SB0072 signed into law: This bill really does introduce prejudgment interest in Illinois

Back in January, after the 101st General Assembly concluded its business in the traditional, confusing whirlwind (confusing, at least, to those not "in the know," namely, everyone not in the General Assembly and probably most of those in the General Assembly as well), I did a couple of posts documenting the strange, and very sudden, journey of HB3360, which spent most of its existence as a modest little bill amending two sections of the Mortgage Foreclosure Article of the Code of Civil Procedure only to metamorphose, in the course of the last 48 hours of the 101st General Assembly, into a bill allowing prejudgment interest in Illinois tort cases. My two posts on the subject, "Illinois adopts prejudgment interest in tort cases: Part 1 -- A look at the process" and "Illinois adopts prejudgment interest in tort cases: Part 2 -- a look at the statutory language," turned out to suffer from a fatal flaw, namely, an assumption that a bill passed by overwhelming Democratic majorities in both houses would be promptly signed into law by the Democratic Governor.

As it turned out, my seemingly safe assumption was anything but: Gov. Pritzker vetoed HB3360. Shame on me for not noticing sooner.

Indeed, I don't know when I might have noticed but for my stumbling across this May 28 post from the indespensable Rich Miller, "Pritzker signs renegotiated trial lawyers bill." (Mr. Miller's comment on the timing of this news: "Late Friday afternoon before a holiday weekend while the rest of the news media is focused on the remap. Not buried at all /s…")(your kids can tell you what "/s" means, if necessary).

This bill, SB0072, was merely signed in the chaos of the concluding moments of the Spring Session; as reference to the legislative history shows, it had been sent to the Governor on April 1.

But do not despair, cynical citizens. This bill, too, had its share of Springfield shenanigans. It started off life as a bill to create an Electronic Wills and Remote Witnesses Act and amending the Electronic Commerce Security Act to conform. Filed on January 29, it breezed through the Senate unanimously on March 10. I will leave it to probate practitioners to speculate whether this might have been a good or necessary proposal, but it seems, if only by the title, to have been an appropriate subject for legislation, given our recent isolation.

It doesn't matter, of course, because the text of the bill was jettisoned in the House. On March 16 and March 18 "amendments" were filed to the bill, one in case the Governor signed HB3360, the other not mentioning HB3360 at all. There were substantive differences between the two, but it really doesn't matter, does it? In short order, on March 18, the House opted for option 2. On March 25, the day of Gov. Pritzker's veto of HB3360, the Senate concurred in option no. 2. Can you say "done deal"?

So SB0072 now becomes P.A. 102-006.

The new Act adds a new subsction (c) to §2-1303 of the Code of Civil Procedure. Effective July 1, §2-1303(c) will provide:

 (c) In all actions brought to recover damages for personal injury or wrongful death resulting from or occasioned by the conduct of any other person or entity, whether by negligence, willful and wanton misconduct, intentional conduct, or strict liability of the other person or entity, the plaintiff shall recover prejudgment interest on all damages, except punitive damages, sanctions, statutory attorney's fees, and statutory costs, set forth in the judgment. Prejudgment interest shall begin to accrue on the date the action is filed. If the plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment interest shall be tolled from the date the action is voluntarily dismissed to the date the action is refiled. In entering judgment for the plaintiff in the action, the court shall add to the amount of the judgment interest calculated at the rate of 6% per annum on the amount of the judgment, minus punitive damages, sanctions, statutory attorney's fees, and statutory costs. If the judgment is greater than the amount of the highest written settlement offer made by the defendant within 12 months after the later of the effective date of this amendatory Act of the 102nd General Assembly or the filing of the action and not accepted by the plaintiff within 90 days after the date of the offer or rejected by the plaintiff, interest added to the amount of judgment shall be an amount equal to interest calculated at the rate of 6% per annum on the difference between the amount of the judgment, minus punitive damages, sanctions, statutory attorney's fees, and statutory costs, and the amount of the highest written settlement offer. If the judgment is equal to or less than the amount of the highest written settlement offer made by the defendant within 12 months after the later of the effective date of this amendatory Act of the 102nd General Assembly or the filing of the action and not accepted by the plaintiff within 90 days after the date of the offer or rejected by the plaintiff, no prejudgment interest shall be added to the amount of the judgment. For the purposes of this subsection, withdrawal of a settlement offer by defendant shall not be considered a rejection of the offer by the plaintiff. Notwithstanding any other provision of this subsection, prejudgment interest shall accrue for no longer than 5 years.
  Notwithstanding any other provision of law, neither the State, a unit of local government, a school district, community college district, nor any other governmental entity is liable to pay prejudgment interest in an action brought directly or vicariously against it by the injured party.
  For any personal injury or wrongful death occurring before the effective date of this amendatory Act of the 102nd General Assembly, the prejudgment interest shall begin to accrue on the later of the date the action is filed or the effective date of this amendatory Act of the 102nd General Assembly.

