motion to dismiss — Woodward v. Burnham City Hospital

| Supreme Court tS.

: = FILED

| 9BB 12 1980

No. 79-2033 |

MICHAEL RODAK, JR., QUEIRK

In The :

Supreme Court of the United States

OCTOBER TERM, 1979

ny

Vv

CAROL C. WOODWARD, as Administrator of the Estate

of CHARLES C. WOODWARD, Deceased, and CAROL C.

WOODWARD, Individually,

Appellant,

Vs.

BURNHAM CITY HOSPITAL, a corporation, and

GRORGE GREEN, and STAN J. BOBOWSKYI,

Appellees.

ny

VV

On Appeal from the Supreme Court of Illinois

tf)

Vv

MOTION TO DISMISS OR AFFIRM

r)

STEPHEN M. O’ByrNE

Reno, O’Byrne & KeEPLEY

501 West Church Street

Champaign, IL 61820

Attorney for Appellee

Burnham City Hospital

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

i

TABLE OF CONTENTS

Pages

Motion to Dismiss ......... . 1

Argument ......... 2

Motion to Affirm 3

Argument :

I. Section 22.1 does not restrict any fundamental

right requiring the application of either the

“strict judicial scrutiny” test or of a “means-

scrutiny” test. 3

II. Section 22.1 and the classifications created there-

in are rationally related to a legitimate state

interest. a ae

IIT. Section 22.1 of the Tlinois Limitation Act does

not improperly restrict any right or cause of

action in violation of the due process clause. ...... 8

Conclusion 10

TABLE OF AUTHORITIES

CASES

Adams v. Russell, 229 U.S. 353, 33 S. Ct. 846 (1913) ..... 2

Barry v. Barchi, 441 U.S. —, 99 S. Ct. 2642 (1979) ..... 6

Brown v. Board of Edueation, 347 U.S. 483, 74

S. Ct. 686 (1954) +

Chase Securities Corporation v. Donaldson, 325

U.S. 304 (1945) 8,9

Dandridge v. Williams, 397 U. S. 471 (1970) nneececcssese 8

Dun v. Felt, 379 A. 2d 1140 (Del., 1977) 9

il

TABLE OF AUTHORITIES-—Continued

Pages

Dunn v. St. Francis Hospital, 401 A. 2c 77 (Del.,

1979) 9,10

First National Bank vy. Estherville, Iowa, 215

U.S. 341, 30 S. Ct. 152 (1909) . 2

Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848

(1971) ; . 4

Griswold v. Connecticut, 381 U.S. 479 (1965) wou. 4

Harrison v. Schrader, — Tenn. —, 569 S. W. 2d

rites i setanabdsusasiesen

Holley v. Lawrence, 318 U.S. 518, 63S. Ct. 394 (1943) 2

Jones v. State Board of Medicine, 97 Idaho 859,

Sa anc caspeensmnnanneenecenecesee 4

Landgraff v. Wagner, 26 Ariz. App. 49, 546 P. 2d

a sccconmenrshcosamnnthncenenumncinesirtasssioeeee 9

Lipsey v. Michael Reese Hospital, 46 [I]. 2d 32,

262 N. E. 2d 450 (1970) ee

McCarty v. Goldstein, 376 P. 2d 691 (Col., 1962) WW... 8

New Orleans v. Dukes, 427 U.S. 297, 296 S. Ct.

ee 5,8

Owen v. Wilson, 266 Ark. 21, 24-25, 537 S. W. 2d

543, 545 (1976) 9

San Antonio Independent School District v. Rod-

riequez, 411 U.S. 1, 93 S. Ct. 1278 (1973) eecccecseen 4

Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972)... 8

ill

TABLE OF AUTHORITIES—Continued

Pages

Shapiro v. Thompson, 394 U.S. 618 (1969) ecco 4

State ex rel. Schneider v. Ligget, 223 Kan. 616,

576 P. 2d 221 (1978) 8

United States v. Kubrick, — U.S. —, 100 S. Ct.

es Se CE aactaeci niceties 8

Vance v. Bradley, 440 U.S. —, 99 S. Ct. 939 (1979) ..... 6

Woods v. Holy Cross Hospital, 591 F. 2d 1164 (5th

Cir., 1979) Y a

Wright v. Central DuPage Hospital Association,

63 Ill. 2d 313, 347 N. EB. 2d 736 (1976) 7

STATUTE;

Section 22.1 of the Illinois Limitations Act, being

Ill. Rev. Stats., 1976 Supp., Ch. 83, par. 22.1 .......... 2, 3, 4,

6, 7,8, 10

CoNSTITUTION

Article IV, Section 13 of the Illinois Constitution

of 1970 2

No. 79-2033

ry

Vv

In The

Supreme Court of the United States

OCTOBER TERM, 1979

ny

Vv

CAROL C. WOODWARD, as Administrator of the Estate

of CHARLES C. WOODWARD, Deceased, and CAROL C.

