Hope Clinic for Women v. Adams

ILLINOIS OFFICIAL REPORTS
Appellate Court
Hope Clinic for Women, Ltd. v. Adams, 2011 IL App (1st) 101463Appellate Court THE HOPE CLINIC FOR WOMEN, LTD.; and ALLISON COWETT,
Caption Plaintiffs-Appellants, v. BRENT ADAMS, Acting Secretary of the
Department of Financial and Professional Regulation, in His Official
Capacity; DANIEL BLUTHARDT, Director of the Division of
Professional Regulation, of the Department of Financial and Professional
Regulation, in His Official Capacity; THE ILLINOIS STATE MEDICAL
DISCIPLINARY BOARD, Defendants-Appellees. (Stewart Umholtz, the
State’s Attorney of Tazewell County, Illinois; Edward Deters, the State’s
Attorney of Effingham County, Illinois, Proposed Intervenors-
Appellants).
District & No. First District, Sixth Division
Docket Nos. 1–10–1463, 1–10–1576 cons.
Filed June 17, 2011
Held The appellate court reversed the trial court’s dismissal of an action
(Note: This syllabus challenging the constitutionality of the Parental Notice of Abortion Act
constitutes no part of on the grounds that plaintiffs’ claims that the Act violated the equal
the opinion of the court protection and due process clauses of the Illinois Constitution were barred
but has been prepared by collateral estoppel and that the alleged violation of the Illinois privacy
by the Reporter of law is coextensive with federal privacy law and federal privacy law
Decisions for the would require dismissal, since the federal opinion in Zbaraz that
convenience of the allegedly estopped the equal protection and due process claims was not
reader.)
decided on equal protection grounds and dealt with a very narrow
question that was not at issue in the instant case, the federal constitution
does not have an express privacy clause similar to the provision of the
Illinois Constitution and the Illinois privacy law governing the instant
case is not in lockstep with its federal counterpart.
Decision Under Appeal from the Circuit Court of Cook County, No. 09–CH–38661; the
Review Hon. Daniel A. Riley, Judge, presiding.
Judgment Affirmed.
Counsel on Lorie Chaiten, Leah Bartelt, and Krista Stone-Manista, all of Roger
Appeal Baldwin Foundation of ACLU, Inc., and Kathleen Roach, Rachel
Niewoehner, and Greeta Malhorta, all of Sidley Austin LLP, both of
Chicago, and Jennifer Dalven and Alexa Kolbi-Molinas, both of ACLU
Foundation, of New York, New York, for appellants.
Lisa Madigan, Attorney General, of Chicago (Michael Scodro, Solicitor
General, and Jane Elinor Notz and Brett Legner, Assistant Attorneys
General, of counsel), for appellees.
Paul Benjamin Linton, of Thomas More Society, of Northbrook, and
Thomas Brejcha and Peter Breen, both of Thomas More Society, of
Chicago, for intervenors-appellants.
Panel JUSTICE R. GORDON delivered the judgement of the court, with
opinion.
Justice McBride concurred in part and dissented in part, with opinion.
Presiding Justice Garcia specially concurred, with opinion.
OPINION
¶1 Plaintiffs challenge the constitutionality of the Parental Notice of Abortion Act of 1995
(the Act) (750 ILCS 70/1 et seq. (West 2008)), under the Illinois Constitution alone.
¶2 In the proceedings below, the trial court entered judgment on the pleadings and dismissed
plaintiffs’ complaint with prejudice. In this consolidated appeal, plaintiffs appeal the trial
court’s dismissal, and the proposed intervenors appeal the trial court’s denial of their petition
to intervene.
¶3 The legal issues that we are asked to decide on this appeal are fairly straightforward and
simple and do not take us into any political arena. The trial court held that plaintiffs’ equal
protection and due process claims were barred by collateral estoppel, and that the privacy
claim must be dismissed because Illinois privacy law is coextensive with federal privacy law
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on this issue and federal privacy law would require dismissal. For the reasons that follow,
we conclude, first, plaintiffs’ equal protection claim is not barred by collateral estoppel,
because the federal opinion which allegedly estopped the claim was not decided on equal
protection grounds. Zbaraz v. Madigan, 572 F.3d 370 (7th Cir. 2009). Second, plaintiffs’ due
process claim is not barred by collateral estoppel, because the federal court was presented
with only a very narrow question which is not at issue here. Zbaraz, 572 F.3d at 373, 376.
Third, state and federal constitutional clauses may be considered coextensive when the two
clauses are worded the same, but this logic does not apply when the Illinois Constitution of
1970 has an express clause, such as a right to privacy clause, which the federal constitution
does not.
¶4 Therefore, we reverse the trial court’s order dismissing the complaint, we affirm the trial
court’s denial of the petition to intervene, and we remand for further proceedings consistent
with this opinion.
¶5 BACKGROUND
¶6 I. The Parties
¶7 A. Plaintiffs
¶8 The plaintiffs are the Hope Clinic for Women, Ltd. (Hope Clinic), and Dr. Allison
Cowett. The Hope Clinic is a licensed private medical clinic located in Granite City, Illinois,
that provides reproductive health services, including abortions.
¶9 Dr. Cowett is a physician licensed to practice medicine in Illinois, as well as an assistant
professor at the University of Illinois at Chicago (UIC) and the director of UIC’s Center for
Reproductive Health. Dr. Cowett provides a broad range of gynecological and obstetric care,
including abortions.
¶ 10 Dr. Cowett, as well as the other physicians who provide medical care at Hope Clinic, are
subject to professional discipline and civil penalties for failure to comply with the Act’s
requirements.
¶ 11 B. Defendants and Proposed Intervenors
¶ 12 Defendants are sued in their official capacity only. Brent Adams is the Acting Secretary
of the Illinois Department of Financial and Professional Regulation (the Department). Daniel
Bluthardt is a director of a division within the Department, namely, the Division of
Professional Regulation. The third defendant is the Illinois State Medical Disciplinary Board.
All defendants are responsible for imposing professional discipline on physicians who fail
to comply with the Act’s requirements.
¶ 13 The proposed intervenors, like defendants, seek dismissal of plaintiffs’ complaint. The
two proposed intervenors are Stewart Umholtz, the State’s Attorney of Tazewell County,
Illinois, and Edward Deters, the State’s Attorney of Effingham County, Illinois.
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¶ 14 II. The Act
¶ 15 The Act places on physicians the responsibility of disclosing to a “parent, grandparent,
step-parent living in the household, or legal guardian” the fact that his or her minor or
incompetent child is seeking an abortion. 750 ILCS 70/10, 15 (West 2008).
¶ 16 If a pregnant minor seeks a physician’s help and chooses to continue her pregnancy, no
notice is required even when: she has been adjudicated incompetent; complications may
endanger her life or health; she is homeless; the resulting child will be severely disabled; or
the minor seeks to give the child up for adoption. 750 ILCS 70/15 (West 2008). The Act’s
stated purpose is to protect the best interests of “immature minors [who] often lack the ability
to make fully informed choices that consider both the immediate and long-range
consequences.” 750 ILCS 70/5 (West 2008) (“Legislative findings and purpose”).
¶ 17 Even if the minor seeks to end her pregnancy, no notice is required if the minor has, or
has ever had, a husband. 750 ILCS 70/10 (West 2008).
¶ 18 There is no exception for rape or incest, unless it was committed by a parent, guardian,
grandparent, or a stepparent living in the household. If the minor is raped by a stepparent, and
the minor no longer resides in his household, the parental notice requirements still apply.
Also, no exception is provided if the minor’s parent or guardian sexually or physically
abused someone in the minor’s household, other than the minor. 750 ILCS 70/20 (West
2008) (exceptions to notice requirement).
¶ 19 The Act applies both: (1) to minors; and (2) to women who have been adjudicated
incompetent and have been appointed a guardian. The Act defines a “minor” as a person, 17
years old or under, who has not been married or declared emancipated. 750 ILCS 70/10
(West 2008).
¶ 20 The Act requires physicians to provide 48-hour actual notice to an adult family member
of the intent of the minor or incompetent person to have an abortion. 750 ILCS 70/15 (West
2008). An “adult family member” must be over 21 years old and can be a parent,
grandparent, stepparent living in the household or legal guardian. 750 ILCS 70/10 (West
2008).
¶ 21 The Act requires a physician to make “a reasonable effort” to provide actual notice. 750
ILCS 70/15 (West 2008). “Reasonable effort” is not defined. 750 ILCS 70/10 (West 2008).
Only after the reasonable effort has failed can the physician turn to constructive notice. 750
ILCS 70/15 (West 2008). The physician must then provide 48-hour constructive notice,
which is defined as notice by certified mail to the last known address of the person entitled
to notice. 750 ILCS 70/10 (West 2008).
¶ 22 Although the term “reasonable effort” is not defined, a physician may lose his or her
license or have it suspended if he or she is found to have “willfully” failed to provide notice.
750 ILCS 70/40 (West 2008). The Act provides that “[a]ny physician who wilfully fails to
provide notice as required under this Act before performing an abortion on a minor or an
incompetent person shall be referred to the Illinois State Medical Disciplinary Board for
action in accordance with Section 22 of the Medical Practice Act of 1987 [225 ILCS 60/22
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(West 2008)].”1 750 ILCS 70/40(a) (West 2008). The Act also provides physicians with a
good-faith defense. 750 ILCS 70/45 (West 2008). If the physician can prove that he or she
was acting in good faith when he or she provided notice or relied on an exception in the Act,
then he or she cannot be subject to civil or criminal liability or discipline. 750 ILCS 70/45
(West 2008).
