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Judicial versus legislative authority after Lebron: in striking down legislatively imposed med-mal damage caps in Lebron, the Illinois Supreme Court continued the age-old battle over separation of powers.


In Lebron v Gottlieb Memorial Hospital, 2010 WL 375190, the Illinois Supreme Court invalidated statutory caps on noneconomic damages in medical cases because they "unduly" infringed "upon the inherent power of the judiciary" theretofore recognized (albeit in judicial dictum) in the separation of powers clause of the Illinois constitution. Art II, section 1.

That raises an important question: after Lebron, what other statutes will be found to "encroach" on the judiciary's "sphere of authority" because they impede "the courts in the performance of their function"? Does Lebron represent a new balance between legislative and judicial authority?

Separation of powers and Lebron

In deciding Lebron, the high court primarily relied upon Best v Taylor Machine Works, 179 Ill 2d 367, 689 NE2d 1057 (1997). In Best, the court invalidated, in part based on the separation-of-powers provision, statutory caps on noneconomic damages in a broad array of civil cases, including statutory or common law negligence or product liability claims involving "death, bodily injury, or physical damage to property."

The caps in Lebron, like those in Best, would have been judicially imposed after jurors, who had not been informed of the caps, had made their determinations about damages. Thus, in both cases there effectively was "a legislative remittitur," even though the prevailing plaintiff "objects or does not consent." And in both cases the caps were found to "unduly" encroach upon "the fundamentally judicial prerogative of determining whether a jury's assessment of damages is excessive within the meaning of law."

The Lebron court distinguished Unzicker v Kraft Food Ingredients Corp., 203 Ill 2d 64, 783 NE2d 1024 (2002), which upheld a statute modifying the common law rule of joint and several liability by establishing only several liability for nonmedical damages for any tortfeasor whose percentage of total attributable fault was less than 25 percent. It said the statute in Unzicker "did not set a cap on damages" and did not require a trial judge to enter a judgment "at variance with the jury's determination and without regard to the court's duty to consider, on a case-by-case basis, whether the jury's verdict is excessive." Lebron at *13.

The Lebron court also distinguished its own precedents sustaining statutory prohibitions on punitive damages in certain cases, reasoning that punitive damages are "allowed in the interest of society, and not to recompense solely the individual." As for existing statutes that "limit common law liability" by eliminating negligence claims against certain defendants like emergency providers of medical services, the Lebron court declined to comment, though it suggested that a statutory cap on compensatory damages against specified defendants might survive if it "allows parties to contract around the statutory limit."

Longstanding tension between judiciary and legislature

Long before Best, Unzicker, and Lebron there was tension between the general assembly and Illinois Supreme Court over their shared regulation of civil procedure. Many see Illinois constitutional history from 1818 to 1970 as a progression toward "increased judicial responsibility for procedural law." See, e.g., Jeffrey A. Parness and Bruce Elliot Keller, Increased and Accessible Judicial Rulemaking, 8 NIU Law Rev 817 (1988) (Parness and Keller). But the tension continues.

The Illinois Code of Civil Procedure says that, with the exception of proceedings regulated by statutes outside the Code, the Civil Practice Law (Article II of the Code) governs "matters of procedure" in proceedings covered by Articles III through XIX of the Code. 735 ILCS 5/1-108. The Code also recognizes supreme court civil procedure rulemaking authority, but only for rules "supplementary to, but not inconsistent with the" Code. 735 ILCS 5/1 104(a).

By contrast, Rule 1 of the Illinois Supreme Court Rules only says that the rules and the Civil Practice Law "shall govern all proceedings in the trial court, except to the extent that the procedure in a particular kind of action is regulated by a statute other than the Civil Practice Law." Rule 1 also notes that the "rules on appeals shall govern all appeals." Presumably, this reflects the express Illinois constitutional recognition of high court appellate procedure rulemaking, excluding matters involving administrative review. Art VI, sections 4, 6, and 9.

After Lebron: more deference to the General Assembly?

