Tort reform struck down by justices
Reprinted from The Chicago Tribune
Friday, December 19, 1997

Constitutional violations cited

By Ken Armstrong
and Sheryl Kennedy
Tribune Staff Writers

The Illinois Supreme Court on Thursday struck down a law that overhauled the state's civil justice system, saying the legislature's ballyhooed tort-reform measure trespasses on the judiciary's domain and discriminates against plaintiffs who have suffered the most serious of injuries.

In one of the longest -- if not the longest -- opinions in the court's history, a majority of five justices eviscerated the legislation, which was a top priority for Republicans when the took control of both legislative chambers after the 1994 elections.

The court, with only one descent, cited multiple grounds for finding the law unconstitutional and also noted that the measure -- which was placed on the General Assembly's fast track -- wound up with enough internal inconsistencies that at times its meaning is reduced to a riddle or gibberish.

By invalidating the law, the court handed yet another defeat to the short-lived Republican legislature. The court earlier struck down a judicial redistricting bill passed early this year during the waning hours of the GOP's reign over both chambers.

Courts also have taken the legislature to task over two other important bills. One was overturned because the General Assembly overloaded a single law with too many legislative items.

The other bill wound up imperiling the rights of about 4,000 injured construction workers because the legislature misplaced a crucial clause.

The tort-reform law made so many changes to the way personal-injury cases are litigated in Illinois that one lower court judge called it a "wholesale reconstruction of the judiciary." Its most prominent provision placed a $500,000 cap on non-economic damages, such as pain and suffering.

The state Supreme Court struck down that provision on two grounds. In a majority opinion written by Justice Mary Ann McMorrow, the court said that the cap violates the separation-of-powers doctrine by assuming a function that belongs to the judiciary -- that is reducing jury awards considered to be excessive.

The court said the cap also violates the Illinois Constitution's ban on special legislation because it discriminates against plaintiffs who have suffered especially horrendous injuries and provides a special benefit to those defendants who cause such injuries.

The court also found three other provisions of the bill to be unconstitutional. The court then determined that without those core provisions, the who law must be scrapped.

Since the court relied exclusively upon the state constitution in reaching its decision, there would appear to be no grounds for an appeal to the federal courts.

Damage caps have been passed in other states with mixed results. some states' courts have upheld such legislation while other have struck it down.

Supporters of the tort-reform measure characterized the Illinois Supreme court's decision as a victory for plaintiffs' lawyers. The measure's opponents called it a victory for those people who suffer injuries due to others' negligence.

The two plaintiffs whose cases were consolidated in the appeal to the state's high court illustrate the kinds of people most harmed by tort reform, the law's opponents said.

One of the plaintiffs is a forklift operator who suffered severe and disfiguring injuries while working in Alton. His forklift collapsed and then caught on fire, engulfing him in flames.

The other plaintiff is the estate administrator of a man killed in Madison County when his truck was hit by a train.

At a news conference held Thursday by some of the law's opponents, the speakers included the parents of Joseph Kalte and Jeffrey Clark -- two of the seven students who were killed when a train hit a school bus two years ago in suburban Fox River Grove. Lawsuits are pending in that case.

"The law was unfair to real victims, especially children," said Dennis Clark, father of Jeffrey, 16. "The accident and death involving our children was symbolic of the unfairness of the law and the additional and unnecessary pain it causes families."

But the law's supporters pilloried the court, accusing the justices of setting public policy and thereby stepping over the very line the court cited in reaching it's decision. The ruling's critics compared it to a "turf war."

"You have a court that wants to play legislator, and if they want to do that they should take a pay cut -- about half their salary -- and start attending parades and doing the rubber chicken circuit like we do," said state Sen. Kirk Dillard (R-Hinsdale), one of hte bill's sponsors.

The court's vote did not break along party lines. The majority's five justices included four Democrats and Justice John Nickels, a Republican and one of the court's more conservative members. The lone dissenter was Justice Benjamin Miller, a Republican who argued that the only provision of the law that should be invalidated is one that grants defendants virtually unlimited access to plaintiff's medical records.

Of the court's decision to strike down the law in its entirety, Miller wrote: "Stripped to its essence, the majority's mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature."

With Miller's dissent included, the court's ruling took 98 pages.

Justice James D. Heiple, a Republican and one of the court's most forceful voices, did not take part in the vote.

Heiple is recusing himself from cases in which the law firm Winston & Strawn participates because the firm -- and most notably former Gov. Jim Thompson -- represented Heiple during his impeachment proceedings earlier this year.

The legislature decided not to impeach Heiple, but he has wound up being a mere bystander of some of the court's biggest cases this year.

One consequence of Thursday's decision may be that the tort-reform battleground will shift to the judiciary.

for years, supporters and opponents of tort reform have flooded the legislature with campaign dollars. Trial lawyers, the measure's biggest opponents, consistently have given Democrats big donations. Manufacturing and medical associations, the measure's biggest supporters, have ponied up for Republicans.

Given the fact that Illinois elects its judges, the donations flowing into the campaigns of judicial candidates could see a marked increase.

"Organizations like ours have always paid a great deal of attention to who is elected to the legislature and the governor's office. I think now we'll have to pay closer attention to who is elected to the courts," said Greg Baise, president of the Illinois Manufacturer's Association.

Laird Ozmon, president of the Illinois Trial Lawyers Association, said tort reform's supporters long have tried to court public approval by characterizing the current system as one that exclusively benefits plaintiffs' lawyers.

"But this is not a lawyer issue," Ozmon said. "This is a consumer-victim issue."

In its opinion, the court said the manner in which the bill made its way through the legislature would not affect the justices' views of its constitutionality. Still, the court described that process in some detail, taking something of a dig at the legislature.

The majority opinion noted that the House bill initially was introduced as a minor suggestion that the word "any" by changed to "a" in a particular section of the Code of Civil Procedure. More than two months later, the bills was "amended" with 67 pages of text, then passed within two days.

"Legislation shouldn't be brought in the dark of night and rammed through," said Illinois State Bar Association President Todd Smith. "It should be subject to debate and deliberation on the merits."