ILLINOIS OFFICIAL REPORTS
Appellate Court
Murphy v. Colson, 2013 IL App (2d) 130291
Appellate Court DEAN MURPHY, Plaintiff-Appellant, v. DAN COLSON, Defendant-
Caption Appellee.
District & No. Second District
Docket No. 2-13-0291
Filed October 24, 2013
Held In an action for alienation of affection, criminal conversation, and
(Note: This syllabus intentional infliction of emotional distress, the trial court properly entered
constitutes no part of partial summary judgment for defendant based on the finding that the
the opinion of the court statutory exclusion of certain noneconomic compensatory damages under
but has been prepared the Alienation of Affections Act and the Criminal Conversation Act is
by the Reporter of constitutional.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Boone County, No. 10-L-49; the Hon.
Review Brendan A. Maher, Judge, presiding.
Judgment Affirmed.
Counsel on Robert C. Pottinger and Jody L. Booher, both of Barrick, Switzer, Long,
Appeal Balsley & Van Evera, LLP, of Rockford, for appellant.
Andrew T. Smith and Charles P. Alexander, both of Cicero, France,
Barch & Alexander, P.C., of Rockford, for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Justices Hudson and Birkett concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Dean Murphy, filed a complaint against defendant, Dan Colson, and the trial
court granted defendant’s motion for partial summary judgment, finding constitutional the
statutory exclusion of certain noneconomic compensatory damages under the Alienation of
Affections Act (740 ILCS 5/1 et seq. (West 2008)) and the Criminal Conversation Act (740
ILCS 5/50 et seq. (West 2008)). Upon the court’s Rule 304(a) finding (Ill. S. Ct. R. 304(a)
(eff. Sept. 20, 2006)), plaintiff appealed. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 In 1991, plaintiff, a dentist, married Dawn Murphy. They had six children together, and
they raised their family in the Catholic faith. According to the complaint, in August 2008,
Dawn hired defendant as her personal trainer at the Cross Fit gym. Defendant knew that
Dawn was married to plaintiff. Nevertheless, in December 2008, defendant began a course
of conduct that included purchasing gifts for Dawn, taking Dawn on dates, and engaging in
sexual relations with Dawn.
¶4 In November 2009, Dawn petitioned for a divorce from plaintiff. In September 2010, the
court granted dissolution on the ground of irreconcilable differences.
¶5 In November 2010, plaintiff filed a three-count civil complaint against defendant for: (1)
alienation of affection; (2) criminal conversation; and (3) intentional infliction of emotional
distress (intentional infliction of emotional distress is not at issue in this appeal).
¶6 In December 2011, plaintiff amended his complaint. As to damages, plaintiff broadly
alleged that he cannot marry again, because to do so would be in direct contradiction to his
Catholic faith. Specifically, plaintiff sought damages for: (a) marital counseling expenses;
(b) loss of value of his dental practice (presumably through the distribution of property in the
divorce case); (c) loss of value of a second dental business (again, presumably through the
distribution of property in the divorce case); (d) maintenance payments to Dawn as ordered
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in the divorce case; (e) loss of an individual retirement account in his name (again,
presumably through the distribution of property in the divorce case); (f) loss of Dawn’s
business referrals to his dental practice; (g) loss of income due to time spent away from work
to address the family problems; (h) residential rental expenses during the divorce
proceedings; (i) guardian ad litem and mediator expenses; (j) loss of consortium; (k) loss of
society; (l) mental anguish; (m) injured feelings; (n) shame, humiliation, sorrow, and
mortification; (o) defamation and injury to his good name and character; and (p) dishonor
to his family.1
¶7 As is at issue in this appeal, plaintiff also amended his complaint to seek a declaration
that the statutory exclusion of certain noneconomic compensatory damages, under the
Alienation of Affections Act and the Criminal Conversation Act, is unconstitutional.2 The
nature of the exclusion and the constitutionality arguments will be set forth in detail in our
analysis section.
¶8 In May 2012, plaintiff filed a motion for partial summary judgment, seeking a declaration
of unconstitutionality as to the statutory exclusion. The trial court denied plaintiff’s motion.
