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Judicial Rulings

Punitive damages still possible

A shotgun barrel exploded, and associations of trial and defense lawyers squared off in amicus briefs over the constitutional issue of punitive damages. When the smoke cleared, the September 19 decision of the Illinois Supreme Court took another target and left a basic question unsettled. The court noted, however, "As punitive damage awards have increased in recent years in both frequency and amount, the problems posed by such awards have attracted greater attention," and the court briefly summarized statutory limitations placed upon such awards by the Illinois legislature.

In its appeal of an award of punitive damages by lower courts, the Remington Arms Co. had raised the possibility that such judgments violate state and federal constitutional guarantees of due process. An amicus brief by the Illinois Association of Defense Trial Lawyers presented details of the argument, while the amicus brief of the Illinois Trial Lawyers Association opposed it. The Supreme Court overturned the award because it found Remington's conduct not to be "outrageous." as required for punitive damages to be presented to the jury as a possibile verdict. It did not, therefore, have to address the larger issue.

Justice Benjamin K. Miller wrote for the majority in Loitz v Remington Arms Company. Inc. (Docket No. 68367). Justice William G. Clark, joined by Justices Daniel P. Ward and Horace L. Calvo, dissented, arguing that the majority interpretation of the evidence invaded the province of the jury.

Loophole in the contributions act?

The Contributions Act (see Illinois Revised Statutes 1987, ch. 70, sees. 301 through 305) is intended to spread restitution for damages among a group of tortfeasors in proportion to their responsibility. There may be a way for a plaintiff to settle out of court with one defendant for less than the amount awarded and still collect the total damages. The Illinois Supreme Court issued just such a ruling on September 19.

A plaintiff brought medical malpractice charges against a hospital and doctor and negligence charges against two drug manufacturers. The latter claimed contribution against the doctor and hospital. The jury awarded damages of $10 million (reduced by the court to about $8.5 million), attributing 93 percent to the drug companies.

The plaintiff settled out of court with the drug companies for $3.5 million, and the trial court ruled that the hospital and doctor were liable for the balance due the plaintiff. The high court said, "if a plaintiff elects to settle with one party, the remaining tortfeasors are still jointly and separately liable for the full amount of the judgment, less the amount of the settlement." The court said that for remaining tortfeasors to preserve rights under the Contribution Act "the contribution claim should be asserted by counterclaim [in the original action] or by third-party claim in that action . . . ."

The opinion in Henry v St. John's Hospital (Docket No. 68659) was by Justice John J. Stamos. In beginning his dissent, Justice Howard C. Ryan said: "There is something terribly wrong with the construction we have placed on the law . . . ." He analyzed the structured settlement to show that the cost is $3 million, that the plaintiff is guaranteed a payout of over $7.9 million, and could get more than $44 million over her life expectancy, besides collecting $5 million from the hospital. He said. "Settlement agreements should not be used as an instrument of conspiracy to 'gang up' on a nonsettling defendant ....'"

Penny saved, nomination won: when to count 'irregular' ballots

Out of a close primary election in the 55th district for the Illinois House came some clarification of laws covering primaries and especially counting ballots which are imperfectly punched or in some other way spoiled or tainted. The Illinois Supreme Court filed its decision on September 21.

Incumbent Rep. Penny Pullen had apparently lost a close race in the Republican March primary for nomination as representative of the district to Rosemary Mulligan. Pullen eventually took the matter to court where an apparent tie emerged, and the toss of a coin determined Mulligan the winner of the spot on the November ballot. Pullen appealed.

The high court followed the established principle that election procedures are either "mandatory," where the legislature has expressly said that failure to comply renders a ballot void, or "directory," where the legislature has not been specific and the ballot will be counted in most cases. In general, procedural problems should not lead to the disenfranchisement of voters whose ballots may be defective through no fault of their own or through innocent inadvertence.

The high court determined when and when not to count ballots: "(1) uninitialled [by an election judge] absentee ballots may be counted; (2) ballots without precinct numbers may be counted [if that is the only irregularity]; (3) ballots which bear the wrong precinct designation may be counted; (4) ballots which were

November 1990/Illinois Issues/31

Judicial Rulings

numbered by an election judge to correspond to a voter's application number may be counted; (5) ballots cast by voters who failed to sign their application form may be counted; (6) the results of a recount, rather than the results on election night, govern in all precincts . . . ."

After applying all of these to the election, Pullen and Mulligan were still tied, and the high court made one more ballot-counting rule: There should be visual inspection of ballots that the automatic counting device cannot read to determine if the voter's preference is discernible. If so, they are to be counted. That review gave Pullen a net plurality of six votes.

Justice Daniel P. Ward wrote the opinion in Pullen v Mulligan (Docket No. 70496).

Also noted

In an October 4 ruling the Illinois Supreme Court clarified procedures to be followed when a natural parent will not consent to an adoption. There can be an adoption if the natural parent's parental rights are terminated following a finding of unfitness as a parent. The court said, "Only after a parent is found, by clear and convincing evidence, to be unfit does a circuit court ruling on an adoption proceed to consider the child's best interests and whether those interests would be served by the child's adoption . . . ." Justice John J. Stamos wrote the opinion for In re Syck (Docket No. 69415).

Also on October 4 the court sent another clear message that it will not tolerate attorney misconduct. A Springfield attorney, William Lewis Jr., had been charged by the administrator of the Attorney Registration and Disciplinary Commission (ARDC) with 23 violations of the Code of Professional Responsibility. The ARDC's investigatory structure had found him in violation on five of the counts and recommended suspension ranging from 18 to 29 months. The administrator recommended disbarment.

The court said, "Respondent's egregious conduct leaves this court with no doubt that respondent must be disbarred from the practice of law. The hearing and review boards found that respondent committed at least 18 acts of misconduct in violation of at least 11 disciplinary rules." The attorney had practiced for 26 years and was admitted to the Illinois bar in 1976. Much of his work was in the public sector, and his private practice began only two years before the act of misconduct. Among other mitigating factors he pleaded ignorance of some of the rules that he broke, but the court said, "Just as an accused cannot use ignorance of the law as a defense, so too an attorney cannot rely on ignorance of the rules of professional conduct as an excuse."

The strongly worded and detailed opinion was written by Justice Horace L. Calvo in In re Lewis (Docket No. 69542).

F. Mark Siebert

32/November 1990/Illinois Issues

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