Illinois Supreme Court - 1997 Term
The Court Flexes its Muscle
By Timothy Eaton
During its 1997 term the Illinois Supreme Court sent
a strong message to both the judiciary and to the legislature that it remains the final
word on what powers the Illinois Constitution grants our three branches of government.
In the true spirit of former Chief Justice John Marshall, this
Supreme Court reminded the General Assembly that the judicial branch is the final word on
what the Illinois Constitution will permit the legislature to do or not to do, and
moreover, the judiciary will not tolerate legislative encroachments upon its own inherent
judicial powers.
This judicial/legislative show-down played out in at least three
significant decisions of the Court in 1997: Murneigh v. Gainer, 177 Ill.2d 287,
1997 Ill. LEXIS 430 (1997); Kunkel v. Walton, 1997 WL 720867 (1997); and Best v.
Taylor Mach. Works, 1997 WL.
The Supreme Court also made clear that it, not the appellate court,
is the final word on what the Constitution mandates of the judiciary, and what authority
the Supreme Court is willing to grant the appellate court in matters where the Supreme
Court has exclusive authority.
In short, 1997 was a watershed year for a court that started in
turmoil over external events, but clearly regained its preeminence both within the
judiciary and as it relates to the other two branches of government.
Supreme Court Decides Just How "Separate" the Three
Branches of Government Must Be
In its 1996 term the Supreme Court deferred to the legislature in
the landmark case of The Committee for Educational Rights v. Edgar, 174 Ill.2d 1,
672 N.E.2d 1178 (1996) where the issue of the way Illinois funds public education was
being constitutionally challenged. The Court concluded that Illinois’ 1970
Constitution entrusted the subject of public education to the legislature, and the
courts’ role is limited to ensuring that no legislative enactment exceeds whatever
judicially enforceable limitations the constitution placed on the General Assembly’s
powers.
In that same term, however, where the judiciary was ordering an
executive branch of government to not only provide certain services but to pay for them,
the Court rejected a separation of powers challenge holding that "the doctrine of
separation of powers was not designed to achieve a complete divorce among the three
branches of government, nor does it require governmental powers to be divided into rigid,
mutually exclusive compartmentalization. In re Lawrence M., 172 Ill. 2d 523, 524,
670 N.E.2d 710 (1996) (whether the circuit court had authority to enter orders requiring
the Department of Children and Family Services to provide and pay for in-patient drug
treatment for mothers whose children were removed from their custody due to their
mothers’ drug-related neglect.
Although the Court in the Edgar case appeared to give lip service to
a separation of powers doctrine in a case where the judiciary was more likely trying to
avoid a power than define it, the Court’s decision in In re Lawrence M.
suggested that some blurring of powers between the branches may be permissible.
The Court certainly did not retreat from the separation of powers
doctrine during its 1997 term. To the contrary, the Court breathed new life into the
separation of powers doctrine making it a powerful tool in the Court’s assertion of
its own authority over the development and control of Illinois law.
In Murneigh v. Gainer, 177 Ill.2d 287, 1997 Ill. LEXIS 430
(1997), the Court addressed the constitutionality of a statutory provision regarding the
collection of blood specimens from certain convicted sex offenders. The legislation in
question mandated that the Court issue an order requiring the offender to provide the
sample where he refuses to do so, and to punish the offender with contempt of court where
the order is not obeyed. Relying upon the separation of powers provision of the Illinois
constitution, the Court held these enforcement provisions of the Act unconstitutional
because they "conscript the courts in Illinois into service of an essentially
administrative program for the collection and analysis of blood samples for inclusion in
the state’s data bank." (Id. at 307). According to the Court: "[J]udicial
participation in the administrative scheme promotes an executive purpose." (Id.)
Interestingly, the year before in In re Lawrence M., the Court rejected a similar
separation of powers challenge when the judiciary conscripted the Department of Children
and Family Services (DCFS) to provide and pay for in-patient drug treatment services.