¶ 23 The Act defines an abortion as “the use of any instrument, medicine, drug, or any other
substance or device to terminate the pregnancy of a woman known to be pregnant.” 750 ILCS
70/10 (West 2008). However, the Act places no express obligation on a physician to
ascertain whether his or her patient is pregnant, a minor, or an incompetent.
¶ 24 The Act provides exceptions to notice if the physician finds that there is a medical
emergency, or if the minor was the victim of sexual abuse, neglect or physical abuse by a
parent, guardian, grandparent, or step-parent living in the minor’s household. 750 ILCS
70/20 (West 2008).
¶ 25 To obtain the abuse or neglect exception, the minor must declare in writing that she was
the victim of abuse or neglect by a parent, guardian, grandparent, or stepparent living in her
household. 750 ILCS 70/20 (West 2008). After the minor places her declaration in writing,
the physician may delay notifying state authorities, but only until after the abortion is
performed. 750 ILCS 70/20 (West 2008). To obtain the medical emergency exception, the
physician must certify in writing that immediate action is required to avert the minor’s death
or a substantial and irreversible bodily impairment. 750 ILCS 70/10, 20 (West 2008).
¶ 26 The Act also permits a minor or incompetent person to file a petition in court seeking
waiver of the notice requirements. 750 ILCS 70/25 (West 2008). The Act does not require
the contacted physician to notify the minor of this option or of how or where to file. After
a minor or incompetent person successfully files a petition in court, the trial court appoints
a guardian ad litem. 750 ILCS 70/25 (West 2008). The trial court then has 48 hours after the
filing to issue a ruling. 750 ILCS 70/25 (West 2008).
¶ 27 III. The Claims in the Complaint and Petition
¶ 28 A. Plaintiffs’ Claims
¶ 29 Plaintiffs claimed that the Act violates a number of clauses of the Illinois Constitution.
All the clauses are part of article I, which is our state’s Bill of Rights. Specifically, the
clauses named by plaintiffs were: (1) the privacy clause (Ill. Const. 1970, art. I, § 6); (2) the
due process clause (Ill. Const. 1970, art. I, § 2); (3) the equal protection clause (Ill. Const.
1970, art. I, § 2); and (4) the gender equality clause (Ill. Const. 1970, art. I, § 18).
¶ 30 Our due process and equal protection clauses are worded similarly to their federal
counterparts. The due process and equal protection section of our Illinois Constitution states
1
Section 22 provides, in relevant part, that a physician’s license to practice medicine may
be revoked for a “[w]illful failure to provide notice when notice is required under the Parental Notice
of Abortion Act of 1995.” 225 ILCS 60/22(A) (40) (West 2008).
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in full that “[n]o person shall be deprived of life, liberty or property without due process of
law nor be denied the equal protection of the laws.” Ill. Const. 1970, art. I, § 2.
¶ 31 By contrast, the privacy and gender equality clauses of the Illinois Constitution do not
have any explicit counterparts in the federal constitution. Our privacy clause states, in
relevant part, that the people of Illinois “shall have the right to be secure in their persons ***
against unreasonable *** invasions of privacy.” Ill. Const. 1970, art. I, § 6. The gender
equality section of our constitution states, in full, that “[t]he equal protection of the laws shall
not be denied or abridged on account of sex by the State or its units of local government and
school districts.” Ill. Const. 1970, art. I, § 18.
¶ 32 As relief, plaintiffs sought a temporary restraining order, preliminary and injunctive
relief, a declaration that the Act is unconstitutional, and such other relief as the court may
deem just and proper.
¶ 33 B. Intervenors’ Claims
¶ 34 On October 29, 2009, the proposed intervenors filed a petition seeking to intervene. They
claimed, first, that they could intervene, “as of right,” pursuant to section 2–408(a)(2) of the
Code of Civil Procedure (735 ILCS 5/2–408(a)(2) (West 2008)), which authorizes
intervention where the representation of existing parties may be inadequate and the
intervenors would be bound by any order or judgment in the action. In the alternative, they
claimed that they should be allowed to intervene by permission, which permits intervention
where the intervenors’ claim and the main action have questions of law and fact in common.
735 ILCS 5/2–408(b)(2) (West 2008).
¶ 35 IV. Appealed Orders
¶ 36 A. By Plaintiffs
¶ 37 On March 29, 2010, in a 10-page memorandum order, the trial court granted defendants’
motion for judgment on the pleadings and dismissed plaintiffs’ complaint with prejudice.
The trial court also dissolved the temporary restraining order (TRO) that it had previously
entered on October 29, 2010. However, the trial court stayed for 60 days both its order and
the dissolution of the TRO, in order to allow plaintiffs an opportunity to appeal. On April 28,
2010, the trial court denied plaintiffs’ motion to reconsider and to vacate the March 29
judgment. On May 27, 2010, plaintiffs filed a notice appealing the trial court’s orders of both
March 29 and April 28, 2010.
¶ 38 In its March 29 written order, the trial court held: “Notwithstanding Plaintiffs’
compelling evidence that parental notification of abortion for minors will often expose
minors seeking an abortion to increased risks and anxieties, this Court, for the reasons set
forth herein is compelled to find the Act is constitutional.” The written order also stated that
“[t]he court finds that the Act will encumber a minor’s choice” and that “this court finds that,
for many minor women, disclosure will result in worse results, including physical and
emotional abuse.”
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¶ 39 In open court, the trial court elaborated on its written findings. The trial court found that
“the evidence makes it clear that it’s likely to cause more harm than good.” The trial court
also held that “[t]his law recognizes that there does exist a class or group of individuals
within our State who are minors and who have become pregnant,” and that “[t]he Act
discriminates between those minors who elect to give birth and those minors who elect to
terminate their pregnancy.” The trial court observed that “[m]inors who elect to give birth
may do so without any State intervention regarding medical choices or parental notification,
including consenting to an adoption.” By contrast, “[m]inors who seek an abortion must
notify their parents or appear before a judge.”
¶ 40 Despite finding that the evidence established that the law caused more harm than good2
and that the law discriminated against certain minors within a class,3 the trial court stated that
it felt “compelled to find” the law constitutional for the following reasons.
¶ 41 The trial court found, first, that plaintiffs’ due process and equal protection claims were
barred by prior federal litigation. Second, the trial court held that plaintiffs’ privacy claim
must be dismissed, because our state’s abortion rights are coextensive with federal rights;
and because the Illinois Constitution bars only unreasonable invasions of privacy and “there
are circumstances” when the Act’s burden on a minor’s abortion rights would not be
unreasonable. Third, the trial court found that plaintiffs’ gender equality claim must be
dismissed, without applying strict scrutiny review. For these reasons, the trial court granted
defendants judgment on the pleadings and dismissed plaintiffs’ complaint with prejudice.
¶ 42 B. By Intervenors
¶ 43 On November 19, 2009, the trial court denied the motion of the proposed intervenors for
leave to intervene. On March 15, 2010, the trial court denied their motion to reconsider, but
granted them leave to file their brief as an amicus curiae. On May 28, 2010, the trial court
denied their supplemental motion. The trial court’s orders indicated that reasons were
provided in open court. On May 28, 2010, the proposed intervenors filed a notice of appeal,
appealing from these three orders. In their notice, the intervenors asked this court to grant
them leave to appeal and to affirm the dismissal of plaintiffs’ action.
¶ 44 On November 19, 2009, the trial court stated its reasons in open court, as follows:
“I don’t find the state’s attorneys to be necessary parties to this litigation, and I find
2
The trial court emphasized that it reached its holding “[n]otwithstanding Plaintiff’s
compelling evidence that parental notification of abortions for minors will often expose minors
seeking an abortion to increased risks.” The trial court also stated: “this court finds that, for many
minor women, disclosure will result in worse results, including physical and emotional abuse.”
3
The trial court agreed with plaintiffs that the Act would have “a purely negative effect on
minors seeking abortions who do not desire parental involvement.” The trial court stated: “The court
finds that the Act will encumber a minor’s choice to terminate her pregnancy, and will lead to
disclosure of confidential information about her sexual history and reproductive choices to adult
members of her immediate family.”
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that the Attorney General’s office is indeed adequate to represent the interests of all
the people affected by this litigation ***.”
On March 15, 2010, the trial court stated in open court only that it “will not reconsider”
allowing the motion to intervene. For the proceedings held on May 28, 2010, no transcript
was included in the appellate record.
¶ 45 V. Prior Litigation
¶ 46 To provide a context for our opinion today, we provide, first, a description of earlier
lawsuits and the events that triggered them. Then we discuss in depth the recent federal
opinion which the trial court found to have preclusive effect.
¶ 47 A. Earlier Acts and Litigation
¶ 48 The Illinois General Assembly passed its first Parental Notice of Abortion Act in 1983.
A year later, the federal district court held the 1983 act unconstitutional, because it failed to
insure a minor’s anonymity and failed to provide for an expedited appeal. Zbaraz v.
Hartigan, 584 F. Supp. 1452 (N.D. Ill. 1984). In 1985, the Seventh Circuit Court of Appeals
affirmed and continued the previously entered injunction. The injunction was continued so
that the Illinois Supreme Court could promulgate rules for the judicial bypass procedure
which would ensure both expedited appeals and anonymity. Zbaraz v. Hartigan, 763 F.2d
1532 (7th Cir. 1985). In 1991, the federal district court held that the rule promulgated by the
Illinois Supreme Court was insufficient, and the injunction was continued. Zbaraz v.
