The Illinois Supreme Court handed down five opinions on Thursday, December 19. The ISBA’s panel of leading civil attorneys reviewed the opinions and provided summaries. In Ammons v. Canadian National Railway Co., the court interpreted the meaning of sections 55 and 60 of the Federal Employers’ Liability Act. In Iwan Ries & Co. v. the City of Chicago, the court addressed the city of Chicago’s power to tax tobacco products other than cigarettes. In Jones v. Pneumo Abex, LLC, an asbestos-related case involving claims of civil conspiracy, the Supreme Court remanded to the appellate court for reconsideration of a summary judgment reversal. In Andrews v. Metropolitan Water Reclamation District of Greater Chicago, the court provided further clarity on discretionary immunity available under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act. In Rushton v. the Department of Corrections, the court interpreted the Freedom of Information Act (FOIA) in deciding whether a journalist could obtain a settlement agreement between Wexford Health Sources, Inc., an entity that contracts with the Illinois Department of Corrections (DOC) to provide medical care to inmates, and the estate of an inmate who died from cancer.
By Joanne R. Driscoll, Forde Law Offices LLP
In this case, the court was called upon to interpret the meaning of sections 55 and 60 of the Federal Employers’ Liability Act (FELA) (45 U.S.C. § 55, 60 (2012)) when four federal courts of appeals and other courts interpreted it one way and the Illinois appellate court (with one justice dissenting) and other courts, including dictum by the Court of Appeals for the Seventh Circuit, interpreted it another way. The court, in a 5 to 2 decision, reversed the appellate court majority and adopted the reasoning of the four federal courts of appeals.
The issue on appeal was whether the FELA prohibited a railroad employer from filing counterclaims against its allegedly negligent employees who brought personal injury actions under the FELA. Section 55 prohibits “[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from liability.” 45 U.S.C. § 55 (2012). Section 60 prohibits “[a]ny contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee.” Id. § 60. The four federal courts of appeals held that neither provision barred counterclaims.
The Illinois Supreme Court began with a discussion of the weight to be afforded the decisions of lower federal courts when the United States Supreme Court has not spoken. In such an instance, the court may elect to follow those decisions that it believes are “better reasoned.” Then, examining the First, Fourth, Fifth, and Eighth Circuits and judicial dictum of the Seventh Circuit, which disagreed, the court concluded that the former were better reasoned and the latter was “unpersuasive.”
First, the court reasoned that there was nothing in the FELA to suggest that it was intended to abrogate an employer’s common-law right to assert claims against its workers who negligently caused damage to company property.
Second, the court looked to the plain language of the statute. Examining section 55, it disagreed with the Seventh Circuit’s expansive reading of “device whatsoever” to include counterclaims because they have the same effect as contracts in which employees waive their employers’ liability. Following the reasoning of the four other courts of appeals and applying the doctrine of ejusdem generis, the court defined “device whatsoever” to mean legal instruments, like the preceding terms “contract, rule, regulation,” that allowed the employer to escape FELA liability. Noting that a railroad’s counterclaim does not extinguish the plaintiff’s FELA action—it is an independent cause of action asserting rights against another— the court concluded that section 55 does not prohibit counterclaims.
Examining the plain meaning of section 60, the court concluded that, like section 55, counterclaims were not like a “contract, rule, regulation or device whatsoever” and had no “muzzling effect” in preventing other employees from stepping forward to provide information to the injured employee.
Concluding, the majority acknowledged the existence of cases on both sides of the issue, but noted that since the first federal circuit court of appeals decision in 1984 that held that counterclaims were permissible, Congress has not amended sections 55 or 60 of the FELA to specifically prohibit employer counterclaims. It found such silence “telling.”
