void ab initio doctrine in Illinois

2024Finally, he argues the Tort Immunity Act immunizes his conduct as inspector general and further argues the defamation claim could never succeed because the amended complaint does not allege Connolly “published” the Report. ¶ 22 In reply, McFarland emphasizes Connolly was never a City employee because he was improperly retained as inspector general “under an unconstitutional ordinance that bypassed the Manager form of local government that the City of Joliet had adopted.” He argues the void ab initio doctrine is “alive and well,” Connolly did not conduct his investigation in good faith, and the

2019In Burns, the court clarified the Aguilar holding extends to the entirety of the AUUW offense in section 24-1.6(a)(1), (a)(3)(A) (Burns, 2015 IL 117387, ¶ 22 ), the section on which defendant’s AUUW conviction is based. ¶ 19 Defendant argues, because his AUUW conviction is based on a facially unconstitutional statute, the void ab initio doctrine applies and his armed habitual criminal conviction—based on an invalid conviction—must accordingly be reversed. ¶ 20 According to the ab initio doctrine, when a statute is found facially unconstitutional— unconstitutional in all its applications (see I

2023Hill v. Cowan, 202 Ill. 2d 151, 156 (2002) (sections 5-5-3.2 and 5-8-2 of the Unified Code of Corrections “are not unconstitutional on their face”; therefore, the void ab initio doctrine is inapplicable).

2016Defendant relies on the principles of the void ab initio doctrine and its application to facially unconstitutional criminal statutes to support his contention. ¶ 17 When a statute is held to be facially unconstitutional, the statute is said to be void ab initio, i.e., void “ ‘from the beginning.’ ” Perlstein v. Wolk, 218 Ill. 2d 448, 455 (2006) (quoting Black’s Law Dictionary 1604 (8th ed. 2004)); Hill v. Cowan, 202 Ill. 2d 151, 156 (2002) (limiting the doctrine to facially unconstitutional statutes).

2018And if it never existed it is that portion of the statute [sic] then the officer didn’t have probable cause.” ¶6 The appellate court affirmed, explaining that its conclusion was informed by this court’s decision in People v. Carrera, 203 Ill. 2d 1 (2002): “[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio. *** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] *** Based on the Carrera court’s language, we conclude the void ab initio doctrine precludes the application of the good-faith doctrine in defendant’s case. *** As the

2018And if it never existed it is that portion of the statute [sic] then the officer didn’t have probable cause.” ¶6 The appellate court affirmed, explaining that its conclusion was informed by this court’s decision in People v. Carrera, 203 Ill. 2d 1 (2002): “[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio. *** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] *** Based on the Carrera court’s language, we conclude the void ab initio doctrine precludes the application of the good-faith doctrine in defendant’s case. *** As the

2018While once again purportedly “ ‘continu[ing] to reaffirm the principle that the void ab initio doctrine renders a facially unconstitutional statute unenforceable’ ” (supra ¶ 33 (quoting People v. McFadden, 2016 IL 117424, ¶ 20 )), the majority simultaneously vitiates both that doctrine’s reason for being and our institutional duty to void statutes that are facially unconstitutional and to remediate the damage they have done.

2018Despite this case being as much about remedies as Krueger, and contrary to our long-held state tradition of strictly - 16 - applying the void ab initio doctrine to facially unconstitutional criminal statutes, the majority rejects that analysis here. ¶ 65 To complete its discussion, the majority opinion concludes that strictly applying the void ab initio doctrine here would conflict with our decisions in People v. McFadden, 2016 IL 117424 , and People v. Blair, 2013 IL 114122 .

2025As the court stated in N.G., 2018 IL 121939 , ¶ 57: “Simply put, under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted. [Citation.] Under our precedent, it is sufficient if a person subject to a conviction premised on a facially invalid statute raises his or her challenge through an appropriate pleading in a court possessing jurisdiction over the parties and the case. [Citation.] Indeed, if the constitutional infirmity is put in issue during a proceeding that is pending before a court,

2025Based on Bruen, Lopez contends that these previous convictions were based on facially unconstitutional statutes, and therefore, void ab initio, necessitating that they be vacated. ¶ 31 Although this case is a direct appeal from case number 22-CR-569601, “under Illinois law, there is no fixed procedural mechanism or forum, nor is there any temporal limitation governing when a void ab initio challenge may be asserted.” In re N.G., 2018 IL 121939, ¶ 57 .