WOODWARD, Individually,

Appellant,

Vs.

BURNHAM CITY HOSPITAL, a corporation, and

GEORGE GREEN, and STAN J. BOBOWSKI,

Appellees.

fa’

Vv

On Appeal from the Supreme Court of Illinois

fy

Vv

MOTION TO DISMISS OR AFFIRM

fy.

Vv

MOTION TO DISMISS

BURNHAM CITY HOSPITAL, Appellee, moves to

dismiss the appeal in the above-entitled cause for the rea-

son that no substantial federal question is involved and

that the judgment appealed from rests on an adequate non-

federal basis.

ARGUMENT

The Supreme Court of Tllinois reversed a panel of the

Appellate Court of the State of Illinois which had found

§ 22.1 of the Tilinois Limitations Act, being Tl. Rev. Stats.,

1976, Supp., Ch. 83, par. 22.1, unconstitutional as being vio-

lative of Article IV, 413 of the Illinois Constitution of

1970, prohibiting “special legislation.’”’? Section 13 in Ar-

ticle IV of that Constitution provided:

“The General Assembly shall pass no special or local

law when a general law is or can be made applicable.

Whether a general Jaw is or can be made applicable

shall he a matter for judicial determination.”’

The issue before the Tllinois Supreme Court was whether

or not § 22.1 of the Limitations Act was special legislation,

and in its ruling the Supreme Court found that it did not

violate the State Constitution, but rather was a reasonable

exercise of the State’s police power.

This Court has held that a sufficient showing has not

been made to give this Court jurisdiction over the judg-

ment of a state court where the record merely discloses

that a federal question was argued or presented to the

state court. The appellant through her jurisdictional state-

ment must demonstrate that a decision of the state court

on the federal question is necessary to the determination

of the cause and that such question was actually decided

or that the judgment appealed from could not have been

given without a decision on such federal question. Adams

v. Russell, 229 U. S. 353, 33 S. Ct. 846 (1913); First Na-

tional Bank v. Estherville, Iowa, 215 U.S. 341, 30S. Ct. 152

(1909), and Holley v. Lawrence, 318 U. S. 518, 63 S. Ct.

394 (1943). This court also held that an appeal from a

state court to the Supreme Court of the United States

would be dismissed where the decision appealed from was

based upon a non-federal ground adequate to support that

decision.

In the cause presently before this Court, the issue

facing the Illinois Supreme Court was whether § 22.1 vio-

lated the State Constitution’s prohibition of ‘‘special legis-

lation’’. The state court found that the statute did not

violate that prohibition and a review of the state court’s

opinion demonstrates that its decision was grounded on

this non-federal basis and that the federal questions raised

were not necessary to the court’s decision.

MOTION TO AFFIRM

BURNHAM CITY HOSPITAL, Appellee, moves to

affirm the decision of the Supreme Court of Illinois. That

decision was proper and correct and no substantial federal

constitutional questions are involved.

°

ARGUMENT

I.

Section 22.1 does not restrict any fundamental

right requiring the application of either the ‘‘strict

judicial scrutiny’’ test or of a ‘‘means-scrutiny”’

test.

4

Legislative classification has been subjected to the

‘*strict judicial scrutiny” test for equal protection pur-

poses only when the classification restricted a “fundamen-

tal right’’ or the classifications were based on racial or

ethnic distinctions. See, e. 9., Griswold v. Connecticut, 381

U. S. 479 (1965) (marital right to privacy); Shapiro v.

Thompson, 394 U.S. 618 (1969) (right to travel) ; San An-

tonio Independent School District v. Rodriequez, 411 U.S.

1, 93 S. Ct. 1278 (1973) (right to public education) ; Brown

v. Board of Education, 347 U. S 483, 74S. Ct. 686 (1954)

(race); Graham v. Richardson, 403 U. S. 365, 91 S. Ct.

1848 (1971) (alienage). Contrary to the Appellant’s as-

sertion, § 22.1 does not establish a legislative classification

restricting either a fundamental right or is it based on

racial or ethnic underpinnings. This Court has never held

that the right of access to the Courts in civil cases is a

fundamental right. Further, such an argument was re-

jected in the recent case of Woods v. Holy Cross Hospital,

591 F. 2d 1164 (5th Cir., 1979).

Appellant in her jurisdictional statement also suggests

that the application of a “means-scrutiny’’ test is proper.

