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April 17, 1997


The Honorable Justice Freeman delivered the opinion of the court. Justice Harrison, specially concurring. Chief Justice Heiple joins in this special concurrence.

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

The dispositive issue in this appeal is whether the appellate court may decline to apply one of its prior, published opinions to a case which was pending at the time the previous decision was issued. We conclude that the appellate court may.


The litigation between the parties in this case centers on a promotional examination for the rank of sergeant in the Round Lake Park police department. Plaintiffs, four members of the department, filed an action for declaratory and injunctive relief in the circuit court of Lake County on November 12, 1993. The complaint named as defendants the board of fire and police commissioners of the Village of Round Lake Park (Board); three board members in their individual capacity; the Round Lake Park chief of police, Daniel Veit and the Village of Round Lake Park. Plaintiffs alleged that defendants violated various sections of the Illinois Municipal Code (65 ILCS 5/10-2.1-1 et seq. (West 1992)) during a promotional examination administered by defendants on November 12, 1992. Plaintiffs sought, inter alia, (i) a declaration that the exam was void ab initio, (ii) an injunction against those who passed the exam from holding the rank of sergeant, and (iii) an injunction directing the Board to administer a promotional test which comports with the requirements of the Municipal Code.

Defendants subsequently moved to dismiss the complaint pursuant to section 2-619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 1992)). In the motions, defendants argued, among other things, that plaintiffs' action for declaratory and injunctive relief was, in essence, an action for administrative review. As such, the action was subject to the requirement that all complaints seeking review of decisions of administrative agencies be filed within 35 days of service of the final administrative decision. 735 ILCS 5/3-103 (West 1992). Defendants, therefore, asserted that plaintiffs' complaint, filed one year after the promotional decisions were made, was untimely. According to defendants, plaintiffs' decision to challenge the promotions by way of a declaratory and injunctive action rather than proceeding under administrative review resulted in the loss of their right to seek judicial relief.

In response, plaintiffs argued that actions concerning police promotions fell beyond the purview of administrative review and that, therefore, the one-year statute of limitations for actions against local public entities applied. In support of this argument, plaintiffs pointed out that the Second District of the Appellate Court considered the action outside the scope of the administrative review law. See, e.g., Barrows v. City of North Chicago, 32 Ill. App. 3d 960, 336 N.E.2d 596 (1975); Foster v. Board of Fire & Police Commissioners, 81 Ill. App. 3d 48, 36 Ill. Dec. 509, 400 N.E.2d 1089 (1980). Plaintiffs noted that because the circuit court of Lake County was situated in the Second District, the circuit judge was bound to follow the law as set forth in Barrows and its progeny. Barrows notwithstanding, the court ruled that plaintiffs' action fell under the administrative review law and dismissed the complaint with prejudice because plaintiffs had not complied with the 35-day filing requirement contained in the Administrative Review Act. 735 ILCS 5/3-103 (West 1992). Plaintiffs appealed.

During the pendency of plaintiffs' appeal, the Second District issued its opinion in Mueller v. Board of Fire & Police Commissioners, 267 Ill. App. 3d 726, 205 Ill. Dec. 304, 643 N.E.2d 255 (1994). In Mueller, the court "reconsidered [its] decisions in the Barrows line of cases and *** decided to overrule them regarding the applicability of the Review Law." Mueller, 267 Ill. App. 3d at 731. As a result, the issue in the pending appeal was no longer whether the circuit judge erred by not following Barrows and its progeny. Rather, the relevant inquiry became whether the appellate court should apply the Mueller decision retroactively. The appellate court declined to do so.

In reaching its conclusion, the appellate court initially noted that plaintiffs here filed their complaint in a manner which "complied with second district case law as it existed at the time." No. 2-94-0987 (unpublished order under Supreme Court Rule 23). The court recognized that its opinion in Mueller broke with the district's past precedent and that to give it retroactive effect would cause injustice and hardship. Accordingly, the court concluded that Mueller should not be given a retroactive application in this case. We subsequently granted defendants leave to appeal. 155 Ill. 2d R. 315.

On appeal before this court, defendants maintain solely that the appellate court does not have the authority to apply Mueller prospectively. In defendants' view, only this court may declare whether a decision will apply prospectively. Alternatively, defendants maintain that even if the appellate court possesses such a power, the court improperly exercised it in this case. Plaintiffs, on the other hand, argue that the appellate court does have such a power and that it exercised it properly in the instant case. We agree with plaintiffs and, therefore, affirm the judgment of the appellate court.



Generally, when a court issues an opinion, the decision is presumed to apply both retroactively and prospectively. Deichmueller Construction Co. v.. Industrial Comm'n, 151 Ill. 2d 413, 416, 177 Ill. Dec. 446, 603 N.E.2d 516 (1992); 21 C.J.S. Courts ยง 148 (1990). That presumption can be overcome in two types of circumstances. First, the issuing court itself may expressly state that its decision will be applied prospectively only. See, e.g., Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). Second, a later court may, under certain circumstances, override the presumption by declining to give the previous opinion retroactive effect, at least with respect to the parties appearing before the later court. The present case falls under the latter category. Accordingly, we will confine our discussion to cases which involve situations in which a later court is deciding whether to give a previous decision prospective effect only.

We begin our analysis with the seminal case concerning the prospective application of a civil decision, Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). As in this case, the issue before the United States Supreme Court in Chevron concerned whether a previous decision, which shortened a statute of limitations, should be applied to a party who had filed his action prior to the issuance of the opinion. Specifically, plaintiff Huson brought a personal suit for damages three years after he was injured. His complaint, when filed, was timely under existing law. While the matter was pending in the trial court, the United States Supreme Court issued its decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 23 L. Ed. 2d 360, 89 S. Ct. 1835 (1969). In Rodrigue, the Court determined that actions such as Huson's were governed by a different statute of limitations, one which gave plaintiffs only one year to bring suit. The court in Rodrigue was silent as to its retroactive effect, but an application of its holding to Huson would have rendered his cause of action ...

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