Lebron v. Gottlieb Memorial Hospital ( 2010 )

Docket Nos. 105741, 105745 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ABIGAILE LEBRON, a Minor, et al., Appellees, v. GOTTLIEB
MEMORIAL HOSPITAL et al., Appellants.
Opinion filed February 4, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman, Kilbride and Burke concurred in the judgment
and opinion.
Justice Karmeier concurred in part and dissented in part, with
opinion, joined by Justice Garman.
Justice Thomas took no part in the decision.
OPINION
At issue in this appeal is the constitutionality of section 2–1706.5
of the Code of Civil Procedure (Code) (735 ILCS 5/2–1706.5 (West
2008)), which was adopted as part of Public Act 94–677 (Act) (see
Pub. Act 94–677, §330, eff. August 25, 2005). Section 2–1706.5 sets
certain caps on noneconomic damages in medical malpractice cases.
Relying on this court’s decision in Best v. Taylor Machine Works,
179 Ill. 2d 367 (1997), the circuit court of Cook County ruled that the
statutory caps violate the separation of powers clause of the Illinois
Constitution (Ill. Const. 1970, art. II, §1) and declared the entire Act
invalid, pursuant to its inseverability provision (Pub. Act 94–677,
§995, eff. August 25, 2005).
For the reasons discussed below, we affirm in part and reverse in
part the judgment of the circuit court, and remand this matter for
further proceedings.
BACKGROUND
In November 2006, plaintiffs Abigaile Lebron (Abigaile), a
minor, and her mother, Frances Lebron (Lebron), filed a medical
malpractice and declaratory judgment action in the Cook County
circuit court against defendants Gottlieb Memorial Hospital, Roberto
Levi-D’Ancona, M.D., and Florence Martinoz, R.N. According to the
five-count amended complaint, Lebron was under the care of Dr.
Levi-D’Ancona during her pregnancy. On October 31, 2005, Lebron
was admitted to Gottlieb, where Dr. Levi-D’Ancona delivered
Abigaile by Caesarean section. Martinoz assisted in the delivery and
provided the principal nursing care from the time of Lebron’s
admission. In counts I through IV, plaintiffs alleged that as the direct
and proximate result of certain acts and omissions by defendants,
Abigaile sustained numerous permanent injuries including, but not
limited to, “severe brain injury, cerebral palsy, cognitive mental
impairment, inability to be fed normally such that she must be fed by
a gastronomy tube, and inability to develop normal neurological
function.”
In count V, relevant to this appeal, plaintiffs sought a judicial
determination of their rights with respect to Public Act 94–677 and
a declaration that certain provisions of the Act, applicable to
plaintiffs’ cause of action, violate the Illinois Constitution. Although
plaintiffs challenged several provisions of the Act, at issue here is
plaintiffs’ challenge to the caps on noneconomic damages set forth in
section 2–1706.5 of the Code.1 Plaintiffs alleged that Abigaile “has
1
Plaintiffs also challenged the Act’s amendment of section 2–622 of the
Code that changed the certificate of merit requirements for medical
malpractice actions; the Act’s adoption of section 2–1704.5 that, inter alia,
permits future medical expenses and costs of life care to be paid through
purchase of an annuity; the Act’s amendment of section 8–1901 that
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sustained disability, disfigurement, pain and suffering to the extent
that damages for those injuries will greatly exceed the applicable
limitations on noneconomic damages under Public Act 94–677.”
Citing Best, plaintiffs alleged that the limitation on damages violates
the separation of powers clause of the Illinois Constitution (Ill. Const.
1970, art. II, §1) by permitting the General Assembly to supplant the
judiciary’s authority in determining whether a remittitur is
appropriate under the facts of the case. Again citing to Best, plaintiffs
further alleged that the limitation on non-economic damages
constitutes improper special legislation (Ill. Const. 1970, art. IV, §13)
in that “the restrictions on noneconomic damages grant limited
liability specially and without just cause to a select group of health
care provider[s].” Plaintiffs additionally alleged that the damages caps
violate Abigaile’s right to a trial by jury (Ill. Const. 1970, art. I, §13),
due process (Ill. Const. 1970, art. I, §2), equal protection (Ill. Const.
1970, art. I, §2), and a certain and complete remedy (Ill. Const. 1970,
art. I, §12).2
Plaintiffs filed a motion for partial judgment on the pleadings as
to count V, and Gottlieb and Martinoz countered with a motion for
partial summary judgment on count V. Dr. Levi-D’Ancona moved for
judgment on the pleadings as to his counterclaim seeking a
declaration that the challenged statutory provisions do not violate the
Illinois Constitution. After briefing and oral argument, the circuit
court granted plaintiffs’ motion for partial judgment on the pleadings,
established an evidentiary rule concerning a health-care provider’s
admission of liability; and the Act’s amendment of section 8–2501 that
changed the expert witness standards in medical malpractice actions. See
Pub. Act 94–677, §330, eff. August 25, 2005, amending 735 ILCS 5/2–622,
8–1901, 8–2501, and adding 735 ILCS 5/2–1704.5.
2
Anticipating other challenges to Public Act 94–677, the presiding judge
of the Law Division of the Cook County circuit court ordered that all
pending and subsequently filed motions in any case challenging the
constitutionality of the Act be consolidated before the same judge presiding
over plaintiffs’ case. Thus, Lebron v. Gottlieb became the lead case. The
record identifies two other cases pending in Cook County in which a party
challenged the constitutionality of the Act: Alexander v. Nacopoulos, No.
07– L–2207, and Zago v. Resurrection Medical Center, No. 07–L–1720.
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and denied Dr. Levi-D’Ancona’s motion for judgment on the
pleadings as to his counterclaim to the extent it sought a declaration
that the damages caps are consistent with the separation of powers
clause. The circuit court did not expressly deny the motion for partial
summary judgment as to count V filed by Gottlieb and Martinoz.
The circuit court determined that the statutory cap on
noneconomic damages in section 2–1706.5, like the statutory
damages cap at issue in Best, operates as a legislative remittitur in
violation of the separation of powers clause of the Illinois
Constitution (Ill. Const. 1970, art. II, §1). Based on the Act’s
inseverability provision (Pub. Act 94–677, §995, eff. August 25,
2005), the circuit court invalidated the Act in its entirety. The circuit
court declined to consider plaintiffs’ other constitutional challenges
to the Act. The circuit court later amended its order to add the
findings required by Supreme Court Rule 18 (210 Ill. 2d R. 18) and,
on the motion of Gottlieb and Martinoz, made a Rule 304(a) finding
of appealability (210 Ill. 2d R. 304(a)).
Pursuant to Supreme Court Rule 302(a) (210 Ill. 2d R. 302(a)),
Gottlieb and Martinoz, and Dr. Levi-D’Ancona, filed appeals directly
with this court. We consolidated these appeals for review, and
allowed the Illinois Attorney General to intervene to defend the
constitutionality of the Act. See 210 Ill. 2d R. 19. We also allowed
numerous individuals and organizations to file briefs amicus curiae.
See 210 Ill. 2d R. 345.3
3
Amicus curiae briefs in support of plaintiffs were received from the
American Bar Association; Chicago Bar Association and Illinois State Bar
Association; Citizen Action/Illinois and Illinois Alliance for Retired
Americans; Illinois AFL-CIO and the Chicago Federation of Labor; Illinois
Trial Lawyers Association; National Association for the Advancement of
Colored People and Cook County Bar Association; Professors Neil Vidmar,
Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas
A. Eaton, Theodore Eisenberg, Neal Feigenson, Lucinda M. Finley, Marc
Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H.
Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne
Martin, Frank M. McClellan, Deborah Jones Merritt, Philip G. Peters, Jr.,
James T. Richardson, Charles Silver, and Richard W. Wright; and the
Women’s Bar Association of Illinois. Amicus curiae briefs in support of
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ANALYSIS
I
This case comes to us following the grant of plaintiffs’ motion for
judgment on the pleadings. See 735 ILCS 5/2–615(e) (West 2008).
“ ‘[A] motion for judgment on the pleadings is like a motion for
summary judgment limited to the pleadings.’ ” Employers Insurance
of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999),
quoting 3 R. Michael, Illinois Practice §27.2, at 494 (1989), citing
Tompkins v. France, 21 Ill. App. 2d 227 (1959). Judgment on the
pleadings is proper if the pleadings disclose no genuine issue of
material fact and that the movant is entitled to judgment as a matter
of law. M.A.K. v. Rush-Presbyterian-St. Luke’s Medical Center, 198
Ill. 2d 249, 255 (2001); Employers Insurance of Wausau, 186 Ill. 2d
at 138. We review the grant of judgment on the pleadings de novo.
Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d
381, 385 (2005).
De novo review is also appropriate because the circuit court’s
grant of judgment on the pleadings rests on its determination that
section 2–1706.5 of the Code violates the Illinois Constitution.
Whether a statute is unconstitutional is a question of law subject to de
novo review. People v. Johnson, 225 Ill. 2d 573, 584 (2007). We are
mindful that section 2–1796.5, like every statute, enjoys a strong
presumption of constitutionality and that the burden of rebutting this
presumption rests with the party challenging the statute–here,
plaintiffs. In re Marriage of Miller, 227 Ill. 2d 185, 195 (2007); In re
Estate of Jolliff, 199 Ill. 2d 510, 517 (2002).
The circuit court ruled that section 2–1706.5 is unconstitutional
both on its face and as applied to plaintiffs. A statute is facially
invalid only if no set of circumstances exists under which the statute
would be valid. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306
defendants were received from Advocate Health and Hospitals Corporation;
American Medical Association and Illinois State Medical Society; the Cook
County State’s Attorney; Illinois Hospital Association, American Hospital
Association, Illinois Catholic Health Association, and Illinois Rural Health
Association; and Loyola University Medical Center and Loyola University
Physician Foundation.
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(2008). Therefore, the circuit court’s ruling that the statute is facially
invalid negates any notion that the statute could be validly applied to
these plaintiffs and the court’s “as applied” ruling was unnecessary.
Moreover, when there has been no evidentiary hearing and no
findings of fact, the constitutional challenge must be facial. In re
Parentage of John M., 212 Ill. 2d 253, 268 (2004), citing Reno v.
Flores, 507 U.S. 292, 300-01, 123 L. Ed. 2d 1, 15-16, 113 S. Ct.
1439, 1446 (1993). Accordingly, we reverse the circuit court’s “as
applied” ruling and limit our review to whether section 2–1706.5 is
facially invalid. See John M., 212 Ill. 2d at 268. We turn now to the
statute, itself.
Section 2–1706.5 provides in relevant part:
“(a) In any medical malpractice action or wrongful death
action based on medical malpractice in which economic and
non-economic damages may be awarded, the following
standards shall apply:
(1) In a case of an award against a hospital and its
personnel or hospital affiliates, as defined in Section 10.8
of the Hospital Licensing Act, the total amount of non-
economic damages shall not exceed $1,000,000 awarded
to all plaintiffs in any civil action arising out of the care.
(2) In a case of an award against a physician and the
physician’s business or corporate entity and personnel or
health care professional, the total amount of non-
economic damages shall not exceed $500,000 awarded to
all plaintiffs in any civil action arising out of the care.
(3) In awarding damages in a medical malpractice
case, the finder of fact shall render verdicts with a specific
award of damages for economic loss, if any, and a specific
award of damages for non-economic loss, if any.
The trier of fact shall not be informed of the provisions of
items (1) and (2) of this subsection (a).” 735 ILCS 5/2–1706.5
(West 2008).
The limitation on noneconomic damages set forth in section
2–1706.5 is one of several “significant reforms” to the civil justice
system the General Assembly adopted in response to a “health-care
crisis” in this state. Pub. Act 94–677, §101(4), eff. August 25, 2005.
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According to the legislative findings set forth in the Act, the rising
cost of medical liability insurance increases the financial burdens on
physicians and hospitals and is believed to have contributed to a
reduction of available medical care in portions of Illinois. Pub. Act
94–677, §§101(1), (2), eff. August 25, 2005. The General Assembly
determined:
“[T]he current medical malpractice situation requires
reforms that enhance the State’s oversight of physicians and
ability to discipline physicians, that increase the State’s
oversight of medical liability insurance carriers, that reduce
the number of nonmeritorious healing art malpractice actions,
that limit non-economic damages in healing art malpractice
actions, that encourage physicians to provide voluntary
services at free medical clinics, that encourage physicians and
hospitals to continue providing health care services in Illinois,
and that encourage physicians to practice in medical care
shortage areas.” Pub. Act 94–677, §101(5), eff. August 25,
2005.
In addition to the caps on noneconomic damages, the reforms adopted
by the legislature included changes to the Illinois Insurance Code
(Pub. Act 94–677, §310, eff. August 25, 2005), the Medical Practice
Act of 1987 (Pub. Act 94–677, §315, eff. August 25, 2005), and the
Good Samaritan Act (Pub. Act 94–677, §340, eff. August 25, 2005),
as well as other changes to the Code (Pub. Act 94–677, §330, eff.
August 25, 2005), and new legislation known as the “Sorry Works!
Pilot Program Act” (Pub. Act 94–677, art. 4, eff. August 25, 2005).
We need not delve into the details of these reforms because the focus
of this appeal is one particular reform: the limitation on noneconomic
damages codified in section 2–1706.5.
