Docket No. 101016.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN

RAY BYWATER, Appellant.

Opinion filed December 21, 2006.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Kilbride, and

Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justice Burke.

OPINION

After being charged with driving without proof of insurance (625

ILCS 5/3–707(a) (West 2002)), improper lane usage (625 ILCS

5/11–709(a) (West 2002)), and two counts of driving while under the

influence of alcohol (625 ILCS 5/11–501(a)(1), (a)(2) (West 2002)),

defendant Brian R. Bywater was notified that statutory summary

suspension of his driver’s license would take effect pursuant to the

Illinois Vehicle Code (625 ILCS 5/11–501.1 (West 2002)). Defendant

contested this summary suspension pursuant to section 2–118.1(b) of

the Vehicle Code (625 ILCS 5/2–118.1(b) (West 2002)). On appeal,

he argued that the 30-day time limit for holding a rescission hearing

set forth in section 2–118.1(b) was not met where, despite timely
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serving the State with his petition to rescind by mail, the circuit court

of Kane County held the hearing on the thirty-fourth day. The

appellate court disagreed, holding that section 2–118.1(b)’s 30-day

deadline does not begin to run until the State’s actual receipt of a

petition to rescind. 358 Ill. App. 3d 191, 198. The court further held

that in cases where service is effected by mail, section 2–118.1(b)’s

deadline is extended by four days by application of Supreme Court

Rule 12(c) (145 Ill. 2d R. 12(c)). 358 Ill. App. 3d 191.

We granted defendant’s petition for leave to appeal pursuant to

Supreme Court Rule 315 (177 Ill. 2d R. 315) to consider whether the

30-day time limit for conducting a petition to rescind hearing

established by section 2–118.1(b) commences on the date of the filing

of the petition in the circuit court of venue or is extended by Supreme

Court Rule 12(c) to commence running on the date the State receives

service. For the reasons discussed below, we reverse the decision of

the appellate court and remand this cause to the circuit court for entry

of an order granting Bywater’s petition to rescind.

BACKGROUND

On June 29, 2002, defendant was arrested for driving under the

influence of alcohol. On that same day, he was notified that statutory

summary suspension of his driver’s license would take effect on

August 14, 2002, under section 11–501.1 of the Illinois Vehicle Code.

On July 11, 2002, defendant filed a petition to rescind the summary

suspension with the clerk of the circuit court of Kane County pursuant

to section 2–118.1(b) of the Vehicle Code, and sent a copy of that

filing to the State by first-class mail.

On July 18, 2002, both defendant and the State appeared before

the circuit court on the State’s motion to set a hearing date on the

petition to rescind. At the July 18 appearance, the State argued that

because defendant served the State with his petition to rescind by

mail, Supreme Court Rule 12(c) applied and the 30-day time limit for

conducting a rescission hearing pursuant to section 2–118.1(b) did not

actually start until July 15, 2002. The circuit court agreed, entering an

order continuing the hearing on the petition to rescind to August 14,

2002.
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On August 14, defendant presented a motion to dismiss the

statutory summary suspension arguing that dismissal was appropriate

because a hearing was not held within 30 days, as required by section

2–118.1(b). The circuit court denied this motion, raising Sixteenth

Judicial Circuit Court Rule 34.05(b) (16th Jud. Cir. Ct. R. 34.05(b))

sua sponte. The circuit court found rule 34.05(b), which required a

defendant to request a hearing on a petition to rescind in open court,

controlling and thus the hearing was timely.

On appeal, the appellate court dismissed for lack of jurisdiction,

finding that the circuit court still retained jurisdiction over the issues

raised in the petition to rescind. See People v. Bywater, No.

2–03–0514 (2004) (unpublished order under Supreme Court Rule 23).

The appellate court remanded, and on July 7, 2004, the circuit court

denied defendant’s renewed motion to dismiss as well as his petition

to rescind. The circuit court also denied defendant’s motion to

reconsider. Defendant appealed the case a second time.