In ruling, the court noted that plaintiff had set forth many constitutional arguments but had
developed only those concerning the separation of powers clause and the special legislation
clause (and, as a component of that argument, the equal protection clause).
¶9 In November 2012, defendant filed his own motion for partial summary judgment,
seeking a declaration that the statutory exclusion was indeed constitutional. The trial court
granted defendant’s motion and entered a Rule 304(a) finding. This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 A. Overview of Plaintiff’s Argument
¶ 12 Plaintiff argues that the trial court erred in granting summary judgment to defendant and
declaring constitutional the statutory exclusion of certain noneconomic compensatory
damages under the Alienation of Affections Act and the Criminal Conversation Act (the
Acts). Plaintiff accepts that the Acts’ exclusion of punitive damages is constitutional. Of
course, we review de novo both an order granting summary judgment and the question of a
statute’s constitutionality. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 227 (2010)
(constitutionality); Hall v. Henn, 208 Ill. 2d 325, 328 (2003) (summary judgment). As
plaintiff agrees, a finding on the issue of constitutionality controls the propriety of the
summary judgment ruling, and so we focus our analysis there.
¶ 13 Specifically, plaintiff contends that the statutory exclusion of the noneconomic
compensatory damages at issue here is unconstitutional in that it: (1) violates the separation
1
In his brief, plaintiff discusses certain damages stricken by the trial court. However, those
damages were stricken from only the initial complaint. The trial court has not (yet) stricken damages
from the amended complaint. In any case, an application of the statutory exclusion is not at issue in
this case. Rather, the constitutionality of the exclusion itself is at issue.
2
Defendant responded with affirmative defenses and a counterclaim not at issue here.
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of powers clause (Ill. Const. 1970, art. II, § 1); (2) is special legislation (Ill. Const. 1970, art.
IV, § 13) (and, as a component of that, denies plaintiff his right to equal protection (Ill.
Const. 1970, art. I, § 2)); (3) denies him his right to complete remedy (Ill. Const. 1970, art.
I, § 12); (4) denies him his right to a jury trial (Ill. Const. 1970, art. I, § 13); and (5) denies
him his right to due process (Ill. Const. 1970, art. I, § 2). However, plaintiff develops
argument on only the first two of these claims, and therefore he forfeits the remaining three
claims. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
¶ 14 Essentially, plaintiff acknowledges that, in Siegall v. Solomon, 19 Ill. 2d 145, 148-51
(1960), the supreme court expressly upheld the constitutionality of the Acts’ exclusion of
certain noneconomic compensatory damages. However, he argues that Siegall has been
implicitly overruled by subsequent supreme court rulings, such as Best v. Taylor Machine
Works, 179 Ill. 2d 367 (1997) (personal injury), and Lebron, 237 Ill. 2d 217 (medical
malpractice), which held unconstitutional the caps on noneconomic compensatory recovery
in the causes of action at issue there. Plaintiff further acknowledges that Lebron specifically
distinguished itself from Siegall, but he contends that the distinction was not wholly sound.
For the reasons that follow, we do not find Best or Lebron controlling, and we reject
plaintiff’s separation of powers and special legislation arguments.
¶ 15 B. History of the Acts
¶ 16 We first examine how the Acts’ exclusion of certain noneconomic compensatory
damages came to be. The causes of action at issue here, alienation of affections and criminal
conversation, arose in common law and, along with breach of contract to marry, have been
treated “indistinguishabl[y]” (Siegall, 19 Ill. 2d at 149), at least on questions of statutory
exclusions of certain types of damages. Still, for context, we set forth the elements
comprising each respective common-law cause of action. To sustain a cause of action for
alienation of affection, the plaintiff must allege and prove: (a) love and affection of the
spouse for the plaintiff; (b) overt acts, conduct, or enticement on the part of the defendant
causing these affections to depart; and (c) actual damages. Kniznik v. Quick, 130 Ill. App. 2d
273, 276 (1970). The tort of criminal conversation “consists of a violation of a spouse’s right
to the exclusive privilege of sexual intercourse, and it is thus a common law tort claim[ ] for
adultery.” 21 Ill. L. and Prac., Husband & Wife § 5 (2007). To sustain a cause of action for
criminal conversation, the plaintiff must allege and prove: (a) a valid marriage between
spouses; and (b) the occurrence of sexual intercourse between the plaintiff’s spouse and the
defendant. Id. (citing Hardy v. Bach, 173 Ill. App. 123 (1912)).
