Docket No. 83987–Agenda 2–January 1999.

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

								DANIEL RAMSEY, Appellant.

Opinion filed August 10, 2000.

	CHIEF JUSTICE HARRISON delivered the opinion of the

court:

	Following a jury trial in the circuit court of Hancock County,

defendant, Daniel Ramsey, was convicted of two counts of first

degree murder, three counts of attempted first degree murder, and

one count each of aggravated criminal sexual assault, home

invasion and residential burglary. In finding defendant guilty of

these offenses, the jury rejected defendant’s claim that he was

insane under section 6–2 of the Criminal Code of 1961, as

amended by section 15 of Public Act 89–404 (720 ILCS 5/6–2

(West 1996)). The jury also determined that defendant was eligible

for the death penalty based on the cold, calculated and

premeditated manner of the crimes. 720 ILCS 5/9–1(b)(11) (West

1996).

	After a sentencing hearing, the jury found that there were no

mitigating factors sufficient to preclude imposition of a death

sentence. The trial court then sentenced defendant to death. In

addition, the court sentenced defendant to terms of imprisonment

on his convictions for attempted murder, aggravated criminal

sexual assault, home invasion, and residential burglary. Defendant’s

death sentence has now been stayed pending direct review by this

court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).

For the reasons that follow, we reverse defendant’s convictions and

remand for a new trial.

	At issue in this appeal is the law governing defendant’s

insanity defense. The trial proceedings utilized the version of the

insanity defense statute as amended by section 15 of Public Act

89–404 because that was the version of the law in effect when the

crimes were allegedly committed. The amended version of the law

was significant because it altered the definition of insanity. Under

the amendment, a defendant could no longer raise an insanity

defense based on his inability “to conform his conduct to the requirements of law.”1 In addition, the amendment increased a defendant’s burden of proof for an insanity defense from “a

preponderance of the evidence” to “clear and convincing

evidence.” See Pub. Act 89–404, §15 (eff. August 20, 1995),

codified at 720 ILCS 5/6–2(a), (e) (West 1996).

	When defendant’s insanity defense failed, he argued in his

post-trial motion that the amended version of the insanity defense

statute was unconstitutional and should not have been followed

because Public Act 89–404 violated the single subject rule in article

IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV,

§8(d)). Defendant asserted that because of Public Act 89–404’s

constitutional infirmities, he should have been tried under the

former version of the law with its broader definition of insanity and

its less stringent burden of proof.

	Although the trial court rejected defendant’s constitutional

challenge, its ruling came before our opinion in People v. Reedy, 186 Ill. 2d 1 (1999), which was filed while this appeal was pending.

In Reedy our court held that Public Act 89–404 does violate the single subject rule and is unconstitutional in its entirety. Reedy, 186 Ill. 2d at 12. As a result, the law is void ab initio; “ ‘[i]t is *** as though no such law had ever been passed.’ ” People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People v. Schraeberg, 347 Ill. 392, 394 (1932). Section 6–2 of the Criminal Code therefore

remained as it was before the adoption of Public Act 89–404’s

amendments (Gersch, 135 Ill. 2d at 390), and those amendments should not have been applied at defendant’s trial. The judgment of

the circuit court must therefore be reversed and the cause

remanded for a new trial in accordance with the version of the law

in effect prior to Public Act 89–404.

	In reaching this conclusion, we note that the General Assembly

has now enacted new legislation containing the same revisions to

the insanity defense statute originally included in Public Act 89–404. The new legislation, set forth in Public Act 90–593,

section 15, is not claimed to suffer from the same single subject

rule problems that rendered Public Act 89–404 invalid, and we

must presume it to be constitutional (see People v. Hickman, 163 Ill. 2d 250, 257 (1994)). The new law, however, cannot be applied

on retrial.

	Application of criminal or penal measures to events occurring

before their enactment is restricted by article I, section 10, of the

United States Constitution, which provides that “[n]o State shall

*** pass any *** ex post facto Law” (U.S. Const., art. I, §10) and

by article I, section 16, of the Illinois Constitution (Ill. Const.

1970, art. I, §16), which contains similar language. Our court has

held that a “law is ex post facto if it makes criminal an act that was innocent when done, if it increases the punishment for a previously

committed offense, or if it alters the legal rules of evidence to make

conviction easier.” People v. Shumpert, 126 Ill. 2d 344, 351 (1989); accord People v. Franklin, 135 Ill. 2d 78, 107 (1990); see Brewer v. Peters, 262 Ill. App. 3d 610, 613 (1994). A law which abolishes an affirmative defense of justification or excuse

constitutes an ex post facto law because “it expands the scope of a criminal prohibition after the act is done.” Collins v. Youngblood, 497 U.S. 37, 49, 111 L. Ed. 2d 30, 43, 110 S. Ct. 2715, 2723

(1990); see also Beazell v. Ohio, 269 U.S. 167, 169, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68 (1925) (a law is ex post facto if it “deprives one charged with [a] crime of any defense available

according to law at the time when the act was committed”).

	Under these standards, application of Public Act 90–593 to

defendant’s case would violate the prohibition against ex post facto laws for two reasons. First, it would deprive defendant of an

affirmative defense he possessed under the former version of the

statute, namely, that he is not guilty because he lacked the capacity

“ ‘to conform his conduct to the requirements of the law.’ ” See

United States v. Samuels, 801 F.2d 1052, 1054 & n.1 (8th Cir. 1986) (holding ex post facto clause precludes retroactive application of amendment to federal insanity defense statute

eliminating identical prong of insanity defense), quoting United States v. Frazier, 458 F.2d 911, 918 (8th Cir. 1972); United States v. Kowal, 596 F. Supp. 375, 378 (D. Conn. 1984) (same); United States v. Lakey, 610 F. Supp. 210, 212-13 (S.D. Tex. 1985) (same). Second, by increasing the burden of proof a defendant

must meet in order to establish that he was insane at the time of the

offense, the amendment makes it easier for the State to secure a

conviction. See, e.g., People v. Eckhardt, 156 Ill. App. 3d 1077, 1080 (1987) (holding that shift in burden of proof relating to

insanity defense would be improper ex post facto application of statute if applied to a trial for an offense committed prior to the

amendment to the law); People v. Ahmad, 206 Ill. App. 3d 927, 937 (1990) (same).

	In a supplemental brief ordered by our court, the State agrees

with this conclusion and concedes that an application of Public Act

90–593’s provisions at defendant’s retrial would violate ex post facto principles. Despite the State’s concession, Justice Heiple asserts that a portion of Public Act 90–593 should control on

retrial. Specifically, he contends that defendant is subject to the

new law’s more stringent burden of proof and should be required

to prove his insanity by clear and convincing evidence.

	Wholly aside from the issue of whether it is right for this court to unilaterally subject defendants to standards more onerous than

those sought by the State itself, Justice Heiple’s position is

untenable under the law. In dismissing the ex post facto problems attendant to application of Public Act 90–593’s new burden of

proof, Justice Heiple construes the United States Supreme Court’s

decision in Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990), to mean that changes in the rules of

evidence are never subject to the federal prohibition on ex post facto laws. The United States Supreme Court has expressly rejected this construction. In Carmell v. Texas, No. 98–7540 (May 1, 2000), the Court specifically held that legislation which alters the legal rules of evidence to require less or different testimony to

convict the offender than was required at the time of the

commission of the offense does violate the constitutional prohibition against ex post facto laws. As we have noted, Public Act 90–593 is such a law.

