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The Illinois State Capitol Building in Springfield, IL. Legislators recently approved a bill providing for prejudgment interest. Photo by Daniel X. O'Neil.

On May 28, 2021, Illinois Governor J.B. Pritzker signed into law Senate Bill 0072, which established the first pre-judgment interest regime in the state. The Amendment applies only to personal injury and wrongful death actions and imposes a 6% pre-judgment interest on future damage awards. The interest accrues from the date of filing. It does not apply to all such cases, though; the Amendment provides defendants the opportunity to set off the pre-judgment interest through speedy settlement negotiations.

The Carrot and The Stick

The setoff provision acts to encourage parties, particularly defendants, to engage in settlement negotiations within one year of filing. Under the Amendment, the interest does not apply to any amount totaling a defendant’s settlement offer which is 1) in writing, 2) made within 12 months of filing, and 3) either expressly rejected by the plaintiff or not accepted within 90 days. The Amendment acts as both the carrot and the stick, encouraging early settlement offers through interest relief while punishing a failure to offer a settlement with the potential for interest added on top of traditional damages and post-judgment interest.

Illinois Constitutional Issues

Immediately after the Amendment’s passing, defendants in Cook County, Illinois, filed a motion arguing that the Amendment violated the Illinois Constitution. On May 22nd, 2022, in Hyland v. Advocate Health and Hospital Corp. (No. 2017-L-3541), the Court rendered its judgment in favor of the defendants. Specifically, the Court held that the Statute violates the Illinois constitutional guarantee to a trial by jury and its prohibition of special legislation.

The Right to Trial by Jury

Article I, Section 13 of the Illinois Constitution of 1970 provides “the right of trial by jury as heretofore enjoyed shall remain inviolate.” Inherent in this provision, according to Illinois courts, is the right a jury’s determination of damages. Defendants argued that mandatory pre-judgment interest violates the right to a jury’s determination of damages, and the Circuit Court in Cook County agreed. Interestingly, the Court noted various jury studies which indicate that juries already include pre-judgment interest, at a rate above inflation, in their damage awards.

Special Legislation

Article IV Section 13 of the Illinois Constitution of 1970 prohibits special legislation, which acts “to prevent arbitrary legislative classifications that discriminate in favor of a select group without a sound, reasonable basis.” Best v. Taylor Machine Works, 179 Ill.2d 367 (1997). Defendants argued, and the Court again agreed, that a pre-judgment interest regime serves as special legislation and therefore violates the Illinois Constitution. The Court held that the Amendment unjustly discriminates in favor of personal injury and wrongful death plaintiffs and against plaintiffs in other tort suits, along with those defendants who were served over one year after the case was filed.

What’s next?

It is certain that we have not heard the last on the Amendment’s constitutionality. After the decision in Hyland, the Cook County Circuit Court issued a general order that anticipates a further ruling from the state’s higher courts. The status of the Amendment will likely remain in flux until the Illinois Supreme Court brings finality to the issue.

RDM attorneys Justin Ijei, Sarah Schwartz, and Dillon Williams host a webinar on diversity, equity, and inclusion.

Rasmussen Dickey Moore attorneys Justin Ijei, Sarah Schwartz, and Dillon Williams recently recorded a webinar on the topic of diversity, equity, and inclusion at small and mid-sized law firms. The presentation is being presented by the Missouri Bar, and attorneys can sign up for any of several showings to receive CLE credit.

The webinar expands on RDM’s ongoing discussion of our own efforts to bring diversity to the forefront at our firm and our hopes to expand diversity alongside our peer firms. Justin and another RDM attorney, Nate Lindsey, originally shared their thoughts and experiences in their 2021 article, “Addressing Diversity, Equity, and Inclusion at Small and Mid-Sized Law Firms.” Nate also recently participated in an online panel discussion of issues of diversity in law available for CLE credit.

In the Missouri Bar webinar, Justin, Sarah, and Dillon expand on the subjects highlighted in the article and dive further into their own experiences as attorneys from diverse backgrounds. The open-ended discussion leaves plenty of opportunity for attorneys to contemplate what they have seen and experienced and how they can make their own progress to increase diversity in the legal field.

The Missouri Bar offers several timeslots to watch the webinar and earn CLE credit for Ethics or Elimination of Bias.

  • Wednesday, August 3rd, 2022 · 12:00pm central time
  • Thursday, September 8th, 2022 · 2:00pm
  • Tuesday, November 8th, 2022 · 12:00pm
  • Thursday, February 16th, 2023 · 12:00pm
  • Wednesday, March 15th, 2023 · 12:00pm

Register for the course here.

The United States Supreme Court.

In October 2020, RDM member attorney Dyanna Ballou wrote an article about jurisdiction stripping, a doctrine that allows Congress to remove jurisdiction from federal courts, including the Supreme Court. In light of recent Supreme Court rulings on abortion, gun control, and climate change regulations, Dyanna takes a fresh look at the concept of jurisdiction stripping below.

Unsurprisingly, there is increased interest in jurisdiction stripping by legal commentators. Many commentators are encouraging Congress to enact legislation to protect abortion rights with a clause forbidding judicial review of the law. “It’s clear to me that this action is allowed under Article 3 of the Constitution and Supreme Court precedent,” says Dyanna.

Despite its legality, jurisdiction stripping raises big issues:

  • Who should decide our most contentious social and cultural issues?
  • Is it fair for nine people to make fundamental legal determinations for over 300 million Americans?
  • How is the minority to be protected from the majority?