In defendant’s second appeal, the appellate court held Sixteenth

Judicial Circuit Rule 34.05(b) invalid. 358 Ill. App. 3d 191. The

appellate court went on to find, however, that section 2–118.1(b)’s

30-day deadline begins to run when service is effective on the State,

which, under Supreme Court Rule 12(c), is four days after mailing.

358 Ill. App. 3d at 198. Pursuant to that finding, the appellate court

affirmed defendant’s suspension. 358 Ill. App. 3d at 198.

Because the State does not challenge the appellate court’s finding

that the local court rule raised by the circuit court was invalid and

acknowledges that it conflicted with section 2–118.1(b) and

established precedent, this court will limit its analysis to the issue of

whether the 30-day time limit for conducting a petition-to-rescind

hearing established by section 2–118.1(b) commences on the date of

the filing of the petition in the circuit court of venue or on the date

when mailed service is actually effective.

ANALYSIS

While this court has previously addressed section 2–118.1(b) in

People v. Schaefer, 154 Ill. 2d 250 (1993), we have not addressed the

precise issue of construction described above. The construction of a

statute is a question of law which this court reviews de novo. In re
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D.S., 217 Ill. 2d 306, 313 (2005). The cardinal rule of statutory

construction is to ascertain and give effect to the intent of the

legislature. People ex rel. Devine v. Sharkey, 221 Ill. 2d 613, 617

(2006). The best indication of that intent is the language of the statute,

given its plain and ordinary meaning. People v. McClure, 218 Ill. 2d

375, 382 (2006). When the language is unambiguous, the statute must

be applied as written without resorting to other aids of construction.

People v. Fitzpatrick, 158 Ill. 2d 360, 364-65 (1994). A statute must

be considered in its entirety, though, keeping in mind the subject it

addresses and the legislature’s apparent objective in enacting it.

People v. Wooddell, 219 Ill. 2d 166, 170 (2006). With these principles

in mind, we turn to the statute at issue here.

Section 11–501.1 of the Illinois Vehicle Code requires the

Secretary of State to summarily suspend the driver’s license of any

motorist who: (1) is arrested for driving under the influence and

refuses to submit to testing of his or her blood-alcohol level, (2) tests

above the legal limit for alcohol content, or (3) tests positive for an

intoxicating substance. 625 ILCS 5/11–501.1 (West 2002). The

Vehicle Code allows a motorist to challenge the statutory summary

suspension, however, through section 2–118.1(b). That section

provides:

“Within 90 days after the notice of statutory summary

suspension served under Section 11–501.1, the person may

make a written request for a judicial hearing in the circuit

court of venue. The request to the circuit court shall state the

grounds upon which the person seeks to have the statutory

summary suspension rescinded. Within 30 days after receipt

of the written request or the first appearance date on the

Uniform Traffic Ticket issued pursuant to a violation of

Section 11–501, or a similar provision of a local ordinance,

the hearing shall be conducted by the circuit court having

jurisdiction. This judicial hearing, request, or process shall not

stay or delay the statutory summary suspension. The hearings

shall proceed in the court in the same manner as in other civil

proceedings.” (Emphases added.) 625 ILCS 5/2–118.1(b)

(West 2002).
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Though neither party contests that the rules of service must be

complied with under section 2–118.1(b), the parties do contest when

the 30-day time limit set forth above commences.

The State argues that the statutory language is ambiguous.

Specifically, the State focuses on the language emphasized above in

section 2–118.1(b) and presents the question of whose receipt of the

petition to rescind the statutory summary suspension triggers the 30-

day deadline: receipt by the circuit court or receipt by the State. The

State urges this court, in light of the structure of the summary

suspension statute and the policy behind it, to resolve this purported

ambiguity by affirming the appellate court’s conclusion that receipt by

the State activates section 2–118.1(b)’s 30-day deadline. By that

reasoning, the State also contends, as the appellate court found below,

that Supreme Court Rule 12(c) applies. Rule 12(c) provides that

“[s]ervice by mail is complete four days after mailing.” 145 Ill. 2d R.