Perhaps the distinction was the fact that DCFS was being "conscripted" to
continue to perform an administrative function as opposed to a judicial.
The two most noteworthy applications of the separation of powers
doctrine this year was in the Court’s opinions regarding challenges to various
provisions of the Civil Justice Reform Act. In Kunkel v. Walton, 1997 WL 720867
(1997) and Best v. Taylor, 1997 WL, the Court left no doubt that the Court, not the
legislature, is in charge of how the Illinois courts will function and how Illinois law
will develop.
In Kunkel, the Supreme Court held unconstitutional the
discovery provisions embodied in section 2-1003(a) of the Code of Civil Procedure. The
discovery mechanism created in section 2-1003(a) required plaintiffs to, among other
things, waive the physician-patient privilege and consent to the release of their entire
medical history. (see 735 ILL. COMP. STAT. 5/2-1003(a) (West 1996)). The Court held that
these provisions violate the separation of powers doctrine.
The Supreme Court reasoned that discovery is a matter squarely
within the court’s authority. As such, the Court allows discovery only as provided by
rule. Section 2-1003(a) directly conflicts with Rule 201, the rule governing discovery;
therefore, section 2-1003(a) violates the separation of powers provision of the Illinois
Constitution.
In Best, the Supreme Court assertion of authority was more
broad-based; the court invalidated Public Act 89-7 in its entirety. The Court was
especially critical of the legislative attempt to impose a $500,000 cap on noneconomic
damages. The Court held the cap violates both the special legislation and separation of
powers clauses of the Illinois Constitution.
The Court emphasized that determinations under the special
legislation clause are matters of exclusively judicial concern. As the Court put it,
"the present version of the special legislation clause contains an express grant of
power to the judiciary." (1997 WL 777822 *11 (Ill.)). The Court used this power to
remind the legislature that "it is not free to enact changes to the common law which
are not rationally related to a legitimate government interest." 1997 WL 777822 *21
(Ill.).
The Court also took the opportunity to invalidate the cap for
separation of powers reasons. The Court characterized the damages cap as a remittitur. But
the Court would not allow a legislative remittitur. The discretion as to whether to apply
the doctrine of remittitur "has been a traditional and inherent power of the judicial
branch . . . ." 1997 WL 777822 *23 (Ill.). The Court found the legislative exercise
of this judicial prerogative would "undercut[ ] the power . . . of the judiciary . .
. ." 1997 WL 777822 *24 (Ill.).
The Court’s pronouncements in Kunkel and Best
were certainly more of a battle cry than a retreat from the separation of power of
doctrine.
Supreme Court Also Reaffirms Its Role in the Continued Development
of the State’s Common Law
In a case that did not have the fanfare of Kunkel and Best,
the Court quietly affirmed its role as the final word on the development of common law in
Illinois.
The Supreme Court has long held that it is the court of last resort
in determining Illinois common law, and thus its decisions are binding on inferior courts
within the state system. Ag Transp. Assoc. v. Carpenter, 2 Ill.2d 19, 116 N.E.2d
863, 867 (1953). At issue this term in Olsen v. Etheridge was a decision of the
Supreme Court in 1888 that the rights to third party beneficiaries in a contract are
subject to immediate vesting and cannot be altered through a later agreement of the
contracting parties without the consent of the beneficiary. This doctrine announced by the
Court in toward the turn of the last century was followed by both the trial court and the
appellate court in Olsen despite the fact that the Restatement of Contracts and the
majority of courts in other jurisdictions had rejected it. One concurring opinion in the
appellate court requested that the Supreme Court reverse its decision in Bay v.
Williams because it was so "antiquated".
The Supreme Court agreed in Olsen that the doctrine was
antiquated and overruled Bay. The Court followed the now majority rule that the
rights of third party beneficiaries to a contract can be altered through a later agreement
of the contracting parties without their consent. Interestingly, the Supreme Court made no
comment as to the propriety of the appellate court’s decision to follow a 113 year
old precedent.