The circuit court invalidated the statute for the sole reason that,
pursuant to our decision in Best, the limitation on noneconomic
damages in section 2–1706.5 violates the separation of powers clause
of the Illinois Constitution (Ill. Const. 1970, art. II, §1). Defendants
argue that the statute at issue in Best is distinguishable from the
present statute and that the circuit court’s ruling represents an
unjustified expansion of Best. Defendants maintain that the damages
provision in section 2–1706.5 constitutes a valid exercise of the
General Assembly’s police power in response to a public threat, as
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reflected in the legislative findings, and that under our precedents, the
statute does not offend separation of powers principles. Plaintiffs
continue to argue that Best is controlling and that neither this court’s
precedents, nor the legislative findings on which defendants rely, can
save the statute. We consider the Best decision in detail.
In Best, this court considered constitutional challenges to several
provisions of Public Act 89–7, commonly referred to as the Tort
Reform Act of 1995 or the Civil Justice Reform Amendments of
1995. Pub. Act 89–7, eff. March 9, 1995. Among the challenged
provisions was a $500,000 cap on noneconomic damages. Codified
at section 2–1115.1(a) of the Code, this provision stated:
“In all common law, statutory or other actions that seek
damages on account of death, bodily injury, or physical
damage to property based on negligence, or product liability
based on any theory or doctrine, recovery of non-economic
damages shall be limited to $500,000 per plaintiff. There shall
be no recovery for hedonic damages.” 735 ILCS
5/2–1115.1(a) (West 1996).
The statute defined “non-economic damages” as “damages which are
intangible, including but not limited to damages for pain and
suffering, disability, disfigurement, loss of consortium, and loss of
society.” 735 ILCS 5/2–1115.2(b) (West 1996). The statute defined
“economic damages,” which were not capped, as “all damages which
are tangible, such as damages for past and future medical expenses,
loss of income or earnings and other property loss.” 735 ILCS
5/2–1115.2(a) (West 1996). The sum of noneconomic and economic
damages constituted “compensatory damages.” 735 ILCS
5/2–1115.2(c) (West 1996). Thus, damages which were intended to
make a person whole were limited by section 2–1115.1. Best, 179 Ill.
2d at 384.
Before considering the specific constitutional challenges to this
provision, we noted that the cap on noneconomic damages was
supported by several legislative findings which, as we later
recognized, were entitled to “great deference.” Best, 179 Ill. 2d at
389. These findings declared that:
“(1) limiting noneconomic damages will improve health care
in rural Illinois, (2) more than 20 states limit noneconomic
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damages, (3) the cost of health care has decreased in those
states, (4) noneconomic losses have no monetary dimension,
and no objective criteria or jurisprudence exists for assessing
or reviewing noneconomic damages awards, (5) such awards
are highly erratic and depend on subjective preferences of the
trier of fact, (6) highly erratic noneconomic damages awards
subvert the credibility of such awards and undercut the
deterrent function of tort law, (7) such awards must be limited
to provide consistency and stability for all parties and society
and (8) *** limiting noneconomic damages was the most
effective step toward legislative reform of tort law because it
reduces litigation costs and expedites settlement.” Best, 179
Ill. 2d at 385.
We further noted that the preamble to Public Act 89–7 identified
several “purposes” of the damages cap: reducing the cost of health
care, increasing accessibility to health care, promoting consistency in
awards, reestablishing the credibility of the civil justice system,
establishing parameters for noneconomic damages, protecting the
economic health of the state by decreasing systemic costs, and
ensuring the affordability of insurance. Best, 179 Ill. 2d at 385.
Proceeding from the premise that our task was to determine the
constitutionality of the statute, and not its wisdom (Best, 179 Ill. 2d
at 390), we first considered the plaintiffs’ special legislation challenge
(Ill. Const. 1970, art. IV, §13). We observed that the purpose of the
special legislation clause “is to prevent arbitrary legislative
classifications that discriminate in favor of a select group without a
sound, reasonable basis.” Best, 179 Ill. 2d at 391. The plaintiffs
argued that the statute impermissibly penalized the most severely
injured persons whose award for noneconomic damages would likely
exceed $500,000, but for the statutory cap, and that the statute
arbitrarily benefitted certain tortfeasors by relieving them of liability
for fully compensating injured persons. The plaintiffs relied on
Wright v. Central Du Page Hospital Ass’n, 63 Ill. 2d 313 (1976)
(holding that a $500,000 limit on compensatory damages in medical
malpractice actions was arbitrary and violated the special legislation
clause), Grace v. Howlett, 51 Ill. 2d 478 (1972) (holding that a statute
that limited recovery for certain automobile accident victims was an
arbitrary and unreasonable classification in violation of the special
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legislation clause), and Grasse v. Dealer’s Transport Co., 412 Ill. 179
(1952) (holding that a workers’ compensation provision violated the
special legislation clause by creating unreasonable classifications in
which the plaintiff’s ability to recover complete compensation was
determined by fortuitous events).
We agreed with the plaintiffs that under Wright, Grace and
Grasse the automatic $500,000 limit on noneconomic damages was
arbitrary and violated the special legislation clause. Best, 179 Ill. 2d
at 406. Although agreeing with the defendants that noneconomic
injuries are difficult to assess, we determined that such difficulty was
not alleviated by imposing an arbitrary damages limitation in all
cases, without regard to the facts or circumstances. Best, 179 Ill. 2d
at 406. Indeed, we determined that the damages limitation actually
undermined the statute’s stated goal of providing consistency and
rationality to the civil justice system. Best, 179 Ill. 2d at 406. We also
rejected the defendants’ argument that the legislature’s interest in
reducing the systemic costs of tort liability was sufficient to overcome
the plaintiffs’ special legislation challenge, noting that the entire
burden of any cost savings would impermissibly rest on one class of
injured plaintiffs. Best, 179 Ill. 2d at 407.
We continued our analysis of section 2–1115.1 by considering the
plaintiffs’ argument that section 2–1115.1 also violated the separation
of powers clause (Ill. Const. 1970, art. II, §1). The plaintiffs argued
that the statute invaded the province of the judiciary to assess, on a
case-by-case basis, whether a jury’s award is excessive, by imposing
a one-size-fits-all legislative remittitur. The defendants countered that
the statutory cap simply set an outer parameter by which subjective
damages were limited and did not displace traditional judicial
functions.
We explained that the purpose of the separation of powers clause
“ ‘is to ensure that the whole power of two or more branches of
government shall not reside in the same hands.’ ” Best, 179 Ill. 2d at
410, quoting People v. Walker, 119 Ill. 2d 465, 473 (1988). “Each
branch of government has its own unique sphere of authority that
cannot be exercised by another branch.” Best, 179 Ill. 2d at 410. Thus,
“the legislature is prohibited from enacting laws that unduly infringe
upon the inherent powers of judges.” Best, 179 Ill. 2d at 411. Though
recognizing that the separation between the three branches of
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government is “not absolute and unyielding” and may “overlap,” we
emphasized that the determination of whether a statute violates the
separation of powers clause rests with the judiciary. Best, 179 Ill. 2d
at 411.
We also reviewed the doctrine of remittitur, which has long been
recognized as a part of Illinois law. Best, 179 Ill. 2d at 412. We noted
that, for over a century, application of this doctrine has been a
traditional and inherent power of the judicial branch, to be exercised
in appropriate circumstances to correct an excessive jury verdict, and
that its application presents a question of law for the court. Best, 179
Ill. 2d at 411-12. Where a jury verdict “ ‘falls outside the range of fair
and reasonable compensation or results from passion or prejudice, or
if it is so large that it shocks the judicial conscience,’ ” a court has a
duty to correct the verdict by ordering a remittitur, with the plaintiff’s
consent. Best, 179 Ill. 2d at 412, quoting Richardson v. Chapman,
175 Ill. 2d 98, 113 (1997). If consent is not given, the court has a duty
to order a new trial. Best, 179 Ill. 2d at 413. Whether a remittitur
should be ordered is necessarily considered on a case-by-case basis.
That is, the court must carefully examine the particular evidence and
circumstances of the case to determine whether it must override the
jury’s verdict. Best, 179 Ill. 2d at 413.
In Best, we concluded that, although the legislature may limit
certain types of damages, such as damages recoverable in statutory
causes of action (Best, 179 Ill. 2d at 415), the limitation on damages
in section 2–1115.1 violated the separation of powers clause:
“[S]ection 2–1115.1 undercuts the power, and obligation,
of the judiciary to reduce excessive verdicts. In our view,
section 2–1115.1 functions as a ‘legislative remittitur.’ Unlike
the traditional remittitur power of the judiciary, the legislative
remittitur of section 2–1115.1 disregards the jury’s careful
deliberative process in determining damages that will fairly
compensate injured plaintiffs who have proven their causes of
action. The cap on damages is mandatory and operates wholly
apart from the specific circumstances of a particular plaintiff’s
noneconomic injuries. Therefore, section 2–1115.1 unduly
encroaches upon the fundamentally judicial prerogative of
determining whether a jury’s assessment of damages is
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excessive within the meaning of the law.” Best, 179 Ill. 2d at
413-14.
We also concluded that section 2–1115.1 unduly expanded the
remittitur doctrine by forcing a successful plaintiff to forgo part of the
jury award, “in clear violation of the well-settled principle that a trial
court does not have authority to reduce a damages award by entry of
a remittitur if the plaintiff objects or does not consent.” Best, 179 Ill.
2d at 414.
After considering constitutional challenges to other portions of
Public Act 89–7 and invalidating several provisions (Best, 179 Ill. 2d
at 459), we ultimately held the act void in its entirety (Best, 179 Ill.
2d at 467). We concluded that what remained of Public Act 89–7
could not be independently enforced. Best, 179 Ill. 2d at 467. In the
course of our analysis, we noted that the General Assembly
considered the cap on noneconomic damages essential to the tort
reform scheme. Best, 179 Ill. 2d at 465.
Before turning to the parties’ arguments regarding the
applicability of Best to the present litigation, we consider defendants’
contention that the separation of powers analysis in Best was
unnecessary to the disposition of that case and is therefore dicta
entitled to little weight. See Best, 179 Ill. 2d at 471 (Bilandic, J.,
specially concurring) (declining to join the separation of powers
analysis because it was “wholly unnecessary and constitutes dicta”);
Best 179 Ill. 2d at 481 (Miller, J., concurring in part and dissenting in
part) (stating that the separation of powers analysis “is entirely
unnecessary, given the majority’s prior holding that the same measure
is invalid special legislation”).
We agree that the separation of powers analysis in Best was not
necessary to our decision. The court had already determined that
section 2–1115.1 violated the special legislation clause; a further
reason for finding the statute unconstitutional was not required. We
disagree, however, that our opinion on this matter is mere dicta
entitled to little weight. As this court has explained, dictum is of two
types: obiter dictum and judicial dictum. People v. Williams, 204 Ill.
2d 191, 206 (2003). “Obiter dictum,” frequently referred to as simply
“dictum,” is a remark or opinion that a court uttered as an aside.
Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 277 (2009);
Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Obiter dictum is not
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essential to the outcome of the case, is not an integral part of the
opinion, and is generally not binding authority or precedent within the
stare decisis rule. Exelon, 234 Ill. 2d at 277. “In contrast, ‘an
expression of opinion upon a point in a case argued by counsel and
deliberately passed upon by the court, though not essential to the
disposition of the cause, if dictum, is a judicial dictum. [Citation.] ***
[A] judicial dictum is entitled to much weight, and should be
followed unless found to be erroneous.’ (Emphasis added.)” Exelon,
234 Ill. 2d at 277-78, quoting Cates, 156 Ill. 2d at 80. See also Woods
v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93
L. Ed. 1524, 1526 (1949) (“where a decision rests on two or more
grounds, none can be relegated to the category of obiter dictum”).
Although the separation of powers discussion in Best was not
essential to our disposition, the issue was briefed by the parties and
“deliberately passed upon” by this court. Our analysis, summarized
above, examined the nature of the separation of powers doctrine and
the interplay between the three branches of government; the contours
of the remittitur doctrine and its place in Illinois law; and the effect
of the statutory cap on the trial court’s inherent authority to correct
excessive verdicts. Further, our conclusion was expressed as a
holding. Best, 179 Ill. 2d at 415; see also Unzicker v. Kraft Food
Ingredients Corp., 203 Ill. 2d 64, 93 (2002) (stating that in Best, we
“held” that section 2–1115.1 of the Code was an unconstitutional
legislative remittitur). Our opinion on this matter can hardly be
considered an “aside” and, if a dictum, is a judicial dictum.
Accordingly, it is entitled to much weight and should be followed
unless found to be erroneous. See Exelon, 234 Ill. 2d at 278.
Defendants do not argue that the separation of powers analysis in
Best is necessarily erroneous. Rather, they argue that the statute at
issue here, section 2–1706.5, is distinguishable from the statute
invalidated in Best, section 2–1115.1. Defendants maintain that while
section 2–1115.1 was part of a broad-based effort to reduce
systemwide litigation costs, section 2–1706.5 is narrowly tailored to
address a specific issue: the health-care crisis. Based on this
distinction, defendants argue that Best is not controlling and section
2–1706.5 does not unduly encroach upon the judiciary.
We agree with defendants that the scope of the statute at issue in
Best was much broader than the statute we examine here. The
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damages cap in section 2–1115.1 applied to all actions, whether based
on the common law or statute, that sought damages “on account of
death, bodily injury, or physical damage to property based on
negligence, or product liability based on any theory or doctrine.” 735
ILCS 5/2–1115.1(a) (West 1996). In contrast, the damages cap in
section 2–1706.5 applies to “any medical malpractice action or
wrongful death action based on medical malpractice.” 735 ILCS
5/2–1706.5(a) (West 2008). Notwithstanding this difference, the
encroachment upon the inherent power of the judiciary is the same in
the instant case as it was in Best.
