ABIGAILE LEBRON, a Minor, et al., Appellees, v. GOTTLIEB MEMORIAL HOSPITAL et al., Appellants.
Nos. 105741, 105745 cons.
Supreme Court of Illinois
February 4, 2010
Rehearing denied May 24, 2010
237 Ill. 2d 217
Affirmed.
Richard H. Donohue and Karen Kies DeGrand, of Donohue Brown Mathewson & Smyth LLC, of Chicago, Saul J. Morse, of Brown, Hay & Stephens LLP, of Springfield, and Theodore B. Olson, Douglas R. Cox and Andrew S. Tulumello, of Gibson, Dunn & Crutcher LLP, of Washington, D.C., for appellant Roberto Levi-D‘Ancona.
Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro, Solicitor General, Jane Elinor Notz, Deputy Solicitor General, and Brett Legner, Assistant Attorney General, of Chicago, of counsel), for intervenor-appellant.
Todd A. Smith and Devon C. Bruce, of Power Rogers & Smith, P.C., and Jeffrey M. Goldberg, all of Chicago, Kenneth Chesebro, of Cambridge, Massachusetts, Jonathan S. Massey, of Bethesda, Maryland, Michael H.
Carmel M. Cosgrave, Michael Resis, Ellen L. Green and Jennifer Stuart, of SmithAmundsen LLC, of Chicago, for amicus curiae Advocate Health and Hospitals Corporation.
Melinda Reid Hattan and Maureen D. Mudron, of Washington, D.C., for amicus curiae American Hospital Association.
Jon N. Ekdahl and Leonard A. Nelson, of Chicago, for amicus curiae American Medical Association.
George F. Galland, Jr., of Miner Barnhill & Galland, of Chicago, for amici curiae Illinois Catholic Health Association and Illinois Rural Health Association.
Thaddeus J. Nodzenski, of Naperville, for amicus curiae Illinois Hospital Association.
Richard R. King II and Robert John Kane, of Chicago, for amicus curiae Illinois State Medical Society.
Charles E. Reiter III, and James L. Reed, Jr., of Maywood, for amici curiae Loyola University Medical Center and Loyola University Physician Foundation.
Richard A. Devine, State‘s Attorney, of Chicago (Patrick T. Driscoll, Jr., Elizabeth Reidy, Randolph Johnson and Karen J. Dimond, Assistant State‘s Attorneys, of counsel), for amicus curiae County of Cook.
J. Timothy Eaton, of Shefsky & Froelich, Ltd., and Aurora N. Abella-Austriaco, both of Chicago, and Jack C. Carey and Charles J. Northrup, of Springfield, for amici curiae Chicago Bar Association and Illinois State Bar Association.
Joseph P. Costello, of Costello, McMahon, Burke & Murphy, Ltd., of Chicago, for amicus curiae Chicago Federation of Labor.
Geoffrey L. Gifford, of Pavalon Gifford & Laatsch, of Chicago, for amici curiae Citizen Action/Illinois and Illinois Alliance for Retired Americans.
Michael W. Rathsack, of Chicago (Donald R. Jackson, of Peoria, and Marian E. Perkins, of Chicago of counsel), for amici curiae National Association for the Advancement of Colored People and Cook County Bar Association.
Joel D‘Alba, of Asher, Gittler, Greenfield & D‘Alba, Ltd., of Chicago, for amicus curiae Illinois AFL-CIO.
Philip Harnett Corboy, Jr., and Bruce M. Kohen, of Springfield (Bruce R. Pfaff, of Chicago, of counsel), for amicus curiae Illinois Trial Lawyers Association.
Edward J. Kionka, of Carbondale, for amici curiae Professors Neil Vidmar et al.
Michelle M. Kohut, of Chicago, for amicus curiae Women‘s Bar Association of Illinois.
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) (
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-
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 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 (
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, 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 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 (
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
I
This case comes to us following the grant of plaintiffs’ motion for judgment on the pleadings. See
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 2-1706.5, like every statute, enjoys a strong presumption of constitutionality and that the burden of rebutting this presumption rests with the party challeng-
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 (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:
- 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.
- 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.
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. 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
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 (
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 noneconomic 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).
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 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
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 (
We agreed with the plaintiffs that under Wright, Grace and Grasse the automatic $500,000 limit on
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 (
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
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 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,
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 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, 93 L. Ed. 1524, 1526, 69 S. Ct. 1235, 1237 (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
Defendants do not argue that the separation of powers analysis in Best is necessarily erroneous. Rather, they argue that the statute at issue here,
We agree with defendants that the scope of the statute at issue in Best was much broader than the statute we examine here. The damages cap in
Under
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
The separation of powers clause prohibits one branch of government from exercising “powers properly belonging to another.”
For similar reasons, we reject defendants’ argument that
“[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 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
In a related vein, the Attorney General posits that
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
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
In Unzicker we considered the constitutionality of
Defendants contend that
Defendants also argue that the separation of powers clause “allows the legislature to enact statutes affecting the conduct of litigation if its purpose is to serve legitimate legislative goals,” and that the statute here, although affecting the conduct of litigation, is plainly
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 do 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
Defendants stress that the General Assembly has the authority to change the common law, which the General Assembly has regularly exercised, and that invalidating
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
“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 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
Defendants further argue that if
We decline to comment on the constitutionality of statutes that are not before us. We note, however, that, unlike
Defendants direct this court‘s attention to statutes limiting noneconomic damages in medical malpractice cases that have been adopted in other states. See
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).”
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
We hold that the limitation on noneconomic damages in medical malpractice actions set forth in
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 constitutionation; 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.” 237 Ill. 2d at 260-61, 270, 284 (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
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 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. 237 Ill. 2d at 264 (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
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. 237 Ill. 2d at 268 (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 declaratory judgment statute); Weber v. St. Paul Fire & Marine Insur. 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
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“).
Because issues of standing and ripeness do not implicate this court‘s subject matter jurisdiction, and
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.
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 *** 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
Section 315 revised the
Section 330 (Pub. Act 94-677, § 330, eff. August 25, 2005) amended the
- 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 - 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 (
Finally, article 4 of the Act (Pub. Act 94—677, §§ 401 through 495, eff. August 25, 2005, codified at
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
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 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 (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
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 237 Ill. 2d at 228.
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 (
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).
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 prudentialjudicial 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 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.
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
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
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 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
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 is, however, 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
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 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 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
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
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
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.”
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 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.
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 (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 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
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
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 forego
The majority makes the point that we should not follow a particular course of conduct merely because “everybody is doing it.” 237 Ill. 2d at 249. 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.” Sophocles, 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 (
“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).
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. 237 Ill. 2d at 238-45.
Limitation or abolition of common law remedies by the legislature sometimes triggers challenges under
“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 .
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
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 ***.’” 237 Ill. 2d at 250. 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
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 II, 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 II, 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 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 noneconomic damages were objectionable because they “impermissibly penalized the most severely injured persons.” 237 Ill. 2d at 232. 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
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 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 treat
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
“[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.