	Justice Heiple’s approach is legally untenable for another reason as well. By combining the substantive elements of the insanity defense as they existed under

the old law with the more rigorous burden of proof contained in

the new law, Justice Heiple would have this court create and apply

a hybrid version of the statute that does not exist and has never

existed. Such a course is patently beyond our constitutional

authority. The power to enact laws is vested in the legislature.

Under the doctrine of separation of powers, courts may not rewrite

or extend legislation (People v. Garner, 147 Ill. 2d 467, 475-76 (1992)) or modify statutes to meet particular cases (People v. Flaherty, 396 Ill. 304, 313 (1947)).

	For the foregoing reasons, defendant’s convictions and

sentences are reversed, and this cause is remanded for a new trial.

On retrial, defendant shall be allowed to assert an insanity defense

in accordance with section 6–2 of the Criminal Code as it existed

prior to the amendments contained in Public Acts 89–404 and

90–593. Specifically, defendant shall be allowed to present an

insanity defense based on his inability to conform his conduct to the

law. In addition, he shall only be required to prove his insanity at

the time of the offense by a preponderance of the evidence.

Reversed and remanded with directions.

	JUSTICE BILANDIC, specially concurring:

	I agree with the holding that Public Act 89–404 is void ab initio.

	During the pendency of this appeal, the General Assembly

enacted a different act, Public Act 90–593. Public Act 90–593

reenacted the amendment to the insanity defense statute that was

originally included in the void act. The parties’ initial briefs did not

address the effect of Public Act 90–593 on this case. Consequently,

this court sua sponte ordered supplemental briefing. We directed the parties to brief the issues of “whether Public Act 90–593

applies retroactively to [defendant] and, if so, whether retroactive application of Public Act 90–593 would violate the constitutional

prohibitions against ex post facto application of the law.” The parties complied.

	Defendant maintains that Public Act 90–593 does not apply

retroactively to him under principles of statutory construction. In

the alternative, defendant asserts that retroactive application would

result in ex post facto violations.

	The State does not address whether Public Act 90–593 applies

retroactively to defendant. Nonetheless, the State concedes that

retroactive application would violate the constitutional prohibitions

against ex post facto laws.

	The majority opinion determines that the constitutional

prohibitions against ex post facto laws prohibit retroactive application of Public Act 90–593 to defendant. I would not address

the ex post facto issue, for the reasons explained below.

	Ex post facto literally means after the fact. Black’s Law Dictionary 520 (5th ed. 1979). Both the United States and Illinois

Constitutions prohibit the state from enacting an ex post facto law. U.S. Const., art. I, §10 (providing that “[n]o State shall *** pass

any *** ex post facto Law”); Ill. Const. 1970, art. I, §16

(providing that “[n]o ex post facto law *** shall be passed”).

Essentially, this prohibition means that the legislature cannot

change a criminal or penal law, after the fact, to be less favorable

to a defendant regarding events that occurred before the change.

See generally Carmell v. Texas, No. 98–7540 (U.S. May 1, 2000) (discussing meaning of prohibition). It therefore follows that the

constitutional prohibitions against ex post facto laws are not implicated unless the legislature is changing a law after the fact. Here, because legislative intent is clear that Public Act 90–593 is

not to be applied retroactively, there is no reason to conduct an ex post facto analysis. The principle is well established that courts will not consider a constitutional question if the cause can be

determined on other grounds. E.g., People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 464 (1994). Consequently, I would determine this cause solely on the basis that Public Act 90–593

does not apply retroactively to defendant.

I. Applicable Precedent

	This case is analogous to People v. Digirolamo, 179 Ill. 2d 24, 50 (1997). There, this court was presented with an issue of

whether an amendment to a statute would apply in that appeal.

Defendant was convicted of the offense of obstructing justice. The

State, however, failed to prove at trial the venue in which the

offense occurred. Because venue was an established element of the

offense, this failure necessitated reversal of that conviction. After

defendant’s trial, the venue statute was amended to remove the

necessity of proving venue to obtain a criminal conviction. The

State argued that the amended statute should be applied on appeal

to sustain defendant’s conviction. Digirolamo, 179 Ill. 2d at 49-50.

	In resolving this issue, this court in Digirolamo followed a long line of Illinois cases where, in determining whether the

amendment applied, we utilized the legislative intent approach and

its substantive-procedural distinction. Under this approach, an

amendment to a statute is generally construed to apply

prospectively and not retroactively, unless the legislature intended

a retroactive application of the amendment and the amendment

affects only procedure or remedies. Digirolamo, 179 Ill. 2d at 50. Accordingly, this test begins with the presumption that a new

statute will not be applied on appeal unless the legislature expressly

provides for such application. The language of the amendment at

issue showed that the legislature did not intend a retroactive

application. Also, the amendment effected a change in more than

procedure or remedies. We therefore held that the amendment

could not be applied retroactively to defendant, and we reversed

his conviction for that offense. Digirolamo, 179 Ill. 2d at 50-52. Given that the amendment was not applied retroactively to

defendant, there was no possibility of an ex post facto violation.

	In the present case, there is no indication that the legislature

intended Public Act 90–593 to apply retroactively. Also, the

statutory amendment at issue affects substantive rights, not

procedure or remedies. Therefore, pursuant to Digirolamo, Public Act 90–593 cannot be applied retroactively to defendant. This

appeal could be resolved on that basis alone.

	II. Inapplicable Precedent

	As noted, this case turns on whether the amendment to the

insanity defense statute contained in Public Act 90–593 may be

applied retroactively to defendant. Digirolamo and First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), contain seemingly contradictory statements concerning when to apply an

amended statute on appeal. Digirolamo provides that, “[g]enerally, an amendment to a statute will be construed to apply prospectively

and not retroactively” unless the legislature intended a retroactive

application of the amendment and the amendment affects only

procedure or remedies. Digirolamo, 179 Ill. 2d at 50. Armstead states that, with regard to statutory amendments, “a reviewing

court should simply apply the law as it exists at the time of the

appeal, unless doing so would interfere with a vested right.”

Armstead, 171 Ill. 2d at 290. Thus, each of these statements appears to be a generally applicable canon of statutory construction

for courts to follow when determining whether an amended statute

will be applied on appeal. On their face, the canon in Digirolamo favors prospective application whereas the canon in Armstead favors retroactive application.

	Although these canons are opposed on their face, there is no

conflict between the holdings of Digirolamo and Armstead. Each decision relied on a line of case law that supported its outcome and

that followed its pertinent canon of statutory construction. The

United States Supreme Court recently observed, “It is not

uncommon to find ‘apparent tension’ between different canons of

statutory construction. As Professor Llewellyn famously illustrated,

many of the traditional canons have equal opposites.” Landgraf v. USI Film Products, 511 U.S. 244, 263, 128 L. Ed. 2d 229, 251, 114 S. Ct. 1483, 1496 (1994). Therefore, “another canon of

unquestionable vitality” useful to remember when faced with this

scenario is “the ‘maxim *** that general expressions, in every

opinion, are to be taken in connection with the case in which those

expressions are used.’ ” Landgraf, 511 U.S. at 265, 128 L. Ed. 2d at 252, 114 S. Ct. at 1497, quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed. 257, 290 (1821).

