Wingert v. Hradisky , 2019 IL 123201 ( 2019 )

2019 IL 123201
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 123201)
NOAH WINGERT, a Minor, by His Mother and Next Friend,
Cassandra Lee Wingert, Appellant, v. PATSY A. HRADISKY,
Special Administrator of the Estate of Kevin Jatczak, Deceased, Appellee.
Opinion filed March 21, 2019.
JUSTICE THOMAS delivered the judgment of the court.
Chief Justice Karmeier and Justice Garman concurred in the judgment and
opinion.
Justice Burke concurred in part and dissented in part, with opinion, joined by
Justice Neville.
Justice Theis concurred in part and dissented in part, with opinion, joined by
Justice Kilbride.
OPINION
¶1 This is a direct appeal from a judgment of the circuit court of Cook County
finding section 25(b)(2) of the Drug Dealer Liability Act (Act) (740 ILCS
57/25(b)(2) (West 2016)) facially unconstitutional.
¶2 BACKGROUND
¶3 Drug Dealer Liability Act
¶4 We begin with an overview of the Act. Effective in 1996 (see Pub. Act 89-293
(eff. Jan. 1, 1996)), the Act mirrors the Model Drug Dealer Liability Act that was
provided to state legislators in the early 1990s by the American Legislative
Exchange Council. Rosemary E. Williams, Trial of Suit Under United States’ Drug
Dealer Liability Acts, 145 Am Jur. Trials 1, § 2 (Sept. 2018 Update); see Model
Drug Dealer Liability Act (Model Act) (Model Act, Model DDLA.com,
http://www.modelddla.com/Model_Act.htm (last visited Oct. 26, 2018)
[https://perma.cc/CA9Y-X9JP]). At least 18 states and one territory of the United
States have adopted the Model Act or some version of it. Williams, supra, § 2.
¶5 The stated purposes of the Act are (1) “to provide a civil remedy for damages to
persons in a community injured as a result of illegal drug use,” (2) “to shift, to the
extent possible, the cost of the damage caused by the existence of the illegal drug
market in a community to those who illegally profit from that market,” (3) “to
establish the prospect of substantial monetary loss as a deterrent to those who have
not yet entered into the illegal drug distribution market,” and (4) “to establish an
incentive for drug users to identify and seek payment for their own drug treatment
from those dealers who have sold drugs to the user in the past.” 740 ILCS 57/5
(West 2016).
¶6 Persons who may bring an action for damages include:
“(1) A parent, legal guardian, child, spouse or sibling of the individual drug
user.
(2) An individual who was exposed to an illegal drug in utero.
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(3) An employer of the individual drug user.
(4) A medical facility, insurer, governmental entity, employer, or other
entity that funds a drug treatment program or employee assistance program for
the individual drug user or that otherwise expended money on behalf of the
individual drug user.
(5) A person injured as a result of the willful, reckless, or negligent actions
of an individual drug user.” Id. § 25(a) (West 2016). 1
¶7 The Act identifies two potential defendants. Under section 25(b)(1), a plaintiff
may seek damages from “[a] person who knowingly distributed, or knowingly
participated in the chain of distribution of, an illegal drug that was actually used by
the individual drug user.” Id. § 25(b)(1). The parties here refer to section 25(b)(1)
as the “Direct Liability Provision.”
¶8 Under section 25(b)(2), a plaintiff may also seek damages from
“[a] person who knowingly participated in the illegal drug market if:
(A) the place of illegal drug activity by the individual drug user is within
the illegal drug market target community of the defendant;
(B) the defendant’s participation in the illegal drug market was
connected with the same type of illegal drug used by the individual drug
user; and
(C) the defendant participated in the illegal drug market at any time
during the individual drug user’s period of illegal drug use.” Id. § 25(b)(2).
¶9 The “place of illegal drug activity” referenced in section 25(b)(2)(A) is defined
as “each Illinois Representative District in which the individual possesses or uses
an illegal drug or in which the individual resides, attends school, or is employed
during the period of the individual’s illegal drug use, unless the defendant proves
otherwise by clear and convincing evidence.” Id. § 15.
1
An individual drug user may also bring an action for damages, but recovery is limited (740
ILCS 57/30 (West 2016)) and subject to principles of comparative responsibility (id. § 50). The
instant case does not involve a claim by an individual drug user.
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¶ 10 The “illegal drug market target community of the defendant,” also referenced in
section 25(b)(2)(A), is determined by the degree of the defendant’s participation in
the illegal drug market, as measured by the amount of drugs possessed or
distributed. Id. § 40. Where the defendant’s participation in the illegal drug market
involves an amount of drugs at the lower end of the statutory scale—a so-called
“Level 1 offense” (id. § 15)—the illegal drug market target community is the
“Illinois Representative District in which the defendant’s place of participation is
situated.” Id. § 40(1). As the degree of participation in the drug market increases
based on the amount of drugs possessed or distributed, the illegal drug market
target community also increases in size. Thus, where a defendant’s participation in
the illegal drug market constitutes a “Level 4 offense,” the highest level (id. § 15),
the illegal drug market target community of the defendant is the entire state. Id.
§ 40(4).
¶ 11 Because section 25(b)(2) requires that the area or community in which the
illegal drug activity of the individual drug user took place must be within the area or
community in which the defendant drug dealer operated, the parties here refer to
section 25(b)(2) as the “Area Liability Provision.”
¶ 12 A plaintiff may recover both economic and noneconomic damages proximately
caused by an individual’s illegal drug use, as well as exemplary damages,
reasonable attorney fees, and costs of suit. Id. § 25(c). A person subject to liability
under the Act has a right of contribution against another person subject to liability
under the Act. Id. § 55.
¶ 13 Proof of the defendant’s participation in the illegal drug market must be shown
by clear and convincing evidence, while all other elements must be shown by a
preponderance of the evidence. Id. § 60(a). A person against whom recovery is
sought who has a criminal conviction under state drug laws or under the federal
Comprehensive Drug Abuse and Prevention Control Act of 1970 (21 U.S.C. § 801
et seq.) “is estopped from denying participation in the illegal drug market.” 740
ILCS 57/60(b) (West 2016).
¶ 14 The Act generally requires that a claim must be brought not more than two
years after accrual of the cause of action (id. § 70) and contains a severability
provision pursuant to section 1.31 of the Statute on Statutes (5 ILCS 70/1.31 (West
2016)). 740 ILCS 57/85 (West 2016).
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¶ 15 The General Assembly made numerous findings, set forth in section 10 of the
Act, in which it recognized, inter alia, the cost to individuals, families, employers,
and society of coping with the illegal drug trade; the necessity of using the civil
justice system to provide an avenue of compensation for those injured by the
marketing and distribution of illegal drugs; and the barriers to recovery for injured
parties under existing tort law. Id. § 10.
