Wilson Elser has reported extensively on the passage of the Illinois prejudgment interest statute, 735 ILCS 5/2-1303(c).* The statute took effect on July 1, 2021, and was quickly challenged on constitutional grounds.

As we last reported, the Appellate Court of Illinois, First Judicial District in Cotton v. Coccaro, 2023 IL App (1st) 220788, held that the prejudgment interest statute is constitutional. Since then, the Appellate Court of Illinois, Fourth Judicial District also weighed in. In First Midwest Bank v. Rossi, 2023 IL App (4th) 220643, the Fourth District held that the prejudgment interest statute is constitutional in that it does not violate either the defendant’s right to a jury trial or the defendant’s due process rights. These holdings are consistent with the First District’s decision in Cotton.

The Fourth District also observed that the bill passed in violation of the three-reading rule of the Illinois Constitution, which would render the statute unconstitutional but for the Illinois Supreme Court adoption of the enrolled bill doctrine. The Fourth District then called upon the Illinois Supreme Court to reconsider and reject the enrolled bill doctrine.

First Midwest Bank v. Rossi

In First Midwest Bank, plaintiff First Midwest Bank, as administrator of the Estate of Cynthia Overstreet, filed suit for medical malpractice, alleging that the defendant bariatric surgeon did not timely diagnose and treat Overstreet’s complications from the gastric bypass surgery he performed, leading to her death. The case proceeded to trial and the jury returned a verdict for the plaintiff in the amount of $7,745,400. On post-trial motions, the trial court granted the plaintiff’s motion for prejudgment interest under the new statute.

On appeal to the Fourth District, the defendant contested the award of prejudgment interest on the ground that the prejudgment interest statute is unconstitutional. Although the Fourth District did not cite the First District’s decision in Cotton, it reached the same conclusion – that the statute is constitutional in that it did not violate the defendant’s right to a jury trial or the defendant’s due process rights. The Fourth District found, however, that the statute is unconstitutional because it was passed in violation of the Illinois Constitution’s three-reading rule.

The three-reading rule of the Illinois Constitution states as follows:

(d) 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. *** 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. (Ill. Const. 1970, art. IV, §8(d))

Following a review of the manner in which the prejudgment interest statute was enacted, the Fourth District concluded that it was enacted in violation of the three-reading rule because it was not read out “by title” – the Senate and the House read it out only as “Senate Bill 72” or some variation thereof – and it was not read out three times in the Senate following substantial amendments in the House. (First Midwest Bank, ¶¶224-232)

In reaching this conclusion, the Fourth District rejected the argument of amicus curiae Illinois Trial Lawyers Association (ITLA) that the bill’s number and title are the same:

[T]he Illinois Supreme Court has made clear that the title of a bill is an important consideration in determining a bill’s scope. Those cases clearly identify the “title” of a bill to be that portion that states, “an Act concerning ____” and not the bill’s numerical designation. ITLA’s claim that the legislature’s use of a mere numerical denomination is sufficient makes a mockery of [the] 1970 constitution’s requirement that the bill be read by its title on three different days. (First Midwest Bank, ¶229) (Italics in original.)

The Fourth District then concluded that the General Assembly’s violation of the three-reading rule in enacting the prejudgment statute rendered the statute unconstitutional:

The three-reading requirement ensures that the legislature is fully aware of the contents of the bills upon which they will vote and allows 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 proposed legislation with their elected representatives and senators. Taken together, two foundations of the bedrock of democracy are decimated by failing to require the lawmakers to adhere to the constitutional principle. (First Midwest Bank, ¶231) (Citation omitted.)

This was not the end of the Fourth District’s analysis, however. The Illinois Supreme Court has adopted the enrolled bill doctrine, which provides that “certification 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 on separation of powers concerns. (First Midwest Bank, ¶222) With respect to the prejudgment interest statute, both of these certifications were made despite the violation of the three-reading rule. Based on the enrolled bill doctrine and the dictates of stare decisis, the Fourth District stated that it could not declare the prejudgment interest statute unconstitutional:

[W]e are constitutionally bound by Illinois Supreme Court precedent and the matter of continued adherence to the enrolled bill doctrine is for that court alone to decide. Mindful of the limits of this Court’s authority, we agree with the [plaintiff] and ITLA that we must follow the Supreme Court’s decisions declaring the enrolled bill doctrine to be the law of Illinois. Accordingly, this Court cannot declare the prejudgment interest statute unconstitutional, even though it was passed in violation of the three-reading rule. (First Midwest Bank, ¶223)

That said, the Fourth District called upon the Supreme Court to revisit and reject the enrolled bill doctrine. On this point, the Fourth District looked to the partial dissent of Justice Heiple in People v. Dunigan, 165 Ill. 2d 235 (1995), in which he addressed the problematic effect of the enrolled bill doctrine in the context of the three-reading rule:

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.

If it were deemed desirable to foreclose inquiries into the regularity of the passage of bills, language similar to the enrolled bill doctrine could have been included within the constitution. There is no such language. Moreover, the Illinois Constitution was adopted at a referendum. It did not become the law of the State by either discussions of the delegates or by their votes. The constitutional convention merely submitted the document to the public for a vote. There is no way that a voter could interpret the language of the constitution to mean that procedural requirements for the passage of a bill could be overridden by the signatures of two State officers. In truth, the signatures of the officers are merely prima facie evidence that the General Assembly has abided by the requirements of the Constitution. In other words, it raises a rebuttable resumption that the requirements for passage have been met.

A literal adherence to this so-called enrolled bill doctrine means that a bill need never be read or presented in either house, need never receive a majority vote, and need never even be voted on. Two people, the Speaker of the House and the President of the Senate need merely sign and certify a bill and, unless vetoed by the Governor pursuant to article IV, section 9, the bill becomes ipso facto the law of Illinois. Contrary to today’s ruling, I believe that the constitutional requirements for the enactment of a bill should be followed and enforced. While separation of powers is a valid doctrine and a presumption of legislative regularity is its proper corollary, this court should reserve the right of review to ensure the General Assembly’s compliance with constitutional mandates. (First Midwest Bank, ¶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, ¶240) (Citation omitted.)

Conclusion

As of this writing, the defendant in the First District case – Cotton v. Coccaro, 2023 IL App (1st) 220788 – has filed a petition for leave to appeal to the Illinois Supreme Court. It is anticipated that the defendant in First Midwest Bank will also seek Illinois Supreme Court review. We continue to recommend that defendants file motions challenging the constitutionality of the prejudgment interest statute in their individual cases in order to preserve the issue for appellate review at least until such time that the Illinois Supreme Court rules on the issue. These motions should acknowledge that trial judges have a stare decisis obligation to follow First Midwest Bank and Cotton, but argue that the statute’s constitutionality is expected to be reviewed by the Illinois Supreme Court at some point, so the issue is being raised before the trial court for preservation purposes.