While the Appellant cites the Idaho decision of Jones v.

State Board of Medicine, 97 Idaho 859, 555 P. 2d 399 (1976),

it should be noted that this decision represents a minority

position with the majority of courts considering malprac-

tice legislation having either denied the existence of such

a test or rejected its application in examining statutes

such as § 22.1. See, e.g., Woods v. Holy Cross Hospital,

591 F. 2d 1164 (5th Cir., 1979); Harrison v. Schrader, —

Tenn. —, 569 8S. W. 2d 822 (1978).

Since § 22.1 is not addressed to any “fundamental

right” or based upon a racial or ethnic classification,

4)

neither the “strict scrutiny’’ test nor Appellant’s suggested

“means-scrutiny”’ test are appropriate in examining this

statute for equal protection purposes.

II.

Section 22.1 and the classifications created

therein are rationally related to a legitimate state

interest.

In its recent decision in New Orleans v. Dukes, 427

U. S. 297, 296 S. Ct. 2513 (1976), this Court enunciated the

current criteria to be used in analyzing legislative classifi-

cation in light of the equal protection clause, stating:

‘*.,. our decisions presume the constitutionality of the

statutory discrimination and require only that the

classification challenged be rationally related to a legi-

timate state interest. States are accorded wide lati-

tude in the regulation of their local economies under

their police powers, and rational distinctions may be

made with substantially less than mathematical ex-

actitude. Legislatures may implement their program

step by step, Katzenback v. Morgan, 384 U. S. 641

(1966), in such economie areas, adopting regulations

that only partially ameloriate a perceived evil and

deferring complete elimination of the evil to future

regulations. See, e.g., Williamson v. Lee Optical Co.,

348 U.S. 483, 488-489 (1955). In short, the judiciary

may not sit as a super-legislature to judge the wisdom

or desirability of legislative policy determinations

made in areas that neither affect fundamental rights

nor proceed along suspect lines. ... It is only the in-

vidious discrimination, the wholly arbitrary act, which

cannot stand consistently with the Fourteenth Amend-

ment. See, e.g., Fergusson v. Skrupa, 372 U. S. 726,

732 (1963).’’ New Orleans v. Dukes, 96 S. Ct. at 2517.

As this Court noted in Dukes, the Appellant’s argu-

ment at Page 12 of her jurisdictional statement that the

burden of establishing the constitutionality of § 22.1 is

upon the State of Illinois, is incorrect. See, also, Vance

v. Bradley, 440 U. S. —, 99 S. Ct. 939 (1979). Further,

neither the State of Illinois nor Appellees are under any

burden to provide empirical data establishing the ration-

ality of the classification, rather the burden is upon Appel-

lant to establish the irrationality, if any, of the classifica-

tions. See, Barry v. Barchi, 441 U. S. —, 99 S. Ct. 2642

(1979).

In examining § 22.1, it is important to consider the leg-

islative history of this provision so as to properly per-

ceive the rationality of the legislature’s response to prob-

lems created in the medical malpractice field by the [lli-

nois Supreme Court’s judicial adoption of the ‘‘discovery

rule’’ in personal injury suits.

This history is set out in detail in the opinion of the

Illinois Supreme Court in this cause. Prior to the deci-

sion in Lipsey v. Michael Reese Hospital, 46 Ill. 2d 32, 262

N. E. 2d 450 (1970), actions involving medical malpractice

in Illinois were generally governed. by the general provi-

sions of the Limitations Act, which was a two-year limita-

tion period calculated from the time of the occurrence of

the alleged negligent act. In Lipsey the Illinois Supreme

Court adopted the “discovery rule” and held that the limi-

tation period would be calculated not from the time of the

alleged negligent act, but from the time the plaintiff knew,

or through the use of reasonable diligence should have

known, of the injury. This rule worked a special hardship

in the medical malpractice area as claims were allowed to

be brought years, or as in the instant case, more than a

decade after the occurrence of the alleged negligent act.

It was in this climate that the Illinois legislature con-

sidered and enacted § 22.1. This section reflects a rational

compromise on the part of the legislature between the lim-

itation rule applied before Lipsey and the discovery rule.

The legislation was a rational response to the particular

problems caused in the medical malpractice field hecause

of the “long tail of liability’’ created by L’psey. In enact-

ing § 22.1 the legislature was attempting to protect the

vital interests of society in having adequate health care

provided at a reasonable cost—an interest recognized in

Wright v. Central DuPage Hospital Association, 63 Tll. 2d

313, 347 N. E. 2d 736 (1976) (Underwood, J., concurring in

part and dissenting in part).