¶ 16 With this overview of the Act, we turn to the litigation at issue.
¶ 17 Wingert v. Hradisky
¶ 18 This case arises out of the death of Michael Neuman from a drug overdose on
June 9, 2012. Plaintiff is Neuman’s minor son, Noah Wingert, by his mother and
next friend, Cassandra Lee Wingert. Defendant is Patsy A. Hradisky, special
administrator of the Estate of Kevin Jatczak, deceased. 2 Plaintiff sued Jatczak for
damages under the provisions of the Act.
¶ 19 Count I of the fourth amended complaint alleged that, on or about June 9, 2012,
and prior thereto, Jatczak owned certain premises in the city of Berwyn, at which he
also resided; Jatczak distributed and/or sold Neuman and others illegal drugs,
including cocaine, heroin, and opiates, at the premises; Jatczak used illegal drugs at
the premises with Neuman and others; Jatczak knowingly participated in the illegal
drug market; and as a direct and proximate result of the use, consumption, and/or
distribution of illegal drugs, Neuman was then and there severely injured, resulting
in his death on June 9, 2012. The complaint alleged that Noah Wingert has been
permanently deprived of his father’s support, love, society, affection,
companionship, and services and has suffered emotional distress and mental
anguish.
¶ 20 Defendant filed a motion to dismiss under section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2016)), asserting that the Act violates the due
process clauses of both the federal and state constitutions by imposing an
irrebuttable presumption of causation that has no rational connection between the
fact requiring proof—the defendant’s knowing participation in the illegal drug
2
Plaintiff also named as defendants Julie Holda and Simone Holda. They are not a part of this
appeal.
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market—and the fact presumed—the defendant caused the plaintiff’s injuries.
Defendant also argued that the Act violates due process by utilizing a market share
theory of liability purportedly rejected by this court in Smith v. Eli Lilly & Co., 137
Ill. 2d 222 (1990). 3
¶ 21 The trial court denied defendant’s motion as to section 25(b)(1) (the Direct
Liability Provision) but granted defendant’s motion as to section 25(b)(2) (the Area
Liability Provision). The court found section 25(b)(2) violates due process and
severed it from the Act. The trial court made no Rule 18 findings at that time. See
Ill. S. Ct. R. 18 (eff. Sept. 1, 2006).
¶ 22 Plaintiff was later granted leave to file a fifth amended complaint, realleging
previously dismissed counts to preserve the same for appeal. Count I against
Jatczak remained the same but was necessarily limited by the court’s constitutional
ruling to a claim under section 25(b)(1) of the Act. As to that count, defendant filed
a motion for summary judgment arguing that plaintiff failed to present any
evidence that could support a finding that Jatczak knowingly provided or
distributed the illegal drugs to Neuman that caused his overdose. Plaintiff
responded that defendant’s summary judgment motion should be denied because
section 25(b)(1) of the Act does not require proof that Jatczak provided the drugs
that caused Neuman’s overdose. All that is required, plaintiff argued, is that Jatczak
knowingly distributed, or knowingly participated in the chain of distribution of, an
illegal drug that Neuman actually used. The trial court granted defendant’s motion
for summary judgment.
¶ 23 Plaintiff appealed directly to this court pursuant to Rule 302(a). Ill. S. Ct. R.
302(a) (eff. Oct. 4, 2011). We retained jurisdiction and remanded the matter to the
trial court for the limited purpose of making and recording findings in compliance
with Rule 18 (Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)). The trial court’s order on remand
first clarified that, although defendant’s constitutional challenge was raised in a
section 2-615 motion to dismiss, the proper procedural vehicle is a motion to
dismiss under section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2016)) and that
the trial court treated defendant’s motion as such. As to the merits, the trial court
3
Pursuant to Rule 19 (Ill. S. Ct. R. 19 (eff. Sept. 1, 2006)), defendant notified the Illinois
Attorney General of the constitutional challenge to the Act. The Attorney General elected not to
intervene in the case.
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ruled that the Act institutes a form of market share liability that runs afoul of this
court’s decision in Smith. On this basis, the trial court found section 25(b)(2)
unconstitutional on its face. The trial court also found section 25(b)(2)
unconstitutional on its face as violative of substantive due process because the
statute arbitrarily presumes that a defendant who participates in the illegal drug
market caused the plaintiff’s injury.
¶ 24 ANALYSIS
¶ 25 I. Section 25(b)(2)—Area Liability Provision
¶ 26 The trial court below held that section 25(b)(2) of the Act violates substantive
due process under the state and federal constitutions because it arbitrarily and
irrationally presumes that a defendant who participates in the illegal drug market
caused the plaintiff’s injury. In reaching this result, the trial court focused on the
three requirements set forth in section 25(b)(2), which permits a plaintiff to recover
damages from a person who knowingly participated in the illegal drug market
where:
“(A) the place of illegal drug activity by the individual drug user is within
the illegal drug market target community of the defendant;
(B) the defendant’s participation in the illegal drug market was connected
with the same type of illegal drug used by the individual drug user; and
(C) the defendant participated in the illegal drug market at any time during
the individual drug user’s period of illegal drug use.” 740 ILCS 57/25(b)(2)
(West 2016).
According to the trial court, proof of the facts set forth in subsections (A), (B), and
(C) above has no rational relationship to the presumed fact—that the defendant
drug dealer caused the plaintiff’s injuries.
¶ 27 Plaintiff argues that the trial court’s reasoning is flawed because the Act does
not create a presumption of causation; instead, the Act abolishes the requirement of
causation, and the only question is whether the legislature could lawfully do so.
Plaintiff would answer that question in the affirmative. In response, defendant
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initially argues that section 25(b)(2) creates an unconstitutional presumption of
causation and that imposing liability under such circumstances tramples
foundational principles of our tort system and violates due process. 4 In the
alternative, defendant argues that, if plaintiff is correct and section 25(b)(2)
abolishes the causation element altogether, then section 25(b)(2) still violates
substantive due process principles because imposing liability in the absence of “any
causative link” between the parties is fundamentally unfair.
¶ 28 We begin with the presumption that the Act is constitutional. People v. Ligon,
2016 IL 118023, ¶ 11. The party challenging the Act—here, defendant—carries the
burden of clearly rebutting this strong judicial presumption. People v. Rizzo, 2016
IL 118599, ¶ 23; In re Rodney H., 223 Ill. 2d 510, 516 (2006). A facial challenge to
a statute is the most difficult challenge to mount successfully because the
challenger must establish that under no circumstances would the statute be valid.
Rizzo, 2016 IL 118599, ¶ 24. “Facial invalidation is, manifestly, strong medicine
that has been employed by the court sparingly and only as a last resort.” (Internal
quotation marks omitted.) Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill.
2d 463, 473 (2009). Our duty is to uphold the constitutionality of the Act if
reasonably possible to do so, resolving any doubts in favor of the Act’s validity.