Lebron appears to reflect high court deference to civil procedure lawmaking by the general assembly outside the Civil Practice Law. In Lebron, the court recalled Best, where it had acknowledged that "the legislature may limit certain types of damages, such as damages recoverable in statutory causes of action."

In his dissent in Lebron, Justice Karmeier also invoked this deference to legislative authority. He warned that should the elimination of the noneconomic damage caps "imperil the availability of medical care," the general assembly might then eliminate all noneconomic damages in medical malpractice cases or replace such circuit court cases with "a claims system comparable to ... workers compensation." Lebron at *38 (Karmeier dissenting).

In seeing no separation of powers problems with such initiatives, Justice Karmeier may again be in the minority of justices. Noneconomic damages are typically compensatory, not punitive. And medical negligence claims arguably are not subject to special statutes, as are employer negligence claims.

Generally speaking, Illinois civil procedure today is governed by statutory, not judicial, lawmaking only in matters that had no counterpart in the common law or equity. Examples include marriage dissolution, adoption, eminent domain, juvenile delinquency, postconviction relief, and taxpayer cases. See, e.g., Strukoff v Strukoff, 76 Ill 2d 53, 389 NE2d 1170 (1979) and Daley v Fitzgerald, 123 Ill 2d 175, 526 NE2d 131 (1988) (though not required, rules may be employed in sui generis proceedings under inherent judicial authority).

Civil procedure lawmaking by the general assembly within and outside the Civil Practice Law should continue after Lebron. As is noted above, Rule 1 expressly recognizes the operation of the Civil Practice Law in "proceedings in the trial court."

However, high court rules in direct conflict with statutes after Lebron should continue to control. Illinois separation-of-powers precedents demand this result, as often does the high court's constitutionally recognized "general administrative and supervisory authority over all courts." People v Jackson, 69 Ill 2d 252, 371 NE2d 602 (1977); Art VI, section 16.

Precedents also indicate that even where statutes do not directly conflict with supreme court rules, those rules may still supersede them. Areas of nearly (if not absolutely) exclusive high court procedural lawmaking authority include appellate procedures and the admission, regulation, and discipline of lawyers. See Parness and Keller, cited above.

There are exceptions, though determining a consistent pattern is difficult. For examples of statutory rules that govern areas that would seem to be the domain of the court, consider 735 ILCS 5/2-1114 (limiting contingency fees in medical malpractice cases) and Bernier v Burris, 113 Ill 2d 219, 497 NE2d 763 (1986) (sustaining the statute when challenged on separation of powers grounds because it permits judges to allow fees beyond the statutory limits when "fairness" dictates).

Constitutional limits

And there are constitutional limits on legislative civil-procedure lawmaking. One significant limit, raised but not addressed in Lebron, is the constitutional right to a trial by jury. Art I, section 13.

And what might be the impact of the Illinois constitutional equal protection guarantee? Art I, section 2. The Wisconsin Supreme Court in Petrucelli v Wisconsin Patients Compensation Fund, 284 Wis 2d 573, 701 NW2d 440 (2005), struck down a statutory cap on noneconomic damages in medical malpractice cases not involving wrongful death as irrational on state equal protection grounds.

Additional Illinois constitutional limits, all raised but unaddressed in Lebron, include special legislation laws, Art IV, section 13 (used in Best); due process, Art I, section 2; and, the right to a certain and complete remedy, Art I, section 12.

Though the general assembly might describe its action as "tort reform" or "addressing the healthcare crisis," statutes that alter civil practices in the Illinois circuit courts must comport with Illinois constitutional limits governing both the allocation of governmental authority and the protection of individual rights. While they are ill-defined at times, the boundaries of civil procedure lawmaking by the general assembly will be assessed after Lebron much as before, with special judicial scrutiny of statutes on attorney conduct, appellate practice, and jury decisionmaking.

Jeffrey A. Parness is a professor emeritus at the Northern Illinois University College of Law, where he taught as a regular faculty member from 1982-2006 and where he still teaches.
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Title Annotation:Lebron v. Gottlieb Memorial Hospital
Author:Parness, Jeffrey A.
Publication:Illinois Bar Journal
Date:Jun 1, 2010
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