¶ 17 In 1935, the Illinois legislature abolished the aforementioned causes of action with what
became known as the “Heart Balm” Act. Ill. Rev. Stat. 1943, ch. 38, ¶¶ 246.1, 246.2
(officially titled “An Act in relation to certain causes of action conducive to extortion and
blackmail, and to declare illegal, contracts and acts made and done in pursuance thereof”).
The Heart Balm Act declared it unlawful for any person to file or threaten to file a cause of
action for alienation of affections, criminal conversation, or breach of promise to marry. The
legislature’s stated purpose in abolishing the aforementioned causes of action was that they
were “conducive to extortion and blackmail.” Id.
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¶ 18 In 1946, the supreme court, in Heck v. Schupp, 394 Ill. 296, 299 (1946), declared
unconstitutional the Heart Balm Act’s abolishment of the aforementioned causes of action.
The court held, inter alia, that the Heart Balm Act violated article II, section 19, of the
Illinois Constitution of 1870, which provided that “ ‘every person ought to find a certain
remedy in the laws for all injury and wrongs which he may receive in his person, property,
or reputation.’ ” Id. at 299 (quoting Ill. Const. 1870, art. II, § 19).3 The court reasoned that
“[t]he contract of marriage *** involv[es] civil rights just as other contracts involve such
rights, and no reason appears why, under section 19 of article II of our constitution, such
rights should not have their day in court.” Id. at 300. Additionally, the court questioned the
Heart Balm Act’s stated purpose, noting that almost any common-law cause of action could
be used by extortionists and blackmailers. Id.
¶ 19 In 1947, presumably in response to Heck, the Illinois legislature passed three companion
acts: the Alienation of Affections Act (now 740 ILCS 5/1 et seq. (West 2008)), the Breach
of Promise Act (also known as Agreement to Marry Act) (now 740 ILCS 15/1 et seq. (West
2008)), and the Criminal Conversation Act (now 740 ILCS 50/1 et seq. (West 2008)). For
the purposes of this appeal, of course, we are concerned with the Alienation of Affections
Act and the Criminal Conversation Act. The Acts contain parallel language, and we quote
below that from the Alienation of Affections Act.
¶ 20 Section 1 of the Alienation of Affections Act provides:
“It is hereby declared, as a matter of legislative determination, that the remedy heretofore
provided by law for the enforcement of the action for alienation of affections has been
subjected to grave abuses and has been used as an instrument for blackmail by
unscrupulous persons for their unjust enrichment, due to the indefiniteness of the
damages recoverable in such actions and the consequent fear of persons threatened with
such actions that exorbitant damages might be assessed against them. It is also hereby
declared that the award of monetary damages in such actions is ineffective as a
recompense for genuine mental or emotional distress. Accordingly, it is hereby declared
as the public policy of the state that the best interests of the people of the state will be
served by limiting the damages recoverable in such actions and by leaving any
punishment of wrongdoers guilty of alienation of affections to proceedings under the
criminal laws of the state, rather than to the imposition of punitive, exemplary,
vindictive, or aggravated damages in actions for alienation of affections. Consequently,
in the public interest, the necessity for the enactment of this chapter is hereby declared
as a matter of legislative determination.” 740 ILCS 5/1 (West 2008).
¶ 21 Section 2 of the Alienation of Affections Act provides:
“The damages to be recovered in any action for alienation of affections shall be limited
to actual damages sustained as a result of the injury complained of.” 740 ILCS 5/2 (West
2008).
¶ 22 Section 3 of the Alienation of Affections Act provides:
3
The Heck court also addressed problems with the title of the Heart Balm Act.
