Appeal from the Circuit Court of Cook County, the Hon. John F.
Hechinger, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1985.
In April 1982, the plaintiff, Alfred M. Sanelli (Sanelli), filed a class action in the circuit court of Cook County against the defendant, Glenview State Bank. The bank had served as land trustee for the Sanellis and had also loaned them money. The loan was secured by an assignment to the bank of the beneficial interest in the land trust. The complaint alleged that the bank breached its fiduciary duty to Sanelli and his wife, the land-trust beneficiaries, by purchasing the trust property for its own benefit at a public sale, after the Sanellis defaulted on their loan. The plaintiff's theory of recovery is based on this court's decision in Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill.2d 232. The bank filed an amended motion to dismiss which alleged that the class action was improper and that the action was barred by Public Act 82-891, "An Act in relation to land trusts * * *," which was approved and became effective on August 6, 1982 (Ill. Rev. Stat. 1983, ch. 148, pars. 81 to 84). Section 4 of the Act (Ill. Rev. Stat. 1983, ch. 148, par. 84) provides that the Act applies to all security interests in a beneficial interest in land trusts whether arising before or after the effective date of the Act. On December 22, 1982, the trial court granted the bank's motion based solely on Public Act 82-891. It did not consider the propriety of the class-action claim. Pursuant to Supreme Court Rule 302(b) (87 Ill.2d R. 302(b)), we allowed Sanelli to appeal directly to this court.
On April 27, 1984, an opinion was filed in this case which held the retroactivity provision of Public Act 82-891, section 4, invalid. Thereafter, the bank filed a petition for rehearing. The bank's petition was granted, and the parties were instructed to address the issues of whether the retroactivity provision of Public Act 82-891 violates the principle of separation of powers, the prohibition against laws which impair the obligations of contracts, or the due process clause.
The following facts are pertinent to this appeal. In July 1968, Sanelli and his wife entered into an Illinois land-trust agreement with the bank, as trustee. The parties also executed a trust deed. The trust was known as trust No. 658 and covered the Sanellis' property at 805 and 809 Becker Road, in Glenview. Under the agreement the bank held both the legal and equitable title to the property in trust for the benefit of the Sanellis, as land-trust beneficiaries. In April 1978, the Sanellis executed an assignment of their beneficial interest in the land trust as security for a loan from the bank. Thus, the bank was then serving as land trustee for the Sanellis and was also their secured creditor. The Sanellis subsequently defaulted on their loan, and their beneficial interest in the trust property was sold at a public sale on December 30, 1981. The bank purchased the beneficial interest in the property for its own account for $100,000, which Sanelli alleged was below the fair market value of the property. The bank evicted the Sanellis from the property.
On January 21, 1982, this court decided Home Federal Savings & Loan Association v. Zarkin (1982), 89 Ill.2d 232. In that case, the Zarkins entered into a land-trust agreement with the Devon National Bank. They directed Devon, as trustee, to execute a first mortgage of the trust property in favor of Home Federal. The Zarkins later borrowed $14,000 from Devon. When they were unable to repay the loan they assigned their beneficial interest in the land trust to Devon, as security for the loan. Home Federal sued both Devon and the Zarkins to foreclose its first mortgage and obtained a decree of foreclosure. The property was ordered sold and was purchased by Home Federal. Eight days before the redemption period expired, Devon purchased the certificate of sale from Home Federal. The Zarkins then sued Devon. They asserted that Devon breached its fiduciary duty as trustee, and asked the trial court to either set aside the sale to Devon and extend the redemption period to enable them to redeem, or to decree that Devon had redeemed as trustee for the Zarkins' benefit and enjoin Devon from taking any further action with respect to the property.
In Zarkin, we stated that Illinois land trustees are subject to the same fiduciary duties imposed on all trustees. (89 Ill.2d 232, 239.) Thus, Devon owed the Zarkins a fiduciary's duty of loyalty. We held that since this fiduciary duty would have precluded Devon from purchasing the trust property for its own account at the sheriff's sale, it likewise prohibited Devon from later purchasing the certificate of sale from Home Federal. (89 Ill.2d 232, 244.) By purchasing the trust property Devon breached its duty of loyalty. Following this court's decision in Zarkin in January 1982, the Sanellis, as noted above, filed this class action in April 1982.
