When Judges Run Amok
Illinois Supreme Court Mangles Separation of Powers Doctrine
In choosing to dismantle popular, effective, and comprehensive civil liability reforms, the Illinois State Supreme Court’s majority ignored the people’s elected representatives, usurped the power of the legislature, and added an unparalleled example of “doublespeak” to the annals of judicial prose.
After decades spent fighting personal injury lawyers and their lobbyists, champions of meaningful tort reform finally won a major battle: the Illinois General Assembly passed—and Governor Jim Edgar signed—the Civil Justice Reform Amendments of 1995, Public Act 89-7.
The Act provided overdue, common-sense reforms. It applied reasonable limits to punitive damages and “pain and suffering” awards which have skyrocketed in recent years, encouraging the “lawsuit lottery” mentality and inspiring thousands of frivolous lawsuits. The Act provided that defendants should not be liable for damages they do not cause, to discourage “shotgun” lawsuits naming multiple defendants in an effort to find a “deep pocket.” The Act set standards for expert witnesses, and for product liability complaints, in an effort to keep “junk science” out of the courts.
The reformers’ victory was short-lived. On December 18, 1997, the Illinois Supreme Court invalidated the Act. The court objected to the limit on damages for “pain and suffering,” calling it unconstitutional, and refused to leave the remainder of the law in effect, despite the fact that the law as enacted requires that its provisions be treated as separate and separable.
Writing for the majority in Best v. Taylor Machine Works, the test case for the tort reform package, Justice Mary Ann McMorrow began the majority opinion with the following nod to the separation of powers:
The role of this court . . . is not to judge the prudence of the General Assembly’s decision that reform of the civil justice system is needed. We recognize that we should not and need not balance the advantages and disadvantages of reform.
That declaration notwithstanding, the Illinois high court invalidated key sections of the Civil Justice Reform Amendments of 1995 based on claims by personal injury lawyers that the reform provisions had unbalanced the tort system. In effect, the court’s “rational basis” test of the cap on noneconomic damages constituted an attempt to weigh the pros and cons of reform, which the majority opinion flatly stated the court should not do.
Further, the court asserted a plaintiff’s right to recover damages without limit. That right is found neither in the state constitution nor in statute. Apparently the Illinois Supreme Court felt constrained by its judicial authority, and so decided to assume the power to write new law.
Dissenting from the majority, Justice Benjamin Miller condemned the court’s departure from its appropriate role. “Stripped to its essence,” he contended, “the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”
The words of U.S. Supreme Court Chief Justice Charles Evan Hughes come to mind: “We are under a Constitution, but the Constitution is what the judges say it is.” The Illinois Supreme Court seems to be saying that the courts may set policy in place of the legislature.
Compounding the arrogance of this intrusion into the legislature’s policy-setting function, the court refused to sever the sections it found unconstitutional from the Act as a whole.
The court recognized the central issue clearly enough: the opinion states, “Whether or not an act is severable is a question of legislative intent.” Evidence of legislative intent is available within the Act itself, which includes this provision: “The provisions of this Act, including both the new and the amendatory provisions, are severable under section 1.31 of the Statute [on] Statutes.”
Rather than observe the clearly-stated intent expressed in this severability clause, the court committed a dizzying act of “doublespeak.” The court declared that it had found core provisions of the act invalid, and that to leave the remainder in place would in effect rewrite the statute into a bill the legislature might not have intended to enact. “This would amount to a delegation of legislative powers to the courts,” the opinion solemnly stated.
The court ignored legislative intent, trampling the legislature’s authority, and justified it by saying that to do otherwise would violate the separation of powers doctrine. No doubt the irony of this statement is plain to the Act’s supporters.
The majority ruling in Best v. Taylor Machine Works brought back the bad old days of court-clogging frivolous lawsuits and runaway damage awards. The ruling also put the Illinois General Assembly and Governor Jim Edgar on notice: legitimate governmental goals don’t stand a chance when judges run amok.