Rizzo, 2016 IL 118599, ¶ 23. The constitutionality of the Act is a question of law,
and thus we review the circuit court’s conclusion de novo. Id.
¶ 29 The constitutional guarantee of due process is implicated “whenever the State
engages in conduct towards its citizens deemed oppressive, arbitrary or
unreasonable.” People v. McCauley, 163 Ill. 2d 414, 425 (1994); see also County of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998) (“ ‘touchstone of due process is
protection of the individual against arbitrary action of government’ ” (quoting
Wolff v. McDonnell, 418 U.S. 539, 558 (1974))). Due process has two aspects:
procedural and substantive. “Procedural due process bars governmental action that
infringes upon a protected interest when such action is arbitrary because it was not
preceded by procedural safeguards,” whereas “[s]ubstantive due process bars
governmental action that infringes upon a protected interest when such action is
4
Because defendant does not argue that our state due process clause (Ill. Const. 1970, art. I, § 2)
provides greater protection than its federal counterpart (U.S. Const., amend. XIV), we will treat the
two clauses as coextensive. See People v. Gray, 2017 IL 120958, ¶ 56; In re Marriage of Miller, 227
Ill. 2d 185, 195-96 (2007).
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itself arbitrary.” People v. Pepitone, 2018 IL 122034, ¶ 13; see also Lewis, 523 U.S.
at 846 (due process protects against the denial of procedural fairness and against
government power arbitrarily exercised). The instant case presents a substantive
due process claim, and defendant does not assert that section 25(b)(2) of the Act
regulates or restricts a liberty interest that constitutes a fundamental right.
Therefore, the proper gauge for defendant’s substantive due process claim is the
rational basis test. People v. Hollins, 2012 IL 112754, ¶ 15. Under this test, “[a]
statute will be upheld *** so long as it bears a rational relationship to a legitimate
legislative purpose and is neither arbitrary nor unreasonable.” Id.
¶ 30 Here, there is no question that the legislative purpose informing the Act is
legitimate. Indeed, section 5 of the Act states explicitly the Act’s purpose, and we
find nothing the least bit objectionable or unreasonable in the language of that
provision:
“The purpose of this Act is to provide a civil remedy for damages to persons in
a community injured as a result of illegal drug use. These persons include
parents, employers, insurers, governmental entities, and others who pay for
drug treatment or employee assistance programs, as well as infants injured as a
result of exposure to drugs in utero (‘drug babies’). This Act will enable them to
recover damages from those persons in the community who have joined the
illegal drug market. A further purpose of the Act is to shift, to the extent
possible, the cost of the damage caused by the existence of the illegal drug
market in a community to those who illegally profit from that market. The
further purpose of the Act is to establish the prospect of substantial monetary
loss as a deterrent to those who have not yet entered into the illegal drug
distribution market. The further purpose is to establish an incentive for drug
users to identify and seek payment for their own drug treatment from those
dealers who have sold drugs to the user in the past.” 740 ILCS 57/5 (West
2016).
The question therefore becomes whether section 25(b)(2) bears a reasonable
relationship to this purpose and is neither arbitrary nor unreasonable. For the
reasons that follow, we conclude that section 25(b)(2) does not meet this standard,
as it is both arbitrary and unreasonable.
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¶ 31 We initially note that, contrary to both defendant’s argument and the trial
court’s analysis below, section 25(b)(2) does not create an irrebuttable presumption
of causation. According to defendant, section 25(b)(2) presumes that a defendant
caused the plaintiff’s injuries through proof only of defendant’s knowing
participation in the illegal drug market. Citing Tot v. United States, 319 U.S. 463
(1943), and Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929), defendant
argues that the Act violates due process because there is “no rational connection
between the facts proved and the ultimate fact presumed.” Tot, 319 U.S. at 467.
¶ 32 In Tot, the statute expressly provided that possession of a firearm by a person
convicted of a crime of violence “ ‘shall be presumptive evidence’ ” that the
firearm was shipped in interstate commerce in violation of the Federal Firearms
Act. Id. at 464 (quoting 15 U.S.C. § 902(f) (1940)). In Henderson, the statute
expressly provided that, in claims against a railroad company for damage to person
or property, unless the company proved that their agents exercised ordinary care
and diligence, “ ‘the presumption in all cases [will be] against the company.’ ”
Henderson, 279 U.S. at 640 (quoting Georgia Civil Code § 2780). Defendant here
can point to no similar language in the Act creating a presumption of causation.
Instead, the Act creates a new cause of action that does not require proof of
causation, as that term is typically understood in the common law of negligence.
¶ 33 Standing alone, this fact does not render section 25(b)(2) constitutionally
infirm. Indeed, “[n]o person has a vested interest in any rule of law, entitling him to
insist that it shall remain unchanged for his benefit.” Grand Trunk Western Ry. Co.
v. Industrial Comm’n, 291 Ill. 167, 173 (1919). The General Assembly may depart
from the common law and adopt new causes of action that have no counterpart in
the common law or equity. Id. at 174; Belleville Toyota, Inc. v. Toyota Motor Sales,
U.S.A., Inc., 199 Ill. 2d 325, 335 (2002); see also People v. Gersch, 135 Ill. 2d 384,
395 (1990) (legislature has the “inherent power to repeal or change the common
law, or do away with all or part of it”). The General Assembly has “broad power to
determine whether a statute that restricts or alters an existing remedy is reasonably
necessary to promote the general welfare.” Michigan Avenue National Bank v.
County of Cook, 191 Ill. 2d 493, 519-20 (2000); see also Chicago National League
Ball Club, Inc. v. Thompson, 108 Ill. 2d 357, 364 (1985) (“legislature has broad
discretion to determine not only what the public interest and welfare require, but to
determine the measures needed to secure such interest”). Although causation is
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considered a “fundamental precept of tort law” (Smith, 137 Ill. 2d at 260), causation
“is not an end of the legal system, but rather the means by which the legal system
achieves its purposes,” and thus may be modified where it proves inadequate.
(Internal quotation marks omitted.) Id. at 271 (Clark, J., concurring in part and
dissenting in part, joined by Calvo, J.).
¶ 34 All of that said, section 25(b)(2) goes far beyond simply relieving the plaintiff
of its common-law obligation to prove proximate causation. In a truly
unprecedented legislative move, section 25(b)(2) allows a plaintiff to recover
substantial civil damages from a defendant who not only was not the proximate
cause of the plaintiff’s damages but who also has no relationship with or connection
to the identified illegal drug user. It does this by empowering the plaintiff to
arbitrarily select the most convenient defendant from within a specified geographic
region, whether or not that defendant in any way contributed to the drug use at
issue. In fact, even where it is known with perfect certainty that the named
defendant did not contribute to the drug use, section 25(b)(2) would still permit the
plaintiff not only to proceed but also to prevail against that defendant. This is
because it is no defense under section 25(b)(2) to have played no contributing role
whatsoever in the relevant drug use. And once a defendant has been named, section
25(b)(2) then permits the plaintiff to recover from that person substantial monetary
damages, including economic damages, noneconomic damages, exemplary
damages, attorney fees, and costs of suit.