On August 6, 1982, Public Act 82-891 became effective. Both parties agree, and the language of the Act itself indicates, that the legislation was passed in response to our decision in Zarkin. The Act provides in part:
(a) The General Assembly finds:
(4) * * * [B]eneficiaries will frequently select a financial institution as trustee simply because that institution will be asked by the beneficiaries to extend credit to the trust or to the beneficiaries secured by their interest in the trust.
(5) Recently, this accepted practice of a creditor lending money to itself as trustee or to the beneficiaries upon the security of an interest in the land trust of which it is trustee, has been scrutinized by the Illinois Supreme Court.
(b) It is the purpose of this Act to codify the accepted practice of a creditor lending to the trustee of a land trust or the beneficiaries thereof upon the security of trust property or their interest in the trust, even though the creditor and the trustee are the same, and to foster and encourage the availability of financing for owners and developers of real estate.
Sec. 2. If a debt is secured by a security interest in a beneficial interest in a land trust or by a mortgage on land trust property, neither the validity or enforceability of the debt, security interest or mortgage nor the rights, remedies, powers and duties of the creditor with respect to the debt or the security shall be affected by the fact that the creditor and the trustee are the same person, and the creditor may extend credit, obtain such security interest or mortgage, and acquire and deal with the property comprising the security as though the creditor were not the trustee. * * *
Sec. 3. The fact that a trustee of a land trust is or becomes a secured or unsecured creditor of the land trust, the beneficiaries of the land trust, or a third party whose debt to such creditor is guaranteed by a beneficiary of the land trust, shall not be a breach of, and shall not be deemed evidence of a breach of, any fiduciary duty owed by said trustee to the beneficiaries.
Sec. 4. This Act applies to all security interests in a beneficial interest in land trusts and all mortgages on land trust property and to all debts secured thereby, whether arising before, on, or after the effective date of this Act." (Emphasis added.) Pub. Act 82-891, eff. Aug. 6, 1982, Ill. Rev. Stat. 1983, ch. 148, pars. 81 to 84.
We first consider the issue of whether the retroactivity provision of Public Act 82-891 violates the principle of separation of powers. The Illinois Constitution provides: "The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another." (Ill. Const. 1970, art. II, sec. 1.) Sanelli contends that the General Assembly violated this principle because it attempted to nullify our decision in Zarkin by enacting Public Act 82-891, which applies to conduct occurring prior to its enactment and prior to Zarkin and which expressly forbids the result announced in Zarkin. We disagree.
The general rule is that legislation is not per se unconstitutional merely because it is retroactive. 2 Sutherland, Statutory Construction sec. 41.03, at 249 (4th ed. 1973); DeMars, Retrospectivity and Retroactivity of Civil Legislation Reconsidered, 10 Ohio N.U.L. Rev. 253, 267 (1983); Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 694 (1960); see Greenblatt, Judicial Limitations on Retroactive Civil Legislation, 51 Nw. U.L. Rev. 540, 550 (1956).
In most cases the constitutionality of the retroactive application of statutes is judged against the limitations of due process clauses or the constitutional limitation on impairing the obligation of contracts. The discussion in most of the literature on the subject, including that cited above, centers on these two constitutional limitations. As one author noted, "[o]ccasionally the Court will hold a retroactive statute unconstitutional on the ground that it violates the constitutional principle of separation of powers." (Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 694 n. 13 (1960).) In this State, however, it is apparent from the cases discussed below that separation of powers is a more common ground for challenging the validity of retroactive statutes than it is in other jurisdictions. Actually, the separation-of-powers challenge is very narrow in scope, as will be noted below. In most of the cases that have come before this court in recent years, those challenging the retroactive statute on that ground have attempted to place a more severe limitation on the legislature than accepted separation-of-powers standards permit.
The General Assembly may enact retroactive legislation which changes the effect of a prior decision of a reviewing court with respect to others whose circumstances are similar but whose rights have not been finally decided. Subject to due process and impairment-of-contracts limitations discussed later, the legislature has the authority to change the law for future cases arising from facts existing prior to the effective date of the legislation which made the change. This power extends to decisions in which the law changed by the legislature resulted from a reviewing court's interpretation of a statute as well as from a reviewing court's interpretation of the common law. What the General Assembly may not do is pass a statute in an attempt to change the result of a decision which has been finally decided as between the parties to that case. This is the essence of the holdings in the cases discussed below.
