier, unfortunately lets this chance pass.

As Landgraf makes clear, when the question of a statute’s temporal reach is at issue, the court must begin with the language contained in the statute. Likewise, in this case, the language of Public Act 90 — 593 is important. This is particularly true in criminal cases because section 4 of the construction of statutes act (5 ILCS 70/4 (West 1998)) states that the law which was in effect at the time of the commission of an offense is controlling in a criminal proceeding. Thus, we should first look to the language of Public Act 90 — 593 in order to ascertain whether the legislature explicitly indicated that such was not to be the case. Public Act 90 — 593 does not contain any express statement that the General Assembly intended for the act to have retroactive operation. Indeed, a reading of the entire Act compels the opposite conclusion. First of all, when the General Assembly wanted a specific provision of Public Act 90 — 593 to apply to cases pending on the effective date of the enactment, the General Assembly specifically so stated. See, e.g., Pub. Act 90 — 593, § 45 (eff. June 19, 1998). This occurred in only one instance throughout the entire Act. Moreover, with respect to the insanity provisions at issue in this case, the General Assembly explicitly stated that these were to take effect six months after the effective date of the enactment. Courts have held that the legislature’s postponement of an effective date is direct evidence that a retroactive application was not intended. See, e.g., United States v. Brebner, 951 F.2d 1017, 1022-23 (9th Cir. 1991) (noting that congressional intent against retroactivity was manifested by its express delaying of the effective date for six months); Ocean & Atmospheric Science, Inc. v. Smyth Van Line, Inc., 446 F. Supp. 1158, 1159 (S.D.N.Y. 1978); Twiss v. State Department of Treasury, 124 N.J. 461, 468 , 591 A.2d 913, 916 (1991); Jordan v. Westhill Central School District, 42 A.D.2d 1043 , 348 N.Y.S.2d 620 (1973); see also 2 N. Singer, Sutherland on Statutory Construction § 41.04, at 352 (5th ed. 1993). Given the lack of language expressly indicating that the insanity provisions were to apply retroactively, along with the explicit statement that the effective date of those provisions was to be postponed, it seems clear that the legislature did not intend the insanity provision to apply retroactively to crimes occurring before the effective date. In other words, the plain language of the statute cannot be construed to have anything other than a prospective operation, which thereby precludes any possible ex post facto problem in this case.

As the foregoing demonstrates, the language of Public Act 90 — 593 speaks definitively to the temporal reach of the Act. But let us suppose that Public Act 90 — 593 lacked such a statement. In other words, would the same result (prospective application of the insanity provisions) obtain if the legislature had been silent on the question? I believe it would. If the legislature had been silent on the question, the traditional rule of prospectivity, discussed in Landgraf, would operate because the changes to the insanity defense statute are more than just procedural in nature. Given this fact, I would not construe the statute to have retroactive reach absent a clear expression from the legislature that such an operation was in fact intended. I would reach this result based on the following observations.

As one commentator has explained, absent constitutional restriction, “there is no question of the legislature’s general power to enact laws which operate retrospectively or retroactively.” N. Singer, Sutherland on Statutory Construction § 41.04, at 350 (5th ed. 1993). 4 Courts have generally applied strict construction to prevent retroactive operation in order to ensure that the statute would not violate constitutional prohibitions. As explained in Sutherland: “The principal explanation offered by courts is that the statute must be construed to sustain its constitutionality and thus prospective operation will be presumed where a retroactive operation would produce invalidity.” 2 N. Singer, Sutherland on Statutory Construction § 41.04, at 350 (5th ed. 1993). To this end, the following principles have been recognized by the judiciary:

“Where a statute affects inchoate rights or is remedial in nature, it will be construed retroactively if the legislative intent clearly indicates that retroactive operation is intended. A remedial statute that does not take away vested rights can operate retroactively in the absence of language manifesting a contrary intent. Likewise, where a new statute deals only with procedure, prima facie it applies to all actions — to those which have accrued or are pending and to future actions. It has been held that there is a presumption that procedural statutes apply retroactively. But steps already taken, including pleadings, and all things done under the old law continue effective, unless an intent to the contrary is plainly manifested. Absent a clearly expressed legislative purpose to the contrary, pending cases are only affected in relation to future proceedings from the point reached when the new law becomes operative.” 2 N. Singer, Sutherland on Statutory Construction § 41.04, at 351 (5th ed. 1993).

Courts, therefore, will allow a retroactive law if such a law does not contravene a preexisting contractual right or a vested right enjoyed by the parties. See Landgraf, 511 U.S. at 273-75 , 128 L. Ed. 2d at 257-58 , 114 S. Ct. at 1501-02 (giving examples of types of laws that can be applied to conduct occurring before enactment).