¶ 35 To repeat, “[s]ubstantive due process bars governmental action that infringes
upon a protected interest when such action is itself arbitrary.” Pepitone, 2018 IL
122034, ¶ 13. Here, section 25(b)(2) not only allows but actually invites a person
injured by another person’s illegal drug use to recover substantial economic
damages from persons having no connection to or nexus with that drug use. It is
difficult to conceive of a civil liability statute more unreasonable or arbitrary than
this, and we therefore affirm the trial court’s finding that section 25(b)(2) of the Act
is facially unconstitutional.
¶ 36 In opposition to this result, plaintiff argues that this court has rejected similar
due process challenges to civil liability statutes that, like section 25(b)(2),
dramatically depart from established common-law principles of causation. For
example, plaintiff points to the Dramshop Act (235 ILCS 5/6-21 (West 2016)),
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under which those injured by an intoxicated person have a cause of action against
not only licensed liquor vendors who, by selling or giving alcohol to that person,
“causes the intoxication of such person,” but also any landlord or property owner
who knowingly permitted his or her property to be used for the sale of that alcohol.
Id. § 6-21(a). Similarly, plaintiff points to the Workers’ Compensation Act (820
ILCS 305/1 et seq. (West 2016)), which “imposes liability without fault upon the
employer and, in return, prohibits common law suits by employees against the
employer.” Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990).
According to plaintiff, both the Dramshop Act and the Workers’ Compensation Act
parallel section 25(b)(1), in that both dispense with traditional causation principles
in favor a statutory scheme of no-fault liability. See, e.g., Charles v. Seigfried, 165
Ill. 2d 482, 487 (1995) (“[t]he Dramshop Act has never imposed liability predicated
on negligence or fault; rather, it imposes a form of ‘no-fault’ liability”); Meerbrey,
139 Ill. 2d at 462. In other words, plaintiff argues that, if substantive due process
allows for no-fault liability in both the dramshop and workers’ compensation
contexts, it should likewise allow for it in the illegal drug market context.
¶ 37 The problem with plaintiff’s argument is that it overlooks an important and
dispositive distinction between the Dramshop Act and the Workers’ Compensation
Act, on the one hand, and section 25(b)(2) on the other. Namely, unlike section
25(b)(2), both the Dramshop Act and the Workers’ Compensation Act require a
direct and transactional relationship between the plaintiff and the defendant. The
Dramshop Act does not permit someone injured by an intoxicated person to
arbitrarily select and sue any area tavern, whether or not that tavern sold the alcohol
at issue. On the contrary, actions under the Dramshop Act may be brought only
against “any person, licensed under the laws of this State or of any other state to sell
alcoholic liquor, who, by selling or giving alcoholic liquor, within or without the
territorial limits of this State, causes the intoxication of such person.” (Emphasis
added.) 235 ILCS 5/6-21(a) (West 2016). Likewise, the Workers’ Compensation
Act does not permit an injured worker to recover compensation from any area
employer, whether or not he or she actually works for that employer. Nor does it
make an employer liable for every injury suffered by one its employees, even those
injuries wholly unrelated to the employee’s work. On the contrary, under the
Workers’ Compensation Act, an employer is liable only to its “own immediate
employees” and to those contractors and subcontractors it “directly or indirectly
engages,” and it is liable only for those injuries “arising out of and in the course of
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the employment.” 820 ILCS 305/1(a)(3), (d) (West 2016). This is a far cry from
section 25(b)(2), which, as we have already discussed, authorizes the recovery of
substantial monetary damages from a defendant who has no known connection to
the identified drug use and who, in some cases, will be known to have no
connection whatsoever. Stated differently, even where they authorize no-fault
liability, the Dramshop Act and the Workers’ Compensation Act still require proof
of some degree of transactional relationship between the parties before liability will
attach. By contrast, section 25(b)(2) requires no relationship between the parties
whatsoever for liability to attach. From our perspective, that simply pushes past the
limits of what substantive due process permits.
¶ 38 In reaching this result, we wish to state clearly that we are entirely sympathetic
to the significant public policy challenges that drove the legislature to enact section
25(b)(2) . The legislative findings set forth in section 10 of the Act paint a vivid and
sobering picture of the steep costs to individuals, families, employers, the
government, and society of coping with the illegal drug market, as well as of the
significant barriers to obtaining compensation in a civil action under existing law
for damages related to the distribution of illegal drugs. We acknowledge the reality
of this problem. Even so, the law we make today is the law that will govern
tomorrow, and we simply cannot countenance the sacrifice of fundamental legal
principles, even when the cause is righteous. In Smith, 137 Ill. 2d at 266, we
cautioned against accepting such sacrifices “merely because the defendants are
members of the drug industry.” In the same way, and as tempting as it might be, we
cannot close our eyes to the serious constitutional flaws in section 25(b)(2) merely
because the defendants are alleged drug dealers.
¶ 39 II. Section 25(b)(1)—Direct Liability Provision
¶ 40 We now turn to section 25(b)(1) of the Act. Following the trial court’s ruling
that section 25(b)(2) of the Act is facially unconstitutional, count I of plaintiff’s
fifth amended complaint could proceed, if at all, only under section 25(b)(1) of the
Act. Under section 25(b)(1), a plaintiff may seek damages from “[a] person who
knowingly distributed, or knowingly participated in the chain of distribution of, an
illegal drug that was actually used by the individual drug user.” 740 ILCS
57/25(b)(1) (West 2016).
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¶ 41 Defendant filed a motion for summary judgment arguing that plaintiff failed to
present any evidence that could support a finding that Jatczak knowingly provided
or distributed the illegal drugs from which Neuman fatally overdosed and, thus, no
genuine issue of material fact existed. Plaintiff argued that section 25(b)(1) does
not require proof that Jatczak provided the illegal drugs to Neuman on the date of
death. The trial court granted defendant’s summary judgment motion. Plaintiff
argues that the trial court erred in its reading of section 25(b)(1) and thus erred in
granting summary judgment.
¶ 42 Summary judgment is appropriate “if the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” 735 ILCS 5/2-1005(c) (West 2016). Whether a material question of
fact exists in this case is dependent, in the first instance, on what a plaintiff
proceeding under section 25(b)(1) of the Act is required to prove. Because an issue
of statutory interpretation is presented, and because it arises from a summary
judgment motion, our standard of review is de novo. Perry v. Department of
Financial & Professional Regulation, 2018 IL 122349, ¶ 30.
