Saying the Illinois Supreme Court has offered little more than “bluster,” another panel of Illinois state appellate judges has called for action to rein in repeat abuses by Illinois state lawmakers, who regularly appear to outright ignore the state constitution’s rules requiring them to give time for fellow lawmakers and the people to learn the content of new laws before they are enacted.
The call came from the Illinois Fourth District Appellate Court in Springfield, in a decision otherwise upholding the constitutionality of a controversial state law allowing plaintiffs to boost significantly the value of their winnings in court by tacking on potentially big money to jury verdicts through so-called “prejudgment interest.”
Illinois Fourth District Appellate Justice Robert Steigmann
| Ballotpedia
Enacted in 2021, the law has been described by critics as a “gift” to trial lawyers from their political allies in Springfield. Critics say the law will be used as a hammer and threat against Illinois businesses, to pressure them to settle even frivolous lawsuits, rather than risk paying even more by defending themselves.
While a Cook County judge initially declared the law unconstitutional, all other courts have ruled otherwise, capped off by the ruling in the Fourth District.
This spring, an Illinois First District Appellate Court panel also upheld the law, saying it doesn’t infringe on the rights of defendants facing lawsuits, nor does it violate the separation of powers, by improperly exerting legislative control over the outcomes of cases in the courts.
The Fourth District ruling reached similar conclusions. It was authored by Justice Robert Steigmann. Justices Craig DeArmond and Thomas M. Harris concurred in the decision.
The decision centered on a wrongful death lawsuit brought against a bariatric surgeon by the family of a woman who died allegedly while under the doctor’s care, after the doctor allegedly failed to identify the woman’s thiamine deficiency.
In the ruling, Steigmann and his colleagues tossed aside assertions that the law unconstitutionally interferes in defendants’ rights to jury trial, by improperly tacking amounts on to what a jury orders defendants to pay and by improperly discouraging defendants from defending themselves against lawsuits at trial by presenting additional financial risks.
The justices said they did not believe prejudgment interest should count as “damages,” because the amount is determined by law enacted by the state legislature, and is not determined by juries.
Further, they said, the prejudgment interest law does not violate defendants’ due process rights, either, as it “reflects a legislative determination of the balance incentivizing both parties to settle.”
The justices also rejected various other challenges to the law’s constitutionality presented by the defendants.
However, while declaring the law itself to be constitutional, the Fourth District justices said the law could yet be struck down – but only if the Illinois Supreme Court takes action to address the otherwise unconstitutional actions of lawmakers when enacting such laws.
Specifically, Steigmann and his colleagues urged the state Supreme Court to take another look at the so-called “enrolled bill doctrine.”
'Constitutionally required to turn a blind eye'
Under that doctrine, the Illinois Supreme Court has given legislators the benefit of the doubt when presented with claims a law was approved without following constitutionally required procedures.
As written, the state constitution specifically requires all legislation to receive at least three readings – one each on three different days – in each house of the Illinois General Assembly before it receives a vote in those houses.
However, under the enrolled bill doctrine, Illinois’ House Speaker and Senate President can simply sign a certification that the three readings rule and other constitutional rules were followed.
Because of the Supreme Court's enrolled bill doctrine, Steigmann and his colleagues said they were constitutionally bound to reject the defendant’s constitutional challenge to the law based on lawmakers’ failure to abide by the three readings rule.
In this case, Steigmann said the failure to abide by the three readings rule was clear.
They noted the legislative history of the passage of the prejudgment interest law shows the law was passed under the so-called “gut and replace” process. Under that process, an existing piece of innocuous legislation, known as a “placeholder bill,” is amended by deleting every bit of text it had contained. It is then further amended to replace that text with much more consequential, and often controversial, legislation. Often, this takes place late at night or in the dark hours of the morning, without fanfare.
The new legislation, sometimes totaling hundreds or even thousands of pages, is then dropped on the desks of legislators, who are expected to vote on the legislation with mere hours for discussion or debate.
In addition to the prejudgment interest law, that process has been increasingly used by the state’s Democratic supermajority to ram through controversial and constitutionally questionable legislation, such as the sweeping criminal justice reforms known as the SAFE-T Act and the state’s ban of so-called “assault weapons.”
For all of those new laws, and others passed similarly, Democrats who lead the General Assembly’s chambers, House Speaker Emanuel “Chris” Welch and Senate President Don Harmon, have signed documents certifying the laws still received three readings in each chamber, even when the legislative history demonstrates they did not.
Steigmann noted such apparent abuses of the enrolled bill doctrine are not new.
In the Fourth District opinion, Steigmann noted the Illinois Supreme Court has threatened, since at least 1995, to remove the enrolled bill doctrine and force lawmakers to defend their actions when passing laws.
To this point, however, Steigmann noted the state Supreme Court has chosen to continue looking the other way, encouraging lawmakers and their trial lawyer political allies to act as if the three readings rule no longer even exists.
Steigmann noted the Illinois Trial Lawyers Association – a lobbying group representing the state’s plaintiffs’ attorneys – filed briefs warning judges to not attempt to upset the enrolled bill doctrine.
“Boldly trespassing upon the legislature’s constitutional authority to regulate its own procedure would create chaos because every single statute passed using the same procedure … would suddenly be ripe for constitutional challenge,” ITLA wrote in its brief defending the prejudgment interest law.
But Steigmann said this argument merely demonstrates the extent of the problem.
“ITLA is basically saying that the legislature is violating the three-readings rule so much that it would be chaos to make the legislature accountable,” Steigmann said.
“ITLA’s warnings about the judiciary ‘[b]oldly trespassing upon the legislature’s constitutional authority to regulate its own procedure’ smack of faux outrage about the notion that the legislature could be made to follow the requirements of the Illinois Constitution. “
Steigmann, however, said ITLA and Illinois lawmakers alike have been emboldened by the state Supreme Court’s refusal to act.
“After all, the Illinois Supreme Court has long documented the legislature’s complete and utter disregard for the requirements of the Illinois Constitution, but that court has done nothing in response,” Steigmann said. “The only logical conclusion is that the supreme court’s ‘reservation’ of the right to revisit the enrolled bill doctrine is nothing but bluster.”
The Fourth District court’s call for the Supreme Court to step in comes months after their colleagues at the Fifth District Appellate Court, in a decision addressing the constitutionality of the “assault weapons” ban, also called on the state high court to act to establish more firm “constitutional boundaries” related to the enrolled bill doctrine.
“Allowing lawmakers to continue to ignore constitutional mandates under the enrolled-bill doctrine, knowing full well the constitutional requirements were not met, belittles the language of the oaths, ignores the need for transparency in government, and undermines the language of this state’s constitution,” the Fifth District justices wrote.
However, the Fourth District decision was equally strident in its call for action from the high court.
“This court is disheartened that we are compelled to reject (the defendant’s) challenge (to the law) out of hand when the violation appears so blatant,” Steigmann wrote. “This court is placed in a strange position when it is constitutionally required to turn a blind eye to a grave constitutional violation by a co-equal branch of government.”