The Supreme Court Makes it Official: "the word 'or' is considered to mean 'and' "

On October 16, 2013, I blogged about Rule 604(d) and called upon the Illinois Supreme Court to "Amend This Rule!" Three days ago, the supreme court issued a split decision in People v. Tousignant

JUSTICES FREEMAN, Garman, & Burke held:

In sum, we reject the State’s argument that here the word “or” must be given a literal, disjunctive reading. In our view, such a reading is at variance with the intent of Rule 604(d), and we therefore apply the principle set forth in John P. Moriarty, County of Du Page, and other decisions of this court that the word “and” is sometimes considered to mean “or,” and vice versa, in the interpretation of statutes. We hold that in order to effectuate the intent of Rule 604(d), specifically the language requiring counsel to certify that he has consulted with the defendant “to ascertain defendant’s contentions of error in the sentence or the entry of the plea of guilty,” the word “or” is considered to mean “and.” Under this reading, counsel is required to certify that he has consulted with the defendant “to ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty.” 

JUSTICE THOMAS specially concurred to express his believe that "the rule should be amended to more accurately reflect this court's intent."

JUSTICES KARMEIER, Kilbride, & Theis dissented:

Because I believe that counsel did strictly comply with the requirements of Rule 604(d), I respectfully dissent. The rule requires counsel to certify that he or she “has consulted with the defendant *** to ascertain defendant’s contentions of error in the sentence or the entry of the plea of guilty” (emphasis added). Ill. S. Ct. R. 604(d) (eff. July 1, 2006). “The word ‘or’ is disjunctive,” which means that it “connotes two different alternatives.” Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 145 (2006). “In other words, ‘or’ means ‘or.’ ” Id. The majority’s reading of Rule 604(d), which construes “or” to mean “and,” cannot be squared with the plain language of the rule. 

* * *

What the majority is actually saying is that the rule should be read as follows: 

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant’s contentions of error, and to discuss any other errors, in both the sentence and the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty and sentencing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.”

I am not opposed to changing Rule 604(d) ***.

COMPARE THAT to my suggested amended version from October 2013:

The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain defendant’s contentions of error in the sentence and the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty and the sentencing, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.