	As discussed above, the present appeal is analogous to

Digirolamo. Both this case and Digirolamo involved statutory amendments to a criminal statute and potential ex post facto violations. Armstead, on the other hand, is not applicable to this appeal. Unlike the present case, Armstead concerned a statutory amendment to a civil statute that possibly implicated rights vested

under our due process clause (Armstead, 171 Ill. 2d 282). See Weaver v. Graham, 450 U.S. 24, 29-30, 67 L. Ed. 2d 17, 23-24, 101 S. Ct. 960, 964-65 (1981) (explaining that, in addressing

whether application of a statutory amendment would violate ex post facto principles, it is not relevant whether the statutory change touches on any vested right).

	Nevertheless, given the confusion that has resulted from the

two canons, I take this opportunity to explain the legal history

behind the canons. I then propose that this court adopt a new test

for determining when a new or amended statute will be applied on

appeal to pending cases. In Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the United

States Supreme Court similarly was faced with seemingly

contradictory canons of statutory construction for determining

when a new federal statute will be applied on appeal to pending

cases. The Supreme Court successfully reconciled the principles

underlying the two canons into a single test. We should do likewise

here.

III. Historical Presumption Against the Retroactive Application

of Statutes

	Historically, there has been a presumption against the

retroactive application of statutes. Both this court and the United

States Supreme Court have discussed this presumption.

	This court has reviewed the origin and rationale of the

presumption as follows.

			“As a general matter it is clear that prospective

application of statutes is to be preferred to retroactive, or

retrospective, application. This preference has existed

from time out of mind. ‘The doctrine that legislation must

be prospective in character is traceable to Coke and

Bracton, who recognized it as a rule of construction

founded on doctrines of natural law, and it was incorporated into American jurisprudence by the learned

jurists Kent and Story.’ (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 346.) The doctrine has sometimes been treated as

a constitutional restraint on legislation, and sometimes as

a rule of statutory construction. [Citations.]

			The preference for prospectivity is founded upon:

			‘[the] fundamental principle of jurisprudence that

retroactive application of new laws is usually unfair.

There is a general consensus that notice or warning of

the rule should be given in advance of the actions whose

effects are to be judged ***. ***’ 1A A. Sutherland,

Statutory Construction §41.02, at 340-01 (4th ed.

1986).

			It has thus been our general rule of construction that an

amendatory act will be construed as prospective.

[Citations.] ***

			*** Since no statute will violate the Constitution merely

because it operates prospectively, prospectivity is to be

preferred.” Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 308-09 (1988).

	The United States Supreme Court has also explained the basis

for its traditional presumption against the retroactive application of

statutes. “The presumption against the retroactive application of

new laws is an essential thread in the mantle of protection that the

law affords the individual citizen. That presumption ‘is deeply

rooted in our jurisprudence, and embodies a legal doctrine

centuries older than our Republic.’ [Citation.]” Lynce v. Mathis, 519 U.S. 433, 439, 137 L. Ed. 2d 63, 71, 117 S. Ct. 891, 895

(1997). “Elementary considerations of fairness dictate that

individuals should have an opportunity to know what the law is and

to conform their conduct accordingly; settled expectations should

not be lightly disrupted.” Landgraf, 511 U.S. at 265, 128 L. Ed. 2d at 252, 114 S. Ct. at 1497. “This doctrine finds expression in

several provisions of our Constitution. The specific prohibition on ex post facto laws is only one aspect of the broader constitutional protection against arbitrary changes in the law. In both the civil and

the criminal context, the Constitution places limits on the sovereign’s ability to use its lawmaking power to modify bargains

it has made with its subjects.” Lynce, 519 U.S. at 439-40, 137 L. Ed. 2d at 71, 117 S. Ct. at 895.

	The Supreme Court has elaborated on the various federal

constitutional provisions that possibly may be violated by a

retroactive application of new statutes.

			“ ‘The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article 1, §10, cl. 1,

prohibits States from passing another type of retroactive

legislation, laws ‘impairing the Obligation of Contracts.’

The Fifth Amendment’s Takings Clause prevents the

Legislature (and other government actors) from depriving

private persons of vested property rights except for ‘public

use’ and upon payment of ‘just compensation.’ The

prohibitions on ‘Bills of Attainder’ in Art. 1, §§9-10,

prohibit legislatures from singling out disfavored persons

and meting out summary punishment for past conduct.

[Citation.] The Due Process Clause also protects the

interests in fair notice and repose that may be

compromised by retroactive legislation ... .’ [Citation.]” Lynce, 519 U.S. at 440 n.12, 137 L. Ed. 2d at 71 n.12, 117 S. Ct. at 895 n.12, quoting Landgraf, 511 U.S. at 266, 128 L. Ed. 2d at 253, 114 S. Ct. at 1497.

The above list of potential constitutional problems is not

exhaustive. For example, both this court and the Supreme Court

have concluded that retroactive application of a statute may violate

the constitutional principle of separation of powers. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995); In re Marriage of Cohn, 93 Ill. 2d 190, 203-04 (1982).

	As the foregoing discussion shows, a general presumption

against the retroactive application of statutes is deeply embedded

in our legal history. This presumption initially was rooted in

fairness and freedom from arbitrary governmental actions. Later,

this presumption was expressed in various constitutional

provisions. Consequently, applying statutes prospectively has been

the preferred practice because it avoids the myriad constitutional

problems that may arise from applying a statute retroactively.

IV. Historical Exceptions to the Presumption Against the

Retroactivity of Statutes

	For nearly as long as the general presumption against the

retroactive application of statutes has existed, jurists have also

recognized that the retroactive application of a statute is desirable

in certain situations. Hence, legal history records the development

of a number of exceptions to the general presumption against

retroactivity. The following discussion demonstrates that certain

exceptions have long existed to the general presumption against the

retroactive application of statutes. This list is intended to be

illustrative, not exhaustive.

	Illinois has, for example, long recognized the exception that a

new or amended statute may be applied retroactively on appeal

where the legislature intended a retroactive application of the

statute and the statute affects only procedure or remedies. See, e.g., People v. Digirolamo, 179 Ill. 2d 24, 50 (1997); Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310 (1988); Orlicki v. McCarthy, 4 Ill. 2d 342, 346 (1954); Theodosis v. Keeshin Motor Express Co., 341 Ill. App. 8 (1950); see also In re Pronger, 118 Ill. 2d 512, 522 (1987) (noting that our General Assembly incorporated part of this exception into the Illinois

Statute on Statutes), quoting Orlicki, 4 Ill. 2d at 346, quoting Ill. Rev. Stat. 1953, ch. 131, par. 4. This court’s decision in

Digirolamo illustrates the application of this exception. The United States Supreme Court continues to recognize a principle that is

similar in application. See Landgraf, 511 U.S. at 273-74, 275, 128 L. Ed. 2d at 257, 258, 114 S. Ct. at 1501, 1502 (allowing statutory

changes in procedure or in prospective relief to be applied on

appeal, but characterizing those changes as not truly retroactive in

effect).