Justice Kilbride, in a dissent joined by Justice Neville, believed that the better reasoned decisions were those that held that the FELA prohibited counterclaims. According to the dissent, the majority’s “technical construction of the statutory language” undermined the FELA’s remedial purpose and congressional intent of providing liberal recovery for injured railroad workers. It reasoned that the practical effect of a setoff for damages to the railroad’s property would be the same as if the railroad had exempted itself from liability by contract, rule, or regulation.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
Here the Illinois Supreme Court addressed the city of Chicago’s power to tax tobacco products—other than cigarettes—under the home rule power of an Illinois municipality, as granted by the 1970 Illinois Constitution and subject to exceptions stated in the Illinois Municipal Code (“the Code”). Interestingly, the majority, in a decision written by Justice Thomas Kilbride, and the dissenter, Justice Mary Jane Theis, agreed that the core statutory language expressed the General Assembly’s intent through the plain meaning of the words used. Yet the majority and Justice Theis came to entirely different conclusions on the meaning of the words the legislature used. The majority concluded that Section 8-11-6a of the Illinois Municipal Code, 65 ILCS 5/811-6a (West 2016), preempts a 2016 Chicago ordinance imposing tax on purchases of noncigarette ”other tobacco products” (“OTP”): smoking and smokeless tobacco ($1.80 per ounce), pipe tobacco (60 cents per ounce), and cigars (20 cents per cigar).
Multiple plaintiffs, entities with interests in the tobacco-products industry, waged this battle with Chicago over its home rule power in the context of the Illinois Constitution’s grant of the “broadest powers possible” to home rule units, a grant made on the assumption that municipalities know best how to address their needs, including by exercising the power to tax. Yet section 8-11-6a of the Code limits a home rule unit’s authority to impose certain taxes. The statute contains exceptions to preemption. It provides that a municipality has the authority to tax “the number of units of cigarettes or tobacco products” subject to this parenthetical: “(provided, however, that a home rule municipality that has not imposed a tax based on the number of units of cigarettes or tobacco products before July 1, 1993, shall not impose such a tax after that date).“ The case turned on interpretation of the parenthetical. Before July 1, 1993, the City taxed cigarettes, but not the other tobacco products subject the 2016 tax. The majority read the limiting clause in the parenthetical to mean that the statute permits municipal taxation only of cigarettes or other tobacco products enacted prior to July 1, 1993. The court held that, In the absence of a Chicago tax on OTP before the cut-off date, the city ordinance was preempted.
In a candidly worded dissent, Justice Theis challenged the majority’s legislative analysis. She contended that, in holding that only existing taxes on cigarettes or other tobacco products were not preempted, the majority wrote additional language into section 8-11-6a. Reading the provision to leave untouched the authority of some home rule units to tax cigarettes and tobacco products but to limit any expansion of that authority by other municipalities, Justice Theis reasoned that the limitation depended on whether a municipality previously imposed “such a tax”—and that Chicago’s previous taxation of cigarettes was “such a tax.” Justice Theis found the 2016 tax ordinance was a permissible exercise of home rule authority.
By Michael T. Reagan, Law Offices of Michael T. Reagan
In this latest chapter of claims of asbestos civil conspiracy against Owens-Illinois, Inc. and Pneumo Abex, LLC, the appellate court had reversed summary judgment entered by the circuit court in favor of those defendants. The pivot point of the appellate court’s reasoning in declining to arrive at a defense-favorable result, as had many other cases on point, was that the instant case was decided on motions for summary judgment rather than motions for judgment n.o.v., as was the case in much of the precedent. The Supreme Court reversed the appellate court, based upon that court’s mode of analysis, and remanded the case to the appellate court for further consideration. Justice Karmeier’s frankly worded opinion was joined by Chief Justice Burke and Justices Garman and Neville. Justice Kilbride dissented; Justices Thomas and Theis did not participate.
The defendants had moved separately for summary judgment. Although the Supreme Court noted small differences in the authority cited by defendants, in the aggregate the Supreme Court noted that defendants asserted that the civil conspiracy claims leveled here were based on the same facts as were unsuccessfully advanced by plaintiffs in three appellate opinions and by the supreme court in McClure v. Owens Corning Fiberglass Corp., 188 Ill.2d 102 (1999). The opinion also narrates that Owens-Illinois noted that in the previous three years, various Illinois circuit courts and one United States district court had granted Owens-Illinois summary judgment more than sixty times “in cases involving precisely the same civil conspiracy claim asserted here.” In the circuit court, the parties had admitted substantial similarities to the body of evidence in one of the relevant appellate court antecedents. The circuit court found that the only difference between the evidence in that prior appellate decision and the current record was testimony by Dr. Arthur Frank regarding the validity of a particular study. The circuit court concluded that that difference was unimportant.
