Challenges To The Constitutionality Of The Punitive Damages Amendments To The Illinois Wrongful Death Act And Probate Act

• Published date: 29 August 2023
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Ms Melissa Murphy-Petros

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...