	Another exception found in Illinois law is that a statutory

amendment may be applied “retroactively” where the legislature

enacted the amendment merely to clarify an existing law that was

ambiguous, rather than to change the law. In re Marriage of Cohn, 93 Ill. 2d 190, 202 (1982); see, e.g., Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 461-63 (1995); People v. Rink, 97 Ill. 2d 533, 540-41 (1983); People ex rel. Spitzer v. County of La Salle, 20 Ill. 2d 18, 28 (1960). Like the exception discussed above, this exception gives effect to the legislature’s

intent in drafting the statute.

	A third exception long recognized in Illinois law concerns

“nonvested rights.” This exception is best understood by discussing

its origin. Justice Story, the same learned jurist who has been

credited with incorporating into American jurisprudence the

general presumption against the retroactive application of statutes,

in 1814, wrote Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (C.C. N.H. 1814) (No. 13,156). There, sitting on circuit, Justice Story was construing a provision of the

New Hampshire Constitution that broadly prohibited all

“retrospective” laws. In doing so, he offered what today remains

the basic definition of a statutory law that is operating with truly

retroactive effect. “Justice Story first rejected the notion that the

provision bars only explicitly retroactive legislation, i.e., ‘statutes ... enacted to take effect from a time anterior to their passage.’

[Citation.] Such a construction, he concluded, would be ‘utterly

subversive of all the objects’ of the prohibition. [Citation.] Instead,

the ban on retrospective legislation embraced ‘all statutes, which,

though operating only from their passage, affect vested rights and

past transactions.’ [Citations.]” Landgraf, 511 U.S. at 268-69, 128 L. Ed. 2d at 254, 14 S. Ct. at 1498-99. Justice Story elaborated:

		“Upon principle, every statute, which takes away or

impairs vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or attaches

a new disability in respect to transactions or considerations

already past, must be deemed retrospective.” Society for the Propagation of the Gospel, 22 F. Cas. at 767.

	Both this court and the Supreme Court have long utilized

Justice Story’s definition of what constitutes a retroactive law. See,

e.g., Landgraf, 511 U.S. at 268-70, 128 L. Ed. 2d at 254-55, 114 S. Ct. at 1498-99; First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996) (and cases cited therein); Theodosis v. Keeshin Motor Express Co., 341 Ill. App. 8 (1950). Unlike New Hampshire, Illinois has never had an express constitutional

prohibition of retrospective laws. See Theodosis, 341 Ill. App. at 12. Nonetheless, our legislature in 1874 set forth a general

presumption against statutory retroactivity in our Statute on Statutes (Orlicki v. McCarthy, 4 Ill. 2d 342, 346 (1954), quoting Ill. Rev. Stat. 1953, ch. 131, par. 4), which still appears on the

books today (see 5 ILCS 70/4 (West 1998)). In the same manner

that Justice Story limited the reach of New Hampshire’s

constitutional prohibition of “retrospective” laws to only those

laws with truly retroactive effect, this court has limited the reach

of Illinois’ statutory presumption against retroactive laws to only

those laws with truly retroactive effect. This court did this by

creating a broad exception to the Statute on Statute’s presumption

against statutory retroactivity for “nonvested rights.” See Orlicki, 4 Ill. 2d at 346-48.

	This “nonvested rights” exception to the general presumption

against the retroactive application of statutes remains in Illinois,

though, over time, it came to be treated in a line of cases as its own

general rule. See Armstead, 171 Ill. 2d at 289-90 (and cases cited therein). Stated as a general rule, or canon, this exception came to

provide that “a reviewing court should *** apply the law as it

exists at the time of the appeal, unless doing so would interfere

with a vested right.” Armstead, 171 Ill. 2d at 290.

	First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), typifies application of this third exception. In Armstead, this court was presented with an issue of whether an amendment

to a statute would apply in that appeal. Plaintiff wanted to register

its underground storage tanks pursuant to the Gasoline Storage

Act (Act) (430 ILCS 15/0.01 et seq. (West 1992)) so that it would qualify for monies for cleanup. The Act was amended during the

appeal. The amendment expressly stated that underground storage

tanks taken out of operation before January 2, 1974, could not be

registered. It was undisputed that plaintiff’s tanks were taken out

of operation before that date and, thus, could not be registered if

the new amendment applied. Armstead, 171 Ill. 2d at 284-87. The amendment implicated plaintiff’s due process rights.

	In determining whether the amendment would be applied on

appeal to the parties’ existing controversy, this court in Armstead defined retroactivity in words nearly identical to those used by

Justice Story nearly two centuries before:

			“The application of an amendment to an existing

controversy does not necessarily constitute retroactivity. ‘[I]t is well settled that a statute is not retroactive just

because it relates to antecedent events, or because it draws

upon antecedent facts for its operation.’ [Citation.]

Instead, this court has defined a retroactive change in the

law as ‘ “one that takes away or impairs vested rights

acquired under existing laws, or creates a new obligation,

imposes a new duty, or attaches a new disability in respect

of transactions or considerations already past.” ’

[Citation.]” Armstead, 171 Ill. 2d at 289-90.

The Armstead opinion further stated:

			“With this understanding of retroactivity, there is little

reason to focus on legislative intent. The legislature is

without constitutional authority to enact a law that is truly

retroactive, in that it impairs vested rights, even if that is

its expressed intention. [Citation.] Moreover, where an

amendment has no such retroactive impact, there is simply

no need to apply further rules of construction to determine

legislative intent because the amendment by definition has

only prospective application. Thus, a reviewing court

should simply apply the law as it exists at the time of the

appeal, unless doing so would interfere with a vested

right.” Armstead, 171 Ill. 2d at 290.

The opinion determined that plaintiff did not have a vested right to

register its underground storage tanks under the preamended Act.

Since no vested right was at issue, the opinion held that the

amended Act would be applied to the appeal. Under the amended

Act, plaintiff did not have the right to register its tanks. Armstead, 171 Ill. 2d at 290-93.

	In reviewing past decisions regarding when a statutory

amendment would be applied to an existing controversy on appeal,

the opinion stated that the jurisprudence was not consistent.

Sometimes this court would apply a “legislative intent approach”

to the question, and at other times would apply a “vested rights

approach” to the question. Under the vested rights approach, this

court did not look at legislative intent. Rather, this court simply

applied the law as it exists at the time of the appeal, unless doing

so would interfere with a vested right. The opinion defined a

“vested right” as an interest that is protected from interference by our due process clause. The opinion then described the vested

rights approach as “the better approach.” Armstead, 171 Ill. 2d at 289.

	There is no doubt that Armstead correctly held that the amended Gasoline Storage Act applied in that appeal. Some jurists,

however, have understood the language in Armstead as suggesting a categorical presumption in favor of application of all new rules of law, with the sole exception being that “unless doing so would

interfere with a vested right” (Armstead, 171 Ill. 2d at 290). In my view, Armstead was never intended as having a universal application. Rather, Armstead was meant to apply only to those cases raising due process concerns. See Armstead, 171 Ill. 2d at 289 (defining “vested right” as an interest that is protected by our

due process clause).