Under section 2–1706.5, the court is required to override the
jury’s deliberative process and reduce any noneconomic damages in
excess of the statutory cap, irrespective of the particular facts and
circumstances, and without the plaintiff’s consent. Section 2–1706.5
thus violates the separation of powers clause because it “unduly
encroaches upon the fundamentally judicial prerogative of
determining whether a jury’s assessment of damages is excessive
within the meaning of the law.” Best, 179 Ill. 2d at 414. Section
2–1706.5, like section 2–1115.1, effects an unconstitutional
legislative remittitur. The fact that the legislative remittitur operates
in perhaps fewer cases under section 2–1706.5 than it would have
under section 2–1115.1 does not extinguish the constitutional
violation.
The Attorney General argues, however, that the damages cap at
issue in Best was found by this court to be “arbitrary” and “not
rationally related to a legitimate government interest” (Best, 179 Ill.
2d at 408), whereas the present damages cap is rationally related to
the Act’s narrow aim of addressing the mounting crisis in access to
health care by stemming the cost of malpractice insurance. See Pub.
Act 94–677, §101(4), eff. August 25, 2005 (identifying the limitation
on noneconomic damages as one of the significant reforms to the civil
justice system designed to combat the health-care crisis). This
argument conflates our special legislation analysis in Best and our
separation of powers analysis in that case.
In Best, we first considered the plaintiffs’ special legislation
challenge and determined that the rational basis test was appropriate.
Best, 179 Ill. 2d at 393. Under this test, “ ‘a court must determine
whether the statutory classification is rationally related to a legitimate
-14-
State interest.’ ” Best, 179 Ill. 2d at 393, quoting In re Petition of the
Village of Vernon Hills, 168 Ill. 2d 117, 123 (1995). We ultimately
concluded that the damages cap was arbitrary and was not rationally
related to a legitimate state interest. Best, 179 Ill. 2d at 406-08. We
did not, however, incorporate that holding, rely upon it, or even
reference it in our separation of powers discussion, nor was it
necessary to do so. Best, 179 Ill. 2d at 410-15.
The separation of powers clause prohibits one branch of
government from exercising “powers properly belonging to another.”
Ill. Const. 1970, art. II, §1. Thus, the inquiry under the separation of
powers clause is not whether the damages cap is rationally related to
a legitimate government interest but, rather, whether the legislature,
through its adoption of the damages cap, is exercising powers
properly belonging to the judiciary. In other words, does the statute
unduly encroach on the judiciary’s “sphere of authority” (Allegis
Realty Investors v. Novak, 223 Ill. 2d 318, 334 (2006); Best, 179 Ill.
2d at 410)) or “impede the courts in the performance of their
functions” (Best, 179 Ill. 2d at 443)? The rational basis test is not part
of that legal determination. Numerous cases from this court illustrate
the distinction between a separation of powers analysis and a special
legislation analysis. See, e.g., In re Estate of Jolliff, 199 Ill. 2d 510
(2002); Burger v. Lutheran General Hospital, 198 Ill. 2d 21 (2001);
DeLuna v. St. Elizabeth’s Hospital, 147 Ill. 2d 57 (1992); Bernier v.
Burris, 113 Ill. 2d 219 (1986).
For similar reasons, we reject defendants’ argument that section
2–1706.5 should not be deemed invalid because, unlike the statute in
Best which burdened one class of plaintiffs (Best, 179 Ill. 2d at 407),
the Act here balances the benefits and burdens of resolving the
health-care crisis among insurers, health-care providers and patients.
This argument, like the one before it, confuses our separation of
powers and special legislation analyses. Our observation in Best
regarding the burden of any cost savings effected by the damages cap
was made in the course of our special legislation discussion. We
stated:
“[W]e are unable to discern any connection between the
automatic reduction of one type of compensatory damages
awarded to one class of injured plaintiffs and a savings in the
systemwide costs of litigation. Even assuming that a
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systemwide savings in costs were achieved by the cap, the
prohibition against special legislation does not permit the
entire burden of the anticipated cost savings to rest on one
class of injured plaintiffs. [Citation.] We therefore reject
defendants’ systemic costs rationale as a basis for upholding
section 2–1115.1.” (Emphasis added.) Best, 179 Ill. 2d at 407.
We did not, in the context of examining the plaintiffs’ separation
of powers argument, consider whether the statute burdened a
particular group. See Best, 179 Ill. 2d at 410-16. Consideration of that
issue was unnecessary because, as explained above, a separation of
powers analysis asks whether the statute unduly infringes upon the
judiciary’s sphere of authority. Thus, a proper separation of powers
analysis of section 2–1706.5 does not consider whether the Act
balances the benefits and burdens of resolving the health-care crisis
or burdens a particular group. The intrusion on the judicial authority
effected by section 2–1706.5 is no less simply because other
provisions of the Act may impose burdens on parties other than
plaintiffs.
In a related vein, the Attorney General posits that section
2–1706.5 is but one part of a massive “multidimensional” response
to the health-care crisis which requires all interested parties–insurers,
medical professionals and health-care consumers–to make tradeoffs
and sacrifices. According to the Attorney General, the Act, through
a number of interrelated measures, constitutes an equitable means of
ensuring that everyone who stands to benefit from a resolution of the
health-care crisis contributes to its resolution. The Attorney General
cites to the Workers’ Compensation Act (820 ILCS 305/1 et seq.
(West 2008)) as an example of a multidimensional exercise of the
General Assembly’s police power which, although modifying the
common law, has been upheld by this court in a long line of cases.
See Duley v. Caterpillar Tractor Co., 44 Ill. 2d 15 (1969); Moushon
v. National Garages, Inc., 9 Ill. 2d 407 (1956); Grand Trunk Western
Ry. Co. v. Industrial Comm’n, 291 Ill. 167 (1919); Matthiessen &
Hegeler Zinc Co. v. Industrial Board, 284 Ill. 378 (1918). The
Attorney General argues that section 2–1706.1, like the Workers’
Compensation Act, constitutes a legitimate exercise of the General
Assembly’s police power.
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Plaintiffs dispute the Attorney General’s contention that the Act
requires all stakeholders to make a sacrifice. Plaintiffs argue that
hospitals gain enormous benefits under the Act, but are not required
to give anything in return. This aside, plaintiffs further respond that
the multidimensional nature of a legislative enactment does not
determine whether the enactment is constitutional, and that the
statutes at issue in Grasse, Wright, and Best were deemed invalid
even though each statute was part of a multidimensional enactment.
According to plaintiffs, whether the Act is multidimensional is of no
constitutional significance. We agree with plaintiffs.
In Grasse, we held unconstitutional a provision of the Workers’
Compensation Act–the very legislation the Attorney General posits
is an example of a multidimensional enactment. Grasse, 412 Ill. at
200. In Wright, we held unconstitutional a statutory damages cap,
without regard to the fact that it was but one provision of what may
be called a multidimensional act revising the law in relation to
medical malpractice. Wright, 63 Ill. 2d at 318, 329-30. Similarly, in
Best, we held a damages cap unconstitutional, notwithstanding that
it was but one provision of an “integrated ‘reform package.’ ” Best,
179 Ill. 2d at 465. As these cases demonstrate, though nothing
precludes the General Assembly from adopting a so-called
“multidimensional” response to a threat to the public welfare, the
multidimensional character of a statute does not preclude a finding by
this court that the statute is unconstitutional.
Defendants further argue that our decision in Unzicker v. Kraft
Food Ingredients Corp., 203 Ill. 2d 64 (2002), which rejected a
separation of powers challenge based on Best, teaches that the
separation of powers clause does not prevent the General Assembly
from dictating when a defendant can be liable for the full amount of
a jury’s verdict and that application of Unzicker to the present case
demonstrates that section 2–1706.5 does not operate as a legislative
remittitur. Plaintiffs counter that if Unzicker has any relevance here,
it supports the circuit court’s judgment.
In Unzicker we considered the constitutionality of section 2–1117
of the Code (735 ILCS 5/2–1117 (West 1994)), which modified the
common law rule of joint and several liability. Under the common
law, a plaintiff could recover compensation for the full amount of his
or her injury from any responsible defendant. Unzicker, 203 Ill. 2d at
-17-
70. Pursuant to section 2–1117, however, any tortfeasor whose
percentage of fault the trier of fact determined to be “less than 25%
of the total fault attributable to the plaintiff, the defendants sued by
the plaintiff, and any third party defendant who could have been sued
by the plaintiff, shall be severally liable” for the plaintiff’s
nonmedical damages. 735 ILCS 5/2–1117 (West 1994). Relying on
the separation of powers analysis in Best, the plaintiffs argued that the
change in the common law rule of joint and several liability amounted
to an unconstitutional legislative remittitur. We rejected this
argument, noting that, unlike the statute in Best, section 2–1117 did
not set a cap on damages. Unzicker, 203 Ill. 2d at 94. Rather, section
2–1117 merely determined “when a defendant can be held liable for
the full amount of a jury’s verdict and when a defendant is liable only
in an amount equal to his or her percentage of fault.” Unzicker, 203
Ill. 2d at 94.
Defendants contend that section 2–1706.5, like the statute in
Unzicker, does not limit a plaintiff’s recovery and merely provides
that certain defendants can be held liable for noneconomic damages
only up to a particular amount. We disagree with defendants’ reading
of the statute. By its plain terms, section 2–1706.5 limits a plaintiff’s
noneconomic damages. Section 2–1706.5 states, with respect to an
award against a hospital and its personnel or hospital affiliates, that
“the total amount of non-economic damages shall not exceed
$1,000,000.” 735 ILCS 5/2–1706.5(a)(1) (West 2008). Section
2–1706.5 similarly states, with respect to an award against a
physician and the physician’s business or corporate entity and
personnel or health-care professional, that “the total amount of non-
economic damages shall not exceed $500,000.” 735 ILCS
5/2–1706.5(a)(2) (West 2008). Unlike the statute in Unzicker, which
required the court to enter judgment in conformity with the jury’s
assessment of fault where the defendant was minimally responsible,
the statute here requires the court to enter a judgment at variance with
the jury’s determination and without regard to the court’s duty to
consider, on a case-by-case basis, whether the jury’s verdict is
excessive as a matter of law. Defendants’ attempt to fit this statute
within the Unzicker analysis is unavailing.
Defendants also argue that the separation of powers clause
“allows the legislature to enact statutes affecting the conduct of
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litigation if its purpose is to serve legitimate legislative goals,” and
that the statute here, although affecting the conduct of litigation, is
plainly intended to address a health-care crisis. In support, defendants
rely chiefly on our analysis in Burger v. Lutheran General Hospital,
198 Ill. 2d 21 (2001), upholding a statutory medical records
disclosure provision against a separation of powers challenge.
Defendants’ reliance on Burger is misplaced. As plaintiffs note,
Burger did not involve a statute affecting the conduct of litigation.
Burger, 198 Ill. 2d at 41. Although the plaintiff in Burger argued that
the statute at issue impermissibly infringed upon the judiciary’s
inherent authority to regulate discovery, we concluded that the plain
language of the statute did not did so, and therefore the statute did
“not impinge upon the power of the judiciary.” Burger, 198 Ill. 2d at
39, 45. Moreover, we discern no broad holding in Burger under
which a legislative enactment that would otherwise run afoul of
separation of powers principles will be deemed to pass constitutional
muster simply because the enactment “serves legitimate legislative
goals.” The other precedents defendants cite are also inapposite. See
Chicago National League Baseball Club, Inc. v. Thompson, 108 Ill.
2d 357, 364-66 (1985) (rejecting a separation of powers challenge to
a statute subjecting night baseball games to noise emission
standards); Strukoff v. Strukoff, 76 Ill. 2d 53, 57-60 (1979) (rejecting
a separation of powers challenge to a statute which required a waiting
period between the court’s determination that grounds exist for
dissolution of the marriage and the court’s disposition of property).
This is not to say that the legislative purpose or goal of a statute
is irrelevant to a separation of powers analysis. In Burger, Thompson,
and Strukoff, we considered what the statutes required or regulated
and the legislature’s goals in enacting them. Burger, 198 Ill. 2d at 41;
Thompson, 108 Ill. 2d at 364; Strukoff, 76 Ill. 2d at 60. Here, too, we
necessarily consider what the statute purports to do–limit
noneconomic damages in medical malpractice actions–and the
legislature’s goal in enacting the statute–responding to a health-care
crisis. Our separation of powers analysis, however, does not stop
there. The crux of our analysis is whether the statute unduly infringes
upon the inherent power of the judiciary. That such an infringement
was unintended, based on the language and stated purpose of the
statute, does not resolve the constitutional infirmity.
-19-
Defendants stress that the General Assembly has the authority to
change the common law, which the General Assembly has regularly
exercised, and that invalidating section 2–1706.5 undermines that
authority and calls into question this court’s precedents upholding
statutes that limit a plaintiff’s damages. See Bernier v. Burris, 113 Ill.
2d 219 (1986); Siegall v. Solomon, 19 Ill. 2d 145 (1960); Smith v.
Hill, 12 Ill. 2d 588 (1958).
The issue is not whether the General Assembly may change the
common law. As we recognized in Best, the General Assembly’s
authority to “alter the common law and change or limit available
remedies *** is well grounded in the jurisprudence of this state.”