Hartigan, 776 F. Supp. 375 (N.D. Ill. 1991).
¶ 49 In 1995, the Illinois General Assembly repealed the 1983 act and replaced it with the
1995 act, which is the act at issue on this appeal. In response, the plaintiffs in the federal
Zbaraz litigation amended their complaint to challenge the 1995 act. The parties then agreed
to an injunction barring enforcement of the 1995 act, until the Illinois Supreme Court
promulgated a new rule to implement the new judicial bypass procedure contained in the
1995 act.
¶ 50 In February 1996, the federal district court entered a permanent injunction because the
Illinois Supreme Court announced that it would not promulgate a new rule. However, after
10 years, the Illinois Supreme Court did promulgate the new rule. Supreme Court Rule 303A
provided specific rules to implement the judicial bypass procedure of the 1995 act. Ill. S. Ct.
R. 303A (eff. Sept. 20, 2006).
¶ 51 In 2008, the federal district court held that, even with the newly promulgated Rule 303A,
the 1995 act was still unconstitutional. Zbaraz v. Madigan, No. 84 C 771, 2008 U.S. Dist.
LEXIS 15559 (N.D. Ill. Feb. 28, 2008). The Zbaraz defendants appealed to the Seventh
Circuit Court of Appeals which issued the opinion described below.
¶ 52 B. Recent Seventh Circuit Opinion
¶ 53 Since the trial court in the case at bar found collateral estoppel based on the 2009 opinion
of the Seventh Circuit in the Zbaraz litigation, we describe it here in depth.
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¶ 54 In 2009, the Seventh Circuit Court of Appeals was presented with, what it acknowledged,
was a very “narrow” question. Zbaraz, 572 F.3d at 373, 387 (“we emphasize again how
narrow is the argument the plaintiffs raise here”). The Zbaraz plaintiffs presented only a
facial challenge to only one section of the Act: the judicial bypass procedure. Zbaraz, 572
F.3d at 373. Since the Zbaraz plaintiffs brought only a facial challenge to the bypass
procedure, the court stated “we express no view as to whether the Illinois notice act would
withstand an as-applied challenge by individual women who have attempted to participate
in bypass procedures and found them wanting.” Zbaraz, 572 F.3d at 388.
¶ 55 The sole argument presented by the Zbaraz plaintiffs on appeal was found by the Seventh
Circuit to be “an excess of ingenuity.” Zbaraz, 572 F.3d at 383. The Zbaraz plaintiffs
observed, correctly, that parental notice could be waived if a court found either: (1) that the
minor was mature enough to make her own intelligent decision; or (2) that notice would not
be in the minor’s best interest. 750 ILCS 750 ILCS 70/25 (West 2008). The Zbaraz plaintiffs
argued that a trial court would consider the minor’s best interest only if it had first found that
the minor was too immature. If the trial court found the minor to be too immature to
consent–the argument went–then the minor could not legally consent. 750 ILCS 70/30 (West
2008) (prohibiting anyone from performing an abortion on a minor without the minor’s
consent). The Zbaraz plaintiffs argued, and the district court agreed, that an immature minor
would be left in “a legal limbo” without a mechanism to obtain an abortion, even after the
trial court had ruled that it was in her best interests not to seek parental notice. Zbaraz, 572
F.3d at 376. The Seventh Circuit rejected this very narrow argument, finding that “[e]ach link
in this chain of argument misinterprets the language of the statute.” Zbaraz, 572 F.3d at 383.
This argument is not repeated in the appeal before us.
¶ 56 ANALYSIS
¶ 57 In this lawsuit, plaintiffs, who are medical providers, challenged the constitutionality,
under the Illinois Constitution alone, of the Act. In the circuit court, plaintiffs’ complaint was
dismissed with prejudice, and judgment entered on the pleadings for defendants. Also, the
motion to intervene by two State’s Attorneys from two Illinois counties was denied.
¶ 58 As noted above, the trial court found, first, that plaintiffs’ due process and equal
protection claims were barred by prior federal litigation. Second, the trial court held that
plaintiffs’ privacy claim must be dismissed, because our state’s abortion rights are
coextensive with federal rights; and because the Illinois Constitution bars only unreasonable
invasions of privacy and “there are circumstances” when the Act’s burden on a minor’s
abortion rights would not be unreasonable. Third, the trial court found that plaintiffs’ gender
equality claim must be dismissed, without applying strict scrutiny review. Also, the trial
court found that “the Attorney General’s office is indeed adequate to represent the interests
of all the people affected by this litigation.” For these reasons, the trial court granted
defendants judgment on the pleadings, dismissed plaintiffs’ complaint with prejudice, and
denied the motion to intervene.
¶ 59 As we explain below, we affirm the trial court’s denial of the petition to intervene and
reverse its dismissal of plaintiffs’ complaint.
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¶ 60 I. Standard of Review
¶ 61 There is no dispute among the parties concerning the appropriate standard of review. As
we discuss below, we apply a de novo standard of review to the trial court’s judgment on the
pleadings, and an abuse-of-discretion standard to the trial court’s denial of the motion to
intervene.
¶ 62 A. Standard: Judgment on the Pleadings
¶ 63 We review de novo a trial court’s grant of judgment on the pleadings. Pekin Insurance
Co. v. Wilson, 237 Ill. 2d 446, 455 (2010) (citing Gillen v. State Farm Mutual Automobile
Insurance Co., 215 Ill. 2d 381, 385 (2005)). A motion for judgment on the pleadings, as its
name implies, is limited to the pleadings. Pekin, 237 Ill. 2d at 455 (citing Employers
Insurance of Wausau v. Ehlco Liquidating Trust, 186 Ill. 2d 127, 138 (1999)). It is properly
granted only if the pleadings disclose no genuine issue of material fact and if the movant is
entitled to judgment as a matter of law. Pekin, 237 Ill. 2d at 455. When defendants are the
movants, the court will consider, as admitted by defendants, all the well-pleaded facts set
forth in the complaint and all the reasonable inferences that may be drawn from those facts,
as admitted by defendants. Pekin, 237 Ill. 2d at 455 (citing Employers Insurance, 186 Ill. 2d
at 138). When ruling on a motion for judgment on the pleadings, a court may consider only
those facts apparent from the face of the pleadings, matters subject to judicial notice, and
judicial admissions in the record. Gillen, 215 Ill. 2d at 385 (citing M.A.K. v. Rush-
Presbyterian-St. Luke’s Medical Center, 198 Ill. 2d 249, 255 (2001)).
¶ 64 B. Standard: Motion to Intervene
¶ 65 An appellate court reviews a trial court’s decision on a petition to intervene only for an
abuse of discretion. In re Adoption of S.G., 401 Ill. App. 3d 775, 784 (2010). “A trial court
abuses its discretion only when its ruling is arbitrary, fanciful, or unreasonable, or where no
reasonable person would take the view adopted by the trial court.” (Internal quotation marks
omitted.) In re Adoption of S.G., 401 Ill. App. 3d at 784.
¶ 66 II. Collateral Estoppel
¶ 67 For the reasons discussed below, we hold that the trial court erred in dismissing
plaintiffs’ equal protection and due process claims.
¶ 68 The trial court decided plaintiffs’ equal protection and due process claims solely on
collateral estoppel grounds. First, the trial court correctly observed that the issue in this case
was “whether the equal protection and due process issues are identical to those litigated in
the federal court.” Hope Clinic v. Adams, No. 09 CH 38661, order at 4 (Cir. Ct. Cook Co.
Mar. 29, 2010). However, to answer that question, the trial court considered only “whether
the state constitutional provisions at issue should be analyzed in lockstep with their federal
counterparts.” Hope Clinic v. Adams, No. 09 CH 38661, order at 4 (Cir. Ct. Cook Co. Mar.
29, 2010). Based solely on its conclusion that the federal and state clauses were
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“synonymous,” the trial court held that “Plaintiffs’ equal protection and due process issues
were sufficiently and finally decided in the federal litigation.” Hope Clinic v. Adams, No.
09 CH 38661, order at 4 (Cir. Ct. Cook Co. Mar. 29, 2010). However, the trial court did not
compare the claims asserted in plaintiffs’ complaint to the specific issues actually litigated
in the federal suit, in order to determine whether plaintiffs’ equal protection and due process
issues here had been sufficiently and finally decided in the federal suit.
¶ 69 Whether the doctrine of collateral estoppel applies in a particular case is a question of law
that we review de novo. State Building Venture v. O’Donnell, 239 Ill. 2d 151, 158 (2010);
Hurlbert v. Charles, 238 Ill. 2d 248, 254 (2010). The collateral estoppel doctrine prevents
a party from relitigating a specific question or fact that was already decided against it in a
prior case. People v. Jones, 207 Ill. 2d 122, 138-39 (2003); People v. Tenner, 206 Ill. 2d 381,
396 (2002).
¶ 70 However, “the judgment in the first suit operates as an estoppel only as to the point or
question actually litigated and determined and not as to [any] other matters which might have
been litigated and determined.” (Emphasis in original.) Nowak v. St. Rita High School, 197
Ill. 2d 381, 390 (2001) (citing Housing Authority for La Salle County v. Young Men’s
Christian Ass’n, 101 Ill. 2d 246, 252 (1984)). “Application of the doctrine of collateral
estoppel must be narrowly tailored to fit the precise facts and issues that were clearly
determined in the prior judgment.” Nowak, 197 Ill. 2d at 390-91 (citing Kessinger v. Grefco,
Inc., 173 Ill. 2d 447, 467 (1996)).