	It is true, as Armstead intimated, that the legislature lacks the authority to enact a retrospective statute in violation of our due

process clause. This truth, though, was never intended to be

extended to mean that all other new statutes (i.e., those that do not violate the due process clause if applied retroactively) shall be

applied on appeal, regardless of legislative intent. Such an

understanding of Armstead would turn the general presumption against the retroactivity of statutes on its head. It would fail to

account for the myriad constitutional problems other than due

process that may arise from applying a statute retroactively.

Finally, it would conflict with the primary rule of statutory

construction that, in interpreting a statute, courts are to ascertain

and give effect to the intent of the legislature. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).

V. Adoption of New Test

	The United States Supreme Court recently set forth the

following test for determining when a new federal statute will be

applied on appeal to pending cases.

			“When a case implicates a federal statute enacted after

the events in suit, the court’s first task is to determine

whether Congress has expressly prescribed the statute’s

proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however,

the statute contains no such express command, the court

must determine whether the new statute would have

retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability

for past conduct, or impose new duties with respect to

transactions already completed. If the statute would

operate retroactively, our traditional presumption teaches

that it does not govern ***.” Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505.

See also Martin v. Hadix, 527 U.S. ___, ___, 144 L. Ed. 2d 347, 356-57, 119 S. Ct. 1998, 2003 (1999) (restating the same test).

	In the above test, the Supreme Court has successfully

harmonized the legislative intent approach with Justice Story’s

definition of a truly retroactive law. First, the test reconfirms the

“traditional rule” that “new statutes do not apply retroactively unless Congress expressly states that they do.” (Emphasis in original.) Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 237, 131 L. Ed. 2d 328, 354, 115 S. Ct. 1447, 1461-62 (1995). In

reaffirming this principle for the modern era, the Court explained:

			“The presumption against statutory retroactivity had

special force in the era in which courts tended to view

legislative interference with property and contract rights

circumspectly. In this century, legislation has come to

supply the dominant means of legal ordering, and

circumspection has given way to greater deference to

legislative judgments. [Citations.] But while the

constitutional impediments to retroactive civil legislation are now modest, prospectivity remains the appropriate

default rule. Because it accords with widely held intuitions

about how statutes ordinarily operate, a presumption

against retroactivity will generally coincide with legislative

and public expectations. Requiring clear intent assures that

Congress itself has affirmatively considered the potential

unfairness of retroactive application and determined that

it is an acceptable price to pay for the countervailing

benefits. Such a requirement allocates to Congress

responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has

the additional virtue of giving legislators a predictable

background rule against which to legislate.” (Emphasis in

original.) Landgraf, 511 U.S. at 272-73, 128 L. Ed. 2d at 256-57, 114 S. Ct. at 1500-01.

	Second, the test also continues to adhere to Justice Story’s

definition of a retroactive law. The Court explained, “Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many

situations.” (Emphasis added.) Landgraf, 511 U.S. at 273, 128 L. Ed. 2d at 257, 114 S. Ct. at 1501. This means that, where the

legislature is silent as to the temporal reach of a statute, a court

must proceed to a determination of whether application of the new

statute would have a truly retroactive effect. If there is no truly

retroactive effect, then application of the new statute on appeal is

proper. Landgraf, 511 U.S. at 273-74, 275, 128 L. Ed. 2d at 257, 258, 114 S. Ct. at 1501, 1502. As examples of statutory changes

that have no truly retroactive effect, the Court mentioned those

changes concerning prospective relief and many, but not all,

changes to procedural rules. Landgraf, 511 U.S. at 273-74, 275 & n.29, 128 L. Ed. 2d at 257, 258 & n.29, 114 S. Ct. at 1501, 1502

& n.29.

	The Court elaborated further on the subject of retroactivity:

			“A statute does not operate ‘retrospectively’ merely

because it is applied in a case arising from conduct

antedating the statute’s enactment [citation] or upsets

expectations based in prior law. Rather, the court must ask

whether the new provision attaches new legal

consequences to events completed before its enactment.

The conclusion that a particular rule operates

‘retroactively’ comes at the end of a process of judgment

concerning the nature and extent of the change in the law

and the degree of connection between the operation of the

new rule and a relevant past event. Any test for

retroactivity will leave room for disagreement in hard

cases, and is unlikely to classify the enormous variety of

legal changes with perfect philosophical clarity. However,

retroactivity is a matter on which judges tend to have ‘sound ... instinct[s],’ [citation] and familiar considerations

of fair notice, reasonable reliance, and settled expectations

offer sound guidance.” Landgraf, 511 U.S. at 269-70, 128 L. Ed. 2d at 254-55, 114 S. Ct. at 1499.

	This court should adopt the Supreme Court’s test for

determining when a new or amended statute will be applied on

appeal to pending cases. Applying that test to the present case

yields the following analysis. First, we must determine whether the

General Assembly has expressly prescribed the statute’s proper

reach; if the General Assembly has done so, there is no need to

resort to judicial default rules. See Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505. Here, with respect to the

insanity provisions at bar, the General Assembly expressly

prescribed that they were to take effect over six months after the

effective date of the enactment, i.e., on January 1, 1999. See Pub. Act 90–593, §99 (eff. June 19, 1998). Because the General

Assembly was clear that it did not intend for a retroactive

application of these amendments to the insanity defense statute, our

inquiry ends. These amendments, therefore, shall not be applied on

retrial.

	For the above reasons, I agree that defendant is entitled to a

new trial in which he must be permitted to assert an insanity

defense in accordance with the insanity defense statute as it existed

before Public Act 89–404. I would not reach the ex post facto issue.

	JUSTICE FREEMAN, also specially concurring:

	I agree with the court that defendant is entitled to a new trial.

I also agree that on retrial any insanity defense raised by defendant

must be done so in accordance with section 6–2 of the Criminal

Code of 1961 as it existed prior to the amendments contained in

Public Act 89–404. I do so, however, for reasons other than those

stated in today’s opinion.

	The record reveals that defendant sought to refute the State’s

murder charges by asserting the affirmative defense of insanity, i.e., he was not guilty because he was insane at the time of the crimes. At trial, defendant challenged the constitutionality of Public Act 89–404 in its entirety by claiming that the Act had been passed in

violation of the single subject rule contained in our state

constitution. See Ill. Const. 1970, art. IV, §8(d). Defendant’s

motive in challenging the Act is not difficult to discern–section 15

of Public Act 89–404 amended the Illinois insanity provision to

make it more difficult for criminal defendants to establish the

defense. Specifically, the amendment (i) disallowed a claim of

insanity premised on the defendant’s inability to conform conduct

to the requirements of the law, and (ii) increased the defendant’s

burden of proof from a preponderance of the evidence to clear and

convincing evidence. Thus, if Public Act 89–404 were to be

declared unconstitutional on single subject grounds, the law would

be void, and the changes it wrought to the insanity statute would

not apply to defendant. In essence, defendant argued that because

the Act was a nullity by virtue of its unconstitutional passage, he

should be tried under the former version of the law with its broader

definition of insanity and its less stringent burden of proof. The

circuit court rejected defendant’s single subject rule challenge, and

eventually the jury rejected defendant’s claim that he was insane.