The Supreme Court Also Determined the Constitutional Propriety of an
Opinion of the Appellate Court Where One of the Judges Retired Before the Opinion Was
Issued.
This opportunity arose in the context of Proctor v. The Upjohn
Company, 176 Ill.2d 394, 677 N.E.2d 918 (1997). In Proctor, the appellate court
initially upheld a jury verdict against Upjohn. Upon rehearing, however, the appellate
court issued a modified opinion reversing the circuit court and granting judgment
notwithstanding the verdict in Upjohn’s favor. Prior to the filing of the modified
opinion, which had the support of only two of the three appellate court justices, one of
the concurring justices retired.
The Supreme Court noted two requirements for a valid appellate court
opinion: (1) the participation of three judges and (2) the concurrence of two judges in
the judgment of the court. The Supreme Court found that, due to the pre-filing retirement
of one of the concurring justices, the modified opinion violated the second requirement.
Accordingly, the modified opinion was invalid and the Supreme Court had no jurisdiction to
entertain an appeal therefrom. As a result, the Supreme Court ordered the appeal dismissed
and instructed the appellate court to enter a constitutionally valid opinion.
Justice Harrison concurred in part and dissented in part. Justice
Harrison believed the majority erred by sending the case back for further proceedings.
According to Justice Harrison, the Proctor case was no different from other cases
where the concurrence of two judges cannot be obtained. In situations where the appellate
court is evenly divided, as in Proctor, the appellate court should affirm the
judgment of the circuit court.
Supreme Court Also Exercised Its Constitutional Prerogative to
Determine by Rule Powers of Appellate Court In Appeals from Non-Final Judgments.
Section 6 of the 1970 Illinois Constitution allows for appeals from
final judgments from circuit courts as a matter of right to the appellate court. Section 6
also provides that the Supreme Court may provide by rule for appeals to the appellate
court from other than final judgments by circuit courts.
In Marsh v. Illinois Racing Board, 1997 WL 720874 (Ill.), the
Supreme Court addressed the scope of its Rule 307 regarding taking interlocutory appeals
to the appellate court for injunctive relief and admonished the appellate court that it
did not possess the same supervisory powers as the Supreme Court in ruling on such
interlocutory appeals. In Marsh, the circuit court issued a stay of an
administrative order. Upon the filing of an interlocutory appeal, the appellate court
itself stayed the circuit court’s stay order and remanded. At issue before the
Supreme Court was whether the appellate court had jurisdiction to hear the appeal and, if
so, the propriety of the appellate court order.
Supreme Court Rule 307(a)(1) allows the appeal of an injunctive
order; however, the parties in Marsh were unwilling to agree as to whether the
circuit court’s stay order constituted an injunction. The circuit court’s stay
was issued in accordance with statutory criteria less stringent than that necessary for a
traditional injunction. Marsh, not wishing to have the circuit court stay appealed, argued
that relief must rise to the level of a traditional injunction before it can be appealed
under Rule 307(a)(1).
The Supreme Court rejected this argument. The court reasoned that a
stay is by its very nature a type of injunctive relief. The court stated "[t]o
determine what constitutes an appealable injunctive order under Rule 307(a)(1) we look to
the substance of the action, not its form." 1997 WL 720874, *2 (Ill.) (quoting In re
A minor, 127 Ill.2d 247, 260-261, 537 N.E.2d 292 (1989). Regardless of the criteria used
by a circuit court, equitable or statutory, an appellate court is entitled to review
circuit court orders of an injunctive nature.
The Supreme Court, however, took the appellate court to task for its
issuance of a stay order. By issuing its own stay, the appellate court gave an order
usually entered by courts pursuant to some supervisory power. "However, our appellate
court does not possess the supervisory powers enjoyed by [the supreme] court and is,
therefore, without power to issue such orders." 1997 WL 720874, *5. See also, Ill.
Const. 1970, art. VI, §16.