Best, 179 Ill. 2d at 408, citing Grand Trunk Western Ry. Co., 291 Ill.
167. See also Michigan Avenue National Bank v. County of Cook,
191 Ill. 2d 493, 519 (2000) (“legislature has the inherent authority to
repeal or change the common law and may do away with all or part
of it”). The General Assembly’s authority, however, is not absolute;
it must be exercised within constitutional bounds. See, e.g., People
v. Gersch, 135 Ill. 2d 384, 395-98 (1990) (recognizing both the
legislature’s inherent power to alter the common law and the court’s
duty to invalidate unconstitutional actions of our legislature). Here,
the legislature’s attempt in section 2–1706.5 to limit common law
damages in medical malpractice actions runs afoul of the separation
of powers clause.
Invalidating section 2–1706.5 does not, as defendants claim,
undermine this court’s precedents. In Bernier, Siegall, and Smith,
cited by defendants, we rejected constitutional challenges to statues
that prohibited awards of punitive damages in actions for healing art
malpractice, alienation of affections, and breach of promise to marry,
respectively. In Smith, we expressly rejected a separation of powers
challenge to the ban on punitive damages, stating:
“With reference to the act violating article III of the
constitution, we have already pointed out that the act does not
affect compensatory damages, but only damages considered
in their nature as punitive. The act in restricting recovery to
actual damages, which term includes both general and special
damages and encompasses compensatory damages because
they are synonymous, does not invade any judicial functions
of the courts. The act in barring punitive damages merely
-20-
establishes a ‘public policy’ that in the interest of society in
the particular class of cases such damages should not be
awarded. Such damages being allowed in the interest of
society, and not to recompense solely the individual, to deny
them cannot be said to deny any constitutional right or to
encroach upon any judicial function, or to violate any
constitutional guaranty of separation of powers.” Smith, 12 Ill.
2d at 598.
Our analysis in Smith makes plain that a ban on punitive damages is
not akin to a cap on noneconomic compensatory damages.
Invalidating section 2–1706.5 thus does not call into question our
holdings in Bernier, Siegall, and Smith.
Defendants further argue that if section 2–1706.5 is invalidated,
statutes which limit common law liability cannot survive. See 745
ILCS 49/5 et seq. (West 2008) (Good Samaritan Act; eliminating
negligence liability for certain health-care professionals and others
who voluntarily engage in life-saving activities); 740 ILCS 90/1, 3.1,
3.2, 4 (West 2008) (Innkeeper Protection Act; limiting hotel’s
liability for loss or damage to guest property); 745 ILCS 65/4 (West
2008) (Recreational Use of Land and Water Areas Act; eliminating
negligence liability of landowners who allow others to use their land
free of charge for recreational or conservation purposes); 210 ILCS
50/3.150 (West 2008) (Emergency Medical Services (EMS) Systems
Act; eliminating negligence liability for emergency providers of
medical services); 730 ILCS 115/1(e) (West 2008) (Probation
Community Service Act; eliminating negligence liability for
organizations and individuals who agree to accept community service
from offenders).
We decline to comment on the constitutionality of statutes that are
not before us. We note, however, that, unlike section 2–1706.5, none
of the statutes defendants cite requires a court to reduce a jury’s
award of noneconomic damages to a predetermined limit, irrespective
of the facts of the case. Though the Innkeeper Protection Act does set
a dollar cap for a hotel’s liability for damage or loss to guest property,
the statute also allows the parties to contract around the statutory
limit. 740 ILCS 90/1, 3, 3.1, 3.2, 4 (West 2008). Thus, the Innkeeper
Protection Act does not parallel section 2–1706.5.
-21-
Defendants direct this court’s attention to statutes limiting
noneconomic damages in medical malpractice cases that have been
adopted in other states. See Alaska Stat. §09.55.549 (2007) ($250,000
to $400,000 cap); Cal. Civ. Code §3333.2 (West 2009) ($250,000
cap); Colo. Rev. Stat. §13–64–302 (2008) ($300,000 cap); Fla. Stat.
§766.118 (2009) ($150,000 to $1,500,000 cap); Ga. Code Ann.
§51–13-1(b) (2009) ($350,000 to $1,050,000 cap); Haw. Rev. Stat.
§663–8.7 (2009) ($375,000 cap); Idaho Code Ann. §6–1603 (2008)
($250,000 cap); Md. Code Ann. Cts. & Jud. Proc. §3–2A–09 (2009)
($650,000 cap with $15,000 annual increase beginning January 1,
2009); Miss. Code Ann. §11–1–60(2)(a) (2008) ($500,000 cap); Mo.
Rev. Stat. §538.210 (2009) ($350,000 cap); Nev. Rev. Stat. §41A.035
(2009) ($350,000 cap); N.D. Cent. Code §32–42–02 (2009)
($500,000 cap); Ohio Rev. Code Ann. §§2323.43(A)(2), (A)(3) (West
2009) ($250,000 to $1,000,000 cap); Okla. Stat. tit. 63, §§1–1708.1F,
1–1708.1F–1 (2009) ($300,000 cap which may be lifted in some
cases); S.C. Code Ann. §15–32–220 (2008) ($350,000 to $1,050,000
cap with annual adjustment); Tex. Civ. Prac. & Rem. Code Ann.
§74.301 (Vernon 2009) ($250,000 to $500,000 cap); Utah Code Ann.
§78B–3–410 (2008) ($400,000 cap beginning July 1, 2002, plus
yearly inflation adjustment); W. Va. Code §55–7B–8 (2008)
($250,000 to $500,000 cap, plus yearly inflation adjustment); Wis.
Stat. §893.55(4)(d)(1) (2008) ($750,000 cap). Defendants contend
that the limits on damages contained in section 2–1706.5 are well
within the range of reasonable limits adopted by these states, and that
the General Assembly is on solid constitutional footing when the
lines it draws are “within the general area of limits that had been set
by other States.” Anderson v. Wagner, 79 Ill. 2d 295, 312 (1979).
We have reviewed the statutes defendants cite and observe that
the limitations on noneconomic damages adopted in other states vary
widely, not only in the amount of the cap, but other specifics. For
example, the California statute provides simply: “In no [medical
malpractice] action shall the amount of damages for noneconomic
losses exceed two hundred fifty thousand dollars ($250,000).” Cal.
Civ. Code §3333.2(b) (West 2009). In contrast, the Florida statute
sets up a more complex scheme, in which the damages cap may be as
low as $150,000 and as high as $1.5 million, depending upon whether
the medical negligence is attributable to a practitioner or
-22-
nonpractitioner; the negligence results in a permanent vegetative state
or death; the negligence caused a catastrophic injury to the patient; or
the negligence occurred during the provision of emergency care. Fla.
Stat. §766.118 (2009). On what basis defendants have determined
that such disparate provisions are all reasonable is not known, and it
is not for this court to judge the reasonableness of other states’
legislation. Moreover, defendants’ contention that because the
damages caps established by section 2–1706.5 fit within the range of
caps established by other states is not dispositive of whether section
2–1706.5 runs afoul of the separation of powers clause of this state’s
constitution. That “everybody is doing it” is hardly a litmus test for
the constitutionality of the statute.
We are also not persuaded by defendants’ argument that the
circuit court’s judgment should be reversed because courts of other
states, which have considered whether a limitation on noneconomic
damages violates separation of powers, have rejected this argument.
Defendants cite Garhart v. Columbia/HealthOne, L.L.C., 95 P.3d
571, 581-82 (Colo. 2004), Zdrojewski v. Murphy, 254 Mich. App. 50,
81-82, 657 N.W.2d 721, 739 (2002); Judd v. Drezga, 2004 UT 91,
¶36, 103 P.3d 135, and Estate of Verba v. Ghaphery, 210 W. Va. 30,
35, 552 S.E.2d 406, 411 (2001). Our own research reveals additional
cases from other states rejecting separation of powers challenges to
their statutes capping noneconomic damages in medical malpractice
actions. See, e.g., Evans v. State, 56 P.3d 1046, 1055-56 (Alaska
2002); Kirkland v. Blaine County Medical Center, 134 Idaho 464,
470-71, 4 P.3d 1115, 1121-22 (2000); Owens-Corning v. Walatka,
125 Md. App. 313, 335-39, 725 A.2d 579, 590-02 (1999); Gourley v.
Nebraska Methodist Health System, Inc., 265 Neb. 918, 955-56, 663
N.W.2d 43, 76 (2003).
Although decisions from other jurisdictions can provide guidance
where precedent from Illinois is lacking, we do not write today on a
blank slate. Our decision in Best guides our analysis. That the courts
of other states would hold differently based on their constitutional
jurisprudence applied to their statutes is of no moment. “This court’s
jurisprudence of state constitutional law cannot be predicated on ***
the actions of our sister states ***.” People v. Caballes, 221 Ill. 2d
282, 313 (2006).
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We hold that the limitation on noneconomic damages in medical
malpractice actions set forth in section 2–1706.5 of the Code violates
the separation of powers clause of the Illinois Constitution (Ill. Const.
1970, art. II, §1) and is invalid. Because the Act contains an
inseverability provision (Pub. Act 94–677, §995, eff. August 25,
2005), we hold the Act invalid and void in its entirety. We emphasize,
however, that because the other provisions contained in Public Act
94–677 are deemed invalid solely on inseverability grounds, the
legislature remains free to reenact any provisions it deems
appropriate.
II
The partial concurrence and partial dissent is in agreement with
the majority opinion on one relatively minor point (that this case
presents a facial, and not an “as applied,” constitutional challenge)
and is otherwise opposed to the majority’s legal analysis and holding.
Therefore, for ease of discussion, we will refer to the partial
concurrence and partial dissent simply as the “dissent.”
Among the dissent’s criticisms is that we have “rush[ed]” to
address the constitutionality of Public Act 94–677; that we only
“purport” to defend the constitution; and that we stand as an
“obstacle” to the legislature’s efforts to find an answer to the health-
care crisis, “put[ting] at risk the welfare of the people.” Slip op. at 33,
41, 52 (Karmeier, J., concurring in part and dissenting in part, joined
by Garman, J.). The dissent implies that the majority opinion is
somehow an affront to the health-care reform efforts of the Obama
Administration, and expressly cautions that if we “persist in
invalidating damages caps,” dire consequences will likely follow. Slip
op. at 27-28, 51 (Karmeier, J., concurring in part and dissenting in
part, joined by Garman, J.).
Plainly, the Obama Administration’s health-care reform efforts
are not the backdrop against which we have decided the
constitutionality of Public Act 94–677, and we express no
opinion–favorable or otherwise–as to those efforts. Rather, our
decision in this case, that Public Act 94–677 cannot stand, is based,
as it must be, on the binding provisions of our state constitution and
our case law interpreting the same. Although we do not expect that
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the members of this court will always agree as to what the law is, or
how to apply the law in a given case, we do expect that our
disagreements will focus on the legal issues, providing a level of
discourse appropriate to the state’s highest court. The emotional and
political rhetoric that peppers the dissent is ill-suited to this pursuit.
As to the legal issues the dissent does raise, we accept that, with
respect to the applicability of the Best decision, the members of this
court cannot speak with a unanimous voice. The dissent is as firm in
its belief that Best was wrongly decided as the majority is in its
conclusion that Best is as valid today as it was in 1997 and controls
the disposition of the present case. Our reasons therefor have already
been set forth above, and we find it unnecessary to reiterate those
reasons in contradistinction to the dissent’s views.
We are constrained, however, to respond directly to one issue
raised by the dissent, namely, that this court lacks subject matter
jurisdiction to consider the constitutionality of Public Act 94–677.
Slip op. at 36 (Karmeier, J., concurring in part and dissenting in part,
joined by Garman, J.). Because a reviewing court has a “duty to
consider its jurisdiction and dismiss the appeal if it determines that
jurisdiction is wanting,” we will consider this issue. Archer Daniels
Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984). See also In re
M.W., 232 Ill. 2d 408, 417 (2009) (“lack of subject matter jurisdiction
is not subject to waiver”).
The dissent’s view that this court lacks jurisdiction is based on its
conclusion that plaintiffs lack standing to challenge the
constitutionality of Public Act 94–677 and that the constitutional
issue is not ripe for review. Slip op. at 39 (Karmeier, J., concurring
in part and dissenting in part, joined by Garman J.). As discussed
below, issues of standing and ripeness do not implicate our subject
matter jurisdiction.
The related doctrines of standing and ripeness “seek[ ] to insure
that courts decide actual controversies and not abstract questions.”
People v. $1,124,905 U.S. Currency & One 1988 Chevrolet Astro
Van, 177 Ill. 2d 314, 328 (1997). See also Wexler v. Wirtz Corp., 211
Ill. 2d 18, 23, (2004) (“doctrine of standing is to insure that issues are
raised only by those parties with a real interest in the outcome of the
controversy”); People v. Glisson, 188 Ill. 2d 211, 221 (1999) (same);
Best, 179 Ill. 2d at 382-84 (discussing ripeness with respect to
-25-
declaratory judgment statute); Weber v. St. Paul Fire & Marine
Insurance Co., 251 Ill. App. 3d 371, 372-73 (1993) (“whether an
action is ‘premature,’ that is, not ripe for adjudication, focuses on an
evaluation of the fitness of the issue for judicial decision at that point
in time”).
Under Illinois law, lack of standing is an affirmative defense,
which is the defendant’s burden to plead and prove. Wexler, 211 Ill.