¶ 71 The parties seeking to invoke the doctrine–in this case, defendants–have the burden of
meeting three requirements. Jones, 207 Ill. 2d at 139. But, these three requirements are
merely a “minimum threshold.” Nowak, 197 Ill. 2d at 391. Since collateral estoppel is an
equitable doctrine, a court must still consider the equities of applying the doctrine, even after
a party has met these requirements. Nowak, 197 Ill. 2d at 391. A court must still “balance the
need to limit litigation against the right of a fair adversary proceeding in which a party may
fully present his case.” Nowak, 197 Ill. 2d at 391.
¶ 72 The three threshold requirements are, first, that the specific issue decided in the prior suit
must be identical with the one presented in the current suit. State Building Venture, 239 Ill.
2d at 158; Hurlbert, 238 Ill. 2d at 255. See also Jones, 207 Ill. 2d at 139 (“the same one”).
Second, the determination of this issue or fact must have been a critical and necessary part
of a final judgment in the prior suit. Jones, 207 Ill. 2d at 139. See also State Building
Venture, 239 Ill. 2d at 158; Hurlbert, 238 Ill. 2d at 255. Third, the party against whom
estoppel is asserted was a party or in privity with a party to the prior suit. State Building
Venture, 239 Ill. 2d at 158; Hurlbert, 238 Ill. 2d at 255. In the case at bar, defendants failed
to meet the first requirement.
¶ 73 The issues here and the issue in the federal suit were not the same. The Seventh Circuit
Court of Appeals began its opinion by observing what a narrow question had been presented
to it:
“The question presented here is a narrow one: whether the Illinois Parental Notice
of Abortion Act of 1995, 750 ILCS 701 et seq., is facially invalid because its judicial
bypass provisions lack language authorizing a state court judge to issue an order
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allowing an immature minor to consent to an abortion without notifying her parents,
where an abortion without notice would be in her best interests.” Zbaraz, 572 F.3d
at 373.
The Seventh Circuit’s narrowness comments served as bookends for its opinion, both
opening and closing it. At the close of its opinion, the Seventh Circuit stated: “we emphasize
again how narrow is the argument the plaintiffs raise here.” Zbaraz, 572 F.3d at 387.
¶ 74 The questions presented here differ from the question presented in Zbaraz for several
reasons.
¶ 75 First, the question presented in Zbaraz was narrow. The issue, simply put, was whether
the Act was written in such a way as to defeat its own judicial bypass procedure. Zbaraz, 572
F.3d at 387 (holding that an act cannot be held to destroy itself). Specifically, the question
in Zbaraz was whether, even after a court had found that waiving parental consent was
warranted, a minor would still be unable to receive an abortion, because she would be too
immature to provide the informed consent required by the Act. Zbaraz, 572 F.3d at 376.
Plaintiffs’ only claim was that the Act left a minor in “ ‘legal limbo,’ ” and the Seventh
Circuit found that it did not. Zbaraz, 572 F.3d at 376 (quoting Zbaraz, 2008 WL 589028, at
*3). By contrast, plaintiffs in the case at bar do not make any such “legal limbo” claims.
Thus, the questions presented here differ from the one, narrow question presented and
decided in Zbaraz. See Nowak, 197 Ill. 2d at 394 (prior dismissal by federal court of
plaintiff’s federal discrimination claim had “nothing to do with” plaintiff’s state claim based
on “the independent protection” provided by his employment contract).
¶ 76 Second, the Zbaraz plaintiffs raised solely “a facial challenge.” Zbaraz, 572 F.3d at 381.
As a result, the Seventh Circuit explicitly left open the question of whether the Act, as
applied, was constitutional. The federal appeals court stated, unequivocally: “we express no
view as to whether the Illinois notice act would withstand an as-applied challenge.” Zbaraz,
572 F.3d at 388. The federal appeals court gave examples of what might constitute
“compelling evidence” and stated that it “express[ed] no view regarding the availability or
likely success of such evidence.” Zbaraz, 572 F.3d at 382 n.7.4 In the case at bar, most of the
complaint discusses the effects and consequences of the Act, as applied to minors. On this
appeal, plaintiffs specifically ask this court to “reverse and remand to the circuit court with
instructions, upon proof of the alleged wrongs, [to] award appropriate relief.” Plaintiffs argue
that the trial court erred in dismissing on the ground that they could not succeed on a facial
challenge, where their alleged facts demonstrated “harm in the form of physical and
emotional abuse.” Since the federal court explicitly left open the possibility that a later suit
could submit the proof needed to support “an as-applied challenge,” collateral estoppel
should not apply here, and dismissal at this early stage is premature.
¶ 77 Third, plaintiffs’ equal protection claim was neither litigated nor decided in the federal
4
The federal appeals court provided the following example. “More compelling evidence
might have been in the form of, for instance, affidavits from young women establishing that they
would not have been able to avail themselves of the bypass procedure without their parents learning
of it, such that the bypass offered a de jure but not a de facto remedy.” Zbaraz, 572 F.3d at 382 n.7.
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suit.5 Although the federal plaintiffs raised an equal protection claim in their complaint, the
Seventh Circuit ruled solely on due process grounds. Zbaraz, 572 F.3d at 373 (question
concerned the due process of the judicial bypass procedure); see also Zbaraz, 572 F.3d at 380(applying “Bellotti II’s criteria”); Bellotti v. Baird (Bellotti II), 443 U.S. 622, 650 n.30 (1979)
(not decided on equal protection grounds). The mere statement of a claim in a complaint is
insufficient to create collateral estoppel in a subsequent suit; the claim must have been
actually litigated and decided in the first suit to lead to collateral estoppel in the second suit.
Nowak, 197 Ill. 2d at 390 (“the judgment in the first suit operates as an estoppel only as to
the point or question actually litigated and determined”). Thus, plaintiffs’ equal protection
claim is not barred by collateral estoppel.
¶ 78 Fourth, even if we were to find that the Zbaraz opinion had a preclusive effect on
plaintiffs’ due process claim, it considered only the judicial bypass procedure. Thus it could
not have a preclusive effect on plaintiffs’ allegations concerning other parts of the Act.
¶ 79 For these reasons, we reverse the trial court’s ruling that collateral estoppel precluded
plaintiffs’ equal protection and due process claims.
¶ 80 III. The Illinois Right to Privacy Clause
¶ 81 Plaintiffs’ privacy claim implicates two aspects of the Illinois privacy clause: the right
to an abortion (Family Life League v. Department of Public Aid, 112 Ill. 2d 449, 454 (1986)
(the Illinois privacy right “encompasses a woman’s decision of whether to terminate her
pregnancy”)); and the right against state-ordered disclosure of medical information (Kunkel
v. Walton, 179 Ill. 2d 519, 537 (1997) (“confidentiality of personal medical information is,
without question, at the core” of the Illinois privacy right)). The trial court held that
plaintiffs’ privacy claim must be dismissed because the Illinois abortion right is coextensive
with its federal counterpart, and federal law would require dismissal.
¶ 82 While state and federal constitutional clauses may be considered coextensive when the
two clauses are worded the same, this logic does not apply when the Illinois Constitution has
an express clause, such as a right to privacy clause, which the federal constitution does not.
People v. Caballes, 221 Ill. 2d 282, 289 (2006) (when a clause is unique to the state
constitution, it “must be interpreted without reference to a federal counterpart”); People v.
Nesbitt, 405 Ill. App. 3d 823, 828 (2010). As a result, we reverse the trial court’s order
dismissing plaintiffs’ privacy claim.
¶ 83 A. Abortion Right
¶ 84 We agree with much of the trial court’s order on this issue. In its order, the trial court
observed that our state constitution, unlike its federal counterpart, guarantees its citizens a
right against “unreasonable *** invasions of privacy.” Ill. Const. 1970, art. I, § 6; Kunkel v.
Walton, 179 Ill. 2d 519, 537 (1997) (“the right to privacy [is] expressly set forth in our state
5
At the oral argument held in this appeal on April 14, 2011, the parties agreed that the equal
protection claim was not decided in the federal litigation.
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constitution”). The trial court also observed that our state’s privacy right “goes beyond” the
liberties guaranteed by the federal bill of rights and that, as a result, our state constitution has
not been interpreted in a lockstep manner with the federal constitution on privacy issues. In
re: May 1991 Will County Grand Jury, 152 Ill. 2d 381, 391 (1992) (the Illinois privacy right
“goes beyond Federal constitutional guarantees”). See also Caballes, 221 Ill. 2d at 317 (the
Illinois Constitution’s “additional language” expands upon the rights in the federal
constitution); Kunkel, 179 Ill. 2d at 537, Best v. Taylor Machine Works, 179 Ill. 2d 367, 450
(1997); King v. Ryan, 153 Ill. 2d 449, 464 (1992); Nesbitt, 405 Ill. App. 3d at 828. Then,
quoting our state supreme court, the trial court observed that our state’s privacy right
includes a woman’s decision whether to terminate a pregnancy. “[C]iting the privacy clause,
our Supreme Court stated unequivocally that the ‘fundamental right of privacy which
encompasses a woman’s decision of whether to terminate her pregnancy *** was also
secured by the drafters of the 1970 Constitution of the State of Illinois.’ ” Hope Clinic v.
Adams, No. 09 CH 38661, order at 6 (Cir. Ct. Cook Co. Mar. 29, 2010) (quoting Family
Life, 112 Ill. 2d at 454). See also In re Baby Boy Doe, 260 Ill. App. 3d 392, 399 (1994) (“The
Illinois Supreme Court [in Family Life] has acknowledged that the State right of privacy
protects substantive fundamental rights, such as the right to reproductive autonomy.”).6 We
agree, as we must, with the unequivocal holdings of our supreme court.