¶ 43 The rules of statutory construction are well settled. Our primary objective is to
ascertain and give effect to the intent of the legislature. Better Government Ass’n v.
Illinois High School Ass’n, 2017 IL 121124, ¶ 22. The most reliable indicator of the
legislature’s intent is the language employed in the statute, which must be given its
plain and ordinary meaning. Id. Where the statutory language is clear and
unambiguous, effect must be given to that language, without resort to extrinsic aids
of statutory construction (In re Shelby R., 2013 IL 114994, ¶ 32) and without
reading into the statute exceptions, limitations, or conditions that the legislature did
not express (Moon v. Rhode, 2016 IL 119572, ¶ 22).
¶ 44 The trial court clearly misread section 25(b)(1). Under the plain language of
that statute, a plaintiff need only establish that the defendant “knowingly
distributed, or knowingly participated in the chain of distribution of, an illegal drug
that was actually used by the individual drug user.” 740 ILCS 57/25(b)(1) (West
2016). But under the trial court’s reading of section 25(b)(1), a plaintiff would be
required to establish not only that proposition, but in cases where the drug user died
from a drug overdose, the plaintiff would also be required to establish that the
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person knowingly distributed, or knowingly participated in the chain of distribution
of, the illegal drug that caused the overdose. Nothing in the plain language of
section 25(b)(1) supports the trial court’s reading, and no rule of construction
permits a court to rewrite a statute to include additional elements. See Zahn v.
North American Power & Gas, LLC, 2016 IL 120526, ¶ 15.
¶ 45 In response to this, defendant argues that, unless section 25(b)(1) is read to
require proof that the drugs the defendant supplied to the drug user caused the fatal
overdose, section 25(b)(1), like section 25(b)(2), will be rendered unconstitutional
because it negates any showing of causation. We disagree. As discussed above, the
fatal defect in section 25(b)(2) is not the elimination of proximate cause but rather
the recovery of civil damages from a defendant having absolutely no connection to
the identified drug use. Section 25(b)(1) suffers from no such defect. On the
contrary, to recover under that section, a plaintiff must prove that the defendant
“knowingly distributed, or knowingly participated in the chain of distribution of, an
illegal drug that was actually used by the individual drug user.” (Emphasis added.)
740 ILCS 57/25(b)(1) (West 2016). Thus, unlike section 25(b)(2), section 25(b)(1)
imposes liability only in cases in which the parties have an existing and proven
transactional connection. Nothing about this is arbitrary, and nothing about it
allows a plaintiff to shop from a pool of strangers and choose whom from among
them to hold responsible for the claimed injuries.
¶ 46 In this way, section 25(b)(1) closely resembles the Workers’ Compensation
Act, the constitutionality of which this court has long upheld. See Moushon v.
National Garages, Inc., 9 Ill. 2d 407, 412 (1956); Grand Trunk Western Ry. Co. v.
Industrial Comm’n, 291 Ill. 167, 173 (1919). In both instances, the legislature
concluded as a matter of public policy that certain relationships should carry with
them liability rules previously unknown at common law. In the workers’
compensation context, the legislature recognized the difficulty facing workers who
sought damages under traditional negligence principles where the employer could
assert the defenses of contributory negligence, assumption of risk, and the fellow
servant rule. To remedy this and to ensure an acceptable guaranteed level of
compensation for injured workers, the Workers’ Compensation Act eliminates
these defenses while simultaneously limiting an employee’s right to claim certain
elements of common-law negligence. The net effect is a “no-fault” liability system
for the employer/employee relationship, a system this court has consistently
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deemed “a reasonable exercise of the legislature’s police power for the promotion
of the general welfare.” Moushon, 9 Ill. 2d at 412. In much the same way, the
legislature has now recognized that traditional common-law negligence principles
create an undue barrier to compensation for persons injured by another’s illegal
drug use. See 740 ILCS 57/10(7) (West 2016). To remedy this, and to ensure both a
greater likelihood of recovery for such persons and a greater exposure to liability
for the associated drug dealers, section 25(b)(1) imposes civil liability on everyone
in the illegal drug user’s supply chain, irrespective of traditional common-law
conceptions of fault. The net effect is a “no-fault” liability system for the illegal
drug dealer/illegal drug user relationship, and we regard this system every bit the
“reasonable exercise of the legislature’s police power for the promotion of the
general welfare” as we do the workers’ compensation system.
¶ 47 For these reasons, we reject both the trial court’s insertion of a proximate cause
element into section 25(b)(1) and defendant’s argument that the absence of such an
element renders the provision unconstitutional under the due process clause.
Section 25(b)(1) is constitutional as written, and we therefore reverse the trial
court’s decision granting defendant’s motion for summary judgment on count I of
plaintiff’s fifth amended complaint.
¶ 48 CONCLUSION
¶ 49 For the reasons stated, we affirm the trial court’s decision finding section
25(b)(2) of the Act unconstitutional and severing it from the Act, reverse the trial
court’s decision granting defendant’s motion for summary judgment on count I of
plaintiff’s fifth amended complaint, and remand the cause to the trial court for
further proceedings consistent with this opinion.
¶ 50 Affirmed in part, reversed in part, and remanded.
¶ 51 JUSTICE BURKE, concurring in part and dissenting in part:
¶ 52 The majority holds, and I agree, that section 25(b)(2) of the Drug Dealer
Liability Act (740 ILCS 57/25(b)(2) (West 2016)) is unconstitutional. Section
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25(b)(2) is an extraordinary provision. It imposes on a defendant who
“participates” in an illegal drug market the burden of entirely compensating a
plaintiff for injuries resulting from an individual drug user’s illegal drug use, so
long as the defendant’s “participation” took place within two years and within the
same Illinois representative district as the illegal drug use and so long as the
defendant’s “participation” was “connected with the same type” of illegal drug
used by the individual drug user. Id.; see id. § 15. Section 25(b)(2) does not restrict
the compensatory burden placed on an illegal drug dealer to his proportionate share
of the illegal drug market, thereby limiting his liability, at least in principle, to his
share of the total aggregate injuries he actually caused. See, e.g., Smith v. Eli Lilly
& Co., 137 Ill. 2d 222, 237 (1990); Richard W. Wright, Once More Into the
Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility,
54 Vand. L. Rev. 1071, 1131-32 (2001). Nor does section 25(b)(2) merely create a
monetary fine, equally imposed on all illegal drug dealers. Instead, section 25(b)(2)
places the plaintiff’s entire compensatory burden on a single defendant. And it does
this without requiring the plaintiff to prove the defendant actually distributed any
illegal drugs or even attempted to distribute any illegal drugs 5; without requiring
the plaintiff to prove the defendant’s conduct was a cause-in-fact of the plaintiff’s
injuries under the substantial factor test, the but-for test, or any other test of
cause-in-fact; and without requiring the plaintiff to prove the defendant was
engaged in a joint enterprise, concerted action, or similar venture with any person
whose actions were a cause-in-fact of the plaintiff’s injuries. In short, section
25(b)(2) allows a plaintiff to recover full compensation from a defendant without
requiring proof the defendant’s conduct was, in any respect or under any legal
theory, a cause-in-fact of any injury to any person. Imposing the plaintiff’s entire
compensatory burden on one person in this way is an arbitrary and oppressive
exercise of state power. I therefore agree with the majority that section 25(b)(2)
was enacted in violation of article I, section 2, of the Illinois Constitution (Ill.
