voidness challenge in Illinois

2025However, a section 2-1401 petition raising a voidness claim (that is, a claim that the court that entered the judgment lacked jurisdiction or that the judgment was based on a facially unconstitutional statute) are not required to be filed within the two-year period and need not allege a meritorious defense or due diligence. -5- Sarkissian, 201 Ill. 2d at 104 ; Thompson, 2015 IL 118151 , ¶¶ 31-32. ¶ 15 When the State fails to respond to a section 2-1401 petition within the 30-day response period, the lack of response is treated as an admission of all well-pleaded facts in the petition and rende

2025See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002). ¶ 13 We review de novo a dismissal on the merits of a section 2-1401 petition that presented a legal challenge to the judgment.

2020See People v. Hubbard, 2012 IL App (2d) 101158, ¶ 26 (“Illinois voidness doctrine will not allow the forfeiture of a voidness claim.”); see also Thompson, 209 Ill. 2d at 27 (a voidness claim may be raised at any time). 14 ¶ 37 In light of the foregoing, we find that this case presents a situation in which the interests of justice require us to consider the issue even though the appellant did not bring it through the appropriate motion.

2019See People v. Hubbard, 2012 IL App (2d) 101158, ¶ 26 (“Illinois voidness doctrine will not allow the forfeiture of a voidness claim.”; see also Thompson, 209 Ill. 2d at 27 (a voidness claim may be raised at any time).

2024This is true as far as it goes, but it does not mean that a party can assert a voidness challenge whenever and wherever he chooses. ¶ 15 In People v. Flowers, 208 Ill. 2d 291, 308 (2003), the supreme court explained that “[a]lthough a void order may be attacked at any time, the issue of voidness must be raised in the context of a proceeding that is properly pending in the courts.

2004In People v. Flowers, 208 Ill. 2d 291, 308 (2004), our supreme court held that a litigant’s raising of a voidness claim does not serve to revest a court with jurisdiction that it has otherwise lost.

2025However, a section 2-1401 petition raising a voidness claim (that is, a claim that the court that entered the judgment lacked jurisdiction or that the judgment was based on a facially unconstitutional statute) are not required to be filed within the two-year period and need not allege a meritorious defense or due diligence. -5- Sarkissian, 201 Ill. 2d at 104 ; Thompson, 2015 IL 118151 , ¶¶ 31-32. ¶ 15 When the State fails to respond to a section 2-1401 petition within the 30-day response period, the lack of response is treated as an admission of all well-pleaded facts in the petition and rende

2025Rather, he argues that the statutory provision under which he was sentenced—section 11-20.1(c) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/11-20.1(c) (West 2012))—was facially unconstitutional. “[A] facial challenge requires a showing that the statute is unconstitutional under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.” People v. Thompson, 2015 IL 118151, ¶ 36 . ¶ 12 Notably, to the extent that defendant’s challenge cannot be construed as a voidness challenge based on facial unconstitutionality (see infra ¶ 25), his petition would p

2025People v. Vincent, 226 Ill. 2d 1, 9-10 (2007); People v. Laugharn, 233 Ill. 2d 318, 323 (2009).

2025Vincent, 226 Ill. 2d at 18 . ¶ 28 In his petition, defendant sought to circumvent section 2-1401’s two-year limitations period by raising a voidness challenge.

2022Because a voidness challenge may be brought at any time (N.G., 2018 IL 121939, ¶¶ 43, 57 ), defendant’s challenge is not subject to forfeiture.

2022N.G., 2018 IL 121939, ¶ 32 . ¶ 27 Under N.G., defendant could raise a voidness challenge at any time.

2026Because Tucker’s pleading failed to request declaratory relief, the circuit court had no authority to consider a voidness challenge independent of its review of the Department’s decision. ¶ 58 Further, although courts have a duty to vacate void orders sua sponte (Siddens v. Industrial Comm’n, 304 Ill.

2026Since Tucker’s pleading failed to request declaratory - 19 - No. 1-25-1061 relief, the circuit court had no authority to consider a voidness challenge independent of its review of the Department’s decision. ¶ 59 Further, although courts have a duty to vacate void orders sua sponte (Siddens v. Industrial Comm’n, 304 Ill.

2022See In re J.W., 204 Ill. 2d 50, 61 (2003) (a facial constitutional challenge to a criminal statute can be raised at any time); People v. Thompson, 2015 IL 118151, ¶ 32 (forfeiture does not apply to a voidness challenge of a statute). ¶ 63 It is axiomatic that all statutes are presumed constitutional.

2013While it might be true that generally a constitutional challenge to a criminal statute can be raised for the first time on appeal (see In re J.W., 204 Ill. 2d 50, 61 (2003)), our research has not disclosed the application of that principle to the situation before us, where the defendant filed an untimely section 2-1401 petition, failed to establish an exception to the untimeliness, and also failed to establish a claim of voidness.