¶ 85 However, the trial court found that our supreme court’s “statement in Family Life League
specifically equates the State’s abortion right with that found in the ‘right of privacy
guaranteed by the penumbra of the Bill of Rights of the United States Constitution.’ ” Hope
Clinic v. Adams, No. 09 CH 38661, order at 6 (Cir. Ct. Cook Co. Mar. 29, 2010) (quoting
Family Life, 112 Ill. 2d at 454). The “statement,” to which the trial court referred, is as
follows:
“In Roe v. Wade, the Supreme Court first recognized a fundamental constitutional
right of privacy which encompasses a woman’s decision of whether to terminate her
pregnancy. That right of privacy guaranteed by the penumbra of the Bill of Rights of
the United States Constitution was also secured by the drafters of the 1970
Constitution of the State of Illinois. Ill. Const. 1970, art. I, secs. 6, 12.” Family Life,
112 Ill. 2d at 454.
We disagree that the above statement means that the two rights are coextensive. Finding that
a woman’s right to an abortion is independently “secured” by two different and separate
sources is not the same thing as finding that those two sources are completely and totally
coextensive. See Family Life, 112 Ill. 2d at 454.
¶ 86 The trial court also found that its “reading” of the above statement was buttressed by
history. Hope Clinic v. Adams, No. 09 CH 38661, order at 6 (Cir. Ct. Cook Co. Mar. 29,
2010). The trial court stated that, since the drafters of the Illinois Constitution may not have
6
Our supreme court has also held that the constitutional right to privacy encompasses minors
as well as adults. In re Lakisha M, 227 Ill. 2d 259, 280 (2008) (a minor’s “ ‘zone of privacy’ [is]
protected by our constitution’s privacy clause”); In re A Minor, 149 Ill. 2d 247, 256-57 (1992)
(“minor victims have a compelling interest in their right to be free from invasions of their privacy”).
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contemplated that the privacy right would include abortion rights, therefore the state and
federal rights are coextensive. But see Caballes, 221 Ill. 2d at 317 (“ ‘[n]o definition of types
of privacy’ intended to be protected ‘is offered’ ” (quoting ILCS Ann., Ill. Const. 1970, art.
I, § 6, Constitutional Commentary, at 522 (Smith-Hurd 1993), 318 (chairman of the Bill of
Rights Committee evinced a concern with the revelation of “ ‘bedtime intimacies’ ” (quoting
3 Record of Proceedings, Sixth Illinois Constitutional Convention 1535)))). This argument,
that the drafters may not have contemplated the privacy right to include abortion rights,
might be an argument against finding that the privacy right includes abortion rights. But once
an abortion right is found in the privacy right, as our supreme court has already done, then
we fail to see how this makes the state right coextensive with its federal counterpart.
¶ 87 B. Right Against Disclosure of Medical Information
¶ 88 In addition to the abortion right, this case involves the right against state-compelled
disclosure of medical information. Our supreme court has held repeatedly that the disclosure
of personal medical and financial information implicates the Illinois right to privacy. Kunkel,
179 Ill. 2d at 537, 539 (the privacy right is implicated when the statute “provides for state
action as the means to compel the disclosure”); Best, 179 Ill. 2d at 459; Caballes, 221 Ill. 2d
at 330; Nesbitt, 405 Ill. App. 3d at 833 (the privacy right is implicated by the disclosure of
“highly personal matters”). This is yet another example of how our privacy right is not in
lockstep with the federal constitution.
¶ 89 A short summary of these cases is useful.7 In Kunkel, the supreme court considered a civil
discovery provision that required plaintiffs in personal injury actions to disclose their full
medical records to the opposing party. Kunkel, 179 Ill. 2d at 523, 526. Our supreme court
held that this statutory provision “violates the right to privacy expressly set forth in our state
constitution.” Kunkel, 179 Ill. 2d at 537. In Best, our supreme court observed that it had, a
month earlier, declared this same discovery provision unconstitutional in Kunkel. Best, 179
Ill. 2d at 437. However, since both cases were taken under advisement at the same time, the
Best court explained why it also found this provision to violate Illinois’s constitutional
privacy rights. Best, 179 Ill. 2d at 437-38. In reaching the same conclusion, the Best court
emphasized the state’s “strong public policy in preserving the sanctity of the patient-
physician relationship.” Best, 179 Ill. 2d at 453-54. This sanctity is also at stake in the case
at bar.
¶ 90 In Caballes, our supreme court described the “zone of personal privacy that the drafters
intended to protect” with our state’s right of privacy. Caballes, 221 Ill. 2d at 331. In
Caballes, our supreme court was called upon to determine whether a dog sniff of a vehicle
constituted an invasion of privacy, and the court held that it did not. Caballes, 221 Ill. 2d at
289. The court listed the reasons why a dog sniff failed to qualify as a privacy invasion: a dog
sniff “does not reveal private medical information,” it “will not reveal the contents of diaries
or love letters,” and “it will not review sexual orientation or marital infidelity.” Caballes, 221
Ill. 2d at 330-31. These examples show that the “zone of personal privacy,” protected by our
7
A summary of the Nesbitt case appears in the next section of this opinion.
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state right, includes the type of medical and personal information that is at the very heart of
the case before us.
¶ 91 In sum, our supreme court has observed “that the Illinois Constitution goes beyond
federal constitutional guarantees by expressly recognizing a zone of personal privacy, and
that the protection of that privacy is stated broadly and without restrictions.” Kunkel, 179 Ill.
2d at 537. See also Nesbitt, 405 Ill. App. 3d at 828 (“broadly written, with no definition
limiting the types of privacy intended to be protected”). Based on this broad and unrestricted
guarantee, our supreme court held that “[t]he confidentiality of personal medical information
is, without question, at the core” of what Illinois “regards as a fundamental component” of
its constitutional privacy right. Kunkel, 179 Ill. 2d at 537. This privacy guarantee is necessary
because, to be effective as physicians, physicians are, and must be, “privy to the most
intimate details of their patients’ lives, touching on diverse subjects like *** sexual health
and reproductive choice.” Kunkel, 179 Ill. 2d at 537. Reproductive choice is thus at the core
of this right against state-compelled disclosure of medical information.
¶ 92 C. Not Lockstep
¶ 93 In Caballes, the Illinois Supreme Court instructed its lower courts on the correct
approach when “considering the relationship, if any, between the meaning of the state
constitution and the meaning of the federal constitution.” Caballes, 221 Ill. 2d at 289. The
supreme court said that there were “three possible scenarios.” Caballes, 221 Ill. 2d at 289.
“First, a provision may be unique to the state constitution and, therefore, must be interpreted
without reference to a federal [constitution].” Caballes, 221 Ill. 2d at 289. Second, a
provision may be similar to a provision in the federal constitution, but differ in some
significant respect. Caballes, 221 Ill. 2d at 289-90. Third, the state provision may be identical
or nearly identical to a federal provision. Caballes, 221 Ill. 2d at 290.
¶ 94 In Caballes, the supreme court was presented with the first and third of these scenarios,
namely, the unique state provision and the virtually identical state provision. In Caballes, the
unique state provision was the same one that confronts us today, namely, the right to privacy;
and the virtually identical provision was the search-and-seizure provision, which is not at
issue in the case before us. Caballes, 221 Ill. 2d at 288.
¶ 95 For the virtually identical search-and-seizure provision, the Caballes court adopted what
it called a “limited lockstep approach.” Caballes, 221 Ill. 2d at 309-10. Our supreme court
defined this approach as one in which we will look first to the federal constitution, and only
if federal law provides no relief, will we determine whether a state departure is warranted
based on a specific state criterion. Caballes, 221 Ill. 2d at 309-10. Our supreme court
provided examples of state criteria, such as: a language difference in our constitution; the
debates and committee reports of our constitutional convention; our state tradition; and
preexisting state law. Caballes, 221 Ill. 2d at 310 (citing People v. Tisler, 103 Ill. 2d 226, 245
(1984), and People v. Krueger, 175 Ill. 2d 60 (1996)).
¶ 96 However, for the unique right to privacy, our supreme court did not apply this limited
lockstep approach. Caballes, 221 Ill. 2d at 317-31 (analysis of the state right to privacy). For
a provision “unique to the state constitution,” the court held that it “must be interpreted
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without reference to a federal counterpart.” Caballes, 221 Ill. 2d at 289. Thus, in the case at
bar, the trial court erred when it applied a lockstep approach to our state’s privacy right.
¶ 97 The appellate court has previously made this exact same point in People v. Nesbitt, 405
Ill. App. 3d 823 (2010), that the limited lockstep approach does not apply to the right of
privacy. In Nesbitt, the appellate court affirmed the suppression of a criminal defendant’s
bank records on the ground that the State had violated her right to privacy under the Illinois
Constitution by obtaining her bank records without a warrant or subpoena. Nesbitt, 405 Ill.
App. 3d at 825. The Nesbitt court held that, although the limited lockstep doctrine applied
to the state’s search and seizure clause, the limited lockstep doctrine did not apply when
“determining the parameters of the Illinois Constitution’s privacy provision.” Nesbitt, 405
Ill. App. 3d at 828. The appellate court also refused to adopt as a matter of state law the
holding of the United States Supreme Court in United States v. Miller, 425 U.S. 435, 442-43
(1976), which stated that a person had no legitimate expectation of privacy in his or her bank
records. Nesbitt, 405 Ill. App. 3d at 827, 830. Similarly, in the case at bar, we are under no
obligation to be in lockstep with federal law in deciding this aspect of our state’s privacy law.