Const. 1970, art. I, § 2).
5
A defendant can be found to have “participated” in an illegal drug market merely by
“agreeing” to possess with an intent to distribute, or even by merely “agreeing” to commit an act that
is only “intended to” facilitate the marketing and distribution of an illegal drug. 740 ILCS 57/15
(West 2016).
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¶ 53 For the same reasons, however, I would also hold that section 25(b)(1) (740
ILCS 57/25(b)(1) (West 2016)) is unconstitutional. Section 25(b)(1) states that a
plaintiff may seek damages from “[a] person who knowingly distributed, or
knowingly participated in the chain of distribution of, an illegal drug that was
actually used by the individual drug user.” Id. Just as with section 25(b)(2), there is
no requirement under section 25(b)(1) that the plaintiff prove the defendant’s
conduct was, in any way, shape, or form, a cause-in-fact of any injury to any
person. Indeed, in some respects, section 25(b)(1) is even more extreme than
section 25(b)(2). Section 25(b)(1) requires no proof of geographical or temporal
proximity to the illegal drug use, nor does it require that the defendant’s
participation in the chain of distribution involve, or be connected with, the same
type of illegal drug actually used by the individual drug user. To illustrate the effect
of this, consider the following. A drug dealer in Springfield, Illinois, sells an illegal
marijuana cigarette to a drug user who smokes the cigarette without incident in the
same town. A year-and-a-half later, a different drug dealer in Chicago sells heroin
to the same drug user who, as result of ingesting the heroin in that town, dies. Under
the plain language of section 25(b)(1), a plaintiff may sue the Springfield marijuana
dealer for the injuries caused by the Chicago drug dealer’s sale of heroin to the drug
user because the Springfield dealer knowingly distributed an illegal drug that was
“actually used by the individual drug user.” Id. Section 25(b)(1) is equally as
arbitrary and oppressive as section 25(b)(2) and equally as unconstitutional.
Accordingly, I specially concur in part and dissent in part.
¶ 54 JUSTICE NEVILLE joins in this partial concurrence, partial dissent.
¶ 55 JUSTICE THEIS, concurring in part and dissenting in part:
¶ 56 I agree with the majority that section 25(b)(1) of the Drug Dealer Liability Act
(740 ILCS 57/25(b)(1) (West 2016)), the so-called “direct liability” provision, does
not violate due process. I disagree with the majority that section 25(b)(2) of the Act
(id. § 25(b)(2)), the so-called “area liability” provision, violates due process.
¶ 57 The fourteenth amendment to the United States Constitution (U.S. Const.,
amend. XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970,
art I, § 2) provide that no person shall be deprived of life, liberty, or property
without due process of law. Where a statute is challenged on due process grounds,
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the initial step of our analysis is to determine whether the statute restricts or
regulates a liberty or property interest. People v. Pepitone, 2018 IL 122034, ¶ 14;
Chicago Teachers Union, Local No. 1 v. Board of Education of the City of Chicago,
2012 IL 112566, ¶ 37 (“An initial requisite for a due process claim *** is the
existence of a protected interest.”); see American Manufacturers Mutual Insurance
Co. v. Sullivan, 526 U.S. 40, 59 (1999) (“Only after finding the deprivation of a
protected interest do we look to see if the State’s procedures comport with due
process.”).
¶ 58 The lead opinion inexplicably bypasses that step. The lead opinion states that
the defendant “does not assert that section 25(b)(2) of the Act regulates or restricts
a liberty interest that constitutes a fundamental right.” Supra ¶ 29. In fact, the
defendant does not specifically identify what liberty interest is affected by the Act.
The defendant argues that the area liability provision violates her due process rights
because it “imposes an irrebuttable presumption of causation” and because it
“imposes liability on a defendant without any showing that the defendant was a
cause in fact or proximate cause of plaintiff’s injuries or damages.” From that, I
gather that the defendant would claim a liberty interest in not being subject to such
a presumption or a liberty interest in proof of causation.
¶ 59 The majority rejects both claims. The lead opinion states that, rather than
creating a presumption of causation, “the Act creates a new cause of action that
does not require proof of causation.” Supra ¶ 32. Further, the lead opinion states
that there is no vested interest in causation, which the legislature may modify or
even abolish where it proves inadequate. Supra ¶ 33 (citing Smith v. Eli Lilly & Co.,
137 Ill. 2d 222, 271 (1990) (Clark, J., concurring in part and dissenting in part,
joined by Calvo, J.).
¶ 60 Having dispensed with those possible liberty interests, however, the lead
opinion does not directly offer a replacement. That is, the lead opinion does not
address whether the Act affects a liberty interest at all but simply assumes that it
does. Apparently, the putative liberty interest at stake is that of an illegal drug
dealer in escaping liability to the family of a deceased illegal drug user when the
dealer has, in the lead opinion’s view, “no connection to or nexus with” or no
“direct and transactional relationship” with the user. Supra ¶¶ 35, 37. If such a
“right” exists, I agree that it is far from fundamental. Thus, the proper gauge of the
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Act’s constitutionality is the rational basis test. Pepitone, 2018 IL 122034, ¶ 14.
Under that test, our inquiry is twofold. We must determine whether there is a
legitimate state purpose behind the legislation. Id. If so, we must determine whether
there is a rational relationship between that purpose and the means that the
legislature has chosen to pursue it. Id.
¶ 61 The Act’s purpose is stated in section 5 of the Act: (1) “to provide a civil
remedy for damages to persons in a community injured as a result of illegal drug
use”; (2) “to shift, to the extent possible, the cost of the damage caused by the
existence of the illegal drug market in a community to those who illegally profit
from that market”; (3) “to establish the prospect of substantial monetary loss as a
deterrent to those who have not yet entered into the illegal drug distribution
market”; and (4) “to establish an incentive for drug users to identify and seek
payment for their own drug treatment from those dealers who have sold drugs to the
user in the past.” 740 ILCS 57/5 (West 2016). The lead opinion correctly states that
“there is no question that the legislative purpose informing the Act is legitimate.”
Supra ¶ 30. The only question before us, then, is whether there is a rational
connection between that purpose and how the legislature has chosen to pursue
it—namely, the area liability provision.
