Rolling Snake Eyes

John J. Hopkins Feb. 13, 2010, 3:38am


Director Brian de Palma is a bona fide Hollywood icon, the director of such classics as "Carrie," "The Untouchables," "Dressed to Kill," and several of the "Mission Impossible" series of films. He has a trademark of the presentation of graphic violence with style, akin to his contemporary Scorcese and inspiration to such followers as Tarantino.

While he has had many critical and popular hits, one of the misses was a film called "Snake Eye," starring Nicholas Cage as a crooked cop in Vegas, trying to stop an assassination of the Secretary of Defense, an attempt being orchestrated from the inside by his long time friend. The movie takes its title from the gambling term meaning to throw the dice and come with two ones, a sure loser. While the film is only second level, its title forms an apt metaphor for today's column.

By now, if you take the time to read the Madison County Record, you no doubt are aware of the decision rendered last Thursday by the Illinois Supreme Court in the case of LeBron v. Gottlieb Memorial Hospital. The case challenged the terms of Public Act 94-677, a bill passed by the General Assembly with great fanfare and self congratulations, bowing in the process to the power and influence of the insurance lobby. The bill took away from Illinois citizens the right to be compensated in the courts in the manner dictated by the State Constitution, specifically by Article I, section 12 which compels a remedy for "all injuries to the person, property or reputation...fully, promptly and COMPLETELY."

The cornerstone of the Act was an arbitrary cap on the damages in cases brought against a special group of defendants, namely the medical profession. The family of a small child, severely and permanently brain damaged by the negligence of the health care providers trusted with her care, courageously brought the successful challenge.

The decision, as the Court has done on two prior occasions, found such blatant attempts at de facto immunity for politically favored groups to be in violation of the State Constitution. Given the long line of precedents to govern such cases, it was predictable from a legal analysis. Equally predictable were the howls of protest and the prophecies of doom from those vested in maintaining a climate of fear, the facts - those persistent little buggers- be damned.

Believing that tyrants feed on a diet of public ignorance, let us look rationally in the light of day for the truth.

Illinois, like all other States has its own Constitution. It was this document, not the U.S. version discussed in the monthly ELL classes, that was the death knell of the Medical Protection Bill.

It is inaccurate to speak of the intent of "Jefferson, or other Founding Fathers" as having been confirmed, as that is only more mistaken hyperbole in the other direction. Originally drafted in 1870, more than 50 years after statehood, it has been re-drafted by various Conventions, the last one being in 1971. The call for another Constitutional Convention was only recently rebuffed by voters by an overwhelming majority.

For the truly curious and intellectually honest, a complete copy can be accessed by going to the State web site - and clicking on the section under Links marked "Government," then under "Services and Information," download a copy. Fair warning. It is voluminous.

The provisions in Constitutional jeopardy from the outset were always the damage caps, offending the provisions of sections 2 - Due Process Guarantee - and the aforementioned section 12 - the complete remedy of Article I, as well as section 1 of article II, commanding a complete respect and recognition of the separation of powers between the branches of State Government, and explicitly restricting any branch from "exercising powers belonging to another branch," and most certainly the prohibition against Legislation designed to help only a special group, Article IV, section 12.

The damage caps were an arrogant disregard of clear language and as such, suffered the proper fate. The tragedy lies not in their deserved demise, but in that which was also swept away in turn.

The General Assembly played a game of chance with the Court, hoping that the provisions of the bill creating checks on the virtually non regulated medical liability insurance industry - the real villain in this drama - would blind the Justices to patent Constitutional infirmities.

The problem was more complex. The bill contained an inserverability clause, one that mandated that if ANY provision is bad, then it is all bad. Either by sleepy neglect or by conscious cynical design, the Legislature counted on the Court not to strike down the Bill, and its badly needed insurance regulatory scheme, and stomach the caps, the clear State constitution prohibitions notwithstanding. The dice were rolled, and they came up Snake Eyes - a loser.

Illinois' Constitution contains provisions, remedies and mandates not contained in its Federal cousin. It gives the people a separate layer of protection in their person, lives and property. It deserves to be respected, not manipulated. It deserves to be upheld, no matter how politically unpopular such might be.

Surely this is the highest and best function of a free and independent Judiciary. The LeBron case confirms this noble principle. The reform of health care is assuredly needed, but not at the expense of our basic liberties. Now, a rational and unemotional discussion of the actual facts and causes of what all agree is a problem can take place, without the hype, without the hysteria.

It is truly about time. Be not afraid.

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