Illinois now has an "offer of judgment" procedure, at least as a way around prejudgment interest. But timing is limited: Settlement offers must be made within one year of filing (or within one year of the July 1 effective date of this new statute) and not accepted within 90 days thereafter. Of course, if they are accepted, there's no problem... right? But I believe this provision has been included to prevent any "pocket veto" of a settlement offer; no outright rejection is required before the settlement offer "counts" for purposes of §2-1303(c). And if the ultimate verdict is lower than the highest timely settlement offer, there is no prejudgment interest. And prejudgment interest interest accrues only on the difference between the highest timely settlement offer and the ultimate verdict.

Where it applies, prejudgment interest will be assessed at a rate of 6%.

No matter how long a case pends, there is a five year limit on prejudgment interest.

When a case is voluntarily dismissed, prejudgment interest stops accruing. It starts up only when the case is refiled.

Schools and other units of local government are exempt from prejudgment interest.

In January I made a prediction that I think still makes sense. To wit, there are probably two categories of tort cases where the new amendments to §2-1303 are most likely to increase settlements or judgments, and they are typically viewed as being at the opposite ends of the litigation food chain: medical malpractice cases and soft tissue auto accident cases where a substandard carrier insures the defendant. These are not coinicidentally the two most common types of tort cases to go to trial. In soft tissue cases with substandad carriers, the prospect of prejudment interest may prompt some behavior modification -- the low-ball final settlement offer will have to come sooner, or be made in a few more cases. But substandard carriers and med mal carriers take their very different types of cases to trial for the same reason: They generally do pretty well. There's no interest to pay on a defense trial verdict.

Correcting the record: Justice Burke issues second statement on Cara LeFevour Smith appointment

I missed this when it came out -- which it apparently did only hours after my post on this subject.

You can read the linked earlier post for background if you don't know the story already. But here is the link to the updated statement.

There are two material changes in the updated statement: First, new Judge Smith was found "Qualified" by the Chicago Bar Association, not "Highly Qualified." Second, only six of the seven Supreme Court justices voted to accept Justice Burke's recommendation of Smith: Justice P. Scott Neville, Jr. "did not participate" in the vote.

I will again go on record as being baffled by this entire 'controversy.'

Article 6, Section 12(c) of the 1970 Illinois Constitution provides, in pertinent part, as follows:

A vacancy occurring in the office of Supreme, Appellate or Circuit Judge shall be filled as the General Assembly may provide by law. In the absence of a law, vacancies may be filled by appointment by the Supreme Court. A person appointed to fill a vacancy 60 or more days prior to the next primary election to nominate Judges shall serve until the vacancy is filled for a term at the next general or judicial election....

My handy copy of the 1970 Illinois Constitution Annotated says that, in the past 49 years or so, the Illinois General Assembly hasn't quite gotten around to passing a law on the subject of filling judicial vacancies. Accordingly, the Supreme Court is entirely free to appoint anyone it wants to any vacancy that occurs. No screening committee is required. No "transparency" (one of those really malleable words that means entirely different things to different people at different times, depending on whose ox is being gored, er, circumstances). No bar association evaluations. If enough of the other justices on the court will go along with it, a justice is free to fill a vacancy with whomsoever he or she chooses, for any reason, just as long as the appointee is a U.S. citizen and holds an Illinois law license.

(Article 6, Section 11, of the 1970 Illinois Constitution adds a third requirement, namely, that no person is eligible to serve as judge who is not a "resident of the unit which selects" him or her. Historically, however, the Court has not always acted as if this requirement were binding on it for purposes of temporary appointments. However, any appointee would be obliged to establish residency as required by this provision in order to seek election to the vacancy he or she was tapped to fill.)