One thing has become clear: our courts are not apolitical. “Why else do we have such furious confirmation hearings,” asks Dyanna, “if they are allowed to go forward at all? Everyone knows that each party nominates judges from its own side. The always-reliable liberal and conservative blocks on the Court are further proof of the court’s politicization.” Dyanna suggests that jurisdiction stripping is a tacit acknowledgment of the Court’s political nature.

How Does Jurisdiction Stripping Work?

First, the Senate and the House must pass legislation that removes the Court’s power to review that legislation. Then, the President must sign the legislation, or, failing that, Congress would need the votes necessary to override a veto.

The chances of both houses of Congress and the President agreeing on legislation on hot-button topics like reproductive freedom and gun control are unlikely. Even when a single party controls both houses of Congress and the White House, senators and representatives who refuse to toe the party line are common, as we’ve seen with several pieces of legislation that have stalled in recent sessions. Historically, single-party control has resulted in less rather than more legislation.

Similar Laws in Canada

Our northern neighbor Canada allows jurisdiction stripping. Section 33 of the Canadian Charter (similar to our Constitution) allows Parliament and provincial legislatures to override court decisions that interpret key sections of the Charter dealing with fundamental rights like freedom of speech and freedom from unreasonable search and seizure.

Canada’s Section 33 became effective in 1982. What’s happened since then? Essentially nothing. It has never been used on a national level to override a court decision.

Will Congress Strip the Supreme Court’s Jurisdiction?

What does that mean for us? “I believe that like the Canadian experience, jurisdiction stripping would be difficult to realistically use in the United States,” says Dyanna, “especially on highly-charged social issues. I don’t see it as a practical solution to the problem of an activist Court.”

The Freedom Suits Memorial at the Civil Courts building in St. Louis.

This June, the Circuit Courts of St. Louis dedicated “Freedom’s Home,” a bronze statue memorializing the history of freedom suits in St. Louis. The four-ton bronze statue, sculpted by Preston Jackson, sits on the east side plaza of the Civil Courts Building in Downtown St. Louis. The black granite base of the statue is inscribed with the names of 330 people who petitioned for their freedom.

The Freedom Suits Memorial at the Civil Courts building in Downtown St. Louis.

Previously, RDM member attorney Nathan Lindsey wrote about the history of freedom suits in St. Louis. Beginning in 1824 with Winny v. Whitesides and continuing until the 1857 Supreme Court decision in Dred Scott v. Sandford, over 300 enslaved Black people sued for their freedom in Missouri, with roughly half of them prevailing in their petitions. Many of these cases were filed at the Old Courthouse, located at the doorstep of RDM’s St. Louis office.

The petitions were grounded in the “once free, always free” doctrine established in Winny. The case established that when an enslaved person was taken to a free state or territory such as Illinois, that freedom became permanent. The petitioners faced a cumbersome legal process to sue for that freedom, but many persevered, filed suits, and, in some cases, won the freedom to which they were entitled.

The unveiling of the freedom suits memorial coincided with Juneteenth, which commemorates the 1865 announcement of the end of slavery in Texas. Declared a federal holiday in 2021, Juneteenth celebrates not only the emancipation of enslaved Black people but African-American culture as well.

RDM attorney Vincent Gunter successfully filed a motion for summary judgment on behalf of a client at the Jackson County Courthouse in Kansas City, MO. Photo by Cat Craig.

Rasmussen Dickey Moore attorneys, led by member attorney Vincent Gunter, successfully prevailed on a motion for summary judgment on behalf of a client in early June. The case began when Plaintiff filed a negligence claim and a premise liability claim, alleging that exposure to asbestos at a high-rise office building in the late 1970s caused her to develop mesothelioma.

RDM’s client moved for summary judgment, asserting immunity from suit under the workers’ compensation exclusivity doctrine. As part of our client’s argument that Plaintiff’s exclusive remedy was controlled by the Missouri Workers’ Compensation Law, our client produced several insurance policies that provided additional Mesothelioma Benefits Endorsement in order to establish it had the requisite coverage in place as required by the statute.

Plaintiff opposed our client’s motion by filing a series of responses, including a motion to strike the client’s summary judgment motion on the grounds that it did not comply with Rule 74 of the Missouri Rules of Civil Procedure. Plaintiff also argued that our client’s insurance policies are hearsay, and to be admissible, the foundation affidavit authenticating the policies must satisfy Missouri’s business records hearsay exception codified in RSMo. § 490.680.

Relying on CACH, LLC v. Askew, 358 S.W. 58 (Mo. banc 2012), Plaintiff argued that neither RDM’s client nor its insurance agent could authenticate the insurance policies because they were drafted by another company. The Court overruled all of Plaintiff’s arguments and objections.

Regarding Plaintiff’s hearsay argument, the Court held that insurance policies are not hearsay because they are written contracts that memorialize the fact of a legal agreement and, therefore, fall outside the definition of hearsay. The statute Plaintiff relied on is for “business records” that would otherwise be hearsay. The Court explained that if a document is not hearsay, an authentication affidavit does not need to satisfy the requirements of RSMo. § 490.680.

The Court further found that our client’s insurance agent may authenticate the policies because, as he stated in his affidavit and deposition, he has personal knowledge of the policies from his role as our client’s agent in obtaining the policies and advising our client throughout the process.

Plaintiff also challenged the validity of the insurance policies themselves. The Court rejected these arguments and ruled that the undisputed facts showed RDM’s client had a workers’ compensation policy covering claims for enhanced mesothelioma benefits under RSMo. § 287.200.4 during the relevant time period. Accordingly, because Plaintiff was our client’s employee when she claimed exposure to asbestos, and that our client had a policy for enhanced benefits for mesothelioma, our client was immune from civil liability under the workers’ compensation exclusivity doctrine.