¶ 98 Discussing Caballes, the appellate court held:
“Caballes applied limited lockstep analysis to the search and seizure provision
of our state constitution. Caballes, 221 Ill. 2d at 313. The court further recognized
that, in contrast to article I, section 6, of the Illinois Constitution, the fourth
amendment to the federal constitution makes no explicit mention of privacy,
guaranteeing only the ‘right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.’ U.S. Const., amend
IV. According to the court, this distinction reflects that the privacy clause of article
I, section 6, expands upon the rights guaranteed by the fourth (and fourteenth)
amendment to the federal constitution. Caballes, 221 Ill. 2d at 317 (citing to
constitutional comments). Thus, the fact that article I, section 6’s search and seizure
provision is read in limited lockstep with the fourth amendment to the federal
constitution does not require that the privacy clause of our constitution must be
interpreted in accordance with federal law. In other words, Caballes does not require
application of limited lockstep analysis when determining the parameters of the
Illinois Constitution’s privacy provision.” (Emphasis omitted.) Nesbitt, 405 Ill. App.
3d at 828.
We see no reason to depart from the sound logic of our own appellate precedent.
¶ 99 For all the above reasons, we reverse the trial court’s order finding that the Illinois
privacy law governing this case was in lockstep with its federal counterpart.
¶ 100 D. Not Reasonable
¶ 101 As an alternative basis for dismissing plaintiffs’ privacy claim, the trial court found that
the Illinois Constitution provides protection against only unreasonable invasions of privacy,
and that the Act’s privacy invasions were not unreasonable.
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¶ 102 1. Reasonableness Test
¶ 103 The Illinois right to privacy differs from the federal right to privacy in that, in Illinois,
the governing test is whether the privacy invasion was “reasonable.” Caballes, 221 Ill. 2d at
321. By contrast, in federal privacy law, the various tests that have been used include the
“rational basis” test, the “strict scrutiny” test and the “undue burden” test. For example, all
three of these tests were employed in Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992), when the United States Supreme Court considered a state law
requiring a wife to notify her husband of an intended abortion. To strike down the law, four
justices applied the undue burden test and one justice applied the strict scrutiny test. Casey,
505 U.S. at 876 (undue burden) (O’Connor, J., with Kennedy and Souter, JJ., concurring),
920 (undue burden) (Stevens, J., concurring), 926 (strict scrutiny) (Blackmun, J.,
concurring). By contrast, the four dissenting justices applied the rational basis test. Casey,
505 U.S. at 966 (Rehnquist, C.J., with White, Scalia and Thomas, JJ., dissenting).
¶ 104 We are fortunate in Illinois that we can bypass the confusion about tests apparent in
Casey, since our constitution provides a qualitative test expressly in the document itself.
Since our right to privacy does not come from amorphous “penumbras” (e.g., Roe v. Wade,
410 U.S. 113, 152 (finding a privacy right “in the penumbras of the Bill of Rights”)), but is
instead stated directly in our constitution, we know that our guiding principle is
reasonableness. Ill. Const. 1970, art. I, § 6 (prohibiting only “unreasonable” invasions of
privacy).
¶ 105 As a result, Illinois privacy jurisprudence is generally not phrased in terms of “a rational
basis test,” “a strict scrutiny test,” or “an undue burden test.” Our supreme court has made
clear that, once a right to privacy is established under the Illinois Constitution, the sole test
for our courts is “whether the state’s invasion of individual privacy is reasonable.” Caballes,
221 Ill. 2d at 321. Even when the answer to that question requires a balancing of the
individual’s interest against the state’s interest, that balancing is generally accomplished
without reference to the strict scrutiny test, the rational basis test or the undue burden test.
Caballes, 221 Ill. 2d at 321 (balancing the individual’s interest against the state’s interest
with a test of reasonableness); Nesbitt, 405 Ill. App. 3d at 830 (considering only the
“reasonableness” of the state’s privacy intrusion); In re Will County Grand Jury, 152 Ill. 2d
at 392. For example, without discussing strict scrutiny, rational basis or undue burden, our
supreme court held that the Illinois right to privacy was violated by a state statute that
required unlimited discovery from a personal injury plaintiff. Kunkel, 179 Ill. 2d at 537-540;
accord Best, 179 Ill. 2d at 449-59 (reaching the same result for the same question in a case
that was filed nearly at the same time as Kunkel); Family Life League, 112 Ill. 2d at 456-57(without discussing strict scrutiny, rational basis or undue burden, our state supreme court
held that the Illinois privacy right was not violated by a state statute requiring disclosure of
a list of abortion providers); In re Lakisha M., 227 Ill. 2d at 278-80 (without discussing strict
scrutiny, rational basis or undue burden, our state supreme court held that the Illinois privacy
right was not violated by a state statute requiring DNA extraction from a juvenile offender).
In our state, the balancing is done by considering the reasonableness of the invasion, as our
constitution expressly requires. Ill. Const. 1970, art. I, § 6.
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¶ 106 2. Trial Court’s Conclusions
¶ 107 In the case at bar, the trial court found that, for many minor women, disclosure will result
in physical and emotional abuse, and the Act will thus lead to clear infringements of their
constitutional rights. However, without any explanation of what these circumstances were,
the trial court also found that “there are circumstances” where disclosure would be
reasonable and “that is all that is necessary to defeat” plaintiffs’ claim. Hope Clinic v.
Adams, No. 09 CH 38661, order at 8 (Cir. Ct. Cook Co. Mar. 29, 2010).
¶ 108 The trial court also did not consider the Act’s placement of minor women into categories,
subjecting some to privacy invasions and exempting others. Casey, 505 U.S. at 896 (finding
unconstitutional an act which divided women into categories of married and single, and
placed notice requirements only on the former). Minor women who have, or who have ever
had a husband, are exempt from this privacy invasion, while the minors who do not have, and
who never have had, a husband are not exempt.8 Minor women who have been raped or
subjected to incest by a stepfather are exempt from disclosure only if they remain in his
home. Minor women who have watched their siblings be subjected to physical or sexual
abuse by the very parent to whom they must disclose information are not exempt from
disclosure.
¶ 109 The trial court concluded, without explanation, that the United States Supreme Court had
upheld more stringent requirements. Hope Clinic v. Adams, No. 09 CH 38661, order at 8
(Cir. Ct. Cook Co. Mar. 29, 2010). First, every case cited was decided by federal courts
interpreting federal law and, as we have already discussed, the Illinois privacy right is not in
lockstep with its federal counterpart. Thus, all these cases are distinguishable.
¶ 110 Second, several decisions cited by the trial court found the statutes unconstitutional.
Hodgson v. Minnesota, 497 U.S. 417, 450 (1990) (finding unconstitutional a two-parent
notice requirement); Bellotti II, 443 U.S. at 653 (finding unconstitutional a requirement of
parental or judicial consent); Casey, 505 U.S. at 898 (finding unconstitutional a requirement
of spousal notice).9 For the rest of the decisions cited, either notice was not at issue (Planned
8
Although Illinois requires women under age 18 to obtain parental or judicial consent to
marry (750 ILCS 5/203(1), 208 (West 2008)), that is not true for all states and certainly not for all
countries. E.g. Kerry Abrams, Immigration Law and the Regulation of Marriage, 91 Minn. L. Rev.
1625, 1665 n.166 (2007) (some states have differing ages of consent for boys and girls); Michael
Mello, Executing Rapists: A Reluctant Essay on the Ethics of Legal Scholarship, 4 Wm. & Mary J.
of Women & L. 129, 138 (1997) (some states permit women to marry as young as age 15 or 16
without parental consent); Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the
Invisible Harm, 42 Colum. Hum. Rts. L. Rev. 55 (2010) (there is no minimum age of consent to
marry in certain Islamic countries). The Act’s exemption of married or previously married minors
is not limited to jurisdictions where parental or judicial consent was required; thus, prior parental
or judicial consent even to marry cannot be presumed.
9
Although seven justices in Casey appeared to agree that a parental consent provision was
constitutional, they were unable to agree on an opinion concerning this provision. Thus, it is hard
to know what this decision stands for on this issue.
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Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 492 n.18 (1983)
(no notice provision);10 Ohio v. Akron Center for Reproductive Health, 497 U.S. 502(1990))11 or there was an exemption which could cover situations involving rape, incest, or
physical or sexual abuse in the home (H.L. v. Matheson, 450 U.S. 398, 407 n.14 (1981)).
¶ 111 For example, in H.L., 450 U.S. 398, the only issue before the United States Supreme
Court was the facial validity of a statute requiring a physician to notify parents, “ ‘if
possible,’ ” and only: (1) if the girl is living with and dependent on them; (2) if she is not
emancipated; (3) if she is not mature enough to make her own medical decisions; and (4) if
informing her parents would not pose family conflict. H.L., 450 U.S. at 406-07 (quoting the
Utah statute before it). See also H.L., 450 U.S. at 403 n.8 (“ ‘family conflict over the abortion
decision’ ” not a factor (quoting dissent)); 406 (finding that this statute could be construed
“to exempt demonstrably mature minors”). These factors are a far cry from the factors under
consideration in our case.
¶ 112 For these reasons, we find that the cases relied on by the trial court are distinguishable
and that the Act’s placement of women into categories was not considered.
¶ 113 IV. The Illinois Gender Equality Clause
¶ 114 The trial court decided the gender equality claim without utilizing strict scrutiny review.