2020See People v. Hubbard, 2012 IL App (2d) 101158, ¶ 26 (“Illinois voidness doctrine will not allow the forfeiture of a voidness claim.”); see also Thompson, 209 Ill. 2d at 27 (a voidness claim may be raised at any time). 14 ¶ 37 In light of the foregoing, we find that this case presents a situation in which the interests of justice require us to consider the issue even though the appellant did not bring it through the appropriate motion.

2019See People v. Hubbard, 2012 IL App (2d) 101158, ¶ 26 (“Illinois voidness doctrine will not allow the forfeiture of a voidness claim.”; see also Thompson, 209 Ill. 2d at 27 (a voidness claim may be raised at any time).

2019See Eckberg v. Benso, 182 Ill.

2018See Eckberg v. Benso , 182 Ill.

2017Castleberry, 2015 IL 116916, ¶¶ 11, 15 (citing LVNV Funding, LLC, 2015 IL 116129, ¶ 38 ). ¶ 20 Several weeks after deciding Castleberry, the supreme court in Thompson addressed a voidness challenge under section 2-1401.

2016Castleberry, 2015 IL 116916, ¶¶ 11, 15 (citing LVNV Funding, LLC, 2015 IL 116129, ¶ 38 ). ¶ 20 Several weeks after deciding Castleberry, the supreme court in Thompson addressed a voidness challenge under section 2-1401.

2017Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 48 (alleging that the judgment is void substitutes and negates the need to allege a meritorious defense and due diligence). ¶ 46 A voidness challenge to a final judgment under section 2-1401 that is exempt from the procedural bars in the statute is limited to three specific types of claims: (1) lack of personal or subject-matter jurisdiction, (2) the final judgment was based on a facially unconstitutional statute that is void ab initio, and (3) a challenge to a sentence that does not conform to the applicable senten

2017Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 48 (alleging that the judgment is void substitutes and negates the need to allege a meritorious defense and due diligence). ¶ 46 A voidness challenge to a final judgment under section 2-1401 that is exempt from the procedural bars in the statute is limited to three specific types of claims: (1) lack of personal or subject matter jurisdiction, (2) the final judgment was based on a facially unconstitutional statute that is void ab initio, and (3) a challenge to a sentence that does not conform to the applicable senten

2005See Roberson , 212 Ill. 2d at 440 (invoking the public interest exception to mootness to review a sentence held to be void).

2005See Roberson, 212 Ill. 2d at 440 (invoking the public interest exception to mootness to review a sentence held to be void).

2012We see nothing in that ruling implicating the court's discretion and see no sound way that we could review what was, in essence, a ruling on pure matters of law for an abuse of discretion. ¶ 15 Turning to the merits of defendant's voidness claim, we start by explaining Illinois's voidness doctrine as it is set out in People v. Davis, 156 Ill.2d 149 , 189 Ill.Dec. 49 , 619 N.E.2d 750 (1993), but add to that discussion a clarification of the *650 meaning of the phrase "collateral attack." Next, we explain why, under the proper voidness principles, defendant's conviction was not void.

2012We see nothing in that ruling implicating the court's discretion and see no sound way that we could review what was, in essence, a ruling on pure matters of law for an abuse of discretion. ¶ 15 Turning to the merits of defendant's voidness claim, we start by explaining Illinois's voidness doctrine as it is set out in People v. Davis, 156 Ill.2d 149 , 189 Ill.Dec. 49 , 619 N.E.2d 750 (1993), but add to that discussion a clarification of the *650 meaning of the phrase "collateral attack." Next, we explain why, under the proper voidness principles, defendant's conviction was not void.

2023People v. Stoecker, 2020 IL 124807, ¶ 28 ; Abdullah, 2019 IL 123492 , ¶ 13.

2021See Thompson, 2015 IL 118151, ¶ 29 ; see also People v. Stoecker, 2020 IL 124807, ¶ 28 .

2012He argued that the court should have given him the admonishments described in People v. Shellstrom, 216 Ill.2d 45, 57 , 295 Ill.Dec. 657 , 833 N.E.2d 863 (2005), and that, had he received such admonishments, he could have amended his petition to state a voidness claim under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). ¶ 6 The State confessed error on three points.

2012He argued that the court should have given him the admonishments described in People v. Shellstrom, 216 Ill.2d 45, 57 , 295 Ill.Dec. 657 , 833 N.E.2d 863 (2005), and that, had he received such admonishments, he could have amended his petition to state a voidness claim under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). ¶ 6 The State confessed error on three points.

2025People v. Vincent, 226 Ill. 2d 1, 9-10 (2007); People v. Laugharn, 233 Ill. 2d 318, 323 (2009).

2023See, e.g., Lady v. Montgomery Ward & Co., 80 Ill.

2021Id. at 447 (in a criminal case, when the issue is purely one of voidness, the court may consider it either as a postconviction petition or as a petition under section 2–1401 of the Code).

2021See Atlas v. Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33 (a reviewing court is not a repository into which an appellant may dump the burden of argument and research, nor is it our obligation to act as an advocate, and the failure to clearly define issues and support them with authority results in forfeiture of the argument).