	On appeal, defendant raises a number of issues that he believes

mandate the reversal of his convictions. First among these is his

renewal of his single subject rule challenge to Public Act 89–404.

In fact, as originally briefed by the parties, the issue was simply

whether Public Act 89–404 was enacted in contravention of the

single subject rule. Defendant argued in his brief that the rule was

violated because the Act contains discordant provisions that have

no legitimate relation to each other. The State, in its brief,

responded that all of the measures within the Act are legitimately

interrelated because each of the sections addresses governmental

matters that fall under the purview of the various county State’s

Attorneys. If this court were to find that the Act violated the single

subject rule, the State alternatively asked that this court hold that

the Act’s subsequent codification served to close the window of

time within which single subject rule challenges can be made. In

other words, the State invited this court to adopt the so-called

“codification rule,” a rule adopted by the judiciary in some states

where the state constitution requires that legislation relate to a

single subject.

	On January 22, 1999, while this case was pending, we issued

our opinion in People v. Reedy, 186 Ill. 2d 1 (1999). Reedy presented this court with the very same arguments vis à vis Public Act 89–404 and the single subject rule. After considering those

arguments, we declared Public Act 89–404 unconstitutional on the

ground that it was passed in violation of the single subject rule.

Reedy, 186 Ill. 2d at 11-12 (rejecting notion that single subject rule met where all sections related to matters within control of county

State’s Attorneys). Moreover, we refused to adopt the

“codification rule.” See Reedy, 186 Ill. 2d at 12-13 (declining to adopt codification rule).

	In light of Reedy, Public Act 89–404 is invalid. This means, as the court today correctly observes, that it is as “ ‘ “though no such

law had ever been passed.” ’ ” Slip op. at 2, quoting People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People v. Schraeberg, 347 Ill. 392, 394 (1932). Defendant’s trial was conducted in accordance with the changes to the insanity defense

contained in Public Act 89–404 because those provisions were in

effect at the time defendant allegedly committed the crimes in

question.2 We now know, however, that those provisions were enacted in contravention of our state constitution. Due to the

constitutional infirmity, we must act as though those provisions had

never been passed. Based on these principles, we must conclude

that the insanity defense provisions applicable in the present case

are not the more stringent amendments of Public Act 89–404, but

the more lenient provisions of the Criminal Code of 1961.

Compare 720 ILCS 5/6–2 (West 1996) with 720 ILCS 5/6–2

(West 1992). Thus, defendant, as it turns out, was correct all along

when he argued to the trial judge that the “tougher” insanity

provisions should not have been used due to the single subject

violation.

	Our decision in Reedy, however, was not the only event that occurred during the pendency of this appeal. A new wrinkle

developed when our General Assembly sought to reenact the amendments to the insanity defense statute that were contained in

Public Act 89–404. This legislative action took place on June 19,

1998, well after defendant had filed his opening brief in this court

on April 3, 1998. Although the State filed its responding brief on

October 30, 1998, and defendant filed a reply brief on December

14, 1998, none of these briefs that post-dated the passage of the

new legislation, Public Act 90–593, mentioned the General

Assembly’s action. As a result, this court on its own motion

ordered the parties to file supplemental briefs. Specifically, our

order, entered October 21, 1999, directed the parties to address

“whether Public Act 90–593 applies retroactively to appellant and,

if so, whether retroactive application of Public Act 90–593 would

violate the constitutional prohibition against ex post facto application of the law.”

	In response to our query, the State asserted that because

Public Act 89–404 was void at the time of trial, the changes it

wrought to the insanity statute were inapplicable to defendant.

Moreover, the State conceded that the application of the newly

enacted Public Act 90–593 “to any retrial of Defendant on the

same charges would violate ex post facto principles.” The defendant agreed with the State, but posited that the constitutional ex post facto question need not be addressed because Public Act 90–593 cannot be given a retroactive application. Defendant

maintained that the statute does not contain language, express or

implied, indicative of anything other than a legislative intent for

forward application of the amendments. He pointed out that

section 99 of Public Act 90–593 provides that “[t]his Act takes

effect upon becoming law [June 19, 1998], except that the

amendatory changes to Sec. 18–5 of the Criminal Code of 1961

take effect January 1, 1999.” Pub. Act 90–593, §99 (eff. June 19,

1998). The excepted “amendatory changes” referred to in section

99 are the insanity defense provisions at issue in this case.

	In light of the above, the question we must resolve now is

which insanity provisions will apply at defendant’s retrial. Our task has been made easier because the State and the defendant both

agree that the law as it existed prior to the enactment of Public Act

89–404 applies. Despite the agreement of the parties, the court

today nevertheless undertakes an ex post facto analysis and concludes that the ex post facto clause prohibits application of the amendments to defendant on retrial. As an initial matter, I question

whether, in view of the fact that neither party argues that the

provisions are to be applied on retrial, the court’s discussion is

warranted. In other words, should this court decide the

constitutional issue in the absence of a legal question disputed by

the parties? Notwithstanding the apparent absence of a legally

disputed issue in this case, the court reaches and considers the

constitutional ex post facto question without first determining whether the amendments at issue even apply to conduct occurring

before their enactment. Stated differently, if the amendments do

not apply to the events in question in the first instance, then,

necessarily, no ex post facto problem would exist in this case. Thus, if the court wishes to consider the matter further (despite the

State’s concession), then the court’s initial consideration should

rest upon the temporal reach of the amendments of question, which

is a question of statutory retroactivity.

	As I noted several months ago in my special concurrence in

Premier Property Management, Inc. v. Chavez, 191 Ill. 2d 101, 116-17 (2000) (Freeman, J., specially concurring, joined by

McMorrow, J.), however, our case law on the issue of statutory

retroactivity is unclear. This is so because one line of cases in our

jurisprudence espouses a “vested rights” approach while another

line of cases embraces a “legislative intent” approach to the same

question. Compare First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), with People v. Digirolamo, 179 Ill. 2d 24 (1997); see also Premier, 191 Ill. 2d at 115-17 (Freeman, J., specially concurring, joined by McMorrow, J.) (discussing cases).

One could argue that the conflict between Armstead and Digirolamo is reason enough for this court to address the retroactivity issue in this case even in the face of the concession

made by the State. I have previously pointed out the dichotomy

between Armstead and Digirolamo and have noted that other courts and jurists have commented upon it as well. Premier, 191 Ill. 2d at 117-18 (Freeman, J., specially concurring, joined by

McMorrow, J.), citing White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296, 299 (1998); Kopec v. City of Elmhurst, 193 F.3d 894, 906 (7th Cir. 1999) (Posner, C.J., dissenting). To resolve the conflict, I suggested in Premier that this court follow the lead of the United States Supreme Court in this area because that Court

had addressed a similar conflict within its own jurisprudence. See Premier, 191 Ill. 2d at 120 (Freeman, J., specially concurring, joined by McMorrow, J.), quoting Landgraf v. USI Film Products, 511 U.S. 244, 280, 128 L. Ed. 2d 229, 261-62, 114 S. Ct. 1483,

1505 (1994).3 I continue to believe that our adoption of the federal principles would go a long way in settling the question of which

rule will apply in the face of legislative silence on the issue. The

federal rule looks first to the language of the statute to determine

whether the legislative branch has defined the statute’s temporal

reach. If it has, the court’s inquiry ends. Premier, 191 Ill. 2d at 121 (Freeman, J., specially concurring, joined by McMorrow, J.). As I

stated in Premier, the presumption against statutory retroactivity discussed in Landgraf has no force in cases where the legislature’s intent is clear. See Premier, 191 Ill. 2d at 121 (Freeman, J., concurring, joined by McMorrow, J.). In the absence of any

express indication as to the statute’s proper reach, Landgraf directs a court to resort to a series of judicial default rules to

determine whether the new provision should have retroactive

effect. See Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 262, 114 S. Ct. at 1505. (“[I]f the statute would operate retroactively, our

traditional presumption teaches that it does not govern absent clear

congressional intent favoring such a result”).