Schlenz v. Castle (1981), 84 Ill.2d 196, involved a separation-of-powers challenge to a retroactive provision of the Revenue Act of 1939. During the 1976 and 1977 tax years, section 103 of the Revenue Act of 1939 provided that the local supervisor of assessments was to publish a list of real estate for which assessments had been added or changed since the prior assessment. (See Ill. Rev. Stat. 1975, ch. 120, par. 584.) In Andrews v. Foxworthy (1978), 71 Ill.2d 13, 22-23, this court held that the publication dates set forth in section 103 were mandatory and that failure to publish assessment notices by the required dates was fatal. The plaintiffs in Schlenz filed suit challenging real estate assessments which had not been published until after the required dates. However, before judgment was entered in the trial court, the legislature added section 318.1 to the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 799.1). Section 318.1 validated real estate assessments for 1978 and all prior years even though publication had not been timely made. Despite the plaintiffs' contention that section 318.1 violated the principle of separation of powers, the court held that the General Assembly could properly enact post-Andrews legislation to validate tax assessments made for years prior to our decision in Andrews. Schlenz v. Castle (1981), 84 Ill.2d 196, 208.
Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, involved the constitutionality of certain provisions of the new Illinois Marriage and Dissolution of Marriage Act. The action was brought by a husband who was a party to a pending divorce action and who held title to certain property. Section 503(b) of the Act provided that all property acquired after marriage and before a judgment of dissolution of marriage was presumed to be marital property. Section 801(b) stated that the the Act "applie[d] to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment ha[d] not been entered." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 40, par. 801(b).) The plaintiff contended that section 801(b), which retroactively applied the marital-property provisions of section 503(b), violated the principle of separation of powers. Quoting from People ex rel. Coen v. Henry (1921), 301 Ill. 51, 53, this court noted: "`The legislature has power to change the law, and the court, in the decision of pending cases, will dispose of them under the law in force at the time its judgment is rendered.'" (Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 571.) Since section 801(b) merely mandated which law the court was to apply to the facts in pending cases, the court held that it did not invade the province of the judiciary. (71 Ill.2d 563, 571.) As noted above, the statute specifically applied only to actions on which a judgment had not been entered.
People v. Holmstrom (1956), 8 Ill.2d 401, involved facts similar to those in Schlenz. The State sued the defendant to recover delinquent personal property taxes for several years in which assessment lists were not published until after the date required in section 103 of the Revenue Act of 1939. The trial court entered judgment for the State, and the defendant appealed directly to this court. Since we had earlier held that publication was mandatory (People v. Jennings (1954), 3 Ill.2d 125, 131), the defendant argued that the assessments were void. However, prior to the trial court's judgment, a validating act had been passed which provided that all assessments were valid for purposes of taxation even though they had not been published as required by statute. The defendant contended that the validating act itself was void. The court upheld the constitutionality of the validating act, concluding that "inasmuch as the legislature had the power to permit the levy of the taxes without requiring the assessments to be published, it was likewise within its power to cure irregularities in publication by the validating act." People v. Holmstrom (1956), 8 Ill.2d 401, 405-06.
In Worley v. Idleman (1918), 285 Ill. 214, elections were held to authorize a tax levy and the issuance of bonds for the construction and maintenance of roads. Suit was filed by property owners who refused to pay the tax. On appeal, this court held that the bonds were invalid because the election ballots had been so worded that the voters were unable to vote against issuing the bonds. The General Assembly then passed legislation which provided a method of ratifying the bonds. After the bonds were ratified, a number of the taxpayers who had earlier refused to pay the tax for the original bonds filed suit to enjoin the issuance of new bonds and their exchange for the original bonds. This court upheld the legislation despite its earlier decision that the bonds were invalid, stating the the legislature had not, by passing the legislation, invaded the province of the judiciary. 285 Ill. 214, 221.
