It's really simple: According to Section 1 of Article II of the Illinois Constitution, The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another. Call it Separation of Powers, it's a basic tenet of constitutional government you learn in the 8th grade.
Thus sayeth the court in Lebron v. Gottlieb Memorial Hospital: We hold that the limitation on non-economic damages in medical malpractice actions violates the separation of powers clause of the Illinois Constitution and is invalid. End of case. An eight-year fight for access to quality healthcare over in a mere sentence.
Should it not have been obvious? The court, looking back to its 1997 Best decision, explained that the purpose of the separation of powers clause is to ensure that the whole power of two of more branches of government shall not reside in the same hands, and [e]ach branch of government has its own unique sphere of authority that cannot be exercised by another branch.
Well, if that's what the Supreme Court is asserting as the Law of Lincoln's Land, isn't it time to get these trial lawyers and their lobbyists out of the State Capitol?
Lawyers in Illinois are treated very differently from other professions. Architects, engineers, accountants, doctors, nurses and pharmacists are all regulated and licensed by the Illinois Department of Financial and Professional Regulation. However, lawyers are treated differently, due to their unique position within the judicial branch of government. They have their own Attorney Registration & Disciplinary Commission (ARDC), funded through registration fees, that exists outside of executive and legislative authority. The ARDC licenses, disciplines and regulates attorneys exclusively outside of the other two branches of Illinois government.
That scope was tested again in July 2008, when the ARDC denied access to its master roll of attorneys, forbidding access to the list of who has the authority to practice law in Illinois from anyone without a judicial or legal purpose for its use. It's just another reminder of how the Illinois Supreme Court severely exercises its sphere of authority in regards to its separation of powers.
In fact, Illinois lawyers are sworn officers of the court. Which makes it curious that the Supreme Court allows or, frankly, that the legislature tolerates officers of the court to lobby the legislature (much less, to lobby about criminal or civil procedure), donate to executive or legislative campaigns, or even suggest executive or legislative remedies.
So, when the Illinois Supreme Court throws up the separation of powers argument to maintain its sphere of authority over the Illinois court system, the court also begs you to pay no attention to its lobbying arms reaching around the voters backs to help choose its legislative members, help introduce legislative reforms that financially enrich its attorneys, and help spearhead crusades against Illinois job creators and healthcare providers.
There's been little separation between the Illinois Trial Lawyers Association PAC and the General Assembly when it comes to campaign contributions, with almost $4.4 million in transfers from the PAC to legislative candidates in the 12 years since the Best decision. And that doesn't count contributions from individual trial lawyers to candidates, nor the millions more they have contributed to judicial candidates.
There's no separation this week as the Illinois Trial Lawyers Association spends thousands on radio ads attacking insurance companies and asking the General Assembly to place legislative and executive mandates upon malpractice insurers.
And, as was recently reported in the Alton Telegraph, there's no separation when already-wealthy trial lawyers want TIF benefits (up to $1.5 million) from local taxpayers in exchange for bringing economic development in the form of more lawsuits and more lawyers to a community.
So, what we really have is selective separation of powers, where the court system and its exclusive group of attorneys exercise a one-way street of heavy influence on the legislative branch, while hiding behind the Illinois Constitution when anyone makes suggestions about improving the judicial branch.
The next time the president of the Illinois Trial Lawyers Association addresses a legislative committee, maybe a legislator needs to ask him if his entire testimony is an "unconstitutional" breach of Article II of the Illinois Constitution (and, surprise, most of the legislators on the judiciary committees are also attorneys).
In 2010, the Supreme Court has redrawn a clear line between the judiciary and legislature, and it's time for the trial lawyers to go back and live exclusively in the judicial sphere and leave the legislative sphere alone. They've done enough damage already to our state's economy, job creators and healthcare system.
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Illinois Supreme Court
Illinois Trial Lawyers Association