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“No punitive, exemplary, vindictive or aggravated damages shall be allowed in any
action for alienation of affections.” 740 ILCS 5/3 (West 2008).
¶ 23 Section 4 of the Alienation of Affections Act provides:
“In determining the damages to be allowed in any action for alienation of affections, none
of the following elements shall be considered: the wealth or position of defendant or the
defendant’s prospects of wealth or position; mental anguish suffered by plaintiff; any
injury to plaintiff’s feelings; shame, humiliation, sorrow or mortification suffered by
plaintiff; defamation or injury to the good name or character of plaintiff or his or her
spouse resulting from the alienation of affections complained of; or dishonor to
plaintiff’s family resulting from the alienation of affections.” 740 ILCS 5/4 (West 2008).
¶ 24 In other words, while each act expressly limits the damages to actual (i.e., compensatory
rather than punitive) damages (740 ILCS 5/2 (West 2008); 740 ILCS 50/2 (West 2008)), each
act does not guarantee compensation for all actual damages. To the contrary, each act
excludes certain noneconomic compensatory damages, stating that “monetary damages in
such actions [are] ineffective as a recompense for genuine mental or emotional distress” (740
ILCS 5/1 (West 2008); 740 ILCS 50/1 (West 2008)) and stating that the plaintiff’s resulting
mental anguish, injury to feelings, shame, humiliation, sorrow, mortification, defamation or
dishonor cannot be considered in determining damages (740 ILCS 5/4 (West 2008); 740
ILCS 50/4 (West 2008)).
¶ 25 In 1958, with one justice dissenting, the supreme court, in Smith v. Hill, 12 Ill. 2d 588
(1958) (abstract of op.), upheld the constitutionality of the Breach of Promise Act’s express
exclusion of “punitive, exemplary, vindictive, [and] aggravated” damages.
¶ 26 In 1960, the supreme court, in Siegall, upheld the constitutionality of the Alienation of
Affections Act’s limitations on recoverable damages, including the (1) limitation to actual
damages (now 740 ILCS 5/2 (West 2008)); (2) exclusion of punitive, exemplary, vindictive,
and aggravated damages (now 740 ILCS 5/3 (West 2008)); and (3) prohibition of
consideration of the enumerated elements, such as the defendant’s wealth or position and the
plaintiff’s resulting mental anguish, injury to feelings, shame, humiliation, sorrow,
mortification, defamation, or dishonor (now 740 ILCS 5/4 (West 2008)). Siegall, 19 Ill. 2d
at 148-51.
¶ 27 In Siegall, the plaintiff contended that statutory limitations on recoverable damages
violated section 19 of article II of the Illinois Constitution of 1870, which, as noted, provided
that “every person ought to find a certain remedy in the laws for all injury and wrongs which
he may receive in his person, property, or reputation.” Id. at 148 (quoting Ill. Const. 1870,
art. II, § 19); Heck, 394 Ill. at 299-300 (discussing section 19). The plaintiff argued that the
legislature’s 1947 enactment of the Alienation of Affections Act, setting forth limitations on
recoverable damages, did not correct the problems concerning the right to a remedy that had
caused the Heck court to declare the Heart Balm Act unconstitutional. Siegall, 19 Ill. 2d at
148. The plaintiff reasoned:
“[T]he very foundation of the cause of action for alienation of affections is mental
anguish, shame, humiliation, injured feelings, as well as defamation of name and
character of a plaintiff or his family, and *** the 1947 act, by expressly removing such
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elements of damage, leaves only a nominal cause of action without possibility of
recovering damages. This result *** circumvents the decision in [Heck] and renders the
present act subject to constitutional infirmities in that it violates section 19 *** and
destroys vested rights and impairs the obligation of contract ***.” Siegall, 19 Ill. 2d at
148-49.
¶ 28 The Siegall court rejected the plaintiff’s argument. The court noted that, in Smith, it had
addressed “an almost identical act” and found that “a statute which does not prohibit [or
abolish] an action, but merely denies certain damages as a basis for recovery, could not be
in contravention of section 19.” Id. at 149. As to the plaintiff’s reference to allegedly vested
rights, the court noted that there is “no vested right in any plaintiff to exemplary, punitive,
vindictive[,] or aggravated damages leaving the legislature free to restrict or deny such
damages at its pleasure.” Id. (citing Smith, 12 Ill. 2d 588).