In its opinion in this cause, the Illinois Supreme Court

noted that Illinois was not alone in its passage of a special

statute of limitations in medical malpractice areas, identi-

fying many states that passed such limitation: legislation

(see opinion in appendix to appellant’s jurisdictional state-

ment, A10-12). The court further noted that a number of

these statutes had been challenged on equal protection

grounds, and that all of the statutes had been sustained

against such an attack (see A13).

Appellant has principally objected to the classification

established in § 22.1 affording its protection to doctors and

hospitals and not others in the health care field. This

Court has repeatedly noted a statutory classification does

not violate the equal protection clause merely because the

classifications contained therein are imperfect, noting that

legislatures may implement their program step by step

adopting regulations that only partially ameliorate a per-

ceived evil and defraying complete elimination of the evil

to future regulations. See, e.g., New Orleans v. Dukes,

427 U.S. 297 (1976); Dandridge v. Williams, 397 U.S. 471

(1970). Statutes establishing classifications within the

medical profession have been upheld in the following cases:

State ex rel. Schneider v. Ligget, 223 Kan. 616, 576 P. 2d

221 (1978); Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438

(1972): McCarty v. Goldstein, 376 P. 2d 691 (Col., 1962).

IIT.

Section 22.1 of the Illinois Limitation Act does

not improperly restrict any right or cause of action

in violation of the due process clause.

Section 22.1 of the Illinois Limitation Act does not

improperly take any property right of the appellant with-

out notice in violation of the due process clause. Section

22.1 as a statute of limitation does not deny appellant any

right but merely addresses her remedy and the manner of

exercise of that right. This Court has noted the impor-

tance of statute of limitations, stating its recent decision

in United States v. Kubrick, — U. 8. —, 100 S. Ct. 352, 357

(1979), that “statutes of limitation ... are founded and

approved in all systems of enlightened jurisprudence.”’

In discussing such statutes in Chase Securities Corpo-

ration v. Donaldson, 325 U.S. 304 (1945), this Court stated

that :

“{Statutes of limitation] are by definition arbitrary,

und their operation does not discriminate between the

just and unjust elaim, or the avoidable and unavoid-

able delay. They have come into the law not through

the judicial process but through legislation. They rep-

resent a public policy about the privilege to litigate.”

9

Chase Securities Corporation v. Donaldson, 325 U. S.

at 314.

Courts of review have generally held that in examin-

ing a statute of limitation a vital question is one of reason-

ableness and that such statutes would not be stricken un-

less the period before the bar becomes effective was so

short that it amounts to a virtual denial of the right itself.

It is axiomatic that the application of the statute will un-

der proper circumstances foreclose a plaintiff’s cause of

action. As the Supreme Court of Arkansas, in Owen v.

Wilson, 266 Ark. 21, 24-25, 537 S. W. 2d 543, 545 (1976),

stated :

“Any statute of limitations will eventually operate to

bar a remedy and the time within which a claim should

be asserted is a matter of public policy, the determina-

tion of which lies almost exclusively in the legislative

domain, and the decision of the General Assemblv in

that regard will not be interfered with by the courts

in absence of palpable error in the exercise of the leg-

islative judgment.”

In Owen, that court upheld a medical malpractice statute

of limitations setting an absolute period of six years against

an attack that the provision was violative of due process.

A similar result was reached by the court in Landgraff v.

Wagner, 26 Ariz. App. 49, 546 P. 2d 26 (1976). Similar

results have been reached in the recent cases of Dunn v.

St. Francis Hospital, 401 A. 2d 77 (Del., 1979), and Dun v.

Felt, 379 A. 2d 1140 (Del., 1977).

The Delaware Supreme Court in St. Francis Hospital

observed :

‘In setting a time limit for inherently unknowable in-

juries, it must be remembered that a finite cut-off is

probably necessary at some point in time regardless

10

of the state of patient’s knowledge if the policy con-

siderations underlying the statute of limitations are

to be vindicated .. . (omitting citations). It is the

legislature and not the courts which must determine

what the finite period is, and they are constrained only

in that the time limit must not be unreasonable.”’

Dunn v. St. Francis Hospital, 401 A. 2d at 81.

The time limit of four years established by the Illinois

legislature in 4 22.1 is reasonable and adequately affords

this appellant due process of law.

sy.

VV

CONCLUSION

The classifications established by § 22.1 of the Illinois

Limitation Act are rationally related to a legitimate state

interest and neither deny appellant equal protection of the

law nor due process as guaranteed by the Constitution of

the United States of America.

Respectfully submitted,

SrerHen M. O’Byrne

Reno, O’Byrne & KeEPLey

501 West Church Street

Champaign, IL 61820

Attorney for Appellee,

Burnham City Hospital