This opinion states that the appellate court made reference to two of the prior appellate opinions which had “virtually the same facts and theories as those asserted by plaintiffs here,” but stated that the appellate court undertook “a cursory examination of the two opinions, and found them distinguishable for one basic reason: they arose from motions for judgment n.o.v. rather than summary judgment.” It is said that the appellate court made no mention of the third case cited by the circuit court. The Supreme Court also noted a Rule 23 opinion from the Third District involving a “virtually identical civil conspiracy case,” which was filed shortly prior to the issuance of the appellate opinion. The Supreme Court made no mention of how that Rule 23 opinion should have been regarded.
The Supreme Court stated that the appellate court did not undertake “a meaningful evaluation of the applicability of the legal principles governing civil conspiracy as articulated in that precedent,” but rather “summarily distinguished the prior decisions on the sole grounds that the civil conspiracy claim … in those cases were decided in the context of motions for judgment n.o.v., while here they were resolved on motions for summary judgment.” That constituted reversible error. The court stated that this case “does not present the typical summary judgment scenario, where the issues in dispute have yet to face the scrutiny of a trier of fact … Rather, it arises from a long and well-documented historical record that has been thoroughly explored and aggressively tested in the course of scores of lawsuits spanning more than two decades involving conduct that occurred long ago.”
The court concluded that “in such cases, there is no practical difference between the standard for summary judgment and that governing directed verdicts. In addition, the fact that the precedent involved judgments n.o.v. rather than directed verdicts is of no consequence, with the identical standard applying in either case. If judgment n.o.v. were proper, summary judgment would also be proper. The court said that “it was as if (the appellate court) picked up a suspense novel and declared the mystery unsolved based on the first few chapters without bothering to finish the book.” Here, “the book was complete. There would have been nowhere else to look.” The court stated that it expressed no view on the merits of the plaintiff’s appeal to the appellate court. There is “a steep hill for those plaintiffs to climb,” but it is said that this opinion does not foreclose the possibility of success. Rather, “in conducting its review, the appellate court must undertake a complete analysis in accordance with the correct legal standards articulated in our decisions and other established case law.” The case was remanded to the appellate court for further proceedings.
Justice Kilbride, in a detailed dissent, would have affirmed the appellate court. He disagreed with the existing assessments of the extant body of evidence, and further observed that plaintiffs here have submitted additional evidence on the Saranac Laboratory experiments.
By Joanne R. Driscoll, Forde Law Offices LLP
On a popular topic in the Illinois Supreme Court, tort immunity, the court provided further clarity on discretionary immunity available under sections 2-109 and 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-109, 2-201 (West 2012)).
Here, in a construction contract, a water reclamation district (the District) retained discretionary supervision over the project but delegated to the general contractor the means, method, and safety of the work. The general contractor’s employee was severely injured when transitioning from one ladder to another. Despite the lack of evidence that the district made any worksite safety decisions regarding the ladder configuration, the circuit court granted its motion summary judgment. The appellate court reversed and remanded. 2018 IL App (1st) 170336, ¶¶ 18-28.
Discussing precedent, including its recent decision in Monson v. City of Danville, 2018 IL 122486, the Supreme Court reiterated that a municipal defendant asserting immunity under section 2-201 must present evidence of a conscious decision by its employee pertaining to the conduct alleged to have cause the plaintiff’s injuries. The court rejected the district’s argument that its employee’s choice not to make any safety decisions at all demonstrates a conscious exercise of discretion, characterizing that argument as a clear misreading of the statute and its purpose, which is to protect local public entities and their employees from liability arising from the operation of government and policy decisions where the municipality must balance competing interests.