¶ 29 Moreover, as pertaining to the special case of marriage and any accompanying vested
rights and contractual obligations, the Siegall court noted:
“[T]he modern view [is] that [the] rights of a husband in his wife’s affections and society
are not property within the due process clause, so as to prevent a State’s regulation and
control of such rights ***. ***
***
*** While the marriage contract is properly regarded *** as a civil contract for some
purposes, it is at the same time a contract which has always been regarded as subject to
the plenary control of the legislature, and subject to controls based upon principles of
public policy ***. [Citations.] Indeed, it has been expressly held that marriage is not a
contract within the constitutional provision prohibiting the impairment by a State of the
obligation of contract, inasmuch as the rights, duties, and obligations of the parties do
not rest upon the agreement of the parties alone, but upon the general law of the State,
statutory and common, which defines and prescribes those rights, duties[,] and
obligations. [Citations.]
Actions for alienation of affections are considered as incident to, or as arising from,
the marriage relation, and are likewise subject to the basic power of the legislature to
enact reasonable police regulations for the public welfare.” (Emphases added.) Id. at 149-
50.
¶ 30 Before concluding, the Siegall court summarily rejected, as having been decided in
Smith, the plaintiff’s remaining arguments, holding that the Alienation of Affections Act’s
limitations did not: (1) violate the separation of powers clause by invading the province of
the jury; or (2) constitute special legislation by favoring one group of persons over another
group of similarly situated persons. Id. at 150-51.
¶ 31 After the Siegall court upheld the constitutionality of the Alienation of Affections Act’s
limitations on damages, appellate courts applied the limitations in a series of cases,
developing a body of law on what types of damages are not recoverable under the statutory
exclusion. See, e.g., Coulter v. Renshaw, 94 Ill. App. 3d 93, 95-96 (1981) (damages for loss
of spouse’s monthly income recoverable; damages for loss of consortium, i.e., loss of
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companionship, felicity, and sexual intercourse, not recoverable);4 Wheeler v. Fox, 16 Ill.
App. 3d 1089, 1093 (1974) (damages for mental illness and lost occupational earnings not
recoverable);5 Kniznik, 130 Ill. App. 2d at 279 (damages for mental illness and lost
occupational earnings not recoverable).6,7 Again, these cases merely applied the limitations.
They did not revisit the previously settled constitutional challenges.
¶ 32 C. Separation of Powers
¶ 33 Plaintiff argues that Siegall has been implicitly overruled by subsequent supreme court
rulings that discuss in more detail the two constitutional arguments that Siegall summarily
rejected: separation of powers and special legislation. Here, we address the separation of
powers argument. The separation of powers clause prohibits one branch of government from
exercising the powers properly belonging to another. Ill. Const. 1970, art. II, § 1. Plaintiff
believes that the Lebron separation of powers analysis can be applied to the Alienation of
Affections Act and the Criminal Conversation Act. We disagree.
¶ 34 The Lebron court, relying on judicial dicta in Best, held unconstitutional as a violation
of separation of powers the statute that capped noneconomic damages in medical malpractice
actions. Lebron, 237 Ill. 2d at 250. The Lebron court noted that this cap trumped a jury’s
deliberative process in assessing damages and required the reduction of any noneconomic
4
The Coulter court also ruled other damages not recoverable, such as attorney fees from a
dissolution case and the loss of (presumably housekeeping) services, for reasons other than the
statutory exclusion, such as the inapplicability of the rules in dissolution actions to alienation of
affections suits and the plaintiff’s failure to adequately plead an actual pecuniary loss. Id.
5
The Wheeler court’s recitation of nonrecoverable damages under the statutory exclusion
was judicial dicta. Its primary basis for reversing the trial court was that there was no evidence to
support the first element of an action for alienation of affections–that the plaintiff had the spouse’s
love and affection to lose. Id. at 1092. Additionally, the Wheeler court cited without discussing
Kniznik’s recitation, which was problematic for its own reasons, as discussed in the next footnote.