For the reasons discussed below, we find that strict scrutiny applies to this claim; we reverse
the trial court’s ruling; and we remand to provide the State an opportunity to satisfy its
burden under strict scrutiny review of demonstrating a compelling state purpose.
¶ 115 The gender equality clause states that “[t]he equal protection of the laws shall not be ***
abridged on account of sex by the State.” Ill. Const. 1970, art. I, § 18. The purpose of the
amendment is “to guarantee rights for females equal to those of males.” People v. Ellis, 57
Ill. 2d 127, 130 (1974); Teverbaugh v. Moore, 311 Ill. App. 3d 1, 3 (2000). Like the right to
privacy, the gender equality clause has no express counterpart in the federal constitution.
10
In Ashcroft, due to “the posture in which [the statute] appears before this Court for review,
[the statute] contains no requirement for parental notification.” Ashcroft, 462 U.S. at 491 n.17.
Although the statute did contain a parental consent requirement, it contained an exception if “[t]he
minor is emancipated.” (Internal quotation marks omitted.) Ashcroft, 462 U.S. at 479 n.4 (quoting
Mo. Rev. Stat. § 188.028 (2) (Supp. 1982)). This exception differs from the one in the Illinois act,
because in the Illinois act the minor must have been already adjudicated emancipated pursuant to
the Illinois Emancipation of Minors Act (750 ILCS 30/1 et seq. (West 2008)). By contrast, the
Missouri statute contained no requirement of prior adjudication and the term “emancipated” was
defined broadly by reference to common usage. Ashcroft, 462 U.S. at 492 n.18.
11
The issue before the court in Akron with respect to the notice provision was not the
disclosure itself, but rather who had to make it. Akron, 497 U.S. at 518. The statute in Akron required
the doctor performing the abortion to be the one who notified the parents. Akron, 497 U.S. at 518.
On appeal, the only argument that plaintiffs made with respect to the parental notice provision was
that another person should also be permitted to make the disclosure to the parents. Akron, 497 U.S.
at 518-19.
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Ellis, 57 Ill. 2d at 132 (“In contrast to the Federal Constitution, which, thus far, does not
contain the Equal Rights Amendment, the [Illinois] Constitution of 1970 contains section 18
***.”). Based on this fact, our supreme court has found “inescapable the conclusion that it
was intended to supplement and expand the guarant[ees] of the equal protection provision
of the Bill of Rights.” Ellis, 57 Ill. 2d at 132.
¶ 116 Unlike the right to privacy, the rational basis and strict scrutiny tests apply to equal
protection questions. E.g., People ex rel. Tucker v. Kotsos, 68 Ill. 2d 88, 96-97 (1977). After
reviewing the gender clause’s language and the debates leading to its passage, our supreme
court held that “a classification based on sex is a ‘suspect classification’ which, to be held
valid, must withstand ‘strict judicial scrutiny.’ ” Ellis, 57 Ill. 2d at 132-33; Teverbaugh, 311
Ill. App. 3d at 3-4 (the gender equality clause “designat[es] gender a suspect classification”
requiring strict scrutiny); People v. Lann, 261 Ill. App. 3d 456, 475 (1994) (“under our State
Constitution, gender-based classifications are accorded a higher level of scrutiny”). Under
strict scrutiny review, the burden is on the state to show that a distinction is related to some
compelling State purpose. Ellis, 57 Ill. 2d at 131.
¶ 117 As we already discussed above, when a clause is unique to the state constitution, it “must
be interpreted without reference to a federal counterpart.” Caballes, 221 Ill. 2d at 289. Our
supreme court has previously applied the gender equality clause to invalidate distinctions
made between minor men and women. Ellis, 57 Ill. 2d at 133 (different ages for juvenile
offender status); Phelps v. Bing, 58 Ill. 2d 32, 35 (1974) (different ages for marriage). While
invalidating a law which provided differing ages for juvenile offender status based on gender,
our supreme court held that “we find no compelling State interest which justifies treating a
17-year-old boy differently from a 17-year-old girl.” Ellis, 57 Ill. 2d at 133; Phelps, 58 Ill.
2d at 35 (“we do not find[ ] any compelling State interest which justifies treating males and
females of the same age differently”). Those words apply with equal force to the case at bar.
¶ 118 In the case at bar, the law discriminates between women and men by permitting a minor
male, without notifying his parents, to consent or withhold consent for a surgical procedure
for his child, even if that decision might endanger the health or life of that child, while
requiring parental notice for a minor woman seeking to abort. Compare Consent by Minors
to Medical Procedures Act (410 ILCS 210/1 (West 2008) (minor father “is deemed to have
the same legal capacity to act” as an adult)) with Parental Notice of Abortion Act (750 ILCS
70/15 (West 2008)). If a minor male can make a life-endangering decision for his child, then
certainly a minor female should be able to make a similar decision for a fetus. If the male’s
decision does not require parental notification, then requiring parental notification for only
the female’s decision creates a gender-based distinction.
¶ 119 The Act also distinguishes between women with husbands and single women, and
between women who remain with abusive stepfathers and those who do not. These
distinctions are based on a woman’s connection to a man either through marriage or
domicile, and we cannot think of an equivalent that would apply to a minor male.
¶ 120 Applying our supreme court precedent to the facts at bar, we find that the Act results in
sex-based distinctions and thus requires strict scrutiny review. We reverse the trial court’s
ruling and remand for further proceedings consistent with our holding.
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¶ 121 V. Intervenors
¶ 122 The trial court denied the motion of the proposed intervenors for leave to intervene, on
the ground that the Illinois Attorney General’s office was adequate to represent their
interests. The trial court did grant them leave to file their brief as an amicus curae. Both
plaintiffs and defendants urge us to affirm the trial court’s order. For the reasons stated
below, we affirm the trial court’s order denying the petition to intervene.
¶ 123 These same two State’s Attorneys, Stewart Umholtz and Edward Deters,12 previously
tried to intervene in the federal litigation, and their motion was denied. Zbaraz, 572 F.3d at
377. The federal court denied their motion because they failed to allege “any factual or legal
distinctions that make their interests divergent” from the existing parties, and because the
existing parties could “adequately represent the proposed intervenors’ interests.” Zbaraz, 572
F.3d at 377. The existing parties in the federal case included the state’s Attorney General,
who is a defendant in this state lawsuit, and the State’s Attorney for Cook County. Although
the federal holding is not binding on this court, it is instructive.
¶ 124 As we already noted above, an appellate court reviews a trial court’s decision on a
petition to intervene only for an abuse of discretion. In re Adoption of S.G., 401 Ill. App. 3d
at 784. “The decision to allow or deny intervention, whether permissively or as of right, is
a matter of sound judicial discretion that will not be reversed absent an abuse of discretion.”
People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 58 (2002).
¶ 125 In the case at bar, the two State’s Attorneys seek to intervene as of right pursuant to
section 2–408(a)(2) of the Code of Civil Procedure. This subsection provides that “(a) [u]pon
timely application anyone shall be permitted as of right to intervene in an action: *** (2)
when the representation of the applicant’s interest by existing parties is or may be inadequate
and the applicant will or may be bound by an order or judgment in the action.” 735 ILCS
5/2–408(a)(2) (West 2008).
¶ 126 The plain language of the statute requires the intervenors to prove that the representation
of the existing parties may be inadequate. Argonaut Insurance Co. v. Safway Steel Products,
Inc., 355 Ill. App. 3d 1, 8 (2004). The two State’s Attorneys have failed to show how the
representation of the state’s Attorney General may be inadequate. Both the State’s Attorneys
and the state’s Attorney General are seeking the same result; they are both acting in their
official capacities to represent the people of this state; and they are both sworn to uphold and
enforce the laws of this state. Argonaut, 355 Ill. App. 3d at 8 (considering whether the
intervenors have a divergent interest). No allegation has been made that the Attorney General
for the entire state has less adequate resources than the State’s Attorneys for two counties.
Argonaut, 355 Ill. App. 3d at 8 (considering the relative resources and expertise of the
intervenors and the existing parties). No allegation has been made that there is something
particular about these two counties which would give their State’s Attorneys a special and
unrepresented interest in the litigation. Argonaut, 355 Ill. App. 3d at 8 (considering the
12
In their appellate brief, the intervenors’ counsel cites as persuasive authority a book and
articles which he wrote.
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commonality of the factual claims).
¶ 127 Since the intervenors failed to show either inadequate representation by the existing
parties, or a divergent or unrepresented interest, we find that the trial court did not abuse its
discretion by denying their motion to intervene as of right.
¶ 128 Alternatively, the intervenors seek to intervene by permission, pursuant to section
2–408(b)(2) of the Code of Civil Procedure. This subsection provides that: “(b) [u]pon timely
application anyone may in the discretion of the court be permitted to intervene in an action:
*** (2) when an applicant’s claim or defense and the main action have a question of law or
fact in common.” 735 ILCS 5/2–408 (b)(2) (West 2008). This subsection contains no explicit
requirement that the proposed intervenor must show inadequate representation. ABN Ambro
Services Co. v. Naperville Park District, 325 Ill. App. 3d 7, 11 (2001).
¶ 129 We also find that the trial court did not abuse its discretion by denying the motion for
permissive intervention. Although an intervenor need not have a direct interest in the pending
suit, he or she must have an interest greater than the general public, so that he or she stands
to gain or lose by the direct effect of a judgment in the suit. Birkett, 202 Ill. 2d at 57-58
(citing Caterpillar Tractor Co. v. Lenckos, 84 Ill. 2d 102, 112 (1981)). See also Maiter v.