12(c).

The State argues that because summary suspension becomes

effective on the forty-sixth day after a defendant is notified of it (625

ILCS 5/11–501.1(g) (West 2002)), any defendant concerned about

obtaining a rescission before the summary suspension takes effect has

adequate time to do so, even if the hearing is conducted within 34

rather than 30 days of the petition’s filing. As such, the State contends

that the difference between its interpretation of section 2–118.1(b) and

defendant’s interpretation is not material for due process purposes.

Additionally, the State argues that while its review of the Illinois

Compiled Statutes uncovered no other provision with language

analogous to that disputed here, there are numerous examples of

provisions in which a party must take some action within a specified

number of days of receipt of some legal notice or document to avoid

losing the right to take that action. See, e.g., 205 ILCS 5/48 (West

2002) (the Commissioner of Banks and Real Estate may issue an order

of removal of a director, officer, or other agent of a state bank or

subsidiary due to circumstances such as violation of the law; the

person affected may request a hearing before the state banking board

within 10 days of receipt of the Commissioner’s order); 705 ILCS

405/2–25(8) (West 2002) (if the person affected is not in court when

an order of protection regarding a minor is issued, the sheriff or other

server must serve the order upon the person, and the person, within
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seven days of receipt, can file a written motion to modify the order);

820 ILCS 305/19(b) (West 2002) (an arbitrator’s decision in a

workers’ compensation case is filed with the Commission, which

sends each party a copy, and unless a petition for review is filed by

either party within 30 days of receipt, the decision is conclusive). The

State points out that in each of these provisions the time deadline is

not triggered until the burdened party actually receives some

particular notice or document. By analogy, the State contends that

because it is the State that has the burden to set a rescission hearing

here, so too should the State’s time period within which to complete

that duty be triggered only after the State becomes aware of it,

namely, the day that service is complete. This cited authority makes

evident, though, that when the legislature so desires, it is more than

capable of writing into a statute unambiguous language establishing

time period provisions expressly beginning upon a burdened party’s

receipt. See, e.g., 205 ILCS 5/48(7) (West 2002) (“The person

affected by the action may request a hearing before the State Banking

Board within 10 days after receipt of the order” (emphases added));

705 ILCS 405/2–25(8) (West 2002) (“The person against whom the

protective order was obtained may seek a modification of the order by

filing a written motion to modify the order within 7 days after actual

receipt by the person of a copy of the order” (emphases added)); 820

ILCS 305/19(b) (West 2002) (“Unless a petition for review is filed by

either party within 30 days after the receipt by such party of the copy

of the decision *** then the decision shall become the decision of the

Commission and in the absence of fraud shall be conclusive”

(emphasis added)).

Considering this, and notwithstanding the State’s other arguments,

we agree with defendant’s position. Guided by principles of statutory

construction, we find no ambiguity in the language of section

2–118.1(b). That language, given its plain and ordinary meaning, does

not support the position that the 30-day time period of section

2–118.1(b) is triggered by the State’s receipt of service of a

defendant’s petition to rescind. Section 2–118.1(b) does not mention

the State at all, let alone in context of the State’s receipt of a

defendant’s petition to rescind. On the contrary, the section repeatedly

and consistently refers to the circuit court of venue.
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Section 2–118.1(b)’s first sentence describes how a person may

make a “written request” with “the circuit court of venue.” The

second sentence describes the content of “[t]he request to the circuit

court.” The third sentence establishes the time period within which the

hearing shall be held by “the circuit court having jurisdiction” and

conditions that time period upon “receipt of the written request.” To

read into this statute a requirement that the 30-day time period does

not begin to run until the State’s receipt of service would contravene

the statute’s plain language and run afoul of the oft-repeated principle

of statutory construction that when statutory language is unambiguous

it must be applied as written. See People v. Brooks, 221 Ill. 2d 381,

390 (2006) (“When a term used by the legislature is clear and

unambiguous, it is not necessary to resort to other aids of

construction”); Fitzpatrick, 158 Ill. 2d at 364-65; People v. Hare, 119

Ill. 2d 441, 447 (1988).