Id. at 1093. Finally, the Wheeler court also ruled other damages not recoverable, such as loss of
consortium, loss of health, unemployment, and loss of the spouse’s (presumably housekeeping)
services, due to reasons other than the statutory exclusion, such as deficiencies in the pleadings.
6
Similarly, the Kniznik court’s recitation of nonrecoverable damages was judicial dicta. Its
primary basis for affirming the dismissal of the action for alienation of affections was due to the
conclusory nature of the pleadings. Id.
7
The parties also cite and discuss Lo Cascio v. Kiousis, 9 Ill. App. 3d 919 (1973) (abstract
of op.), but, as only the abstract has been published, it is impossible to discern the basis upon which
the damages were deemed nonrecoverable, i.e., whether the denial was based on the statutory
exclusion or not. At least some of the damages facially appear to have been denied for reasons aside
from the statutory exclusion (denial of attorney fees from a dissolution case, based on the
inapplicability of the rules in dissolution actions to alienation of affections suits, and denial of the
cost of child support, as public policy demanded support of the children).
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damages in excess of the cap, irrespective of the particular facts and circumstances. Id. at
238. The statute, therefore, acted as an unconstitutional “legislative remittitur” in that it
“ ‘unduly encroache[d] upon the fundamentally judicial prerogative of determining whether
a jury’s assessment of damages is excessive within the meaning of the law.’ ” Id. (quoting
Best, 179 Ill. 2d at 414). Interestingly, the dissent noted that “[n]othing in the majority’s
separation of powers analysis would preclude” the legislature from “eliminating all non-
economic damages” in an effort to cut healthcare costs. (Emphasis in original.) Id. at 283
(Karmeier, J., concurring in part and dissenting in part, joined by Garman, J.). In the dissent’s
view, the potential for some recovery of noneconomic damages was better than no potential
recovery. Id.
¶ 35 As recognized by the Lebron dissent, a damages cap is not necessarily analogous to a
damages exclusion. Therefore, our case, which involves an exclusion of certain noneconomic
compensatory damages, is not perfectly analogous to Lebron, which involved a cap. The
Lebron court found that the cap invaded the province of the court by encroaching on its
traditional power to exercise a remittitur on the jury’s award. Id. at 238. Remittitur allows
the court to reduce a jury’s award where it falls outside the range of fair and reasonable
compensation or results from passion or prejudice or where it is so large that it shocks the
judicial conscience. Id. at 234. Here, such judicial authority is not at issue. In the face of the
exclusion, the jury would not have been able to assess in the first place the noneconomic
damages enumerated in section four of each Act.
¶ 36 More importantly, Lebron cannot be said to have implicitly overruled Siegall, because
the Lebron court expressly distinguished its case from Siegall. Id. at 246. Plaintiff complains
that the distinction was imprecise, because the court commented that Siegall involved a ban
on punitive damages, not a cap on noneconomic compensatory damages. Id. As plaintiff
notes, Siegall involved a ban on punitive damages and certain noneconomic compensatory
damages. However, the Lebron court’s statement that Siegall did not involve a cap is
accurate. In any case, the point is that the supreme court was presented with its prior ruling
in Siegall and expressly stated that its invalidation of the medical malpractice damages cap
did not undermine its precedents. Id.
¶ 37 D. Special Legislation
¶ 38 Alternatively, plaintiff argues that the Best special legislation analysis can be applied to
the instant case. For the reasons that follow, we disagree.
¶ 39 A special legislation challenge generally is evaluated according to the same standards as
an equal protection challenge. Best, 179 Ill. 2d at 393. The special legislation clause states:
“The General Assembly shall pass no special or local law when a general law is or
can be made applicable. Whether a general law is or can be made applicable shall be a
matter for judicial determination.” Ill. Const. 1970, art. IV, § 13.
The legislature may not confer a special benefit or privilege upon one group and exclude
others that are similarly situated unless there is a rational basis to do so. Best, 179 Ill. 2d at
391. In other words, the special legislation clause prevents the legislature from making
classifications that arbitrarily discriminate in favor of a select group. Big Sky Excavating, Inc.
