Background

We have reported extensively on the passage of Illinois’s prejudgment interest statute, 735 ILCS 5/2-1303(c), in the following Client Insights:

• “Illinois Prejudgment Interest Update: Prejudgment Interest Statute Held Unconstitutional,” June 2022

• “Illinois Prejudgment Interest – June Update,” June 2021

• “Illinois Prejudgment Interest Legislation – Update,” March 2021

• “Illinois Legislature Passes Bill Amending Judgment Interest Statute to Impose Prejudgment Interest in Tort Actions,” January 2021

As last reported, the statute took effect on July 1, 2021, and was quickly challenged on constitutional grounds in cases pending in the Circuit Court of Cook County. Those challenges were consolidated for decision by Judge Marcia Maras and on May 27, 2022, Judge Maras held in Hyland v. Advocate Health and Hospitals Corp., et al., No. 17 L 003541, that the prejudgment interest statute is unconstitutional. 

The New Motions Protocol

In response to Judge Maras’s ruling, which has not yet been addressed by a reviewing court, the Circuit Court of Cook County recently established a protocol for handling further motions challenging the statute on constitutional grounds or with respect to its application in a particular case. These motions include, but are not limited to:

• Motions seeking a stay of the statute’s application

• Motions seeking to toll the statute’s requirements

• Motions seeking a declaration that the statute is unconstitutional

• Motions seeking to apply Judge Maras’s finding of unconstitutionality to any other case prior to trial. 

The protocol is set out in a notice issued by Law Division Presiding Judge James Flannery on July 20, 2022. Per the notice – which Judge Flannery stated was prepared “after having conferred with representatives from plaintiffs’ and defendants’ bar associations” – all such motions may be filed in any case that has not been set for trial and “shall remain pending and continued generally” until “all avenues of appellate review” on the statute’s constitutionality have been exhausted. 

All such motions may be filed in all applicable cases and shall remain pending and continued generally, with all issues preserved, until such time as all avenues of appellate review on the constitutionality of the Judgment Interest Act Amendment have been exhausted and a final order from the Illinois Supreme Court is issued.

Attorneys shall not notice or submit such motions before the assigned Law Division Judges, nor submit orders for entry on these motions.

All orders previously entered on such motions are deemed vacated, and such motions will remain pending and continued generally, with all issues preserved, until such time as all avenues of appellate review on the constitutionality of the Judgment Interest Act Amendment have been exhausted and a final order from the Illinois Supreme Court is issued. [Emphasis in original.]

The notice provides further that such motions filed in cases assigned for trial as of July 20, 2022, “shall remain with, and be decided by, the assigned trial judge.” Pursuant to this provision, at least one Cook County trial judge has ruled that the prejudgment interest statute is constitutional. See Ahearn v. Heliotis No. 2018 L 003552, Order of August 5, 2022, Judge Maura Slattery Boyle. 

Conclusion

Given the continued uncertainty regarding the constitutionality of the prejudgment interest statute, we recommend that defendants file motions challenging the statute’s validity in their individual cases in order to preserve the issue for appellate review as set out in the July 20, 2022, notice. As the orders in Hyland and Ahearn demonstrate, trial judges have differing views on the issue and the realities of litigation timing make it uncertain as to when the issue will reach the reviewing courts and in which case. Defendants also should continue to comply with the statute’s requirements until there’s been appellate review, which is likely to culminate with the Illinois Supreme Court having the final word.