Further, we note that statutory interpretation is not a tool to be

utilized by courts attempting to remedy apparent oversights by

rewriting statutes in ways that contravene their clear and unambiguous

language. See People v. Taylor, 221 Ill. 2d 157, 162-63 (2006). As

already described, the legislature could just as easily have provided,

as it has in other situations, that the time period within which to take

a particular action would not begin to run until the State’s actual

receipt of service. The legislature did not take that path here. Instead,

the receipt of a petition to rescind contemplated by the language of

section 2–118.1(b), as written, is the receipt by the circuit court of

venue. It is this receipt that commences the running of the 30-day time

period delineated in the statute.

This finding comports with People v. Schaefer, where this court

found that the legislature enacted the summary suspension laws as an

appropriate means to deter and remove from the highway drivers who

pose a threat to public safety because of their use of alcohol and

drugs. People v. Schaefer, 154 Ill. 2d 250, 255 (1993), citing Ill. Rev.

Stat. 1989, ch. 951⁄2, par. 6–206.1. We went on to note that this goal

must be met while guaranteeing defendants notice and an opportunity

to be heard so as to satisfy “the concern for protection of the

substantive and procedural due process rights of motorists as

guaranteed by the United States and Illinois Constitutions.” Schaefer,

154 Ill. 2d at 261. With that background in mind, we held that section
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2–118.1(b)’s “30-day statutory period commences on the date of the

filing of a proper petition to rescind in the circuit court of venue, with

service on the State, in accordance with the rules of this court.”

Schaefer, 154 Ill. 2d at 261. In this case, we reaffirm that the plain

language of section 2–118.1(b) establishes a 30-day period within

which a hearing on a petition to rescind summary suspension must be

held and again hold that this period commences on the date that

petition is received by the circuit court of venue.

It should be emphasized that a defendant has a duty to properly

serve the State with any request to rescind the statutory summary

suspension of that defendant’s driver’s license under section

2–118.1(b). See 735 ILCS 5/2–201(a) (West 2002); 145 Ill. 2d R. 11.

As this court stated in People v. Schaefer, a “defendant’s challenge to

the summary suspension of driving privileges must be heard within the

statutory 30-day period, unless the delay is occasioned by the

defendant.” (Emphasis added.) Schaefer, 154 Ill. 2d at 253. In this

case, though, defendant did not occasion any delay. In fact, defendant

properly served the State by expeditiously sending his petition to

rescind to the State by first-class mail on the very same day he filed it

with the circuit court. This is not a case where a defendant was remiss

in effecting service nor does the State contend it as such.

In its brief, the State cited this court’s previous decision in People

v. Cosenza, 215 Ill. 2d 308 (2005), highlighting a particular provision

of that decision where we stated:

“Construing section 2–118.1(b) in this way champions the

interests of both defendants and the State. Defendants retain

the right to enforce a timely hearing as contemplated in the

statute, and the State is guaranteed at least 30 days to prepare

for the hearing once that right is asserted.” Cosenza, 215 Ill.

2d at 315-16.

This statement was made in the context of a different question of

interpretation. The issue presented in Cosenza was whether a hearing

under section 2–118.1(b) had to be concluded within 30 days of the

filing of a petition to rescind or whether it merely had to be

commenced within 30 days. The issue in this case, what triggers the

commencement of the 30-day hearing deadline, was not before this

court in Cosenza, nor was it contested by the parties in that case. As
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such, we do not conclude that Cosenza should dictate our decision in

the present case.