The Supreme Court was equally protective of its power to issue
sanctions for an attorney’s ethical violations. In Schwartz v. Cortelloni, 177
Ill.2d 166, 685 N.E.2d at 184, the defendants attempted to disqualify the plaintiff’s
counsel on the basis of an alleged conflict of interest. The circuit court denied the
defendant’s motion to disqualify. The appellate court held that the circuit court
abused its discretion in denying the motion to disqualify. Additionally, as a sanction,
the appellate court ordered the plaintiff’s case dismissed with prejudice.
The Supreme Court chastised the appellate court for dismissing the
plaintiff’s case because of her attorney’s alleged ethical violation. The
Supreme Court held "that the dismissal of Schwartz’s cause of action by the
appellate court was wholly inappropriate and unauthorized by law." 177 Ill.2d at 184.
The Supreme Court stated that "[n]othing in [the authority cited by the appellate
court] or the Illinois Rules authorized the appellate court to sanction Schwartz for an
alleged ethical violation by her attorney." Id.
The Supreme Court did not take every available opportunity to
restrain the power of the appellate court. In Aleckson v. Village of Round Lake Park,
176 Ill.2d 82, 679 N.E.2d 1224 (1997), the Supreme Court was presented with the issue of
whether an appellate court may decide to prospectively apply its own decisions. This issue
arose in the following manner: During the pendency of the plaintiff’s appeal in Aleckson,
the appellate court overruled clear past precedent upon which the plaintiff was relying.
The appellate court recognized that its break with past precedent would cause hardship to
the plaintiff; therefore, the appellate court chose not to apply its decision
retroactively.
After a review of its own opinions in this area, the Supreme Court
concluded that it had not previously challenged the appellate court when that court had
prospectively applied its own decisions. The Supreme Court also found Rule 366(a)(5), with
its broad grant of power, supports the power of an appellate court to prospectively apply
a decision. Rule 366 provides in part:
"In all appeals the reviewing court may, in its discretion, and
on such terms as it deems just (5) enter any judgment and make any order that ought to
have been made, and make any other and further orders and grant any relief, including a
remandment, a partial reversal, the order of a partial new trial, the entry of a
remittitur, or the enforcement of a judgment, that the case may require."
155 Ill.2d R. 366(A)(5). The Court found that Rule 366 implies
"that all reviewing courts enjoy the power to exercise discretion in a just manner so
as to do equity, factors which . . . play a great role in considering whether to apply a
previous decision prospectively." 176 Ill.2d at 91, 679 N.E.2d at 1228. Accordingly,
the Supreme Court held that the appellate court has the power to apply its own decisions
prospectively.
The Aleckson opinion is also notable for another reason. In
the course of the opinion, the majority discussed how parties and circuit courts should
address conflicting appellate authority. According to the majority, if there is a conflict
amongst the Illinois appellate districts, "the circuit court is bound by the
decisions of the appellate court of the district in which it sits." 176 Ill.2d at 92,
679 N.E.2d at 1229. Justice Harrison, in a concurrence joined by Justice Heiple,
disagreed. Justice Harrison took the position that since Illinois has only one appellate
court, "a decision by any division of that court is binding precedent on all circuit
courts throughout the state, regardless of locale." 176 Ill.2d at 94, 679 N.E.2d at
1230. According to Justice Harrison, circuit courts should be following the most recent
appellate court decision on point — "geography is simply irrelevant." 176
Ill.2d at 94, 679 N.E.2d at 1230.
Conclusion
In conclusion, it is likely that 1997 will go down as the year when
the Supreme Court of Illinois asserted itself as the preeminent authority on the Illinois
Constitution. The Court did not hesitate to invalidate laws that it viewed as
unconstitutional.
Additionally, the Court jealously guarded the judicial arena from
legislative encroachments.
Finally, the Court clarified the role and powers of the appellate
court in the Illinois judiciary.
Timothy Eaton is a Principal of Ungaretti & Harris,
Chicago. His practice is concentrated in commercial litigation. He is on the ISBA Board of
Governors and currently serves as its Treasurer. He received his Law Degree in 1977 from
Southern Illinois University and his L.L.M in 1979 from Washington University.
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