Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, No. 01-DT-342A Honorable William O. Schmidt, Judge Presiding.
The opinion of the court was delivered by: Justice Slater
Defendant Michael L. Keegan was arrested for driving under the influence of alcohol (DUI). One hundred and three days later, he filed a petition to rescind the summary suspension of his driving privileges. Following a hearing, the trial court granted the petition on its merits. The State then moved to reconsider on the ground that the trial court lacked subject matter jurisdiction because the petition was untimely. The court granted the State's motion and vacated the rescission order. Defendant appeals, arguing that the 90-day period for filing a petition to rescind under section 2--118.1 of the Illinois Vehicle Code (Code) (625 ILCS 5/2--118.1 (West 2000)) is not jurisdictional and was waived by the State's failure to raise the issue prior to the hearing on defendant's petition. We reverse.
The record shows that defendant was arrested and charged with DUI on August 17, 2001. His petition to rescind the statutory summary suspension of his driving privileges was filed in the circuit court on November 28. Following a hearing, the trial court granted the petition on the ground that the evidence did not show that there was probable cause to arrest defendant for driving under the influence of alcohol.
The State moved to reconsider based on defendant's failure to file his petition to rescind within 90 days of receiving notice of the summary suspension (625 ILCS 5/2--118.1 (West 2000)). The circuit court, reasoning that section 2--118.1 was "analogous" to an administrative review proceeding, ruled that the lack of a timely petition deprived the court of subject matter jurisdiction. See Fredman Brothers Furniture Co., Inc. v. Department of Revenue, 109 Ill. 2d 202, 486 N.E.2d 893 (1985). Accordingly, the court granted the State's motion and vacated its order rescinding the summary suspension of defendant's driving privileges.
On appeal, defendant argues that the trial court's analogy to administrative review proceedings was in error. He contends that the filing period in section 2--118.1 is an ordinary statute of limitations that should be considered as an affirmative defense, which the State waived by failing to assert it prior to the hearing on the merits of his petition.
Ordinary statutes of limitation present procedural bars that may be asserted as an affirmative defense or waived. See People v. Wright, 189 Ill. 2d 1, 723 N.E.2d 230 (1999). Fairness dictates that affirmative defenses that are neither pled nor argued at a hearing on the merits may not be raised later in a motion to reconsider. Harmon Insurance Agency, Inc. v. Thorson, 226 Ill. App. 3d 1050, 590 N.E.2d 920 (1992).
By contrast, time limitations contained in statutes which confer subject matter jurisdiction on the circuit court based on the timely filing of a pleading pose jurisdictional bars which cannot be waived. Currie v. Lao, 148 Ill. 2d 151, 592 N.E.2d 977 (1992). If a court lacks subject matter jurisdiction because a cause is not filed within a jurisdictional time limitation, the court's judgment may be attacked at any time as a void judgment. Eckel v. MacNeal, 256 Ill. App. 3d 292, 628 N.E.2d 741 (1993).
The question before us is whether failure to comply with the 90-day period for filing a request for a hearing under section 2--118.1 is a jurisdictional bar or a procedural defect that may be waived. This is apparently a question of first impression; however, our supreme court, considering a four-year limitation period under the Motor Vehicle Franchise Act (815 ILCS 710/14 (West 2000)), recently provided guidance to resolve the issue.
"'[S]ubject matter jurisdiction' refers to the power of a court to hear and determine cases of the general class to which the proceeding in question belongs. [Citations.] With the exception of the circuit court's power to review administrative action, which is conferred by statute, a circuit court's subject matter jurisdiction is conferred entirely by our state constitution. [Citations.] Under section 9 of article VI, that jurisdiction extends to all 'justiciable matters.' Ill. Const. 1970, art. VI, § 9. ***
*** Generally, a 'justiciable matter' is a controversy appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of parties having adverse legal interests. [Citations.] The legislature may create new justiciable matters by enacting legislation that creates rights and duties that have no counterpart at common law or in equity. [Citation.] *** The legislature's creation of a new justiciable matter, however, does not mean that the legislature thereby confers jurisdiction on the circuit court. Article VI is clear that, except in the ...