CONCLUSION

Because Brian Bywater properly filed a written request to rescind

the statutory summary suspension of his driver’s license in the circuit

court of venue pursuant to section 2–118.1(b) of the Illinois Vehicle

Code (625 ILCS 5/2–118.1(b) (West 2002)), and because he properly

and timely served the State with that request, the language of the

statute required that his hearing be held in the circuit court of venue

within 30 days. Because Bywater did not get that hearing within 30

days, this court must reverse the judgment of the appellate court as

well as the judgment of the circuit court. Accordingly, this cause is

remanded to the circuit court with direction that an order be entered

granting Bywater’s petition to rescind.

Appellate court judgment reversed;

circuit court judgment reversed;

cause remanded with direction.

JUSTICE FREEMAN, dissenting:

The court’s opinion states that it reaffirms People v. Schaefer.

That is not the case. The court, in fact, reads out from Schaefer the

requirement that a petitioner serve the petition on the State. This may

be unintentional–the court offers no explanation for its elimination of

the requirement–but it is certainly what the court’s opinion does. The

result is twofold: (i) Schaefer, rather than being reaffirmed, is

overruled, and (ii) confusion will almost certainly result in determining

exactly when the 30-day clock for rescission hearings begins to run.

I therefore dissent.

In Schaefer, this court answered a number of questions that had

arisen under section 2–118.1(b) of the Vehicle Code. The case

involved three consolidated appeals, the facts of which provide an

insight into the confusion that existed in this area of the law. See

Schaefer, 154 Ill. 2d at 258-68. Principal among those problems was

the question of who shouldered the burden of scheduling the
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Schaefer did not further define what constitutes a “proper” petition.

There can be no doubt that a “proper” petition is one that raises a statutory

(625 ILCS 5/2–118.1(b)(2) (West 2002)) or other ground for rescission. See,

e.g., People v. Palacios, 266 Ill. App. 3d 341, 342 (1994) (holding that a

defective sworn report may provide a ground for rescission). Closer to this

case, this court, in Schaefer, indicated that a petition that did not include a

certificate of service “establishing that the petition had been served on the

State in accordance with Supreme Court Rules 11 and 12” could not serve

to trigger the 30-day time period contained in section 2–118.1(b). Schaefer,

154 Ill. 2d at 268.

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rescission hearing because section 2–118.1(b) was silent as to that

question. See Schaefer, 154 Ill. 2d at 259, 263. Until Schaefer, the

appellate court had struggled with the language of the statute with

respect to this question and its effect on the 30-day time computation.

Schaefer, 154 Ill. 2d at 254. This court resolved the issue by holding

as follows:

“[T]he 30-day statutory period commences on the date of

the filing of a proper petition to rescind in the circuit court of

venue, with service on the State, in accordance with the rules

of this court. The burden to set the court hearing date would

then shift to the State.”(Emphases added.) Schaefer, 154 Ill.

2d at 261.

Thus, completed service, in accordance with our rules, and the filing

of a “proper petition to rescind”1

 would shift the burden to the State

to set the rescission hearing and start the 30-day clock under section

2–118.1(b). Given Schaefer’s interpretation of the statute, there can

be no question service on the State is a crucial part of the 30-day

computation in light of the State’s obligation to set the hearing.

The notion that completed service is required to start the 30-day

clock has never been questioned in the time since Schaefer. Indeed,

Justice Miller, writing separately in Schaefer, emphasized this service

requirement and specifically agreed with it: “I agree with the majority

that the time period provided by the statute begins to run when the

driver submits and properly serves a written request for a hearing, in

accordance with our rules regarding service.” Schaefer, 154 Ill. 2d at

271 (Miller, C.J., specially concurring). Three years later, in People

v. Smith, this court reiterated the point by holding that the “hearing on
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Rule 11 addresses the manner of serving papers other than process and

complaint on parties not in default in the trial and reviewing court. 145 Ill.

