Appeal from the Circuit Court of La Salle County, the Hon.
Leonard Hoffman, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1979.
This cause involves two separate class actions filed in the circuit court of La Salle County on May 4, 1978. The plaintiffs sought the return of fines and costs paid as conditions of probation incident to deferred dispositions of criminal charges under section 10 of the Cannabis Control Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1410). On May 23, 1978, amended complaints were filed substituting a party plaintiff in each cause. Both complaints were premised on People v. DuMontelle (1978), 71 Ill.2d 157, in which this court had held that fines and costs were not reasonable terms and conditions of probation as that term was used in section 10 of the Cannabis Control Act and that therefore the imposition of fines and costs was not authorized by statute. Plaintiffs contended that fines and costs thus improperly collected should be refunded.
Defendants filed identical motions to strike and dismiss both complaints and at the hearing held on July 5, 1978, brought the trial court's attention to amendments to section 10 of the Cannabis Control Act (Ill. Rev. Stat., 1978 Supp., ch. 56 1/2, par. 710) and section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1978 Supp., ch. 56 1/2, par. 1410) which were approved and became effective on June 30, 1978, approximately three months after the opinion in DuMontelle was filed. The amendments expressly authorized the imposition of fines and costs as conditions of probation. Section 3 of the amendatory act, which made the changes in both section 10 and section 410, further provided:
"The General Assembly declares that the changes made by this amendatory Act * * * are declaratory of existing law and are therefore applicable in relation to events which occurred before the effective date of this amendatory Act. The `terms and conditions' of probation as specified in this amendatory Act are declared to be reasonable terms and conditions for probation under the affected Sections as those Sections were in effect before the effective date of this amendatory Act." Pub. Act 80-1202, sec. 3, eff. June 30, 1978.
Defendants argued that the amendments effectively nullified DuMontelle. In response, plaintiffs contended that the language in the amendatory act retroactively declaring that the law was other than as stated in DuMontelle should be given no effect because it violated the separation of powers clause of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1).
On August 31, 1978, the circuit court entered amended orders granting defendants' motions to strike and dismiss both complaints, stating inter alia that the amendatory legislation clarified the General Assembly's intentions as to the existing statutes and that the amendments clearly controlled the rule announced in DuMontelle. On December 28, 1978, this court allowed plaintiffs' motion for direct appeal under Rule 302(b) (58 Ill.2d R. 302(b)). The sole issue before us concerns the effect which may constitutionally be given to the amendatory act.
In DuMontelle this court examined section 10 of the Cannabis Control Act, which then provided in relevant part that "[w]henever any person who has not previously been convicted of any offense under [the] Act" pleads or is otherwise found guilty, "the court may, without entering a judgment of guilt * * *, defer further proceedings and place him on probation upon reasonable terms and conditions as it may require. * * * Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime * * *." (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 710.) This court concluded that "the clear import of the statutory language" was that disposition by probation under section 10 was not a conviction (71 Ill.2d 157, 163) and that therefore the imposition of fines and costs was not a reasonable term and condition authorized by statute (71 Ill.2d 157, 164-65). Section 410 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1410) was nearly identical to section 10 of the Cannabis Control Act.
In the June 30, 1978, amendments to both the Cannabis Control Act and the Illinois Controlled Substances Act, the General Assembly deleted the statement that the court was to place "reasonable terms and conditions" on probation and changed the statutory language to expressly catalog certain authorized conditions of probation, including the imposition of fines and costs. The amended acts provide that "[t]he court may, in addition to other conditions, require that the person: * * * (2) pay a fine and costs; * * *." (Ill. Rev. Stat., 1978 Supp., ch. 56 1/2, pars. 710(c)(2), 1410(c)(2).) The amended acts further state that "[a] disposition of probation is considered to be a conviction for the purposes of imposing the conditions of probation * * *." (Ill. Rev. Stat., 1978 Supp., ch. 56 1/2, pars. 710(f), 1410(f).) Thus, although the General Assembly asserted that the changes made by the amendatory act were merely a declaration of existing law, it is manifest that the amendatory act changed the statutory language and prior law as determined by this court in DuMontelle from the clear import of the original statutory language. This court's explication of the statute had become, in effect, a part of the statute until the General Assembly changed it. City of Decatur v. Curry (1976), 65 Ill.2d 350, 359; Mitchell v. Mahin (1972), 51 Ill.2d 452, 456.
The statutory language dictated the holding in DuMontelle; therefore analysis of the legislative intent was not a necessary part of the decision. The General Assembly's subsequent declaration of prior intent cannot alter the clear import of the prior statutory language. Furthermore, even if prior legislative intent had been important for decision in DuMontelle, it is logically difficult to perceive how the declaration and the amendments by the 80th General Assembly can be simply a clarification of the intent of the 77th General Assembly which originally enacted the statute seven years earlier since only a fraction of the individuals who comprised the General Assembly were the same at both times. See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 8.
The General Assembly's declaration that the amendatory act applies to events which occurred before the effective date of the amendatory statute represents a legislative attempt to retroactively apply new statutory language and to thereby annul a prior decision of this court. This is an assumption by the General Assembly of the role of a court of last resort in contravention of the principle of separation of powers embodied in article II, section 1, of the Illinois Constitution of 1970, which provides: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." (See Federal Express Corp. v. Skelton (1979), 265 Ark. 187, 199, 578 S.W.2d 1, 7-8; Johnson v. Morris (1976), 87 Wn.2d 922, 926, 557 P.2d 1299, 1303; 1A Sutherland, Statutes and Statutory Construction sec. 27.04 (4th ed. 1972).) While the General Assembly has the power to draft legislation and to amend statutes prospectively if it believes that a judicial interpretation was at odds with its intent (see Bruni v. Department of Registration and Education (1974), 59 Ill.2d 6, 12; Mitchell v. Mahin (1972), 51 Ill.2d 452, 456), it is the function of the judiciary to determine what the law is and to apply statutes to cases. (See People v. Nicholls (1978), 71 Ill.2d 166, 179; Belfield v. Coop (1956), 8 Ill.2d 293, 307.) The cases cited by the State do not recognize that the General Assembly may retroactively overrule a decision of a reviewing court. Instead they recognize only the power of the legislature to establish laws prospectively and to alter for future cases interpretations of statutes by reviewing courts>. See Modern Dairy Co. v. Department of Revenue (1952), 413 Ill. 55, 66; State v. Bowman (1962), 116 Ohio App. 285, 286-87, 187 N.E.2d 627, 629; cf. People ex rel. Spitzer v. County of La Salle (1960), 20 Ill.2d 18, 28.
In sum, we find that the General Assembly cannot constitutionally overrule a decision of this court by declaring that an amendatory act applies retroactively to cases decided before its effective date. Accordingly, the order of the circuit court striking and dismissing plaintiffs' complaints on the basis of the amendments to the Cannabis Control Act and the Illinois Controlled Substances Act is reversed, and the cause is remanded for a determination of ...