2d at 22-23; In re Estate of Schlenker, 209 Ill. 2d 456, 461, 464
(2004); Greer v. Illinois Housing Development Authority, 122 Ill. 2d
462, 494 (1988). While a lack of subject matter jurisdiction cannot be
forfeited (M.W., 232 Ill. 2d at 417), a lack of standing will be
forfeited if not raised in a timely manner in the trial court (Skolnick
v. Altheimer & Gray, 191 Ill. 2d 214, 237 (2000); Greer, 122 Ill. 2d
at 508; Lyons v. Ryan, 324 Ill. App. 3d 1094, 1101 n.5 (2001)).
Ripeness, like standing, is also subject to forfeiture if not raised in the
trial court. In the Interest of General Order of October 11, 1990, 256
Ill. App. 3d 693, 696 (1993).
In the present case, Gottlieb and Martinoz did not assert in the
trial court that plaintiffs lack standing, nor did they argue that the
constitutional issue was not ripe for review. Thus, we deem these
arguments forfeited by these defendants. Dr. Levi-D’Ancona,
however, did assert lack of standing and ripeness as his first and
second affirmative defenses, and moved for judgment on the
pleadings as to these two defenses. The circuit court rejected Dr.
Levi-D’Ancona’s arguments and denied his motion for judgment on
the pleadings. Relying on Best, the circuit court concluded that
plaintiffs at least had standing to challenge the statutory cap on
noneconomic damages and that the constitutionality of the statutory
cap was ripe for review. The circuit court observed that catastrophic
injuries similar to those pled by plaintiffs in the instant case were pled
in the complaints at issue in Best, and that this court held that
“plaintiffs have alleged a sufficient and direct interest in the
application of the challenged provisions *** to their lawsuits.” Best,
179 Ill. 2d at 383. Significantly, Dr. Levi-D’Ancona did not renew his
standing and ripeness arguments before this court. Under our Rule
341, “[p]oints not argued [in the appellant’s brief] are waived.” 210
Ill. 2d R. 341(h)(7). Accord Skolnick, 191 Ill. 2d at 237 (this court
“will not supply contentions not advanced by the parties”).
-26-
Because issues of standing and ripeness do not implicate this
court’s subject matter jurisdiction, and because the only party who
raised these issues below has abandoned them on review, we decline
to address these issues on the merits.4
CONCLUSION
For the reasons stated, we reverse the judgment of the circuit
court finding the statute unconstitutional as applied to plaintiffs,
affirm the judgment of the circuit court finding the statute facially
invalid, and remand this matter to the circuit court for further
proceedings.
Affirmed in part and reversed in part;
cause remanded.
JUSTICE THOMAS took no part in the consideration or decision
of this case.
4
The dissent’s conclusion that standing and ripeness raise jurisdictional
concerns which this court must address even if the parties have not done so
might be worthy of consideration if this case was proceeding in federal
court. Under federal law, standing is a threshold question under the case-or-
controversy requirement of article III of the United States Constitution
(U.S. Const., art. III, §2; Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d
343, 354, 95 S. Ct. 2197, 2205 (1975)), which plaintiffs bear the burden of
pleading and proving (Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61, 119 L. Ed. 2d 351, 364, 112 S. Ct. 2130, 2136 (1992)). Accord Elk
Grove Unified School District v. Newdow, 542 U.S. 1, 11-12, 159 L. Ed. 2d
98, 108-09, 124 S. Ct. 2301, 2308-09 (2004). Article III standing is
jurisdictional and not subject to waiver. United States v. Hays, 515 U.S.
737, 742, 132 L. Ed. 2d 635, 642, 115 S. Ct. 2431, 2435 (1995). See also
Native American Arts, Inc. v. Waldron Corp., 253 F. Supp. 2d 1041, 1045
(N.D. Ill. 2003) (concluding that, by definition, article III standing is not an
affirmative defense). This court is not required to follow federal law on
issues of standing, and has expressly rejected federal principles of standing.
See Greer, 122 Ill. 2d at 494 (holding that, in Illinois, lack of standing is an
affirmative defense, and contrasting Illinois with federal courts “where lack
of article III (U.S. Const., art. III) standing is a bar to jurisdiction”).
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JUSTICE KARMEIER, concurring in part and dissenting in part:
In a recent address to a joint session of the United States
Congress, President Obama admonished that our nation’s “collective
failure to meet [the] challenge [of health-care reform]–year after year,
decade after decade–has led us to the breaking point.” Millions are
unable to obtain health care coverage,” he asserted; “medical costs are
rising”; and the existing system is “placing an unsustainable burden
on taxpayers.” According to the President, the failure to take
immediate corrective action will be dire: “Our deficit will grow. More
families will go bankrupt. More businesses will close. More
Americans will lose their coverage when they are sick and need it the
most. And more will die as a result.”
In outlining his strategy for addressing this crisis, the President
advanced a multifaceted plan. Although his proposal focused on
expanding health insurance coverage, he also recognized that reform
of medical malpractice laws might aid in reducing our nation’s
health-care costs, while also improving the quality of care delivered
by physicians and received by their patients.
That medical malpractice reforms might have salutary effects on
the delivery of affordable health-care in Illinois was a view shared by
our General Assembly when it enacted Public Act 94–677 in 2005. In
enacting that law, the General Assembly specifically found:
“This health care crisis, which endangers the public
health, safety, and welfare of the citizens of Illinois, requires
significant reforms to the civil justice system currently
endangering health care for citizens of Illinois.” Pub. Act
94–677, §101(4), eff. August 25, 2005.
The types of reforms which the legislature determined to be necessary
were those which would
“enhance the State’s oversight of physicians and ability to
discipline physicians, *** increase the State’s oversight of
medical liability insurance carriers, *** reduce the number of
nonmeritorious healing art malpractice actions, *** limit non-
economic damages in healing art malpractice actions, ***
encourage physicians to provide voluntary services at free
medical clinics, *** encourage physicians and hospitals to
continue providing health care services in Illinois, and ***
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encourage physicians to practice in medical care shortage
areas.” Pub. Act 94–677, §101(5), eff. August 25, 2005.
The majority’s opinion contains a brief description of the
measures adopted by the General Assembly to implement these
objectives. To fully understand what the legislature hoped to
accomplish, however, additional discussion of the particulars of the
program may be helpful.
Section 310 of Public Act 94–677 amended the Illinois Insurance
Code (215 ILCS 5/1 et seq. (West 2004)) to subject medical
malpractice insurance carriers to greater oversight and reporting
requirements. Pub. Act 94–677, §310, eff. August 25, 2005.
Section 315 revised the Medical Practice Act of 1987 (225 ILCS
60/1 et seq. (West 2004)) to modify certain aspects of the disciplinary
process for physicians and create an internet-based system for
providing public access to information regarding such matters as
physicians’ criminal and disciplinary histories, whether a physician’s
hospital privileges have been revoked or involuntarily restricted, and
any medical malpractice judgments or arbitration awards which may
have been entered against a physician. Pub. Act 94–677, §315, eff.
August 25, 2005.
Section 330 (Pub. Act 94–677, §330, eff. August 25, 2005)
amended the Code of Civil Procedure (735 ILCS 5/1–101 et seq.
(West 2004)) by making various changes to the affidavit and written
report requirements set forth in section 2–622 (735 ILCS 5/2–622
(West 2004)), including addition of a requirement that the reviewing
health-care professional’s written report contain the health-care
professional’s name, address, current license number and state of
licensure. Section 330 of the Act also added a new section 2–1704.5
to the Code (735 ILCS 5/2–1704.5 (West 2006)), which allowed
either party to elect to have payments for future medical expenses and
cost of life care made to the prevailing plaintiff in a medical
malpractice action through purchase of an annuity. Another new
provision of the Code added by section 330 of the Act was section
2–1706.5 (735 ILCS 5/2–1706.5 (West 2006)). That statute created
standards for economic and noneconomic damages, including
establishment of limitations on the total amount of noneconomic
damages which could be awarded to plaintiffs in a medical
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malpractice action.5 Two other changes to the Code made by section
330 of the Act were:
(a) inclusion in section 8–1901 (735 ILCS 5/8–1901
(West 2006)) of a provision rendering inadmissible “[a]ny
expression of grief, apology, or explanation” made by a
health-care provider to a patient, a patient’s family or a
“patient’s legal representative” regarding “an inadequate or
unanticipated treatment or care outcome” provided within 72
hours of when “the provider knew or should have known of
the potential cause of such outcome”; and
(b) revision of section 8–2501 (735 ILCS 5/8–2501 (West
2006)) regarding expert witness standards.
Section 340 of the Act amended section 30 of the Good Samaritan
Act (745 ILCS 49/30 (West 2006)) to expressly include retired
physicians within its immunities and to add a provision allowing free
clinics to receive reimbursement from the Illinois Department of
Public Aid subject to the condition that any such reimbursements
shall be used exclusively to pay the overhead expenses of operating
the clinic and may not be used to provide a fee or other compensation
to physicians or health care professionals receiving an exemption
from liability under the law’s provisions. Pub. Act 94–677, §340, eff.
August 25, 2005.
Finally, article 4 of the Act (Pub. Act 94–677, §§401 through 495,
eff. August 25, 2005), codified at 710 ILCS 45/401 et seq. (West
2006)), created a new Sorry Works! Pilot Program Act. The program
was intended to assess whether prompt apologies by hospitals and
physicians for errors in patient care accompanied by prompt offers of
fair settlements have an effect on the costs the hospitals and
physicians ultimately expend on healing art malpractice claims. The
program was to be of limited duration, no more than two years unless
5
In the case of awards against “a hospital and its personnel or hospital
affiliates” based on medical malpractice, the total amount of noneconomic
damages awarded to all plaintiffs is limited to $1 million. When the action
is against “a physician and the physician’s business or corporate entity and
personnel or health care professional,” the limit is $500,000. 735 ILCS
5/2–1706.5 (West 2006).
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terminated sooner by the program’s oversight committee. 710 ILCS
45/415 (West 2006). It also had limited participation. In its first year,
it was to include just one hospital. The following year, provided the
program was not terminated, one additional hospital could be added.
710 ILCS 45/405 (West 2006).
While the need for health-care reform has gained nearly universal
recognition, the means for achieving that reform have been the
subject of intense debate. Some fear that government-mandated
changes will distort the health-care market, impede access to health-
care resources and interfere with the physician-patient relationship.
Others insist that unless the government takes strong and immediate
action to overhaul the current system, the costs of medical care will
exceed our society’s ability to bear them, leaving increasing numbers
of our citizens without access to vital health-care services.
The sentiments expressed by President Obama in his recent
address to Congress and the action taken by our General Assembly
through enactment of Public Act 94–677 are clearly premised on the
latter view. Whether this view is a sound one is a judgment our court
is not competent to render. Public policy determinations of this kind
are ultimately a matter for the legislature. Household Bank, FSB v.
Lewis, 229 Ill. 2d 173, 182 (2008). It is not our function to weigh the
wisdom of legislation or decide whether the policy it expresses
offends public welfare. Roselle Police Pension Board v. Village of
Roselle, 232 Ill. 2d 546, 557 (2009). This is no less true in matters
pertaining to health care. To the contrary, we have repeatedly noted
that the General Assembly has wide regulatory power with respect to
the health-care professions and that it is within the broad discretion
of the legislature “ ‘to determine not only what the public interest and
welfare require, but to determine the measures needed to secure such
interest.’ ” Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 40-
41 (2001), quoting Chicago National League Ball Club, Inc. v.
Thompson, 108 Ill. 2d 357, 364 (1985).
In his partial dissent in Mohanty v. St. John Heart Clinic, S.C.,
225 Ill. 2d 52 (2006), another case involving physicians, Justice
Freeman recently reminded us that
“ ‘[t]he primary expression of Illinois public and social
policy should emanate from the legislature. This is especially
true regarding issues like the present one, where there is
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disagreement on whether a new rule is warranted. The
members of our General Assembly, elected to their offices by
the citizenry of this State, are best able to determine whether
a change in the law is desirable and workable.
*** The General Assembly, by its very nature, has a
superior ability to gather and synthesize data pertinent to the
issue. It is free to solicit information and advice from the
many public and private organizations that may be impacted.
Moreover, it is the only entity with the power to weigh and
properly balance the many competing societal, economic, and
policy considerations involved.’ ” Mohanty, 225 Ill. 2d at 96
(Freeman, J., concurring in part and dissenting in part),
quoting Charles v. Seigfried, 165 Ill. 2d 482, 493 (1995).
Our appellate court expressed the same principles this way:
“the authority to determine appropriate public policy is vested
in the legislature, not the courts. [Citations.] This court has
explained the reason that courts should be very cautious in
establishing public policy:
‘Courts are ill equipped to determine what the public
policy should be. Seldom are all interested parties, all
facts, and all issues present in a single case, where the
court can rationally balance all the factors necessary to
establish a policy good for society. Further, establishing
public policy may entail the balancing of political
interests. This is a function of the legislature, not the
courts.’ [Citation.]” Board of Education of Dolton School
District 149 v. Miller, 349 Ill. App. 3d 806, 811 (2004).
Because the formulation and implementation of public policy are
principally legislative functions, the courts afford substantial
deference to legislative enactments. Under Illinois law, statutes carry
a strong presumption of constitutionality. People v. McCarty, 223 Ill.