As illustrated above, in civil cases, the only bar to retroactive legislation is whether the change in law impairs preexisting contractual rights or impairs vested rights protected from state interference by the due process clause. In the criminal context, however, the focus on vested rights does not always prevent an ex post facto problem because, as mentioned previously, the United States Supreme Court has warned that “a law need not impair a ‘vested right’ to violate the ex post facto prohibition.” Weaver v. Graham,, 450 U.S. 24, 29 , 67 L. Ed. 2d 17, 23 , 101 S. Ct. 960, 964 (1981). The Court has defined an ex post facto law as one that “must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29 , 67 L. Ed. 2d at 23 , 101 S. Ct. at 964 . In a thoughtful analysis, the Supreme Court of California explained the concerns that arise in this area:

“Beyond [the Weaver ex post facto definition], the picture is much less clear. To begin with no guidance can be found in the concept of vested rights ***. Somewhat more helpful is the procedural-substantive distinction, but even that traditional tool must be used with great care in [the ex post facto context]: ‘Changes which may be designated as procedural do not, as a rule come within the ex post facto doctrine, but that in itself is not the true test. ’ [Citations.] Likewise, the United States Supreme Court recently reiterated in Weaver that ‘no ex post facto violation occurs if the change effected is merely procedural’ [citation], but immediately qualified the rule by the caveat that ‘Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form.’ [Citation.] This is because ‘it is the effect, not the form, of the law that determines whether it is ex post facto. ’ [Citation.] Yet the high court did not undertake to define what is a ‘substantial right’ for this purpose, less still to prepare an inclusive list of such rights.” (Emphasis added.) People v. Smith, 34 Cal. 3d 251, 259-60 , 667 P.2d 149, 153 , 193 Cal. Rptr. 692, 696 (1983).

In the footnote which accompanies the last line of the above quotation, the California court noted that “[a] few kinds of statutes, even though procedural in appearance, have consistently been held subject to the ex post facto clause because of their substantial effect on a defendant’s rights: e.g., statutes deleting elements of the crime, lowering the prosecution’s burden of proof, or impairing a defense.” Smith, 34 Cal. 3d at 260 n.5, 667 P.2d at 153 n.5, 193 Cal. Rptr. at 696 n.5.

These comments, in my view, demonstrate that caution must be used in criminal cases when courts, in the face of legislative silence on the temporal reach of statute, apply presumptions based on the procedural-substantive distinction. The changes to the insanity defense provisions cannot be considered merely procedural due to the fact that if applied to this defendant they would narrow the definition of insanity and in essence would deprive defendant of an affirmative defense that existed at the time he allegedly committed the offenses in question. Moreover, the amendment raises the quantum of proof required of defendant from the preponderance of the evidence to the more demanding “clear and convincing standard.” The recent United States Supreme Court decision in Carmell v. Texas, No. 98 — 7540 (May 1, 2000) demonstrates that the Court has retained the long-held recognition that “a law which changes the rules of evidence by which less or different testimony is sufficient to convict” than was previously required does in fact violate the ex post facto clause. See Collins v. Youngblood, 497 U.S. 37, 45-46 , 111 L. Ed. 2d 30, 41 , 110 S. Ct. 2715, 2721 (1990) (citing favorably Duncan v. Missouri, 152 U.S. 377 , 38 L. Ed. 485 , 14 S. Ct. 570 (1894)). Because I believe that the amendments at issue deal with substantive and not procedural matters, I would presume a prospective application of the amendments in this case had the legislature not expressly indicated the temporal operation of the amendments. To construe Public Act 90 — 593 in any other way would call the statute’s constitutionality into question. I note that one of the cardinal rules of statutory construction is that courts will discard an interpretation which would render a statute unconstitutional. See People v. Williams, 119 Ill. 2d 24, 28 (1987). Applying this rule of statutory construction here would therefore require that this court presume a prospective application of the amendment in the face of the legislature’s silence on the question.

This case represents the second case in the past six months in which this court has had an opportunity to speak clearly on the issue of statutory retroactivity. Once again, however, a majority has chosen to let the opportunity pass even though several members of the court have broached the topic in separate opinions. It is my hope that a majority of this court will soon confront the issue and resolve the questions that have arisen under our current case law.

JUSTICE McMORROW joins in this special concurrence.

Public Act 89 — 404 went into effect on August 20, 1995, and the crimes at issue here occurred in July 1996.

This is the same test cited with approval by Justice Bilandic in his separate opinion. See 192 Ill. 2d at 172-73 (Bilandic, J., specially concurring).

For example, in this case, had the legislature stated explicitly that the amendments in question were to be applied to conduct occurring before the Act’s passage, this court would have been duty-bound to give effect to that intent to the extent that the Constitution does not bar such an application. In such a case, the constitutional ex post facto issue could not be avoided. In other words, the case would have presented the court with a straightforward ex post facto question. As the case currently stands, the question is one of statutory construction.