¶ 62 The lead opinion fails to see such a connection between the purpose of the Act
and the area liability provision because the lead opinion fails to see a connection
between plaintiffs and defendants sued under that provision. The lead opinion
states:
“In a truly unprecedented legislative move, section 25(b)(2) allows a plaintiff to
recover substantial civil damages from a defendant who not only wasn’t the
proximate cause of the plaintiff’s damages but who also has no relationship
with or connection to the identified illegal drug user. It does this by
empowering the plaintiff to arbitrarily select the most convenient defendant
from within a specified geographic region, whether or not that defendant in any
way contributed to the drug use at issue. In fact, even where it is known with
perfect certainty that the named defendant did not contribute to the drug use,
section 25(b)(2) would still permit the plaintiff not only to proceed but also to
prevail against that defendant. This is because it is no defense under section
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25(b)(2) to have played no contributing role whatsoever in the relevant drug
use.” (Emphasis in original.) Supra ¶ 34.
According to the lead opinion, “[i]t is difficult to conceive of a civil liability statute
more unreasonable or arbitrary than this.” Supra ¶ 35.
¶ 63 The plaintiff points to the fact that this court has rejected due process challenges
to the Dramshop Act and the Workers’ Compensation Act—statutes that, like the
Act, similarly depart from traditional causation principles. The lead opinion
summarizes the plaintiff’s argument: “[I]f substantive due process allows for
no-fault liability in both the dramshop and workers’ compensation contexts, it
should likewise allow for it in the illegal drug market context.” Supra ¶ 36. The
lead opinion then asserts that that argument “overlooks an important and
dispositive distinction” between the Dramshop Act and the Workers’
Compensation Act and the Act at issue in this case. Supra ¶ 37. According to the
lead opinion, the former two require “proof of some degree of transactional
relationship between the parties,” and the latter requires “no relationship between
the parties whatsoever for liability to attach.” Supra ¶ 37.
¶ 64 The lead opinion’s view of the relationship between drug dealers and drug users
in the same community is not only naively narrow but also contrary to its
acknowledgement that we must resolve any doubts in favor of the Act’s validity.
Supra ¶ 28 (citing People v. Rizzo, 2016 IL 118599, ¶ 23). The lead opinion refers
to the legislature’s “numerous findings” in section 10 of the Act. Supra ¶ 15. The
lead opinion’s brief summary of those findings fails to give them sufficient
consideration. Here they are in their entirety:
“The legislature finds and declares all of the following:
(1) Every community in the country is affected by the marketing and
distribution of illegal drugs. A vast amount of State and local resources are
expended in coping with the financial, physical, and emotional toll that
results from the existence of the illegal drug market. Families, employers,
insurers, and society in general bear the substantial costs of coping with the
marketing of illegal drugs. Drug babies and parents, particularly those of
adolescent illegal drug users, suffer significant non-economic injury as
well.
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(2) Although the criminal justice system is an important weapon against
the illegal drug market, the civil justice system can and must also be used.
The civil justice system can provide an avenue of compensation for those
who have suffered harm as a result of the marketing and distribution of
illegal drugs. The persons who have joined the illegal drug market should
bear the cost of the harm caused by that market in the community.
(3) The threat of liability under this Act serves as an additional deterrent
to a recognizable segment of the illegal drug network. A person who has
non-drug related assets, who markets illegal drugs at the workplace, who
encourages friends to become users, among others, is likely to decide that
the added cost of entering the market is not worth the benefit. This is
particularly true for a first-time, casual dealer who has not yet made
substantial profits. This Act provides a mechanism for the cost of the injury
caused by illegal drug use to be borne by those who benefit from illegal
drug dealing.
(4) This Act imposes liability against all participants in the illegal drug
market, including small dealers, particularly those in the workplace, who
are not usually the focus of criminal investigations. The small dealers
increase the number of users and are the people who become large dealers.
These small dealers are most likely to be deterred by the threat of liability.
(5) A parent of an adolescent illegal drug user often expends
considerable financial resources, typically in the tens of thousands of
dollars, for the child’s drug treatment. Local and state governments provide
drug treatment and related medical services made necessary by the
distribution of illegal drugs. The treatment of drug babies is a considerable
cost to local and state governments. Insurers pay large sums for medical
treatment relating to drug addiction and use. Employers suffer losses as a
result of illegal drug use by employees due to lost productivity, employee
drug-related workplace accidents, employer contributions to medical plans,
and the need to establish and maintain employee assistance programs.
Large employers, insurers, and local and state governments have existing
legal staffs that can bring civil suits against those involved in the illegal
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drug market, in appropriate cases, if a clear legal mechanism for liability
and recovery is established.
(6) Drug babies, who are clearly the most innocent and vulnerable of
those affected by illegal drug use, are often the most physically and
mentally damaged due to the existence of an illegal drug market in a
community. For many of these babies, the only hope is extensive medical
and psychological treatment, physical therapy, and special education. All of
these potential remedies are expensive. These babies, through their legal
guardians and through court-appointed guardian ad litem, should be able to
recover damages from those in the community who have entered and
participated in the marketing of the types of illegal drugs that have caused
their injuries.
(7) In theory, civil action for damages for distribution of illegal drugs
can be brought under existing law. They are not. Several barriers account
for this. Under existing tort law, only those dealers in the actual chain of
distribution to a particular user are sued. Drug babies, parents of adolescent
illegal drug users, and insurers are not likely to be able to identify the chain
of distribution to a particular user. Furthermore, drug treatment experts
largely agree that users are unlikely to identify and bring suit against their
own dealers, even after they have recovered, given the present requirements
for a civil action. Recovered users are similarly unlikely to bring suit
against others in the chain of distribution, even if they are known to the
user. A user is unlikely to know other dealers in the chain of distribution.
Unlike the chain of distribution for legal products, in which records
identifying the parties to each transaction in the chain are made and shared
among the parties, the distribution of illegal drugs is clandestine. Its
participants expend considerable effort to keep the chain of distribution
secret.
(8) Those involved in the illegal drug market in a community are
necessarily interrelated and interdependent, even if their identity is
unknown to one another. Each new dealer obtains the benefit of the existing
illegal drug distribution system to make illegal drugs available to him or
her. In addition, the existing market aids a new entrant by the prior
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development of people as users. Many experts on the illegal drug market
agree that all participants are ultimately likely to be indirectly related. That
is, beginning with any one dealer, given the theoretical ability to identify
every person known by that dealer to be involved in illegal drug trafficking,
and in turn each of those others known to them, and so on, the illegal drug
market in a community would ultimately be fully revealed.
(9) Market liability has been created with respect to legitimate products
by judicial decision in some states. It provides for civil recovery by
plaintiffs who are unable to identify the particular manufacturer of the
product that is claimed to have caused them harm, allowing recovery from
all manufacturers of the product who participated in that particular market.
The market liability theory has been shown to be destructive of market
initiative and product development when applied to legitimate markets.