Sanelli attempts to dismiss Schlenz and Holmstrom on the ground that they involved curative or validating legislation, while the case at bar does not. However, the fact remains that in those cases the General Assembly passed legislation which retroactively changed the effect of prior decisions of this court. In a sense, the legislature overruled the decisions of the court as to all matters that had not been adjudicated.
Roth v. Yackley (1979), 77 Ill.2d 423, and In re Marriage of Cohn (1982), 93 Ill.2d 190, cited by Sanelli, are not contrary to above-stated principle that the General Assembly may enact retroactive legislation which changes the effect of a prior decision of a reviewing court with respect to cases which have not been finally decided.
Roth v. Yackley involved two separate class actions. The plaintiffs sought the return of fines and costs paid by defendants in drug cases as conditions of probation 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). In People v. DuMontelle (1978), 71 Ill.2d 157, 164-66, this court held that the fines and costs were not authorized under section 10 of the Cannabis Control Act. Based on DuMontelle, the plaintiffs in Roth contended that the fines and costs they had paid had been improperly collected and should be refunded. However, approximately three months after the decision in DuMontelle, both section 10 and section 410 were amended to expressly authorize fines and costs as conditions of probation. The amendment specifically provided that the changes made by it were declaratory of existing law and were applicable to events which occurred before the effective date of the amendatory act. (Pub. Act 80-1202, sec. 3, eff. June 30, 1978.) On appeal, this court held that the amendatory act violated the principle of separation of powers. Roth v. Yackley (1979), 77 Ill.2d 423, 429.
The legislation considered in Roth violated the separation-of-powers doctrine in two respects. First, the legislature attempted, by subsequent legislation, to declare or construe the meaning of a prior statute and to do so contrary to the construction that had been placed on that statute by this court in DuMontelle. This court held in Roth that it is the function of the judiciary and not the legislature to construe statutes and to apply the statutes to the cases before it. When this court construed the statute in DuMontelle that construction became a part of the statute until changed by the legislature. Although the legislature could change the statute for application to cases that had not been finally decided if it believed the construction placed on the statute by the court was not that which was intended, it could not change the meaning given to the prior law by this court in cases which had been finally decided. Roth v. Yackley (1979), 77 Ill.2d 423, 428-29.
The second separation-of-powers violation noted in Roth involved the attempt by the legislature to, in effect, reverse decisions of this court by the retroactive application of the amendment. Roth was an attempt to recover fines and costs that had been paid in cases which had been finally adjudicated. In DuMontelle this court held that those fines and costs had been wrongfully levied. Roth held that the legislature could not, by an amendment to the statute, reverse the decision of this court in DuMontelle and could not validate the invalid judgments which had previously been entered imposing fines and costs which plaintiffs sought to recover in Roth. This does not mean that the legislature is powerless to change the result in any future case arising from facts existing prior to the effective date of the amendment which makes the change. This court concluded its decision in Roth by stating, "[W]e 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." (Emphasis added.) 77 Ill.2d 423, 429.
In In re Marriage of Cohn (1982), 93 Ill.2d 190, the trial court entered an order nunc pro tunc dissolving the parties' marriage, but reserving property disposition, child custody, and maintenance issues for future consideration. The petitioner moved to have the order vacated on the grounds that the trial court lacked authority to enter a bifurcated judgment and that it had no authority to enter the judgment nunc pro tunc. Section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) was interpreted by the appellate court as allowing the reservation of child custody, support, maintenance or property disposition only under "appropriate circumstances." The appellate court held that such "appropriate circumstances" were not present and vacated the judgment. After the appellate court filed its decision, section 401(3) was amended to retroactively validate the issuance of bifurcated judgments. The amendment declared that all bifurcated judgments entered prior to the effective date of the amendatory act were valid as of the date of entry. This court held that the amendment was unconstitutional. In characterizing the defect in the amendment the court stated that it "attempts to attribute to a statute, at the time of the reviewing court's opinion, a meaning different than that declared in the opinion and attempts to validate all judgments reserving such questions [custody, support, maintenance, and property disposition] that were entered prior to the effective date of the amendment." (Emphasis added.) (In re Marriage of Cohn (1982), 93 Ill.2d 190, 206.) Since the amendment attempted to validate these judgments, it violated the principle of separation of powers. This is the same defect which we noted in Roth.