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v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 235 (2005). To show a violation of the special
legislation clause, two prongs must be met: (1) the statutory classification discriminates in
favor of a select group to the exclusion of those that are similarly situated; and (2) the
classification is arbitrary. Id.
¶ 40 Plaintiff notes that plaintiffs in other tort actions, such as for intentional infliction of
emotional distress, invasion of privacy, and damage to reputation, are not restricted in their
ability to recover noneconomic compensatory damages. However, even if we accept that
plaintiff is similarly situated with plaintiffs in other types of tort actions, which we do not,
plaintiff cannot meet the second prong. The statutory exclusion here is not arbitrary. In
Siegall, the supreme court discussed in detail the rationale for treating those torts that arise
out of the marriage contract as a special group. Siegall, 19 Ill. 2d at 149-50 (as discussed
above in paragraph 30). Plaintiff does not address any of the Siegall court’s statements
concerning the special nature of these marriage torts. In fact, as no supreme court case (or
any case) since Siegall has called into question its rationale on this point, we are bound to
uphold it.
¶ 41 We acknowledge plaintiff’s point that one of the Acts’ stated rationales for excluding
damages is arguably quite weak (i.e., that these torts are especially susceptible to being “used
as an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to
the indefiniteness of the damages recoverable in such actions and the consequent fear of
persons threatened with such actions that exorbitant damages might be assessed against
them” (740 ILCS 5/1 (West 2008); 740 ILCS 50/1 (West 2008))). As plaintiff notes, other
torts, again such as intentional infliction of emotional distress, invasion of privacy, and
damage to reputation, are also susceptible to being used for blackmail and might result in
damages that are difficult to calculate, yet plaintiffs in those causes of action are not
restricted in their ability to recover noneconomic compensatory damages. Still, the weakness
of one stated rationale is not enough to rebut the presumption of constitutionality, nor is it
enough to break from the authority of the supreme court.
¶ 42 The parties have focused their arguments on the second prong, and our above analysis
on that point is dispositive. However, we take time to note that plaintiff has not convinced
us that he has met the first prong, i.e., that the statutory exclusion discriminates against him
as compared to similarly situated individuals. To determine whether one person or group is
similarly situated to another, one must look to the purpose of the law. People v. Masterson,
2011 IL 110072, ¶ 25. If, as stated in Heck, a purpose of the common-law marriage torts is
to validate and/or protect the marital and familial interests accompanying the institution of
marriage, the collective of similarly situated individuals are those whose marital and familial
interests are at stake. Here, the imposition of the statutory exclusion does not discriminate
against any one person or group within the larger collective of those similarly situated
individuals whose marital and familial interests are at stake. Again, plaintiff notes that
plaintiffs in other tort actions, such as for intentional infliction of emotional distress, invasion
of privacy, and damage to reputation, are not restricted in their ability to recover
noneconomic compensatory damages. However, this mere assertion does not establish that
he is similarly situated to plaintiffs in those other tort actions. Case law does not support the
presumption that a party in one cause of action is similarly situated to a party in a different
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cause of action. See, e.g., Montgomery v. Roudez, 156 Ill. App. 3d 262, 269 (1987) (parties
pursuing a finding of fitness under the Juvenile Court Act are not similarly situated to parties
pursuing a finding of fitness under the Illinois Marriage and Dissolution of Marriage Act).
Indeed, the Best court did not compare plaintiffs in one tort to plaintiffs in another tort who
had endured a similar level and type of harm. Best, 179 Ill. 2d 367. Rather, the Best court
held that the damages cap prevented plaintiffs who had been greatly harmed from being fully
compensated but did not prevent plaintiffs who had been minimally harmed from being fully
compensated. Id. at 406.
¶ 43 We raise these concerns, but we leave them for another day. For now, we resolve this
case by affirming the constitutionality of the statutory exclusion of damages at issue.
¶ 44 III. CONCLUSION
¶ 45 The trial court’s grant of partial summary judgment is affirmed.
¶ 46 Affirmed.
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