Because of its potential for undermining markets, this Act expressly adopts
a legislatively crafted form of liability for those who intentionally join the
illegal drug market. The liability established by this Act grows out of but is
distinct from existing judicially crafted market liability.
(10) The prospect of a future suit for the costs of drug treatment may
drive a wedge between prospective dealers and their customers by
encouraging users to turn on their dealers. Therefore, liability for those
costs, even to the user, is imposed under this Act as long as the user
identifies and brings suit against his or her own dealers.
(11) Allowing dealers who face a civil judgment for their illegal drug
marketing to bring suit against their own sources for contribution may also
drive a wedge into the relationships among some participants in the illegal
drug distribution network.
(12) While not all persons who have suffered losses as a result of the
marketing of illegal drugs will pursue an action for damages, at least some
individuals, guardians of drug babies, government agencies that provide
treatment, insurance companies, and employers will find such an action
worthwhile. These persons deserve the opportunity to recover their losses.
Some new entrants to retail illegal drug dealing are likely to be deterred
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even if only a few of these suits are actually brought.” 740 ILCS 57/10
(West 2016).
¶ 65 The lead opinion acknowledges that those findings “paint a vivid and sobering
picture of the steep costs to individuals, families, employers, the government, and
society of coping with the illegal drug market, as well as of the significant barriers
to obtaining compensation in a civil action under existing law for damages related
to the distribution of illegal drugs.” Supra ¶ 38. In fact, the findings do more than
paint a picture; they draw an unmistakable link between drug dealers and drug users
in a community.
¶ 66 The legislature highlighted the intentionally clandestine nature of the illegal
drug market and, more importantly, the interrelatedness and interdependence of
those involved in that market. 740 ILCS 57/10(7), (8) (West 2016). Referencing
expert opinion, the legislature expressly found that all participants in the
market—all dealers and all users—are likely to be linked. Id. § 10(8). Dealers at all
levels together have created a demand for illegal drugs, as well as a supply chain to
serve that demand. Id. In light of that reality, the legislature sought to undermine
the entire illegal drug market by adopting a new form of liability—market liability.
Id. § 10(9). Persons who have entered the illegal drug market in a community, who
participate in and build that market and ultimately benefit from it, should bear the
costs of the harm caused by that market to that community. Id. § 10(2), (3), (4). The
legislature decided that liability should be imposed against a dealer “within the
illegal drug market target community” of the user (id. § 25(b)(2)(A)) “connected
with the same type of illegal drug” consumed by the user (id. § 25(b)(2)(B)) “at any
time during the *** user’s period of illegal drug use” (id. § 25(b)(2)(C)). Liability
attaches only when there is clear and convincing evidence that the defendant dealer
participated in the illegal drug market (id. § 60(a)) at a specific place for a specific
drug during a specific time.
¶ 67 The connection between plaintiffs and defendants sued under section 25(b)(2)
was demonstrably apparent to the legislature. It should be just as apparent to this
court. See People ex rel. Lumpkin v. Cassidy, 184 Ill. 2d 117, 124 (1998) (“The
judgments made by the legislature in crafting a statute are not subject to courtroom
fact finding and may be based on rational speculation unsupported by evidence or
empirical data.” (citing Cutinello v. Whitley, 161 Ill. 2d 409, 421-22 (1994))). So
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too, should the constitutional nexus between the area liability provision and the
purpose of the Act. See In re J.W., 204 Ill. 2d 50, 72 (2003) (“If there is any
conceivable basis for finding a rational relationship, the statute will be upheld.”);
Rizzo, 2016 IL 118599, ¶ 45 (“If any state of facts can reasonably be conceived of
to justify the enactment, it must be upheld.”).
¶ 68 In reaching the opposite conclusion, the lead opinion announces that “we
simply cannot countenance the sacrifice of fundamental legal principles, even
when the cause is righteous.” Supra ¶ 38. As support, the lead opinion cites Smith,
137 Ill. 2d at 266, where the court purportedly “cautioned against accepting such
sacrifices.” Supra ¶ 38. The lead opinion’s reliance upon Smith in that regard is
puzzling. In Smith, this court declined to adopt a form of market liability, stating
that such a significant change in the common law is “most appropriate for the
legislature to develop, with its added ability to hold hearings and determine public
policy.” Smith, 136 Ill. 2d at 262-63. Our holding in Smith was not couched in
constitutional terms, and nothing in that case suggests that the legislature could not
endorse such a market-share approach to liability without offending our federal or
state constitutions. To the contrary, everything in that case suggests that only the
legislature could do so. See also Nicholas Reiter, Dollars for Victims of a
“Victimless” Crime: A Defense of Drug Dealer Liability Acts, 15 J.L. & Pol’y
1329, 1344 (2007) (“[W]hile critics of the [Model Drug Dealer Liability Act]
contend that the statute is a departure from traditional tort law and compromises
fundamental principles of justice, the notion that the legislature may, and should,
create a remedy for plaintiffs who have been injured but who are barred from
recovery under the common law is an established principle of legislative
behavior.”); Steed v. Bain-Holloway, 2015 OK CIV APP 68, ¶ 27, 356 P.3d 62
(Bell, J., dissenting) (stating that enactment of the Model Drug Dealer Liability Act
is “ ‘a matter for the legislative body and not the courts’ ” (quoting Case v.
Fibreboard Corp., 743 P.2d 1062, 1067 (Okla. 1987))). It is a bait and switch to
make such a statement in Smith and then retract it in the name of judicial
legislation.
¶ 69 The lead opinion fundamentally misunderstands our role when it casually
comments about “the law we make today.” Supra ¶ 38. The Illinois Supreme Court
does not make laws. The Illinois General Assembly does. “[P]rimary expression of
Illinois public and social policy should emanate from the legislature.” Charles v.
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Seigfried, 165 Ill. 2d 482, 493 (1995). Here, the legislature, through its adoption of
the Act, has spoken. The legislature considered the role of dealers in sustaining the
illegal drug market; the heavy toll that market exacts from individuals, families,
employers, government, and society at large; and the inability of our current system
of civil justice to provide a remedy for persons injured through another’s use of
illegal drugs. Although section 25(b)(2) of the Act pushes the boundary of civil
liability by dispensing with traditional notions of causation, it cannot be said that
the means that the legislature has chosen to advance the state’s legitimate interest in
dealing with the significant and costly impact of the illegal drug market is not
rationally related to that interest.
¶ 70 The rational basis standard is highly deferential to the legislature’s will. Our
duty is to uphold the constitutionality of the Act if reasonably possible to do so.
Rizzo, 2016 IL 118599, ¶ 23. I believe that it is more than reasonably possible to do
so. I would hold that section 25(b)(2) of the Act does not violate substantive due
process and reverse the decision of the trial court.
¶ 71 JUSTICE KILBRIDE joins in this partial concurrence, partial dissent.
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