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Judicial Rulings

How to value loss of life

Damages for loss of society under the Wrongful Death Act (see Illinois Revised Statutes 1983, ch. 70, sec. 2) are not to be calculated at present cash value. That is the ruling of the Illinois Supreme Court June 20 in its first opinion on the issue. It confirmed similar opinions at the appellate level.

At issue was a jury award of $8.3 million (possibly the largest wrongful death award confirmed by the Illinois high court) to survivors of a traffic accident victim. In earlier decisions the court had ruled that awards for pain and suffering in personal injury cases should not be reduced to present cash value. It said that the same reasoning "applies equally to pain and suffering in the wrongful death context...."

Under section 2 of the Wrongful Death Act, a jury's award of pecuniary damages to survivors is to be determined "without regard to and with no special instruction as to the dollar limits on recovery." To determine cash value an attempt would be made to place a present dollar value on the victim's society, role as husband and father, etc., and project this over expected life span. The court said, "Clearly, as both pain and suffering, loss of society, and other noneconomic damages are incapable of being determined with any arithmetic certainty, present cash value analysis is completely inappropriate in determining an award."

Justice Thomas J. Moran wrote the opinion in Drews v Gobel Freight Lines, Inc. (Docket No. 70365). In a strongly worded dissent Justice James D. Heiple suggested that if the legislature will not enact caps on such awards, the courts must provide them in "the irrational tort system under which we operate." Heiple said that "litigants, with the assistance of their attorneys, are turning the court system into a gigantic gambling casino." He termed such awards "punitive damages under another name," and said, "Though selected individuals are being made rich, most notably the plaintiffs' personal lawyers, society as a whole is crippling itself."

Review not automatic in murder/manslaughter convictions

A 1988 decision of the Illinois Supreme Court in People v Reddick (123 Ill.2d l84) was seen at the time as potentially providing additional grounds for appeal of many murder convictions. At that time the court ruled that the pattern instructions (the uniform instructions provided for judges to give juries regarding specific charges) then in use on murder and manslaughter, when given together, were faulty. The court's June 20 decision on four appeals based on Reddick clarifies the matter. All four cases were pending when Reddick was decided.

The court now holds that the faults it identified in Reddick could deprive a defendant of a fair trial. Consequently, the decision has constitutional implications and must be applied retroactively. The court decided, however, that reversal and new trial is not automatic in all cases where these instructions had been given. The court said that "the instructions should not be judged in artificial isolation but must instead be considered in the light of the record as a whole, including the evidence and arguments presented to the jury." If this is done and the error is found to be harmless, the conviction stands. In the present cases the court found harmless error in two of the cases and affirmed the conviction (although one was returned to the appellate court for consideration of another issue). New trials were ordered in the other two cases.

Chief Justice Ben Miller wrote for the majority in People v Shields, People v Fercsi, People v Evans and People v Thomas (143 111. 2d 435 (1991)) with Justices Michael A. Bilandic and James D. Heiple not participating. Justice William G. Clark concurred in part and dissented in part, concluding from the facts that the error in the two affirmed cases was not harmless.

Publishers, beware! No contract for Cheever stories

A June 20 decision of the Illinois Supreme Court may have far-ranging effects on book publishing. The court found invalid a contract that some claim is a common form in the industry.

Academy Chicago Publishers wished to publish a collection of stories by the late John Cheever, Pulitzer Prize-winning author. It contracted with his widow to publish stories not previously anthologized. When it was dissatisfied with the stories that she delivered, the matter ended up in litigation.

One bone of contention was the status of the stories within or outside of public domain, but the high court's decision never reached this matter since it said, "The pertinent language of this agreement lacks the definite and certain essential terms required for the formation of an enforceable contract." Defects included failure to specify minimum and maximum page length and number of stories. The court suggested six other matters that might have been covered.

Justice James D. Heiple wrote the opinion in Academy Chicago Publishers v Cheever (Docket No. 70587) with Justices William G. Clark and Charles E. Freeman not participating. The publishers have petitioned for rehearing, supported by other publishing companies who raise the fear of disruption throughout the industry.

U.S. Court takes Illinois off the hook

A June 20 decision by the U.S. Supreme Court may have headed off future challenges to Illinois' Compulsory Retirement of Judges Act (see III. Rev. Stat. 1989, ch. 37, sec. 23.71), which forces judges to retire at age 75. The decision allows statutes like Illinois' to set age limits on the service of judges. The question of federal law superseding the Illinois' law on mandatory retirement was avoided by the Illinois Supreme Court in Tully v State of Illinois (143 111. 2d 435 (1991)) when it found other legal issues to decide whether an Illinois judge over age 75 had been retained or replaced (see Illinois Issues, July 1991, p. 32). In the federal case, a similar Missouri statute, with mandatory retirement at 70, was attacked as violating both the federal Age Discrimination in Employment Act (ADEA, see 29 U.S.C. sec. 621 et seq.} and the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Justice Sandra Day O'Connor's opinion said that "the Court has recognized that the States' power to define the qualification of their office-holders has force even as against the proscriptions of the Fourteenth Amendment." She said, "It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all." On the other hand, "The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70."

The ADEA specifically excludes "any person elected to public office ... or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level ...." Judges are not specified, which the court found ambiguous enough to forestall application of the act to judges.

Octogenarian Justices Thurgood Marshall and Harry A. Blackmun dissented in Gregory et al., Judges v Ashcroft (No. 90-50).

U.S. sustains Illinois

In a June decision the U.S. Supreme Court rejected without comment the appeal of four Danville officials convicted of violating Illinois conflict of interest laws. To settle a voting rights lawsuit, they had negotiated a consent degree, changing the city's form of government, but it included jobs for them as department heads. The Illinois Supreme Court had ruled they were correctly convicted (People v Scharlau, 141 Ill. 2d 180; see Illinois Issues, February 1990, p. 28; the appeal was Brown v Illinois, No. 90-1723).

F. Mark Siebert

August & September 1991/Illinois Issues /53

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