2d R. 11. This rule should not be confused with section 2–201(a) of the Code

of Civil Procedure (735 ILCS 5/2–201(a) (West 2002)), which provides that

every action shall be commenced by the filing of a complaint with service

according to the rules. The court cites section 2–201(a) in its discussion of

the petitioner’s duty to serve. Slip op. at 8. If the court means to suggest

section 2–118.1(b) contemplates that the petition to rescind acts as the

equivalent of a complaint that commences the statutory summary suspension

action, it is mistaken. In People v. McClain, this court held that it is the

officer’s sworn report which functions as the complaint in statutory summary

suspension proceedings. People v. McClain, 128 Ill. 2d 500, 507 (1989).

Thus, if anything might be considered a “complaint” in this context, it is

certainly not the petition to rescind. In my view, much of the confusion

wrought to this area of the law stems from analogizing the proceedings under

the statute to ordinary civil actions in all instances. It would be more

accurate to recognize that rescission hearings under section 2–118.1(b) are

noncriminal, statutory proceedings that are informed by the rules of civil

practice, to the extent that those rules are applicable. 

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a petition to rescind must be held within 30 days of the date of filing

the petition in the circuit court with venue, with service on the State.”

People v. Smith, 172 Ill. 2d 289, 295 (1996). And just last year, in

People v. Cosenza, we repeated the same point: “[T]he time provision

set forth in section 2–118.1(b) of the Vehicle Code is satisfied when

the hearing begins 30 days after receipt of defendant’s written request

(and service on the State) unless delay is occasioned by the

defendant.” (Emphasis added.) People v. Cosenza, 215 Ill. 2d 308,

315-16 (2005). Since 1993, service on the State is a condition that a

petitioner must satisfy in order to trigger the 30-day time period of

section 2–118.1(b).

Thus, to put an even finer point on it, Schaefer acknowledged that

section 2–118.1(b) did not itself address anything more than the mere

filing of a petition and that its silence on other areas caused confusion

in statutory summary suspension proceedings. Among other possible

options, the court held that the State must be served with the petition

in order to meet its burden–which Schaefer contemporaneously

created–of setting a timely rescission hearing. To that end, Schaefer

referenced Supreme Court Rules 112

 and 12 with respect to service.
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Rule 11(b) also allows for (i) service on the party or the party’s attorney

personally, (ii) service by leaving the papers with certain other persons, and

(iii) service by facsimile transmittal to the office of the party or the party’s

attorney if that party has consented to receive service by facsimile

transmission. 145 Ill. 2d R. 11(b).

 4

Of course, under Rule 12(c), the clock may begin to run even though the

State may not have actually received the petition. For example, if a petition

is mailed November 1, Rule 12(c) renders service “complete” on November

5 notwithstanding the actual date of receipt, which may in fact be later. Rule

12(c) was designed to establish a bright line rule to account for delays in

mailing. See 145 Ill. 2d R. 12, Committee Comments.

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Schaefer, 154 Ill. 2d at 268. Rule 11 allows for service by four

methods, including mail.3

 145 Ill. 2d R. 11. Rule 12 states that when

“service of a paper is required, proof of service shall be filed with the

clerk.” 145 Ill. 2d R. 12(a). Rule 12(c) provides that service by mail

“is complete four days after mailing.” 145 Ill. 2d R. 12(c). Because

Schaefer holds that the clock does not begin to run until the petition

is filed and service is complete, the time-period calculation depends

upon the method of service chosen by the petitioner in accordance

with our rules. For example, if a petition is filed with the circuit court

on November 1 and the proof of service reveals that the State was

served personally on that same date, then the 30-day period starts on

November 1. If a petition is filed with the circuit court on November

1 and the proof of service reveals that the State was served by mail on

that date, then the 30-day period starts on November 5, because

service under the rule is effective four days after mailing.4

Under this court’s construction of section 2–118.1(b) in Schaefer

and the application of Rules 11 and 12, the resolution of this case is

as straightforward as the appellate court found. That court concluded

that to ignore the date that service on the State is complete “would

improperly burden the State’s obligation to set a timely hearing date.”