The court also rejected the district’s reliance on language in In re Chicago Flood Litigation, 176 Ill. 2d 179, 195 (1997), stating that to the extent it could be read as suggesting that a contract provision alone satisfies the exercise of discretion element of section 2-201, Monson now clarifies that there must be a conscious decision with respect to the act or omission alleged in the complaint. The court overruled Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933 and any other decision applying a lesser standard of proof to section 2-201. Lastly, the court rejected the district’s argument that construing section 2-201 to require a conscious decision would be incompatible with section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)), noting that section 414 is relevant to duty, whereas section 2-201 governs the issue of immunity once a duty exists.
Justice Karmeier in a dissent, joined by Justice Garman, suggested that the majority effectively overruled In re Chicago Flood, departing from stare decisis without special justification. The dissent also expressed concern for unintended consequences of: (1) less safety supervision at construction sites, with governmental entities laying safety responsibility at the door of their contractors; and (2) requiring magic words evincing a conscious decision rather than inferring that decision from conduct and circumstance.
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The Illinois Supreme Court interpreted the Freedom of Information Act (FOIA) in deciding whether Bruce Rushton, a journalist, could obtain a settlement agreement between Wexford Health Sources, Inc., an entity that contracts with the Illinois Department of Corrections (DOC) to provide medical care to inmates, and the estate of an inmate who died from cancer. The Supreme Court agreed with the appellate court that section 7(2) of the statute, 5 ILCS 140/7(2) (West 2014), categorizes the settlement as a public record subject to disclosure in accordance with Illinois’ public policy promoting transparency and accountability of the government.
Rushton initially sent a FOIA request to the DOC and sought settlement agreements pertaining to claims or lawsuits based on the death of Alfonso Franco, a former Taylorville Correctional Center inmate. The DOC, which responded that it did not possess a copy of the settlement agreement, repeatedly attempted to obtain the agreement from Wexford, which maintained that the document did not constitute a public record under the FOIA but did provide the DOC with a redacted copy. The DOC provided the redacted version to Rushton. Rushton and his employer, the Illinois Times, filed suit against the DOC to obtain an unredacted version of the settlement agreement, and Wexford intervened in the lawsuit. The case reached the Supreme Court for consideration of the trial court’s order granting Wexford summary judgment on the fight for disclosure of the unredacted agreement. Finding the document within the purview of FOIA disclosure, the appellate court reversed.
The Supreme Court majority agreed with the appellate court that section 7(2) of the FOIA, which pertains to public records not in the possession of a public body, governed the dispute. The court found that the first requirement of section 7(2), whether Wexford, as the party possessing the record, was performing a governmental function on behalf of the DOC, was easily answered, given that the DOC contracted with Wexford to fulfill the state’s constitutional and statutory duty to provide medical care to inmates.
The court framed as the only other question whether the settlement agreement “directly relates” to the government function—that is, the provision of medical care to inmates. Generally agreeing with the appellate court that the phrase “directly relates” should be determined in a fact-specific manner, guided by liberal principles of construction, the supreme court discussed Pennsylvania, Iowa and New Mexico precedent, along with Illinois case law, in assessing whether the statute required a direct relationship between the record requested and the performance of the governmental function. The court ultimately determined that the document bore a direct relationship to the governmental function of providing medical care to an inmate, regardless of whether the document was categorized as memorializing a business decision to settle a claim. The majority repeatedly expressed concern that public bodies should not be permitted to defeat disclosure obligations by delegating a governmental function to a third party. The Supreme Court remanded the case to the trial court to consider Wexford’s alternative argument—whether specific information in the settlement agreement was exempt from disclosure.
Justice Mary Jane Theis dissented. The bedrock of her analysis was section 2.20 of the statute, which specifically addresses settlement agreements “entered into by or on behalf of a public body”—a provision that, in Justice Theis’ view, excludes the settlement agreement that Wexford entered into on its own behalf and did not involve the payment of public funds. Justice Theis also disagreed that section 7(2) supported the majority’s conclusion.