Challenges to the Constitutionality of the Punitive Damages Amendments to the Illinois Wrongful Death Act and Probate Act
Thursday, August 24, 2023
Illinois Wrongful Death Act

As Wilson Elser recently reported, the Illinois Wrongful Death Act (740 ILCS 180/1, et seq.) and Probate Act (755 ILCS 5/27-6) were amended to allow plaintiffs to recover punitive damages in wrongful death and survival actions. Defendants can – and should – challenge these amendments as unconstitutional pursuant to the three-reading requirement of the Illinois Constitution. See, Illinois Constitution, Art. IV, section 8(d). Although such challenges will be overruled on the basis of the enrolled bill doctrine, they will lay the groundwork for asking the Illinois Supreme Court to revisit and reject that doctrine, and by extension find the amendments to be unconstitutional. 

The Illinois Constitution’s Three-Reading Requirement and the Enrolled Bill Doctrine

The three-reading requirement of the Illinois Constitution states that a bill “shall be read by title on three different days in each house. A bill and each amendment thereto shall be reproduced and placed on the desk of each member before final passage.” In addition, “bills shall be confined to one subject”; “a bill expressly amending a law shall set forth completely the sections amended”; and “the Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.” 

The purpose of the three-reading requirement rule is to “ensure that the legislature is fully aware of the contents of the bills on which they will vote and allow the lawmakers to debate the legislation. Equally relevant to the three-reading rule is the opportunity for the public to view and read a bill prior to its passage, thereby allowing the public an opportunity to communicate either their concern or support for the proposed legislation with their elected representatives and senators.” First Midwest Bank v. Rossi, 2023 IL App (4th) 220643, ¶ 231. 

The Illinois Supreme Court has adopted the enrolled bill doctrine, which provides that “once the Speaker of the House of Representatives and the President of the Senate certify that the procedural requirements for passing a bill have been met, a bill is conclusively presumed to have met all procedural requirements for passage.” Friends of the Parks v. Chicago Park District, 203 Ill. 2d 312, 328-329 (2003). 

Pursuant to the enrolled bill doctrine, the Supreme Court has said that it “will not invalidate legislation on the basis of the three-reading requirement if the legislation has been certified.” Id.see also, First Midwest Bank, 2023 IL App (4th) 220643, ¶222: “[C]ertification by the President of the Senate and the Speaker of the House that constitutional procedures were complied with to pass the legislation at issue (1) provides conclusive evidence of compliance and (2) is not subjected to judicial review” based upon separation of powers concerns. 

The Three-Reading Requirement Was Not Followed for the Wrongful Death/Survival Amendments.

As set out at Bill Status of HB0219, the bill that became the wrongful death/survival amendments began as House Bill 219 (HB 219), titled “The Uniform Depositions and Discovery Act.” The synopsis of HB 219 states that it “[a]mends the Uniform Interstate Depositions and Discovery Act. Makes a technical change in a Section concerning the short title.” 

HB 219 had its first reading in the House on January 12, 2023, and its second reading in the House on March 16, 2023. On May 15, 2023, House Floor Amendment No. 1 to HB 219 was filed with the clerk. This floor amendment to HB 219 eliminated The Uniform Depositions and Discovery Act, and replaced everything after the enacting clause with the wrongful death/survival amendments.

On May 16, 2023, the following occurred in the House:

  • HB 219 was amended in the House two more times, with both amendments pertaining to the wrongful death/survival statutes.
  • House Floor Amendment No. 1 was adopted. The Uniform Depositions and Discovery Act thus became the wrongful death/survival amendments.
  • House Floor Amendment No. 3 was adopted. This amendment added provisions that punitive damages are not available in wrongful death and survival actions against local governments or in actions for healing art and legal malpractice.
  • After House Floor Amendments Nos. 1 and 3 were adopted, HB 219 was given its third reading and voted upon. It passed the House with 75 “yeas” and 40 “nays,” and sent to the Senate. 

