REVIVED STATUTE OF REPOSE WAS NOT AUTOMATIC DEATH KNELL FOR LAWSUIT

June 18, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

When the Illinois Supreme Court's 1997 ruling in Best v. Taylor Machine Works, 179 Ill.2d 367, struck down Public Act 89-7, one of the consequences was to instantaneously revive an amended portion of the Limitations Act that governed legal malpractice claims involving the drafting of a will.

This meant that a legal malpractice claim that was filed on time in the Lake County Circuit Court (under an amendment to the Limitations Act provided by P.A. 89-7), instantly was time-barred under the revived statute. This was because the lawsuit alleged malpractice in drafting a will, and it was not filed within six months of when the decedent's will was admitted to probate.

Strictly applying the "void ab initio doctrine," a Lake County judge dismissed the malpractice claim, ruling that the revived statute of repose barred the lawsuit, even though it was filed three weeks after the Supreme Court issued its ruling in Best.

Because this result would be "fundamentally unfair," the Illinois Appellate Court reversed, concluding the plaintiffs were entitled to a reasonable period of time after Best was issued to file their complaint. Perlstein v. Wolk, No. 2-03-0003 (2d Dist., May 21).

Here are some highlights of Justice Barbara Gilleran Johnson's opinion (with various omissions not noted in the quoted text):

"When a statute is held to be unconstitutional in its entirety, it is void ab initio. People v. Gersch, 135 Ill.2d 384, 390 (1990). In Gersch, the defendant asserted his right to waive a trial by jury. However, the trial court denied the defendant's request for a bench trial when the state asserted its statutory right to a jury trial under section 115-1 of the Code of Criminal Procedure of 1963.

"Section 115-1 had been amended in July 1987 and January 1988 to provide a list of offenses where a defendant could not waive a jury trial without the state's assent. A jury trial was held and the defendant was found guilty of murder. However, the Supreme Court later held the 1987 and 1988 amendments to section 115-1 to be unconstitutional. Consequently, the defendant appealed his conviction, arguing that he was denied his constitutional right to a bench trial.

"The Gersch court determined that the effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment. The Gersch court explained that to hold a judicial decision that declares a statute unconstitutional as not retroactive would forever prevent those injured under the unconstitutional statute from receiving a remedy for the deprivation of a guaranteed right.

"Consequently, the Gersch court held that the version of section 115-1 that existed prior to July 1987 was revived. The prior version did not require the state's assent for a defendant to waive a jury trial. Therefore, the defendant's conviction was reversed, and the cause was remanded for a new trial.

"In so ruling, the Gersch court recognized that a number of courts have struggled with the potentially harsh results of the void ab initio doctrine. The void ab initio doctrine does not take into account that people may have relied on the unconstitutional act. However, the Gersch court noted that scholars have found the void ab initio principle especially appropriate in the area of criminal prosecution and in cases involving criminal procedure. Consequently, the Gersch court found no persuasive policy argument for departing from the void ab initio doctrine.

"However, in a special concurrence, one member of the Gersch court expressed that the application of the void ab initio principle must not be the inevitable consequence in every case. Gersch, 135 Ill.2d at 406 (Miller, J., specially concurring). The special concurrence in Gersch stated that, rather than automatically conclude that all unconstitutional statutes must be deemed to have been void from their inception, the more appropriate course requires that a reviewing court determine in an individual case or category of cases the effect that should be accorded a subsequent declaration of statutory invalidity.

"Furthermore, discussing the significance of a declaration of statutory invalidity, the U.S. Supreme Court has stated: 'The courts below have proceeded on the theory that the act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects....' Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374 (1940).

"In the present case, the appropriate course requires that the effect of the determination of unconstitutionality in Best be taken with qualifications. The Gersch court strictly applied the void ab initio doctrine because scholars had found the void ab initio principle especially appropriate in the area of criminal prosecution and in cases involving criminal procedure. Furthermore, the Gersch court found no persuasive policy argument for departing from the void ab initio principle. Here, however, unlike in Gersch, we are not dealing with a criminal prosecution. In addition, there is a persuasive policy argument for departing from the void ab initio principle under the circumstances present in this case.

"In Illinois, an amendment shortening a limitations period will not be retroactively applied so as to terminate a cause of action unless the party has had a reasonable period of time after the amendment's effective date in which to file an action. This judicial rule of construction applies even in those instances in which the legislature has expressed an intent that the limitations period be applied retroactively. Although this rule is stated in terms of statutes of limitations, our Supreme Court has applied it in cases involving statutes of repose. Section 13-214.3(d) of the Limitations Act acts as a statute of repose.

"The reasonable period of time in which a plaintiff may bring suit for injuries sustained before the effective date of a statute of repose can never, however, be more than the repose period itself. The reasonable period is calculated from the effective date of the statute. Unlike with statutes of limitations, most courts apply the repose period as the reasonable period for filing after the statute of repose provision became effective. However, although the reasonable period can never be more than the repose period itself, that does not necessarily mean that so long as the period does not exceed that limit, it can be called reasonable. There is no fixed rule for determining what constitutes a reasonable time; such a determination turns on the particular facts and circumstances presented to the court in each case."

"[I]f we strictly applied the void ab initio principle, the plaintiffs' cause of action would have been instantaneously barred on Dec. 18, 1997. Where causes of action would otherwise be instantaneously barred by the statute of repose, courts have allowed plaintiffs to file causes of action within a reasonable period after the effective date of the act creating the repose period.

"We acknowledge that the reasonable period doctrine is normally applied when there is a new legislative enactment of a statute of repose or a statute of limitation. However, in the present case, section 13-214.3(d) was revived, not due to a legislative enactment, but due to a judicial decision.

"Nonetheless, we believe that the reasonable period doctrine is applicable. A change in a statute of repose by either legislative enactment or judicial decision yields the same result. In either event, a change in the law occurs that can instantaneously deprive a plaintiff of the opportunity to bring her cause of action before the court. Such a result is fundamentally unfair.

"Furthermore, when a statute is changed by judicial decision, as in the present case, the purpose behind the reasonable period doctrine is even better served because there is no forewarning of the change in the law. In contrast, before a statute is changed by legislative enactment, there is usually discussion concerning the change, the public is made aware that the law is going to change, and the change is given a future effective date. Thus, on equity grounds, it is even more essential to apply the reasonable period doctrine when a statute of repose is changed by judicial decision.

"Under the present circumstances, we find that the filing of the plaintiffs' complaint, just three weeks after the Best decision, was within a reasonable period of time after the effective date of the change in the law. Consequently, we hold that the plaintiffs' complaint is not time-barred by section 13- 214.3(d) of the Limitations Act. As such, the trial court erred when it granted the defendant's motion to dismiss."

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