2018Regardless of the source of the majority’s refusal to address the doctrine’s erosion, I choose to adhere to the case law we have so carefully fashioned to protect the fundamental rights of Illinois citizens. ¶ 73 Our continued adherence to the void ab initio doctrine in precedents such as Carrera is ultimately necessary because, when faced with “a statute [that] is violative of constitutional guarantees, we have a duty not only to declare such a legislative act void, but also to correct the wrongs wrought through such an act by holding our decision retroactive.” Gersch, 135 Ill. 2d at 399 .

2017Regardless of the source of the majority's refusal to address the doctrine's erosion, I choose to adhere to the case law we have so carefully fashioned to protect the fundamental rights of Illinois citizens. ¶ 73 Our continued adherence to the void ab initio doctrine in precedents such as Carrera is ultimately necessary because, when faced with "a statute [that] is violative of constitutional guarantees, we have a duty not only to declare such a legislative act void, but also to correct the wrongs wrought through such an act by holding our decision retroactive." Gersch , 135 Ill. 2d at 399 , 1

2018The majority here, however, turns Carrera on its head, completely ignoring this court’s stated preference for applying the void ab initio doctrine even when presented with fourth amendment matters potentially implicating limited lockstep. ¶ 57 The majority’s analysis continues to ramp up the legal ambiguity, creating uncertainty over our abandonment of the test we mandated in Krueger “to delineate the scope of our state exclusionary rule.” Under that test, we must “ ‘carefully balance the legitimate aims of law enforcement against the right of our citizens to be free from unreasonable governme

2018Krueger, 175 Ill. 2d at 75 (relying on the same factors). ¶ 63 In light of our precedents applying the void ab initio doctrine rather than fourth amendment case law, the majority’s discussion of limited lockstep remains a mystery.

2019See Ernest Thompson, 209 Ill. 2d at 25 .

2018See Ernest Thompson , 209 Ill. 2d at 25 , 282 Ill.Dec. 183 , 805 N.E.2d 1200 .

2018See People v. Colon, 225 Ill. 2d 125, 146 (2007) (explaining that every departure from stare decisis must be “specially justified” (internal quotation marks omitted)).

2016People v. Colon, 225 Ill. 2d 125, 146 (2007).

2018See also Certain Taxpayers v. Sheahen, 45 Ill. 2d 75, 81 (1970) (noting that, when one legislative act repeals another, the effect is to “obliterate” the original statute as though it never existed). ¶ 45 In contrast, the void ab initio doctrine was judicially adopted to vindicate our citizens’ fundamental right to be free from unconstitutional legislation and to discourage its enactment.

2017See also Certain Taxpayers v. Sheahen , 45 Ill. 2d 75 , 81, 256 N.E.2d 758 (1970) (noting that, when one legislative act repeals another, the effect is to "obliterate" the original statute as though it never existed). ¶ 45 In contrast, the void ab initio doctrine was judicially adopted to vindicate our citizens' fundamental right to be free from unconstitutional legislation and to discourage its enactment.

2021Contrary to Fiala’s argument, “the void ab initio doctrine does not mean that a statute held unconstitutional ‘never existed.’ ” People v. Blair, 2013 IL 114122, ¶ 29 .

2018According to the majority, “ ‘to construe the void ab initio doctrine as rendering a statute nonexistent is tantamount to saying that this court may repeal a statute. [Citation.] Such a result, however, would contravene our separation of powers clause.’ ” Supra ¶ 32 - 10 - (quoting People v. Blair, 2013 IL 114122, ¶ 29 ).

2024This is so because our supreme “court has held that the void ab initio doctrine does not apply to an as-applied constitutional challenge.” (Emphases in original.) People v. Thompson, 2015 IL 118151 , ¶ 32.

2021See People v. Thompson, 2015 IL 118151, ¶ 32 (recognizing that the void ab initio doctrine does not apply to as-applied challenges).