2d 109, 135 (2006). The burden of rebutting that presumption is on
the party challenging the statute. The burden is a heavy one. The party
challenging the law must clearly establish that it violates the
constitution. People v. Johnson, 225 Ill. 2d 573, 584 (2007). If it is
reasonably possible to uphold the constitutionality of a statute, a court
must do so. Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306-07
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(2008). We cannot nullify a legislative enactment merely because we
consider it unwise or believe it offends the public welfare. Roselle
Police Pension Board v. Village of Roselle, 232 Ill. 2d 546, 558
(2009). For us to second-guess the wisdom of legislative
determinations would, in fact, be prohibited by article II, section 1, of
the Illinois Constitution of 1970, which expressly states that “[n]o
branch shall exercise powers properly belonging to another.” In my
view, the majority’s opinion today flatly violates this prohibition.
While my colleagues purport to defend separation of powers
principles, it is their decision, not the action of the General Assembly,
which constitutes the improper incursion into the power of another
branch of government.
One point on which I agree with the majority is that the circuit
court erred in holding the statutory provision at issue here
unconstitutional “as applied.” For the reasons given by the majority,
the only question properly before us is whether the statute is
unconstitutional on its face. See slip op. at 6.
A facial challenge to the constitutionality of a legislative
enactment, such as the one brought here, is the most difficult to
mount because the circumstances in which a statute is facially invalid
are so limited. The fact that the enactment could be found
unconstitutional under some set of circumstances does not establish
its facial invalidity. Napleton v. Village of Hinsdale, 229 Ill. 2d at
305-06. To successfully challenge a statute as unconstitutional on its
face, one must show that the statute would be invalid under any
imaginable set of circumstances. As long as there exists some
situation in which a statute could be validly applied, a facial challenge
must fail. In re M.T., 221 Ill. 2d 517, 536-37 (2006).
Reduced to its essence, the majority’s argument is that Public Act
94–677 is unenforceable because the limitation on noneconomic
damages contained in section 330 of the Act, codified as section
2–1706.5 of the Code of Civil Procedure (735 ILCS 5/2–1706.5
(West 2006)), constitutes an impermissible encroachment upon the
inherent power of the judiciary to correct jury verdicts through
remittitur. In the majority’s view, this conclusion is compelled by our
prior decision in Best v. Taylor Machine Works, 179 Ill. 2d 367
(1997), which invalidated Public Act 89–7 based on a provision in the
law which amended the Code of Civil Procedure by placing a
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$500,000 cap on compensatory damages for noneconomic injuries in
“all common law, statutory or other actions that seek damages on
account of death, bodily injury, or physical damage to property based
on negligence, or product liability based on any theory or doctrine.”
735 ILCS 5/2–1115.1(a) (West 1996).
Before addressing the merits of the majority’s analysis, there is a
preliminary matter I feel constrained to raise. While I agree that a
significant constitutional question is presented by the issue of whether
the limits on noneconomic damages in medical malpractice actions
imposed by section 330 of Public Act 94–677 violate separation of
powers principles under our decision in Best , I question whether this
particular case is an appropriate vehicle for resolving the question.
That is so for two reasons. The first is jurisprudential. The second
pertains to justiciability.
Best was decided more than a decade ago. Since that time, our
court has applied the standards governing constitutional challenges to
state statutes with heightened diligence. We made the point recently
in People v. Hampton, where we held:
“Shortly after the appellate court’s opinion was entered in
this case, this court reaffirmed our long-standing rule that
‘cases should be decided on nonconstitutional grounds
whenever possible, reaching constitutional issues only as a
last resort.’ In re E.H., 224 Ill. 2d 172, 178 (2006). We
reminded courts that they must avoid reaching constitutional
issues when a case can be decided on other, nonconstitutional
grounds. In re E.H., 224 Ill. 2d at 178. Constitutional issues
should be addressed only if necessary to decide a case. People
v. Waid, 221 Ill. 2d 464, 473 (2006), quoting People ex rel.
Sklodowski v. State of Illinois, 162 Ill. 2d 117, 131 (1994). As
noted in E.H., this court has gone so far as to add a
requirement to our rules that courts include a written
statement that the decision cannot rest upon an alternate,
nonconstitutional basis before deciding a case on
constitutional grounds. In re E.H., 224 Ill. 2d at 178, citing
210 Ill. 2d R. 18(c)(4) (effective September 1, 2006).” People
v. Hampton, 225 Ill. 2d 238, 243-44 (2007).
Applying these principles in Hampton, we held that the appellate
court had prematurely considered the constitutionality of the statute
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challenged in that case and vacated the portion of its judgment
addressing that constitutional issue. People v. Hampton, 225 Ill. 2d
at 245. The same result is appropriate here.
In the case before us, the circuit court did enter an order under
Rule 18(c)(4) in which it held that its judgment could not rest on an
alternative, nonconstitutional ground. At this point, however, no basis
for that finding exists. Should defendants prevail or should the
damages awarded by the jury be less than the limits imposed under
Public Act 94–677, judgment can certainly be entered without
addressing the law’s constitutionality.
To be sure, an immediate ruling on the validity of the law may
yield efficiencies for the resolution of this particular case or other
cases in which Public Act 94–677’s limits on noneconomic damages
hover as a potential constraint on a party’s recovery. We have clearly
held, however, that interests of efficiency or judicial economy do not
justify addressing a constitutional issue before it is necessary to reach
it. People v. Hampton, 225 Ill. 2d at 244-45.
Jurisprudential restraint regarding constitutional questions is not
a principle we are free to follow or ignore as we see fit, for it goes to
the very foundations of our tripartite system of government. As we
explained in Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d
169, 176 (2007),
“[t]he Illinois Constitution establishes three coequal branches
of government, each with its own powers and functions. Ill.
Const. 1970, art. II, §1. The constitution declares that the
legislative branch makes laws, and that the judicial branch
decides cases. *** The determination of the constitutionality
of a statute when not required to decide the case can impinge
upon the lawmaking function of the legislature. [Citation.]
The policy of prudential judicial restraint is grounded in those
considerations that form the unique character of judicial
review of government action for constitutionality. The policy
is based on the delicacy of that function, the necessity of each
branch of government keeping within its power, and the
inherent limitations of the judicial process. [Citation.]”
By proceeding to the constitutional issue in this case, when doing so
is not yet necessary for resolution of the case, the majority has
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disregarded these fundamental principles. Under the reasoning of
Ultsch, its decision impermissibly trenches upon the authority of the
General Assembly.
A second and equally fundamental concern regarding whether it
is appropriate for us to reach the constitutional question at this stage
of the proceedings is justiciability. Article VI, section 9, of the Illinois
Constitution of 1970 expressly provides that circuit courts have
original jurisdiction over “all justiciable matters except when the
Supreme Court has original and exclusive jurisdiction.” In order to
invoke the subject matter jurisdiction of the circuit court, a plaintiff’s
case, as framed by the complaint or petition, must therefore present
a justiciable matter. Belleville Toyota, Inc. v. Toyota Motor Sales,
U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). See also In re M.W., 232 Ill.
2d 408, 426 (2009).
Generally, a “justiciable matter” is “ ‘a controversy appropriate
for review by the court, in that it is definite and concrete, as opposed
to hypothetical or moot, touching upon the legal relations of parties
having adverse legal interests.’ [Citation.]” In re M.W., 232 Ill. 2d at
424. In ascertaining whether a justiciable matter has been presented,
courts consider various criteria including standing and ripeness. See
Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008). In the
circuit court, Dr. Levi-D’Ancona. raised both these issues. He argued
that plaintiffs lacked standing to challenge the statute or, in the
alternative, that plaintiffs’ challenge was not yet ripe for adjudication.
The circuit court rejected Dr. Levi-D’Ancona’s standing and ripeness
challenges in so far as they pertained to plaintiffs’ claim for a
declaratory judgment that the portion of Public Act 94–677 adding
section 2–1706.5 to the Code of Civil Procedure contravened the
separation of powers provision of our state’s constitution (Ill. Const.
1970, art. II, §1). In my view, however, that was error.6
6
Although Dr. Levi-D’Ancona did not argue the ripeness and standing
issues in the brief he filed in our court, the issues should not be deemed to
have been waived. Standing is not a procedural technicality, but rather is
an aspect or component of justiciability. Bridgestone/Firestone, Inc. v.
Aldridge, 179 Ill. 2d 141, 147 (1997). The same is true of ripeness. We
have therefore held that when a plaintiff lacks standing to assert a claim or
a dispute is not ripe for adjudication, the circuit court’s judgment must be
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Standing is an aspect of justiciability in which the primary focus
is upon the personal stake in the outcome of the controversy of the
person seeking the adjudication of a particular issue. The person
seeking to invoke the jurisdiction of the court must have some real
interest in the cause of action, or a legal or equitable right, title or
interest in the subject matter of the controversy. See Illinois
Municipal League v. Illinois State Labor Relations Board, 140 Ill.
App. 3d 592, 598 (1986). This requirement is not excused in
declaratory judgment actions. To the contrary, we have expressly held
that standing is a preliminary question in all declaratory judgment
actions. Village of Chatham v. County of Sangamon, 216 Ill. 2d 402,
419 (2005).
The doctrine of standing ensures that issues are raised only by
parties with a real interest in the outcome of the controversy. Under
the law of this state, standing is shown by demonstrating some injury
to a legally cognizable interest. The claimed injury, whether actual or
threatened, must be distinct and palpable, fairly traceable to the
defendant’s actions, and substantially likely to be prevented or
redressed by the grant of the relief requested. In the context of a
declaratory judgment action, “ ‘there must be an actual controversy
between adverse parties, with the party requesting the declaration
possessing some personal claim, status, or right which is capable of
being affected by the grant of such relief.’ ” Village of Chatham v.
County of Sangamon, 216 Ill. 2d at 419-20, quoting Greer v. Illinois
Housing Development Authority, 122 Ill. 2d 462, 493 (1988).
While the essence of the standing inquiry is whether a particular
party is entitled to have the court decide the merits of a dispute,
ripeness is concerned with the fitness of the issue for judicial decision
at a particular point in time. See Preferred Personnel Services, Inc.
v. Meltzer, Purtill & Stelle, LLC, 387 Ill. App. 3d 933, 938 (2009). In
evaluating a ripeness challenge to a declaratory judgment action, the
court considers whether a ruling on the dispute would be premature,
for a “court cannot pass judgment on mere abstract propositions of
set aside for lack of subject matter jurisdiction. People v. Capitol News,
Inc., 137 Ill. 2d 162, 170 (1990). Lack of subject matter jurisdiction is not
subject to waiver and cannot be cured through consent of the parties. In re
M.W., 232 Ill. 2d at 417.
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law, render an advisory opinion, or give legal advice as to future
events.” See Stokes v. Pekin Insurance Co., 298 Ill. App. 3d 278, 281
(1998) (upholding dismissal of action seeking declaration that
insurance policy limits exceeded $100,000 on the grounds that
underlying liability had yet to be determined and that bare allegations
in complaint were insufficient to establish existence of actual
controversy).
Where, as here, plaintiffs attack a statute as unconstitutional, they
must bring themselves within the class as to whom the law is
allegedly constitutionally objectionable. Whether the requisite
standing exists must be determined on a case-by-case basis.
Messenger v. Edgar, 157 Ill. 2d 162, 171 (1993). It is therefore
pertinent to inquire who is and who is not complaining. Courts do not
rule on the constitutionality of a statute where the complaining party
is only theoretically affected by the alleged invalidity of the provision.
See Illinois Municipal League v. Illinois State Labor Relations
Board, 140 Ill. App. 3d at 599. To have standing to bring a
declaratory judgment action challenging the validity of a statute, one
must have sustained, or be in immediate danger of sustaining, a direct
injury as a result of enforcement of the statute. Village of Chatham v.
County of Sangamon, 216 Ill. 2d at 419-20.
The plaintiffs in this case have not yet prevailed on any of their
medical malpractice claims against any of the defendants named in
their complaint. The case remains at the pleading stage, and the
allegations of malpractice contained in the complaint have been
denied. Whether defendants will ultimately be found liable for
plaintiffs’ injuries and, if liable, whether plaintiffs will succeed in
establishing a basis for an award of noneconomic damages in excess
of the limits imposed by that portion of Public Act 94–677 adding
section 2–1706.5 to the Code of Civil Procedure is therefore entirely
speculative.
In the circuit court, the sole factual predicate advanced by
plaintiffs in support of their assertion that they are already facing
sufficient harm to satisfy standing requirements was the allegations
set forth in their complaint. Plaintiffs’ position is that those
allegations are comparable to the allegations we found sufficient in
Best v. Taylor Machine Works, 179 Ill. 2d at 383-84, when rejecting
a ripeness challenge to the validity of the statute at issue there. There
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is, however, in a fundamental difference between how the issue was
raised in this case and how it came before us in Best. In Best, the
particular question of ripeness was decided in the context of motions
to dismiss under section 2–615 of the Code of Civil Procedure (735
ILCS 5/2–615 (West 2006)) filed by the opposing parties. Best v.
Taylor Machine Works, 179 Ill. 2d at 382. The allegations in the
complaint could therefore be taken as true. Here, by contrast, the
matter was decided in the context of separate motions filed by
plaintiffs and defendant Dr. Levi-D’Ancona under section 2–615
motions which were directed at their own respective pleadings. By
electing to proceed in this way, plaintiffs and Dr. Levi-D’Ancona
have conceded that the allegations in their respective pleadings are
false in so far as they have been controverted by opposing pleadings.