	I strongly believe that the need for guidance from this court is

manifold and goes beyond mere confusion in our lower courts. I

note that prior to the United States Supreme Court’s issuance of Landgraf, one of the federal courts of appeal pointed out that the federal judiciary’s lack of a clear, definitive retroactivity rule

provided incentive for Congress to avoid explicitly addressing

whether a new statute will have prospective or retroactive effect.

See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225, 227 (7th Cir. 1992) (noting that when Congress could not agree on

retroactivity, it “dumped the question into the judiciary’s lap without guidance,” a “politically convenient solution” “facilitated

by the fact that the courts do not have a consistent rule for

deciding [retroactivity]” thereby allowing “[e]ither of the

contending factions in Congress” to “hope that statutory silence

would work in its favor”). Two years later, the Supreme Court

provided the needed definitiveness in Landgraf when it reaffirmed the traditional presumption in favor of prospectivity. It is my hope

that this court will soon do likewise.

	In addition, by failing to clarify which analysis is to be utilized

in the face of legislative silence on the temporal operation of a

statute, i.e., Armstead’s vested rights analysis or Digirolamo’s legislative intent approach, this court runs the risk of blurring the

line between vested rights concerns and ex post facto concerns, a point on which the United States Supreme Court has specifically

warned state courts against. The Court spoke to this problem at

length in Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). At issue in that case was whether a Florida statute that reduced the amount of “gain time” to be deducted from a

convicted prisoner’s sentence was unconstitutional as applied to

those prisoners whose crimes were committed before the statute’s

enactment. The Florida Supreme Court had previously held that the

statute could be given a retroactive application because the “ ‘gain

time’ ” allowance was “ ‘an act of grace rather than a vested right

and may be withdrawn, modified, or denied.’ ” Weaver, 450 U.S. at 28, 67 L. Ed. 2d at 22, 101 S. Ct. at 963, quoting Harris v. Wainwright, 376 So. 2d 855, 856 (Fla. 1979). In reversing the Florida Supreme Court, the Court noted the following:

			“In using the concept of vested rights [citation], the

Florida court apparently drew on the test for evaluating

retrospective laws in a civil context. See 2 C. Sands,

Sutherland on Statutory Construction §41.06 (4th ed.

1973); Hochman, The Supreme Court and the

Constitutionality of Retroactive Legislation, 73 Harv. L.

Rev. 692, 696 (1960); Smead, The Rule Against

Retroactive Legislation: A Basic Principle of

Jurisprudence, 20 Minn. L. Rev. 775, 782 (1936).

Discussion of vested rights has seldom appeared in ex post facto analysis, as in identifying whether the challenged change is substantive rather than procedural. [Citation.] When a court engages in ex post facto analysis, which is concerned solely with whether a statute

assigns more disadvantageous criminal or penal

consequences to an act than did the law in place when the

act occurred, it is irrelevant whether the statutory change

touches any vested rights. Several state courts have

properly distinguished vested rights from ex post facto

concerns. [Citations.].” (Emphasis added.) Weaver, 450 U.S. at 29 n.13, 67 L. Ed. 2d at 23 n.13, 101 S. Ct. at 964

n.13.

The Court stated that, in contrast to the Florida Supreme Court’s

reasoning, “a law need not impair a ‘vested right’ to violate the ex post facto prohibition.” Weaver, 450 U.S. at 29, 67 L. Ed. 2d at 23, 101 S. Ct. at 964. The court explained this at length:

			“Evaluating whether a right has vested is important for

claims under the Contracts or Due Process Clauses, which

solely protect pre-existing entitlements. [Citations.] The

presence or absence of an affirmative, enforceable right is

not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe

than the punishment assigned by law when the act to be

punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental

restraint when the legislature increases punishment beyond

what was prescribed when the crime was consummated.

Thus, even if a statute merely alters penal provisions

accorded by the grace of the legislature, it violates the

Clause if it is both retrospective and more onerous than

the law in effect on the date of the offense.” Weaver, 450 U.S. at 29-31, 67 L. Ed. 2d at 23-24, 101 S. Ct. at 964-

65.

Weaver thus demonstrates that a judicial default rule premised solely on vested rights will not always ensure against an ex post facto violation. This case then, like Premier before it, presents us with the opportunity to bring needed clarity to this area of the law. The court, like it did in Premier, unfortunately lets this chance pass.

	As Landgraf makes clear, when the question of a statute’s temporal reach is at issue, the court must begin with the language

contained in the statute. Likewise, in this case, the language of

Public Act 90–593 is important. This is particularly true in criminal

cases because section 4 of the construction of statutes act (5 ILCS

70/4 (West 1998)) states that the law which was in effect at the

time of the commission of an offense is controlling in a criminal

proceeding. Thus, we should first look to the language of Public

Act 90–593 in order to ascertain whether the legislature explicitly

indicated that such was not to be the case. Public Act 90–593 does

not contain any express statement that the General Assembly

intended for the act to have retroactive operation. Indeed, a

reading of the entire Act compels the opposite conclusion. First of

all, when the General Assembly wanted a specific provision of

Public Act 90–593 to apply to cases pending on the effective date

of the enactment, the General Assembly specifically so stated. See, e.g., Pub. Act 90–593, §45 (eff. June 19, 1998). This occurred in only one instance throughout the entire Act. Moreover, with

respect to the insanity provisions at issue in this case, the General

Assembly explicitly stated that these were to take effect six months

after the effective date of the enactment. Courts have held that the legislature’s postponement of an effective date is direct evidence

that a retroactive application was not intended. See, e.g., United States v. Brebner, 951 F.2d 1017, 1022-23 (9th Cir. 1991) (noting that congressional intent against retroactivity was manifested by its

express delaying of the effective date for six months); Ocean & Atmospheric Science, Inc. v. Smyth Van Line, Inc., 446 F. Supp. 1158, 1159 (S.D.N.Y. 1978); Twiss v. State Department of Treasury, 124 N.J. 461, 468, 591 A.2d 913, 916 (1991); Jordan v. Westhill Central School District, 42 A.D.2d 1043, 348 N.Y.S.2d 620 (1973); see also 2 N. Singer, Sutherland on

Statutory Construction §41.04, at 352 (5th ed. 1993). Given the

lack of language expressly indicating that the insanity provisions

were to apply retroactively, along with the explicit statement that

the effective date of those provisions was to be postponed, it seems

clear that the legislature did not intend the insanity provision to apply retroactively to crimes occurring before the effective date. In

other words, the plain language of the statute cannot be construed

to have anything other than a prospective operation, which thereby

precludes any possible ex post facto problem in this case. 