2024Finally, he argues the Tort Immunity Act immunizes his conduct as inspector general and further argues the defamation claim could never succeed because the amended complaint does not allege Connolly “published” the Report. ¶ 22 In reply, McFarland emphasizes Connolly was never a City employee because he was improperly retained as inspector general “under an unconstitutional ordinance that bypassed the Manager form of local government that the City of Joliet had adopted.” He argues the void ab initio doctrine is “alive and well,” Connolly did not conduct his investigation in good faith, and the

2013The void ab initio doctrine is based on the theory that: “ ‘An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.’ ” Id. at 454 (quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886)). -6- ¶ 29 Contrary to defendant’s argument, the void ab initio doctrine does not mean that a statute held unconstitutional “never existed.” As we recognized in Perlstein, “ ‘[t]he actual existence of a statute,’ ” prior to a determination that the statut

2024Id. (citing Crosby, 2017 IL App (1st) 121645, ¶¶ 17-18 ). ¶ 35 The Shoulder court further noted that, in the court’s earlier decision in Cavette, 2018 IL App (4th) 150910, ¶ 26 , the court had, “[a]pplying the rationale of N.G. and the void ab initio doctrine, found the defendant’s void AUUW conviction could not serve as a qualifying offense for being an armed habitual criminal and, therefore, reversed outright [the] defendant’s conviction for armed habitual criminal, without remanding.” (Internal quotation marks omitted.) Id. ¶ 23 (citing Cavette, 2018 IL App (4th) 150910, ¶ 26 ). - 12 - 1-22

2024Id. (citing Crosby, 2017 IL App (1st) 121645, ¶¶ 17-18 ). ¶ 35 The Shoulder court further noted that, in the court’s earlier decision in Cavette, 2018 IL App (4th) 150910, ¶ 26 , the court had, “[a]pplying the rationale of N.G. and the void ab initio doctrine, found the defendant’s void AUUW conviction could not serve as a qualifying offense for being an armed habitual criminal and, therefore, reversed outright [the] defendant’s conviction for armed habitual criminal, without remanding.” (Internal quotation marks omitted.) Id. ¶ 23 (citing Cavette, 2018 IL App (4th) 150910, ¶ 26 ). - 12 - 1-22

2019See id. ¶ 73 (convictions that are void “can give rise to no criminal status nor create any legal impediment, for the state had no authority, and the courts never acquired jurisdiction, to impose punishment under such laws to begin with”); see also Montgomery, 577 U.S. at ___, 136 S. Ct. at 731 (“There is no grandfather clause that permits States to enforce punishments the Constitution forbids.”).

2018See id. ¶ 73 (convictions that are void "can give rise to no criminal status nor create any legal impediment, for the state had no authority, and the courts never acquired jurisdiction, to impose punishment under such laws to begin with"); see also Montgomery , 577 U.S. at ----, 136 S.Ct. at 731 ("There is no grandfather clause that permits States to enforce punishments the Constitution forbids.").

2018And if it never existed it is that portion of the statute [sic] then the officer didn’t have probable cause.” ¶6 The appellate court affirmed, explaining that its conclusion was informed by this court’s decision in People v. Carrera, 203 Ill. 2d 1 (2002): “[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio. *** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] *** Based on the Carrera court’s language, we conclude the void ab initio doctrine precludes the application of the good-faith doctrine in defendant’s case. *** As the

2018And if it never existed it is that portion of the statute [sic] then the officer didn’t have probable cause.” ¶6 The appellate court affirmed, explaining that its conclusion was informed by this court’s decision in People v. Carrera, 203 Ill. 2d 1 (2002): “[O]ur supreme court in Carrera stated that a facially invalid statute is void ab initio. *** In other words, ‘[i]t is as though no such law had ever been passed.’ [Citation.] *** Based on the Carrera court’s language, we conclude the void ab initio doctrine precludes the application of the good-faith doctrine in defendant’s case. *** As the

2018No one may be prosecuted in Illinois under a facially unconstitutional law because “ ‘[a]n invalid law is no law at all.’ ” (Internal quotation marks omitted.) Gersch, 135 Ill. 2d at 399 (quoting Van Driel Drug Store, Inc. v. Mahin, 47 Ill. 2d 378, 381 (1970), quoting People ex rel.

2017No one may be prosecuted in Illinois under a facially unconstitutional law because " '[a]n invalid law is no law at all.' " (Internal quotation marks omitted.) Gersch , 135 Ill. 2d at 399 , 142 Ill.Dec. 767 , 553 N.E.2d 281 (quoting Van Driel Drug Store, Inc. v. Mahin , 47 Ill. 2d 378 , 381, 265 N.E.2d 659 (1970), quoting People ex rel.

2013The past cannot always be erased by a new judicial declaration.’ ” Perlstein, 218 Ill. 2d at 461 (quoting Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374 (1940)).

2006The court noted that " '[t]he actual existence of a statute, prior to [a determination of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored.' " Perlstein, 218 Ill. 2d at 461 , quoting Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374 , 84 L.