The point is, the Supreme Court makes temporary appointments. The appointment of Judge Smith is no different from any other of the several temporary appointments that the Supreme Court makes in the course of a given year. It is temporary. Transitory. Of limited duration.

If they provide some boost at election time, temporary appointments are by no means a guarantee of election. In Cook County, a Supreme Court appointment does not even guarantee slating. My archives are chock full of examples of persons who received temporary appointments, but were unable to convert these appointments into election.

Those temporary appointees who have been able to secure election to the bench have been able to develop political support from (or they already had the support of) the elected officials and other community leaders in the county or in their subcircuit.

Clearly, new Judge Smith is going to be facing an uphill battle with some of the elected officials and other community leaders in the 7th Subcircuit. If she even runs.

But, in my opinion, based on my observation of judicial elections in Cook County these past 12 years or so, this controversy is not about Judge Smith. Not particularly.

I don't claim to know for a fact, but I have every reason to believe that this entire contretemps is about an individual politician's failed attempt to redeem a promise to a particular individual -- a promise to make that individual a judge.

In general, I am in favor of politicians attempting to keep their promises.

So I am not being critical.

However, in this instance, I suspect that the politician in question calculated that his best chance at redeeming his promise was by securing a Supreme Court appointment for that person -- a temporary appointment, yes, but that would fulfill the promise.

The word 'calculated' is carefully chosen. The politician may have also calculated that he might not be able to clear the field of other African-American candidates in favor of his chosen candidate; therefore, in a primary contest with multiple African-American candidates, in an increasingly diverse subcircuit,^* he might not be able redeem his promise to make this person a judge except by appointment.

If the politician's preferred person were appointed, but did not win in a crowded primary field, the politician could say that this was the appointee's fault, not his own. He could credibly point to the appointment itself, and his own presumably substantial efforts on the candidate's behalf, even in a losing cause.

But the appointment did not go as the politician had hoped.

Protests followed, and most of those protesting honestly thought they were protesting about racial disrespect, or for transparency in an appointment process. But I think it was about a promise. To a specific person. Who may well run for the spot anyway -- and win.

Meanwhile, here's a little thought-experiment for your consideration: What sort of law, if any, do you think the General Assembly should enact regarding the filling of judicial vacancies as they occur? Extra credit: What sort of law do you think the General Assembly could pass?

I'll hang up now and listen for your answers.


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^* Just how diverse the 7th Subcircuit has become is the subject of a guest post by Frank Calabrese that I expect to have for you shortly.

Another judicial candidate says she is not participating in the CEIDC joint fundraiser -- but she is having one of her own on March 1

This morning's post prompted an email from Cook County judicial candidate Cynthia Ramirez.

Ramirez wanted to let me know that, like Judge Alfred M. Swanson, Jr., she too is not participating in the "Road to Victory" multi-candidate fundraiser scheduled for March 16 by the Committee to Elect Illinois Democratic Candidates (CEIDC). Ramirez was listed as one of the participating candidates on the evite at the time of my original post, but her email today was unequivocal. "I am not participating in their event," she wrote, adding that she and her campaign committee "recently sent CEIDC a letter requesting that they remove my name from their list of participants."

As of this evening, however, Ramirez is still listed on the CEIDC evite as a candidate for whom one may buy a ticket. But Ramirez's campaign committee is instead encouraging her supporters to come to a fundraiser on March 1, from 5:00 to 7:00pm, at Tumbao, 3213 W. Armitage in Chicago. The suggested contribution is $25. For additional information about the event, call James Robinson at (312) 332-0055.

Alliance of Bar Associations issues corrected rating on 6th Subcircuit candidate

The Alliance of Bar Associations has issued an updated "grid" for candidates running for the Delgado vacancy in the 6th Judicial Subcircuit. Here is the new grid:

The change in the grid concerns the ratings of candidate Kent A. Delgado. In the corrected version, shown above, Mr. Delgado is rated "Qualified" by the Puerto Rican Bar Association of Illinois (PRBA); the version of the grid published yesterday was mistaken in this regard.

If I receive any further corrections from the Alliance, I will of course post them.