This court in General Telephone Co. v. Johnson (1984), 103 Ill.2d 363, applied the same principles of law announced above. In that case the taxpayer argued that the retroactive application of an amendment enacted by the legislature subsequent to this court's decision in Caterpillar Tractor Co. v. Lenckos (1981), 84 Ill.2d 102, overruled the decision of this court in that case in contravention of the separation-of-powers doctrine. The taxpayer argued that the new statutory language could not be retroactively applied to nullify the effect of Caterpillar. This court noted that the General Assembly cannot constitutionally reverse a decision of this court by declaring that an amendatory act applies retroactively to cases decided before its effective date. The court said, "As stated before, at the time that the legislature enacted [the amendment], the circuit court had not addressed the taxpayer's question concerning combined apportionment and the invested-capital tax. The taxpayer had not obtained a judgment on the issue, so the amendment cannot be said to unduly infringe on the powers of the judiciary." General Telephone Co. v. Johnson (1984), 103 Ill.2d 363, 383-84.
In Seese v. Bethlehem Steel Co. (4th Cir. 1948), 168 F.2d 58, the court explained the effect that retroactive application of an amendment to the Fair Labor Standards Act had on earlier decisions of the United States Supreme Court, which had construed the Act prior to its amendment. The court stated:
"When the Fair Labor Standards Act was interpreted by the Supreme Court as requiring computation in the work week of time consumed in walking to work and other preliminary activities, this was just as though the original act contained express provision to that effect; and, when Congress passed the sections of the statute here under consideration, the effect was to repeal the original statute to the extent of that coverage * * *. This does not in any manner affect adjudications already made, nor does it attempt to direct the courts in the exercise of judicial power. All that it does is to define rights, i.e., to amend or limit the effect of a prior statute [as construed by the court] so as to take away a cause of action given by it." 168 F.2d 58, 62.
As stated earlier, subject to due process and impairment-of-contracts limitations, the legislature has the authority to change the law for future cases arising from facts existing prior to the effective date of the legislation which made the change. Schlenz, Holmstrom, Roth, Cohn, General Telephone, and Seese are all examples of decisions in which the General Assembly or Congress passed legislation that changed a reviewing court's interpretation of a statute. Chevron Chemical Co. v. Superior Court (1982), 131 Ariz. 431, 641 P.2d 1275, and Peterson v. City of Minneapolis (1969), 285 Minn. 282, 173 N.W.2d 353, discussed below, are examples of decisions in which the law changed by the legislature resulted from a reviewing court's interpretation of the common law.
In Chevron, the Arizona General Assembly enacted retroactive legislation which changed a prior decision of the Arizona Supreme Court that had been based on the common law. In addressing an argument that the legislation violated the doctrine of separation of powers, the court stated:
"Under the doctrine of separation of powers, the judiciary has the exclusive power to declare `existing law.' [Citation.] * * * And we have held that an attempt by the legislative branch to interpret existing law by stating that an act was `declaratory of existing law' was `* * * clearly * * * unconstitutional.' (Martin v. Moore, 61 Ariz. 92, 94 & 96, 143 P.2d 334, 335 (1943).
* * * Although it would appear that the legislature disagreed with our decision * * *, the legislature did not attempt to change [that decision]. This they could not do. The legislature, instead, attempted to change the statute upon which the * * * decision was, at least in part, based. This is a valid, accepted and constitutional legislative function." Chevron Chemical Co. v. Superior Court (1982), 131 Ariz. 431, 440, 641 P.2d 1275, 1284.
In Peterson, a pedestrian sued the city of Minneapolis to recover damages for an injury he sustained when he fell over a raised portion of a sidewalk. The city filed an answer which raised the defense of contributory negligence. The case was tried on July 2 and July 3, 1969, and the jury returned a verdict in favor of the city. During trial the court had refused to submit a comparative negligence instruction as requested by the plaintiff. The instruction was based on a new Minnesota statute which adopted comparative negligence in the place of the common law doctrine of contributory negligence. The legislature specifically provided that the statute was to be effective in any action the trial of which was commenced after July 1, 1969. On appeal, the Minnesota Supreme Court determined that the statute could constitutionally ...