See Christensen v. Wick Building Systems, Inc., 64 Ill. App. 3d 908,
912 (1978). As we have noted, Dr. Levi-D’Ancona has vigorously
contested the factual basis for plaintiffs’ claims against him. The
factual basis which enabled our court to reject the ripeness challenge
in Best is therefore absent here.
Our court has recognized that an issue which is otherwise
nonjusticiable may nevertheless be examined when the magnitude or
immediacy of the interests involved warrant action by the court. This
so-called “public interest” exception arises most often when a matter
has become moot and, in that context, requires (1) the existence of a
question of public importance; (2) the desirability of an authoritative
determination for the purpose of guiding public officers in the
performance of their duties; and (3) the likelihood that the question
will recur. People v. Jackson, 231 Ill. 2d 223, 228 (2008).
While this court has never extended the doctrine to cases where
the problem with justiciability pertains to standing or ripeness, our
appellate court has ruled that the reasoning of our “public interest
exception” cases should also permit an exception to the ripeness
doctrine. See In re General Order of October 11, 1990, 256 Ill. App.
3d 693, 696 (1993). Assuming, without deciding, that the appellate
court’s view is correct, invocation of the doctrine is not warranted
here.
The public interest exception is construed narrowly and requires
a clear showing of each element before it may be applied. People v.
Jackson, 231 Ill. 2d 223, 228 (2008). That standard cannot be met in
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this case. While it is evident that plaintiffs and the numerous entities
which have filed friend of the court briefs are keenly interested in our
views on the validity of the Public Act 94–677’s caps on
noneconomic damages, the law has been in effect since 2005. It is
now 2010. To my knowledge, there has yet to be a single documented
instance from any circuit in which any victim of medical malpractice
has seen his or her award of noneconomic damages actually reduced
pursuant to this statute.
Had such a reduction occurred, it would be easy to identify. There
would be a specific court order reducing the plaintiff’s recovery. That
is so because, under the portion of section 330 of Public Act 94–677
(Pub. Act 94–677, §330, eff. August 25, 2005) adding section
2–1706.5 to the Code of Civil Procedure, the court is prohibited from
informing the trier of fact of the existence of the statutory caps. The
jury is therefore free to award any amount supported by the evidence
and the principles governing liability. The caps are implemented by
the court only if the jury’s award exceeds the statutory maximum.
In some venues, the absence of affected judgments may be
attributable to counsel’s decision to forebear from proceeding to trial
until they see how this case is resolved. I do not believe, however,
that this explanation can account for the apparently universal absence
of cases in which the statute has been applied to a plaintiff’s
detriment. Opponents of the statutory caps theorize that the caps are
most likely to be triggered where substantial economic damages have
been suffered. I point out later in this dissent that this assumption is
flawed, but let us assume for purposes of the present discussion that
it is valid. Given that resolution of this case could have no effect
whatever on compensable economic damages, recovery of which is
free from any statutory maximums, and considering the compelling
financial incentives which always exist for recouping substantial
economic losses as expeditiously as possible, I think it doubtful that
every lawyer in every serious medical malpractice case in this state
has refrained from prosecuting meritorious claims for economic
damages merely because of the prospect that the amount of
noneconomic damages his or her clients may recover may ultimately
be subject to the caps at issue here. In any event, whatever the
explanation, one can at least say this: there is nothing in the record
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before us today that would justify bypassing the normal requirements
for justiciability.
Under these circumstances, the majority’s rush to address the
constitutionality of Public Act 94–677 is not only inconsistent with
established principles of appellate review and judicial restraint, it
violates a central requirement imposed by article VI, section 9, of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, §9). This is
clearly impermissible. We have no business telling the General
Assembly that it has exceeded its constitutional power if we must
ignore the constitutional constraints on our own authority to do so.
Even if I agreed that this matter was properly before us for a
decision on the merits, I could not concur in the majority’s opinion.
The majority bases its analysis on that portion of this court’s decision
in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997), which found
that the cap on noneconomic damages contained in Public Act 89–7,
eff. March 9, 1995, violated the separation of powers clause of the
Illinois Constitution of 1970 (Ill. Const. 1970, art. II, §1). As Justice
Bilandic noted in his special concurrence in Best, however, that
opinion’s discussion of “the constitutionality of the damage’s cap
under the separation of powers doctrine *** [was] wholly
unnecessary and constitutes dicta.” Best, 179 Ill. 2d at 471 (Bilandic,
J., specially concurring). Dicta is not binding authority. Geer v.
Kadera, 173 Ill. 2d 398, 414 (1996). Even a “judicial dictum” does
not preclude reconsideration of a point of law. Nothing in any of this
court’s decisions, including its recent decision Exelon Corp. v.
Department of Revenue, 234 Ill. 2d 266 (2009), holds otherwise.
I note, moreover, that the legislation at issue here is substantially
different from Public Act 89–7. Public Act 89–7 was a
comprehensive tort reform package which imposed limits on
noneconomic damages “[i]n all common law, statutory or other
actions that seek damages on account of death, bodily injury, or
physical damage to property based on negligence, or product liability
based on any theory or doctrine.” 735 ILCS 5/2–1115.1(a) (West
1996). By contrast, Public Act 94–677 represents an attempt by the
General Assembly to deal in a focused and particular way with the
health-care crisis it believed was threatening the health and welfare
of our citizens.
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A similar situation was recently faced by the Supreme Court of
Ohio in Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-
Ohio-6948, where it was called upon to consider the constitutionality
of four tort-reform statutes implemented by Ohio’s legislature in
2005. The plaintiff in that case argued that the statutes were
functionally equivalent to laws which the courts had previously
invalidated on, inter alia, separation of powers grounds, and that,
under stare decisis, the court should be compelled to declare the new
statutes invalid for the same reasons. In rejecting that argument, the
court wrote:
“While stare decisis applies to the rulings rendered in
regard to specific statutes, it is limited to circumstances
‘where the facts of a subsequent case are substantially the
same as a former case.’ [Citation.] We will not apply stare
decisis to strike down legislation enacted by the General
Assembly merely because it is similar to previous enactments
that we have deemed unconstitutional. To be covered by the
blanket of stare decisis, the legislation must be phrased in
language that is substantially the same as that which we have
previously invalidated.
A careful review of the statutes at issue here reveals that
they are more than a rehashing of unconstitutional statutes. In
its continued pursuit of reform, the General Assembly has
made progress in tailoring its legislation to address the
constitutional defects identified by the various majorities of
this court. The statutes before us here are sufficiently different
from the previous enactments to avoid the blanket application
of stare decisis and to warrant a fresh review of their
individual merits.” Arbino v. Johnson & Johnson, 116 Ohio
St. 3d 468, 2007-Ohio-6948, at ¶¶23-24.
In my view, these considerations militate in favor of undertaking
a new analysis, independent of what we may have said in Best,
regarding validity of the damages caps established by section 330 of
Public Act 94–677. However, even if I accepted, for the sake of
argument, that the rationale of Best was otherwise controlling, I still
could not join the majority’s opinion.
The doctrine of stare decisis is never an inexorable command.
When it is clear a court has made a mistake, it will not decline to
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correct it, even if the mistake has been reasserted and acquiesced in
for many years. People v. Colon, 225 Ill. 2d 125, 146 (2007). Indeed,
while adherence to stare decisis is important to the stability of the
law, when doubts are raised in the mind of the court as to the
correctness of a prior decision, it is the court’s duty to reexamine the
question involved in the prior case. Doggett v. North American life
Insurance Co. of Chicago, 396 Ill. 354, 360-61 (1947). Good cause
exists to depart from stare decisis when serious detriment to the
public interest is otherwise likely to result or where the precedent is
poorly reasoned or has proven unworkable. Tuite v. Corbitt, 224 Ill.
2d 490, 506 (2006). As so defined, good cause exists to reject this
court’s separation of powers analysis in Best.
Best’s conclusion that legislative caps on noneconomic damages
offend the separation of powers clause of the Illinois Constitution
rests entirely on the notion that such caps are the equivalent of a
remittitur, which courts alone have the authority to grant. For the
reasons which follow, this proposition is untenable.
First, remittitur is not a power specifically vested in the courts by
our constitution or the Constitution of the United States. It was
introduced into American jurisprudence by Justice Story in Blunt v.
Little, 3 F. Cas. 760 (D. Mass. 1822), a case he decided while sitting
on circuit in the federal district court in Massachusetts. While the
doctrine has gained acceptance in most United States jurisdictions, it
has itself been challenged as an unconstitutional abridgment of the
right to trial by jury. See Dimick v. Schiedt, 293 U.S. 474, 484, 79 L.
Ed. 603, 610, 55 S. Ct. 296, 300 (1935) (recognizing validity of
doctrine based on historical practice in the federal courts after 1822,
but observing that “it *** may be that if the question of remittitur
were now before us for the first time, it would be decided
otherwise”).
Debate over the propriety of judicial remittitur has been recurrent.
As recently as 1985, for example, the doctrine of remittitur was
abolished in Missouri by that state’s supreme court, which noted that
its “application in the appellate courts has been questioned since its
inception in Missouri as an invasion of a party’s right to trial by jury
and an assumption of a power to weigh the evidence, a function
reserved to the trier(s) of fact.” Firestone v. Crown Center
Redevelopment Corp., 693 S.W.2d 99, 110 (Mo. 1985). The doctrine
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exists in that state today only because it was subsequently authorized
by the Missouri legislature. See Myers v. Morrison, 822 S.W.2d 906,
910 (Mo. App. 1991).
The view taken by the majority in this case that judicial remittitur
enjoys special constitutional protection is therefore unsupported by
the doctrine’s origins and history. If anything, the opposite is true.
The doctrine is constitutionally suspect. Accordingly, while remittitur
may sometimes be employed by Illinois courts, it cannot, in any
meaningful way, be viewed as an essential component of the judicial
power vested in those courts by the Illinois Constitution of 1970.
Second, the majority’s analysis perpetuates the misconception,
followed in Best, that legislatively imposed limits on damages in civil
cases are comparable to traditional judicial remittiturs. They are not.
When a court reduces a jury award to comply with a statutory
damages cap, it is in no sense reexamining a jury’s verdict or
imposing its own factual determination regarding what a proper
award might be. Rather, it is simply implementing “a legislative
policy decision to reduce the amount recoverable to that which the
legislature deems reasonable.” See Estate of Sisk v. Manzanares, 270
F. Supp. 2d 1265, 1277-78 (D. Kan. 2003); see also Myers v. Central
Florida Investments, Inc., No. 6:04–cv–1542–Orl–28DAB, slip op.
at 20 (M.D. Fla. October 23, 2008). Because reduction of an award to
comport with legal limits does not involve a substitution of the
court’s judgment for that of the jury, but rather is a determination that
a higher award is not permitted as a matter of law, it is not a remittitur
at all. See Johansen v. Combustion Engineering, Inc., 170 F.3d 1320,
1330-31 (11th Cir. 1999).
Justice Miller correctly recognized this point in his partial dissent
in Best. See Best, 179 Ill. 2d at 481 (Miller, J., concurring in part and
dissenting in part). State courts of review considering damages caps
in the wake of Best have uniformly reached the same conclusion.
Rejecting Best, they have held that such caps are distinguishable from
judicial remittiturs and constitute a legitimate exercise of legislative
power. See Arbino v. Johnson & Johnson, 116 Ohio St. 3d 468, 2007-
Ohio-6948, at ¶¶73-76 (statutory limit on noneconomic damages did
not exceed legislature’s power and impermissibly intrude on judicial
power to decide damages); Garhart v. Columbia/Healthone, L.L.C.,
95 P.3d 571, 581-82 (Colo. 2004) (“[w]e *** join those states that
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have upheld damages caps as not infringing impermissibly on the
judicial role in the separation of powers”); Rhyne v. K-Mart Corp.,
358 N.C. 160, 168-69, 594 S.E.2d 1, 8 (2004) (statutory damages
caps are a proper exercise of legislature’s policymaking authority, and
because they do not grant the legislature the authority to reduce
excessive awards on a case-by-case basis, they are not a form of
remittitur); Judd v. Drezga, 2004 UT 91, ¶38, 103 P.3d 135 (statutory
cap on noneconomic damages upheld against separation of powers
challenge on the grounds that it was a permissible exercise of the
legislature’s power to declare what the law shall be, not an improper
usurpation of the judiciary’s function to decide controversies);
Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918,
956, 663 N.W.2d 43, 77 (2003) (damages cap does not act as a
legislative remittitur or otherwise violate principles of separation of
powers because it does not ask legislature to review a specific dispute
and determine the amount of damages. Instead–without regard to the
facts of a particular case–the cap imposes a limit on recovery in all
medical malpractice cases as a matter of legislative policy); Waste
Disposal Center, Inc. v. Larson, 74 S.W.3d 578, 590 (Tex. App.