Candidate says not involved with joint fundraiser

Cook County Circuit Court Judge Alfred M. Swanson, Jr. called me this morning to advise that, contrary to what I reported here on February 19, he is not a participant in the "Road to Victory" joint fundraiser sponsored by the Committee to Elect Illinois Democratic Candidates (CEIDC) and scheduled for March 16.

Judge Swanson is a candidate for the countywide Ward vacancy, the seat he now holds pursuant to Supreme Court appointment. Swanson told me that he and his campaign had not authorized the CEIDC to use his name in the fundraising venture, which gives ticket buyers the opportunity to select particular candidates to support and promises those candidates a proportionate share of the event proceeds. Swanson said he'd asked the Committee to remove his name.

As of this morning, the Road to Victory evite is no longer offering tickets supporting Judge Swanson's campaign, but his name remains on the evite, at least for now, as one scrolls down the page.

One vacancy, many candidates in 8th Subcircuit

Susana Darwin, a former President of the Lesbian and Gay Bar Association, sent me an email today, advising of a number of potential candidates for the one open 8th Subcircuit vacancy, the vacancy of Judge Nancy Drew Sheehan.

Darwin advises that Ann Collins Dole, Chief Assistant Corporation Counsel in the Torts Division, is apparently going to the make the run in the 8th. Collins Dole ran for a countywide vacancy in 2006, winning high marks from every bar association and the endorsements of the Tribune and Sun-Times, but lost to Aurelia Pucinski.

James A. Shapiro, recently appointed to the bench by the Supreme Court, is also apparently making the run for this seat as is Anne Marie Belanger, a partner in the Chicago office of Query & Harrow, Ltd.

Aaron Weiss, an Assistant Public Guardian in the Juvenile Division, is also circulating petitions as are Assistant State's Attorneys Gideon A. Baum and Jim Byrne. According to Ms. Darwin, it is Byrne who received the nod from the Democratic Party in the 8th Subcircuit.

The candidates are encouraged to contact this blog to 'fill in the blanks.'

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Ms. Darwin originally emailed me because in yesterday's post I'd omitted LAGBAC from the list of sponsors of the October 17 Alliance of Bar Associations presentation, entitled "A Guide to the Alliance Judicial Evaluation Process". (The Chair of LAGBAC's JEC, Mark Dupont, also called my attention to the omission.)

There is, of course, only one response possible in these circumstances: Mea culpa, mea culpa, mea maxima culpa. And I corrected the omission in the original post.

Department of accuracy, clarification and backtracking

I had a nice email late yesterday from Jeanne Anderson, who identifies herself as a staffer for John Mulroe's judicial campaign, charged, among other things, with managing Mulroe's "online presence."

(Yikes! Staffers! No wonder my own campaigns never went anywhere....)

Ms. Anderson was checking in because of this September 8 post in which I said I saw Mulroe signs on a bus on Harlem Avenue.

No, Ms. Anderson wrote, her candidate does not yet have any signs on buses. "I'm pretty sure I know the ads you're speaking of," she added. "I take Harlem Avenue to and from Loyola Academy several times a week and have frequently found myself behind a #423 Pace bus with a Thomas Mulroy campaign sign on its rear."

I'm sure that must be what I saw.

In my defense I can only say that I was driving kids to school myself and was paying more attention to the direction of the bus than to its advertisements.

(Yes, that sounds weak to me too. It's the best I could come up with.)

Anyway, Thomas R. Mulroy, most recently a partner at McGuire Woods LLP, was appointed to the bench by the Supreme Court in February of this year. Mulroy has also run his own firm and was with Jenner & Block for many years, serving at one point as head of that firm's Intellectual Property Department and finance committee. Mulroy has been an adjunct professor of trial practice at Loyola since 1983 and has taught at both the Northwestern and DePaul Schools of Law.

Stephen Anderson's article for the ISBA about Mulroy's appointment is online here.

So. I'm glad to clear that up.

Please note that the Mulroe campaign has not ruled out advertising on buses. Ms. Anderson is also John Mulroe's campaign treasurer, she says, and she hopes "we soon have the funds to afford that kind of exposure." Toward that end, I notice, there's a fundraiser for the Mulroe campaign Friday, September 28 at Blackthorn Manor, 7280 W. Devon, Chicago, from 6:00 to 9:00pm. You can download an invite by clicking on the Mulroe link at the top of this post.