In the Senate, HB 219 was given its first reading on May 16, 2023, its second reading on May 17, 2023, and its third reading on May 18, 2023. On May 18, 2023, HB 219 was passed by the Senate with 37 “yeas,” 19 “nays,” and 1 “present.” Following certification by the President of the Senate and the Speaker of the House as having passed both Houses, HB 219 was sent to Governor J.B. Pritzker on June 16, 2023 and signed into law on August 11, 2023. 

The above facts demonstrate that the three-reading requirement was not complied with in the House because HB 219 was given its first two readings when it proposed to amend a completely different statute – the Uniform Depositions and Discovery Act. Once the original text of HB 219 was eliminated and replaced with the wrongful death/survival amendments, it received only one reading in the House. The fact that HB 219 was read out three times in the House as “HB 219” does not eliminate this constitutional deficiency – the bill that was read out the third time was not the same bill as that read out the previous two times. 

Challenging the Wrongful Death/Survival Amendments and Creating a Record

It is recommended that defendants challenge the wrongful death/survival amendments as unconstitutional on the basis of the three-reading requirement for the reasons set out above. On such challenges, we expect the trial (and appellate) court to conclude that it cannot find the amendments unconstitutional on this basis pursuant to the enrolled bill doctrine.

That said, however, cases asking the Supreme Court to revisit the enrolled bill doctrine must start somewhere. In the past three years, three reported decisions have urged the Supreme Court to do just that:

  • First Midwest Bank v. Rossi, 2023 IL App (4th) 220643, ¶¶ 238-240 (re: amendments to the judgment interest statute).
  • Accuracy Firearms, LLC v. Pritzker, 2023 IL App (5th) 230035, ¶¶ 36-46 (re: the Protect Illinois Communities Act).
  • Doe v. Lyft, Inc., 2020 IL App (1st) 191328, ¶¶ 52-55 (re: the Transportation Network Providers Act).

Moreover, there are at least two Supreme Court justices receptive to reconsideration of the enrolled bill doctrine. In n Caulkins v. Pritzker, 2023 IL 129453, the Illinois Supreme Court upheld the constitutionality of The Protect Illinois Communities Act, a statute that bans the sale of certain assault weapons and ammunition. Justice Holder White, joined by Justice Overstreet, dissented and opined that she would reject the enrolled bill doctrine and find the Act unconstitutional on the basis of the three-reading requirement. Caulkins, 2023 IL 129453, ¶¶ 105-113. 

Because the wrongful death/survival amendments do not alter the requirements of 735 ILCS 5/2-604.1, which prohibits punitive damages from being sought in the complaint, plaintiffs seeking punitive damages in wrongful death/survival actions must still move for leave to plead a claim for punitive damages. We recommend that the constitutional argument described above be included in the opposition to such a motion. 

In addition to the constitutional argument, we recommend including discussion of why the enrolled bill doctrine should be rejected in hopes that this discussion is included in the court’s order or opinion. The Appellate Court – Fourth District in First Midwest Banksupra, was particularly vocal on this point, looking to the partial dissent of Justice Heiple in People v. Dunigan, 165 Ill. 2d 235 (1995), wherein he addressed the problematic effect of the enrolled bill doctrine in the context of the three-reading rule: 

The interpretation of a constitutional provision depends, in the first instance, on the plain meaning of its language. Next, it depends on the common understanding of the citizens who, by ratifying the constitution, have given it life. A court looks to the debates of the convention delegates only when a constitutional provision is ambiguous. There is no ambiguity in the provision requiring the legislature to read a bill on three different days in each house, the provision that a bill receive a majority vote in each house, or the provision requiring the Speaker of the House and the President of the Senate to sign each bill to certify that the procedural requirements for passage have been met. First Midwest Bank, 2023 IL App (4th) 220643, ¶238 (citation omitted).

The Fourth District then concluded:

Our lawmakers take an oath of office to support the Constitution of the United States and the Constitution of Illinois. The same is required for the circuit court judiciary, as well as the appellate and supreme courts and certain members of the executive branch. 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. First Midwest Bank, 2023 IL App (4th) 220643, ¶240 (citation omitted). 


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