Chicago Board of Education, 82 Ill. 2d 373, 382 (1980) (“the applicant must have an
enforceable or recognizable right and more than a general interest in the subject matter”).
¶ 130 The two State’s Attorneys claim that they have an interest, separate and apart, from the
general public, in prosecuting possible forgeries of parental consent and in referring
professionals who violated the Act to the appropriate disciplinary board. 750 ILCS 70/40
(West 2008).13 However, this is no more than saying than that they have a duty to enforce the
law, whatever it may be, against infractions. Their interest lies in proper enforcement, and
none of their claims concern the possible difficulties or problems with enforcing the law. As
a result, they have no more interest in the validity of a law passed by the legislature than the
ordinary citizen or voter.
¶ 131 Since the proposed intervenors failed to demonstrate either inadequate representation by
the state’s Attorney General or an interest separate and apart from either the general public
or the existing parties, we find that the trial court did not abuse its discretion in denying their
motion to intervene.
¶ 132 CONCLUSION
¶ 133 For the foregoing reasons, we reverse the trial court’s order dismissing the complaint
with prejudice; we affirm the trial court’s order denying the petition to intervene; and we
remand for further proceedings consistent with this opinion.
¶ 134 Affirmed.
13
The penalties provision of the Act provides that any person who fraudulently signs a notice
waiver may be prosecuted for a misdemeanor, and that any physician who willfully fails to provide
notice shall be referred to the Illinois State Medical Disciplinary Board for disciplinary action. 750
ILCS 70/40 (West 2008).
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¶ 135 JUSTICE McBRIDE, concurring in part and dissenting in part.
¶ 136 I concur with the decision to reverse the trial court’s dismissal of counts I, II, and III of
plaintiffs’ verified complaint and I also agree that the trial court properly denied the petition
to intervene. However, I dissent from that portion of the opinion that reverses the trial court’s
dismissal of the gender equality count. I do not believe the allegations accepted as true and
authority relied upon by plaintiffs support the contention that the Act violates article I,
section 18, of the Illinois Constitution. Accordingly, I would affirm the trial court’s dismissal
of count IV.
¶ 137 PRESIDING JUSTICE GARCIA, specially concurring:
¶ 138 I agree that the circuit court wrongly granted the defendants’ motion to dismiss the
complaint with prejudice based on federal case law authority. I do so, however, on
substantially narrower grounds than Justice Gordon. In particular, I do not join in the author’s
suggestion that “the Act’s placement of minor women into categories” may render its
application unreasonable (supra ¶ 108) or that the Act “[improperly] discriminates between
men and women” (supra ¶ 118). I also conclude that our decision to remand renders moot
the appeal of the intervenors, which permits the intervenors to seek intervention once again
on remand.
¶ 139 In its memorandum opinion, the circuit court addressed the argument of the defendants
that the federal court of appeals’ decision in Zbaraz v. Madigan, 572 F.3d 370 (7th Cir.
2009), under the doctrines of res judicata and collateral estoppel, barred the plaintiffs’ claims
under the Illinois Constitution. I agree with the circuit court’s rejection of the defendants’
contention that the plaintiffs “should have raised a state constitutional challenge when they
brought the federal litigation” on res judicata grounds. The circuit court noted that the
eleventh amendment to the federal constitution would have required the “Plaintiffs *** to
litigate their claims [under the Illinois Constitution] in state court.”
¶ 140 I part company with the circuit court when it adopted the defendants’ argument that
collateral estoppel applies to bar the state court litigation “because Illinois analyzes
constitutional provisions in ‘limited lockstep’ with the federal courts [and] Plaintiffs’ equal
protection and due process issues were settled in the federal litigation.”14 Zbaraz was issued
by an intermediate court of review, much like this court. I am aware of no authority, and the
defendants cite none, that holds that the limited lockstep doctrine is triggered whenever an
intermediate federal court issues a decision on federal constitutional grounds. Our supreme
court has applied the limited lockstep doctrine when it has considered a decision by the
United States Supreme Court. See People v. Tisler, 103 Ill. 2d 226, 245 (1984) (“Any
variance between the Supreme Court’s construction of the provisions of the fourth
14
There is no small amount of irony in the circuit court’s rulings to dispense with the
defendants’ res judicata argument that the claims under the Illinois Constitution had to be resolved
in state court and the court’s acceptance of the defendant’s collateral estoppel argument to preclude
those same claims in state court.
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amendment in the Federal Constitution and similar provisions in the Illinois Constitution
must be based on more substantial grounds.”). More to the point, the circuit court below
provided no analysis that the “limited lockstep” doctrine mandates that an Illinois court
follow a federal court of appeals’ analysis of claims under the federal constitution to decide
issues raised solely under the Illinois Constitution. The limited lockstep doctrine does not
compel rote application, but requires due consideration of the interests protected under the
Illinois Constitution. See People v. Caballes, 221 Ill. 2d 282, 285 (2006) (Even though the
search and seizure clauses of the state and federal constitutions are nearly identical, “we must
now consider whether, even though the canine sniff *** did not implicate the fourth
amendment, it nevertheless violated the guarantees of the state constitution.”).
¶ 141 Before an Illinois court is constrained to follow the legal path taken by a lower federal
court, it should require the party advocating such a position to demonstrate that the limited
lockstep doctrine applies under the particular facts and circumstances presented by the case
at hand. This the circuit court failed to do here. Though the outcome in an analysis under the
Illinois Constitution may be the same outcome reached in the federal litigation, it is an
outcome that requires analysis under Illinois law. Caballes, 221 Ill. 2d at 285.
¶ 142 Nor am I certain that the principal issue before us is as the circuit court phrased it:
whether “the Illinois Constitution’s right to privacy contains its own, distinct right to
abortion that is greater than the right contained in the Federal Constitution.” The right to
privacy under the Illinois Constitution makes no mention of abortion as the landmark
decision on abortion by the United States Supreme Court was issued after our constitutional
convention was held in 1970. See Roe v. Wade, 410 U.S. 113 (1973). I submit the issue for
the circuit court to address on remand is whether the right to privacy guaranteed by the state
constitution to Illinois citizens is unconstitutionally impinged upon by the Parental Notice
of Abortion Act of 1995 (750 ILCS 70/1 et seq. (West 2008)). The context is abortion, but
the right of privacy under the Illinois Constitution extends beyond that subject.
¶ 143 Nor do I agree that our supreme court’s decision in Caballes provides an answer to
whether the limited lockstep doctrine applies to the express right of privacy, even in the
context of abortion. In Caballes, our supreme court addressed the issues “whether to abandon
or reaffirm the lockstep doctrine and whether the right of privacy guaranteed by the state
constitution is implicated by a dog sniff of a car during [the] routine traffic stop.” Caballes,
221 Ill. 2d at 289. I submit our supreme court was precise about the constitutional issue
before it, with due regard to the facts, in order to ensure its holding would be precise as well,
which limits its holding in matters outside the context of search and seizure.
¶ 144 In Caballes, our supreme court acknowledged that a state court is “free to construe its
own constitution as providing greater protection than comparable provisions in the federal
constitution.” Caballes, 221 Ill. 2d at 298-99 (quoting the holding in People v. Mitchell, 165
Ill. 2d 211, 217-22 (1995)). Our supreme court has “departed from strict lockstep
interpretations when circumstances warrant.” Caballes, 221 Ill. 2d at 299. Or when a
decision by the United States Supreme Court “diminished the protections previously
provided” under an express constitutional provision. Caballes, 221 Ill. 2d at 300. Or when
“state due process concerns” are involved. Caballes, 221 Ill. 2d at 301 (citing People v.
McCauley, 163 Ill. 2d 414 (1994) and People v. Washington, 171 Ill. 2d 475 (1996)). In the
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context of Illinois’ long-arm statute, our supreme court has made clear that state due process
concerns may go beyond federal due process guarantees. “The Illinois Constitution contains
its own guarantee of due process to all persons (Ill. Const. 1970, art. I, §2), a guarantee which
stands separate and independent from the Federal guarantee of due process. While this court
may, in construing the Illinois Constitution’s guarantee of due process, look for guidance and
inspiration to constructions of the Federal due process clause by the Federal courts, the final
conclusions on how the due process guarantee of the Illinois Constitution should be
construed are for this court to draw.” Rollins v. Ellwood, 141 Ill. 2d 244, 275 (1990).
¶ 145 I conclude it is much too early in the legal process of this case to address whether there
is good reason for a “departure from federal precedent” under the “approaches” discussed by
our supreme court in Caballes. (Internal quotations omitted.) Caballes, 221 Ill. 2d at 306-09.
Our review of the adequacy of the state based claims in the plaintiffs’ complaint should wait
until we have a decision by the circuit court, assisted by the parties, based on Illinois law. I
can only conclude that when the circuit court below stated it was “compelled to find the Act
is Constitutional,” it did so because the federal court of appeals said the Act passed federal
constitutional muster. To be clear, I do not intimate that a different outcome should prevail
under the Illinois Constitution. I contend only that when a claim is made exclusively under
the Illinois Constitution, we should analyze those claims under Illinois law to develop our
own jurisprudence. Compare RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.
1997) (“Illinois courts have given little guidance as to how state due process protection
differs from federal protection ***”). This is especially warranted when the Illinois
Constitution contains an express provision with no express federal counterpart: the privacy
clause (Ill. Const. 1970, art. I, § 6).
¶ 146 I agree that the circuit court’s order must be vacated and this cause remanded for further
proceedings.
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