358 Ill. App. 3d at 200. This was especially so, the court noted, in

light of the importance the court in Schaefer placed on providing

notice to the State as the “necessary antecedent in setting summary

suspension hearings.” 358 Ill. App. 3d at 200, citing Schaefer, 154 Ill.

2d at 261. In this case, Brian Bywater elected to serve the State by
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mail. The petition’s proof of service states that it was mailed on July

11, 2002, the date on which the petition was filed. Service was

therefore not complete until July 15, 2002. The hearing, held on

August 14, 2002, was, in fact, timely. I would therefore affirm the

appellate court based on Schaefer and Supreme Court Rules 11 and

12.

The court, however, rejects this approach for several reasons.

Initially, the court notes that section 2–118.1(b) “does not mention the

State at all.” Slip op. at 6. The court’s point may be true, but it also

completely disregards that the key holding of Schaefer was to

judicially read into the language of section 2–118.1(b) the State’s

burden to set a timely hearing. In the 13 years since this court’s

decision in Schaefer, the General Assembly has not altered that

interpretation by amendment, and the legislature’s inaction must be

deemed acquiescence in the holding. See Miller v. Lockett, 98 Ill. 2d

478, 483 (1983) (noting that when this court has interpreted a statute,

that interpretation is considered as part of the statute itself unless and

until the legislature amends it contrary to the interpretation).

The court’s second observation similarly fails. The court states

that its decision today is supported by the fact that when the

legislature wants to indicate that a time period commences upon

receipt of service, it makes that point explicit in the statute, and that

was not done in section 2–118.1(b). Slip op. at 6. Again, that the

statute did not contain such language was the point of Schaefer. This

court judicially read the service requirement into the statute as a

counterpart to the determination that it was the State that had the

burden to timely set the rescission hearing. And like the State’s burden

to set the hearing, the General Assembly has not altered, by

amendment, the requirement that a petitioner serve the State.

If the court today means to disagree with the judicial creation of

the burden and service requirements in Schaefer, this would be a

different dissent, because I agree with the approach fashioned in

Schaefer, which was a unanimous opinion on these points. But that is

not what I understand the court’s position to be. The court purports

to reaffirm Schaefer, while in the same breath, entirely ignoring

Schaefer’s service requirement. The court’s resolution of this case

does not “comport” with the holding in Schaefer (slip op. at 7) but,

rather, eviscerates it. Today’s opinion serves to hold the State to the
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obligation Schaefer imposed upon it while at the same time excusing

petitioners from the very requirement that was designed by the court

to go hand-in-hand with that obligation.

At the outset of this dissent, I stated that today’s opinion will

cause confusion to those who practice in this area of the law. That is

because, toward the end of its opinion, the court “emphasize[s]” that

“a defendant has a duty to properly serve the State with any request

to rescind the statutory summary suspension of that defendant’s

driver’s license under section 2–118.1(b).” Slip op. at 8. The court’s

emphasis is rather meaningless because, up until that point in its

opinion, the court has done nothing but stress that the key point,

under the statute, is the date of filing. For this reason, I do not know

what to make of the court’s language about service. It made sense, of

course, in Schaefer, for the court to emphasize the need for service

because of the nature of the court’s holding. After all, Schaefer

created an unusual situation in that the petitioner’s taking of an action,

i.e., the filing of the petition to rescind, created, under the statute, an

affirmative obligation on the part of the State to do something, i.e., set

a rescission hearing within a 30-day period. Because the court in

Schaefer chose to place that affirmative duty on the State, it was not

only fair, but logical, that the petitioner must also serve the State in

accordance with our rules of service. To hold otherwise would have

unfairly started the 30-day clock against the State without first

ensuring that the State had been legally apprised of the fact that its

obligation to so act had been triggered by the petitioner. Today’s

opinion divorces the petitioner’s service requirement from the State’s

obligation to set the hearing. Because of this, I believe the opinion will

cause undue confusion in our trial courts when both judges and

practitioners try to reconcile the notion of “proper service” in this

context. I therefore dissent.

JUSTICE BURKE joins in this dissent.