2002) (legislature had authority under state constitution to impose
statutory damages cap and such cap is not an impermissible limit on
judiciary’s constitutional powers or jurisdiction); Evans v. State, 56
P.3d 1046, 1055 (Alaska 2002) (“damages caps cannot violate the
separation of powers, because the caps do not constitute a form of
remittitur”); Zdrojewski v. Murphy, 254 Mich. App. 50, 82, 657
N.W.2d 721, 739 (2002) (statutory limit on noneconomic damages in
medical malpractice actions was legitimate exercise of legislature’s
authority to enact substantive law and did not impermissibly infringe
on power of the judiciary to instruct jury and provide forum for
redress of grievances); Verba v. Ghaphery, 210 W. Va. 30, 35, 552
S.E.2d 406, 411 (2001) (legislature may set reasonable limits on
damage caps in civil actions without violating separation of powers
principles); Kirkland v. Blaine County Medical Center, 134 Idaho
464, 471, 4 P.3d 1115, 1122 (2000) (statutory cap on noneconomic
damages does not impermissibly infringe on the judiciary’s traditional
power of remittitur and was within the legislature’s power to enact);
Guzman v. St. Francis Hospital, Inc., 2001 WI App. 21, ¶17, 240
Wis. 2d 559, 623 N.W.2d 776 (statute setting cap on noneconomic
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damages does not interfere with court’s discretion to order remittitur,
and legislature’s action in adopting damages cap does not violate
separation of powers); Owens-Corning v. Walatka, 125 Md. App.
313, 335-39, 725 A.2d 579, 590-92 (1999) (it is within the power of
the legislature to enact statutory caps, and such caps do not interfere
with a litigant’s right to a jury trial or infringe upon the judiciary’s
control over court proceedings); Pulliam v. Coastal Emergency
Services of Richmond, Inc., 257 Va. 1, 21-23, 509 S.E.2d 307, 319
(1999) (legislative damage caps do not invade the province of the
judiciary).
In a law review note written shortly after Best was decided, a
student at Northwestern University Law School opined that the
court’s remittitur analysis offered “a powerful new weapon in the
arsenal of those opposed to damages caps.” Note, Best v. Taylor
Machine Works, The Remittitur Doctrine, and the Implications for
Tort Reform, 94 Nw. U.L. Rev. 227, 272 (1999). As the foregoing
discussion suggests, however, the weapon has proved to be a dud.
With the exception of the majority’s opinion today, Best’s remittitur
analysis has not only been rejected by the federal courts, it has failed
to carry the day in any reported decision in any other state in the
United States since it was filed 12 years ago.
The majority makes the point that we should not follow a
particular course of conduct merely because “everybody is doing it.”
Slip op. at 22. This is sound advice indeed, and I have always
encouraged my children to follow it. Here is another useful tip: “It
can be no dishonor to learn from others when they speak good sense.”
Sophicles, Antigone (trans. E. Wyckoff). In my opinion, the view
taken by the other states and by the federal courts, namely, that
statutory damages caps are not equivalent to remittitur, is eminently
sensible and should be adopted in Illinois.
The separation of powers analysis in Best is flawed for another
reason as well. It fails to acknowledge the legislature’s constitutional
power to make, amend, alter and abolish the laws of this state. See
Waste Disposal Center, Inc. v. Larson, 74 S.W.3d at 590.
The power of our legislature to change the law is not limited to
laws enacted by the General Assembly itself. It also extends to the
common law. Our Common Law Act (5 ILCS 50/0.01 et seq. (West
2008)) expressly provides:
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“The common law of England, so far as the same is
applicable and of a general nature, and all statutes or acts of
the British parliament made in aid of, and to supply the
defects of the common law, prior to the fourth year of James
the First, excepting the second section of the sixth chapter of
43d Elizabeth, the eighth chapter of 13th Elizabeth, and ninth
chapter of 37th Henry Eighth, and which are of a general
nature and not local to that kingdom, shall be the rule of
decision, and shall be considered as of full force until
repealed by legislative authority.” (Emphasis added.) 5 ILCS
50/1 (West 2008).
Legislative authority in Illinois is vested in our General Assembly. Ill.
Const. 1970, art. IV, §1. Consistent with these principles, it has long
been recognized that “[t]he Illinois General Assembly has the
inherent power to repeal or change the common law, or do away with
all or part of it.” People v. Gersch, 135 Ill. 2d 384, 395 (1990);
Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
519 (2000). Indeed, our legislature has been “formally recognized as
having a superior position to that of the courts in establishing
common law rules of decision.” People v. Gersch, 135 Ill. 2d at 395.
In accordance with its place in our constitutional and statutory
order, the legislature possesses broad discretion to determine whether
a proposed statute which would restrict or alter an existing remedy is
reasonably necessary to promote the general welfare. Bilyk v. Chicago
Transit Authority, 125 Ill. 2d 230, 245 (1988). It may not exercise that
discretion in a way which is not rationally related to a legitimate
government interest. As the majority points out, however, whether
there is a rational basis for damages caps was not part of Best’s
separation of powers analysis and is not relevant to the question
before us today. Slip op. at 14-20.
Limitation or abolition of common law remedies by the
legislature sometimes triggers challenges under article I, section 12,
of the Illinois Constitution, which provides:
“Every person shall find a certain remedy in the laws for
all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by law,
freely, completely, and promptly.” Ill. Const. 1970, art. I, §12.
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The courts have held, however, that even this provision does not
prevent the legislature from doing such things as limiting the time
within which an action may be brought, even if the statute could have
the effect of barring a party’s cause of action before the discovery of
the ground for it; elevating the standard of care for tort liability from
ordinary negligence to wilful and wanton negligence; or, most
importantly for this case, restricting the type or amount of damages
a party may recover. Bilyk v. Chicago Transit Authority, 125 Ill. 2d
at 245.
The majority posits that the authority which the legislature would
otherwise have to change the common law is constrained in this case
by the separation of powers doctrine. For the reasons previously
discussed, however, the cap on noneconomic damages imposed by
section 330 of Public Act 94–677 in no way usurps the power of the
judiciary. It is an altogether proper exercise of the legislature’s
authority to change the common law. Given that the legislature is
fully empowered to alter common law remedies, it cannot contravene
separation of powers principles when it exercises that power as it did
in this case. See Kirkland v. Blaine County Medical Center, 134
Idaho at 471, 4 P.3d at 1122 (“[b]ecause it is properly within the
power of the legislature to establish statutes of limitations, statutes of
repose, create new causes of action, and otherwise modify the
common law without violating separation of powers principles, it
necessarily follows that the legislature also has the power to limit
remedies available to plaintiffs without violating the separation of
powers doctrine”).
Faced with universal rejection of Best’s separation of powers
analysis, the majority clings to the decision based on the principle that
“ ‘[t]his court’s jurisprudence of state constitutional law cannot be
predicated on *** the actions of our sister states ***.’ ” Slip op. at 23.
But the passage they cite, which is from People v. Caballes, 221 Ill.
2d 282, 313 (2006) (Caballes II), is taken out of context. At issue in
Caballes was whether a canine sniff constituted a “search” within the
meaning of the Illinois Constitution. While some other states had
found that canine sniffs were searches under their constitutions, the
United States Supreme Court declared that they do not constitute a
search for purposes of the fourth amendment to the United States
Constitution. Caballes II reaffirmed that Illinois follows a limited
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lockstep approach and that under that approach, the search and
seizure provisions of the Illinois Constitution are to be interpreted the
same way as corresponding provisions of the federal constitution.
Caballes, 221 Ill. 2d at 315.
In reaching this conclusion regarding the relationship between
cognate provisions of the Illinois and federal constitutions, we relied
both on prior Illinois precedent and on the recognition that, in the end,
it is the intent of the framers of the Illinois Constitution of 1970 and
those who adopted it which controls our interpretation of its
provisions, including whether those provisions are to be interpreted
more expansively than federal law. Caballes, 221 Ill. 2d at 313. It is
because the intent of the framers and the voters who approved the
constitution must always be the guiding factor in construing that
document that we made the statement, abbreviated by the majority,
that our “jurisprudence of state constitutional law cannot be
predicated on trends in legal scholarship, the actions of our sister
states, a desire to bring about a change in the law, or a sense of
deference to the nation’s highest court.” Caballes, 221 Ill. 2d at 313.
In the matter before us, no one is suggesting that our view of the
separation of powers clause of the Illinois Constitution be predicated
on anything other than the intent of those who framed and adopted the
Constitution. The preeminence of that intent, however, does not
preclude reference to how other courts have analyzed similar
provisions under similar circumstances. In interpreting and applying
the law of Illinois, our court regularly considers how courts in other
jurisdictions have construed similar provisions of their law. See, e.g.,
People v. Pawlaczyk, 189 Ill. 2d 177, 195 (2000); P.R.S.
International, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 238-39
(1998); Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 29-
30 (1996); People ex rel. O’Malley v. 6323 North LaCrosse Ave., 158
Ill. 2d 453 (1994); People v. Wegielnik, 152 Ill. 2d 418, 426 (1992);
Bernier v. Burris, 113 Ill. 2d 219 (1986); People ex rel. Latimer v.
Board of Education of the City of Chicago, 394 Ill. 228, 236 (1946).
Moreover, as the foregoing authorities demonstrate, we have found
it appropriate to consider the well-reasoned decisions of other
jurisdictions not only when interpreting statutory provisions, but also
when examining the protections afforded by the Illinois Constitution.
We do this not because the views of the other states are in any way
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controlling, but simply because the points they make may provide
insight into the intent of those who drafted and approved our own
laws.
No principle of appellate review bars us from following that same
course here. Contrary to the apparent view of the majority, taking into
account how other state courts have dealt with similar legal issues in
similar circumstances is no threat to Illinois’ sovereignty or the
authority of Illinois’ courts. It is simply good sense.
In summarizing the court’s decision in Best, the majority repeated
the argument made by the plaintiffs in that case that caps on non-
economic damages were objectionable because they “impermissibly
penalized the most severely injured persons.” Slip op. at 9. A similar
sentiment has been expressed with regard to the damages cap at issue
in this case. It is a moving appeal to the human desire to provide for
those in need. But at some point one must ask: is it true? Whether and
to what extent a person sustains noneconomic injury is affected by
many factors besides the severity of the physical harm he or she has
suffered. In some cases, such as high wage earners whose injuries
force them to miss work, major economic damages may be
accompanied by relatively modest noneconomic loss. In other
instances, a less serious but more traumatic injury may result in
significant noneconomic damage but relatively minor economic loss.
The total damages under both scenarios could be similar, yet the
extent of the underlying physical injury could be substantially
different. Contrary to the assumption of those who oppose Public Act
94–677, there would be no direct correlation between magnitude of
the physical injury and the size of noneconomic loss sustained. As a
result, application of the damages cap would not necessarily penalize
the most seriously injured plaintiffs.
Of course, it is not difficult to imagine situations in which a
severe injury is accompanied by both heavy economic losses and
profound noneconomic damages. If the cap on noneconomic damages
is truly problematic, however, one would expect to see situations in
which its application has resulted in hardship. That has not happened.
As I pointed out earlier in this dissent, we have yet to see a single
instance in which the caps have even been triggered.
One must also wonder whether opponents of caps on
noneconomic damages have fully considered the possible
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consequences of declaring imposition of such caps to be beyond the
legislature’s authority. What the majority does not see or fails to
acknowledge is that by focusing on the fortunes of individual
plaintiffs, it looks at only a small part of the economic landscape. The
cap on noneconomic damages is premised on the assumption that the
potential for unlimited awards of such damages will imperil the
availability of medical care to the population as a whole. There is
nothing in the record in this case by which we can ascertain whether
this assumption will prove correct in practice, but we cannot say the
assumption is an unreasonable one. If it is correct, the cumulative
harm from reduced access to medical treatment could easily
overshadow the benefits a few individual plaintiffs stand to realize
from abolition of damages caps. Should that happen, the equities will
look far different than opponents of the caps have portrayed them.
Faced with this prospect, the General Assembly may respond to
today’s decision by eliminating all noneconomic damages in medical
malpractice cases. Nothing in the majority’s separation of powers
analysis would preclude it from doing so. Indeed, the legislature
could, without violating separation of powers principles, go so far as
to abolish civil actions for medical malpractice completely and
replace them with a claims system comparable to the one it has
established for workers compensation. If the majority persists in
invalidating damages caps, the legislature may be left with no
alternative. If our legislature fails to act, while caps are eliminated in
other states, imposition of restrictions by the federal government,
which would not be constrained by state constitutional provisions, is
a possibility. For those committed to insuring that victims of medical
malpractice receive the maximum possible compensation for their
injuries, these loom as sobering possibilities.
Illinois and the country are at a crossroads in the deepening
struggle to manage the health-care crisis. As the legislative branch
experiments with workable solutions, the courts must be vigilant
about ensuring that the laws enacted by the General Assembly
comport with constitutional requirements. In exercising our authority,
however, we must remain mindful that the constitution constrains the
courts as well.
In his partial dissent in Best, Justice Miller lamented that
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“[t]oday’s decision represents a substantial departure from our
precedent on the respective roles of the legislative and judicial
branches in shaping the law of this state. 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.” Best, 179 Ill. 2d at 487 (Miller, J.,
concurring in part and dissenting in part).
The same is true of the court’s opinion today.
Our job is to do justice under the law, not to make the law.
Formulating statutory solutions to social problems is the prerogative
of the legislature. Whether there is a solution to the health-care crisis
is anyone’s guess. I am certain, however, that if such a solution can
be found, it will not come from the judicial branch. It is critical,
therefore, that the courts not stand as an obstacle to legitimate efforts
by the legislature and others to find an answer. If courts exceed their
constitutional role and second-guess policy determinations by the
General Assembly under the guise of judicial review, they not only
jeopardize the system of checks and balances on which our
government is based, they also put at risk the welfare of the people
the government was created to serve.
For all of the foregoing reasons, I respectfully concur in part and
dissent in part.
JUSTICE GARMAN joins in this partial concurrence and partial
dissent.
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