	As the foregoing demonstrates, the language of Public Act

90–593 speaks definitively to the temporal reach of the Act. But let

us suppose that Public Act 90–593 lacked such a statement. In

other words, would the same result (prospective application of the

insanity provisions) obtain if the legislature had been silent on the

question? I believe it would. If the legislature had been silent on the

question, the traditional rule of prospectivity, discussed in

Landgraf, would operate because the changes to the insanity defense statute are more than just procedural in nature. Given this

fact, I would not construe the statute to have retroactive reach

absent a clear expression from the legislature that such an

operation was in fact intended. I would reach this result based on

the following observations.

	As one commentator has explained, absent constitutional

restriction, “there is no question of the legislature’s general power to enact laws which operate retrospectively or retroactively.” N.

Singer, Sutherland on Statutory Construction §41.04, at 350 (5th

ed. 1993).4 Courts have generally applied strict construction to prevent retroactive operation in order to ensure that the statute

would not violate constitutional prohibitions. As explained in

Sutherland: “The principle explanation offered by courts is that the

statute must be construed to sustain its constitutionality and thus

prospective operation will be presumed where a retroactive

operation would produce invalidity.” 2 N. Singer, Sutherland on Statutory Construction §41.04, at 350 (5th ed. 1993). To this end,

the following principles have been recognized by the judiciary:

			“Where a statute affects inchoate rights or is remedial in

nature, it will be construed retroactively if the legislative

intent clearly indicates that retroactive operation is

intended. A remedial statute that does not take away

vested rights can operate retroactively in the absence of

language manifesting a contrary intent. Likewise, where a

new statute deals only with procedure, prima facie it

applies to all actions–to those which have accrued or are

pending and to future actions. It has been held that there

is a presumption that procedural statutes apply

retroactively. But steps already taken, including pleadings,

and all things done under the old law continue effective,

unless an intent to the contrary is plainly manifested.

Absent a clearly expressed legislative purpose to the

contrary, pending cases are only affected in relation to

future proceedings from the point reached when the new

law becomes operative.” 2 N. Singer, Sutherland on

Statutory Construction §41.04, at 351 (5th ed. 1993).

Courts, therefore, will allow a retroactive law if such a law does

not contravene a preexisting contractual right or a vested right

enjoyed by the parties. See Landgraf, 511 U.S. at 273-75, 128 L. Ed. 2d at 257-58, 114 S. Ct. at 1501-02 (giving examples of types

of laws that can be applied to conduct occurring before

enactment).

	As illustrated above, in civil cases, the only bar to retroactive

legislation is whether the change in law impairs preexisting

contractual rights or impairs vested rights protected from state

interference by the due process clause. In the criminal context,

however, the focus on vested rights does not always prevent an ex post facto problem because, as mentioned previously, the United States Supreme Court has warned that “a law need not impair a

‘vested right’ to violate the ex post facto prohibition.” Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 23, 101 S. Ct. 960, 964 (1981). The Court has defined an ex post facto law as one that “must be retrospective, that is, it must apply to events occurring

before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29, 67 L. Ed. 2d at 23, 101 S. Ct. at 964. In a thoughtful analysis, the Supreme Court of

California explained the concerns that arise in this area:

			“Beyond [the Weaver ex post facto definition], the picture is much less clear. To begin with no guidance can

be found in the concept of vested rights ***. Somewhat more helpful is the procedural-substantive distinction, but

even that traditional tool must be used with great care in

[the ex post facto context]: ‘Changes which may be

designated as procedural do not, as a rule come within

the ex post facto doctrine, but that in itself is not the true

test.’ [Citations.] Likewise, the United States Supreme Court recently reiterated in Weaver that ‘no ex post facto violation occurs if the change effected is merely

procedural’ [citation], but immediately qualified the rule

by the caveat that ‘Alteration of a substantial right,

however, is not merely procedural, even if the statute

takes a seemingly procedural form.’ [Citation.] This is

because ‘it is the effect, not the form, of the law that

determines whether it is ex post facto.’ [Citation.] Yet the high court did not undertake to define what is a

‘substantial right’ for this purpose, less still to prepare an

inclusive list of such rights.” (Emphasis added.) People v. Smith, 34 Cal. 3d 251, 259-60, 667 P.2d 149, 153, 193 Cal. Rptr. 692, 696 (1983).

In the footnote which accompanies the last line of the above

quotation, the California court noted that “[a] few kinds of

statutes, even though procedural in appearance, have consistently

been held subject to the ex post facto clause because of their

substantial effect on a defendant’s rights: e.g., statutes deleting

elements of the crime, lowering the prosecution’s burden of proof,

or impairing a defense.” Smith, 34 Cal. 3d at 260 n.5, 667 P.2d at 153 n.5, 193 Cal. Rptr. at 696 n.5. 

	These comments, in my view, demonstrate that caution must

be used in criminal cases when courts, in the face of legislative

silence on the temporal reach of statute, apply presumptions based

on the procedural-substantive distinction. The changes to the

insanity defense provisions cannot be considered merely procedural due to the fact that if applied to this defendant they would narrow

the definition of insanity and in essence would deprive defendant

of an affirmative defense that existed at the time he allegedly

committed the offenses in question. Moreover, the amendment

raises the quantum of proof required of defendant from the

preponderance of the evidence to the more demanding “clear and

convincing standard.” The recent United States Supreme Court

decision in Carmell v. Texas, No. 98–7540 (May 1, 2000) demonstrates that the Court has retained the long-held recognition

that “a law which changes the rules of evidence by which less or

different testimony is sufficient to convict” than was previously

required does in fact violate the ex post facto clause. See Collins v. Youngblood, 497 U.S. 37, 45-46, 111 L. Ed. 2d 30, 41, 110 S. Ct. 2715, 2721 (1990) (citing favorably Duncan v. Missouri, 152 U.S. 377, 38 L. Ed. 485, 14 S. Ct. 570 (1894)). Because I believe

that the amendments at issue deal with substantive and not

procedural matters, I would presume a prospective application of

the amendments in this case had the legislature not expressly

indicated the temporal operation of the amendments. To construe

Public Act 90–593 in any other way would call the statute’s

constitutionality into question. I note that one of the cardinal rules

of statutory construction is that courts will discard an

interpretation which would render a statute unconstitutional. See People v. Williams, 119 Ill. 2d 24, 28 (1987). Applying this rule of statutory construction here would therefore require that this court

presume a prospective application of the amendment in the face of

the legislature’s silence on the question.

	This case represents the second case in the past six months in

which this court has had an opportunity to speak clearly on the

issue of statutory retroactivity. Once again, however, a majority

has chosen to let the opportunity pass even though several

members of the court have broached the topic in separate opinions.

It is my hope that a majority of this court will soon confront the

issue and resolve the questions that have arisen under our current

case law.

	JUSTICE McMORROW joins in this special concurrence.