Motion to Dismiss — Vogel v. Robinson

a

| Supreme Court, u.§,

FILED

SEP 29 1980

No. 80-377 MICHAEL RODAK. JR., CLERN

IN THE

Supreme Court of the United States

OcToBER TERM, 1980

AGNES VOGEL, ’

Appellant

v On Appeal From

: | The Supreme Court

JAMES L. ROBISON and tf illinoss

BERNARD J. VOGEL,

Appellees. |

MOTION OF APPELLEE BERNARD J.

VOGEL TO DISMISS OR AFFIRM

ANDREW J. O’CONOR

130 East Madison Street

Ottawa, Illinois 61350

(815) 434-6206

SANFORD R. GAIL

150 North Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

Of Counsel:

A. Bruce WHITE

150 North Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

September 26, 1980

Pandick Press Midwest Inc., Chicago * 454-7600

Question Presented

Whether the Illinois statute prohibiting a husband or wife

from suing the other for tort to the person committed during

coverture violates the Equal Protection Clause of § 1 of the

Fourteenth Amendment to the Constitution of the United

States.

il

TABLE OF CONTENTS

Page

NPI INES IED oo. 5s ccscscvcncessorescssscvcnsescossscoonsseress i

Nee a does lssscakspackcsusvssdeseobesbnovesvossscersdesoes 2

CONSTITUTIONAL AND STATUTORY PROVI-

I i dciliccce sopmvovcisessunsveusacssoeseusssucheressavee 2

ey es Oe: 3

eB | Sp 3

Neen ei assis cailikisuvavesssbnoniesvsacasvsosbeesooe 6

This Appeal Should Be Dismissed Or Summarily

Affirmed Because It Fails To Present A Substantial

Federal Question.

A. The Illinois Statute Preventing One Spouse

From Suing The Other Spouse In Tort Reflects

The Clear Intent Of The Illinois Legislature fo

Follow The Common Law Rule. ................c:000008 6

B. The Constitutionality Of The Illinois Statute

Barring Interspousal Suits For Torts Has Con-

| a 10

C. The Constitutionality Of The _ Interspousal

Immunity Doctrine Has Been Upheld In All

Other Jurisdictions Where It Has Been Chal-

ia oe leciniiiasunbovaanesitkeveoes 13

D. The Illinois Statute Barring Interspousal Suits

For Torts Does Not Impermissibly Interfere

With The Fundamental Right Of Marriage. ........ 15

E. The Illinois Statute Barring Interspousal Suits

For Personal Torts Bears A Rational Relation-

ship To Legitimate State Interests. ....................... 19

cs ccs i ienadevesivccrsvesshabinseneannn» 21

lll

TABLE OF AUTHORITIES

Page

Alfree v. Alfree, 410 A.2d 161 (Del.Sup.

Ct. 1979), appeal dismissed, US.

cccsleamy TMU AB A. 2 Re © TING D ntensccacencses. 4-5, 10,

14-15,

19

Apitz v. Dames, 205 Or. 242, 287 P.2d

BS 1 FOS D fvcosesacscrasscnnevscrredeinamiiiarnvnees 10

Asplin v. Amica Mut. Ins. Co., 394 A.2d

BOSS CHL, BITE D sasvsvecsiosscconicessessnesssnncans 10

Austin v. Austin, 136 Miss. 61, 100 So.

SE 6 BI) acvsesessnnncinsnnsonsensnnecensabivnenrson 9

Boddie v. Connecticut, 401 U.S. 371

CITED vrcsceshssseiscccsinisencvnncnesivnancennsvassoninn 18

Bounds v. Caudle, 560 S.W.2d 925 (Tex.

DIFF D hnsectssasnncivssanssacposnieipoaconeeciiasnaonbioes 10

Brandt v. Keller, 413 Ill. 503, 109 N.E.2d

FE IID ncn seteesosnetcovercsenvensentintetesnansere 8

Brawner v. Brawner, 327 S.W.2d 808

(Mo.Sup.Ct. 1959) ....:......0cccscerseserseennes 5

Burns v. Burns, 111 Ariz. 178, 526 P.2d

FUT LI iicinidatincismnion Y

Califano v. Jobst, 434 U.S. 47 (1977) ...... 5, 16,17

Conley v. Conley, 92 Mont. 425, 15 P.2d

RD CRIED vsvecasisoncinancincnesctvarisvesversecenireses 9

Digby v. Digby, 388 A.2d 1 (R.I. 1978)... 10

DiGirolamo v. Apanavage, 454 Pa. 557,

OD Pe ik Fee CFI EP iissacctsisesernsnevscccsens 9

Edwards vy. Royal Indem. Co., 182 La.

CFE, 2OE Bo. TSE CTR FS ) vvcvvsscesccadecssessses 9

Ennis v. Truhite, 306 S.W.2d 549 (Mo.

EF aca siisciic oan sniconicanerecicetastenviniocsntapenaniss 10

Ensminger v. CIR, 610 F.2d 189, 192-94

( Ath Cir. .1979)......ccscconcorccscsccrcnsereseerenenee 18

Ferguson v. Davis, 48 Del. 299, 102 A.2d

FOF €CAGBE) cvnneesncescestsrinisinnanchavovercnacmnces 9

—=

iv

Heckendorn v. First National Bank of

Ottawa, 19 Ill. 2d 190, 166 N.E.2d 571,

cert. denied, 364 U.S. 882 (1960)..........

Hewitt v. Hewitt, 77 Ill. 2d 49, 394

N.E.2d 1204 ( 2979) .............. ngancinathabiaae

Korman v. Carpenter, 216 Va. 86, 216

DE.28 195 ( S978 ccccectiaeeeeeee

Lecklair v. Locklair, 256 F.Supp. 530

CDR. TOR. cciecsdaceeeeee

Loving v. Virginia, 388 U.S. 1 (1967) ......

Lusby v. Lusby, 283 Md. 334, 390 A.2d 77

C PPAR) ncccnccseeseiecee

Mapes v. United States, 576 F.2d 896

(Ct. Cl. 1978), cert. denied, 439 US.

DOS CPP TED iccnciniccctcccemaeea

Martinez v. Lankster, 595 S.W.2d 316

CEO. TD hvcscisiecectentann scenes

McKelvey v. McKelvey, 111 Tenn. 388, 77

me. GES CUES ocnsseeecis eens

McKinney v. McKinney, 59 Wyo. 204,

55D Fa OC I iciccsctcucaccabek

Paiewonsky v. Paiewonsky, 466 F.2d 178

(3d Cir. 1971), cert. denied, 405 US.

919 (1972)... Swati stiipeidddhaaiadeccaeuabiaamiad

Raisen v. Raisen, 379 So.2d 352

(Pema: SOY a vinchscesteteo ee

Richard v. Richard, 131 Vt. 98, 300 A.2d

GES CEES D cineca

Rubalcava v. Gisseman, 14 Utah 2d 344,

SOOT Oe FOP CO Pcie

Rupert v. Stienne, 90 Nev. 397, 528 P.2d

PED CBD: doncccatveniainessaneaua meas

Sink v. Sink, 172 Kan. 217, 239 P.2d 933

FI) spiicidicniigaieneoe ete ceane

Smith v. Smith, 240 Pa. Super. 97, 361

ADE Fae CPR iccvnncabtcedasiel

Southwestern Community Action Council,

inc. vy. Community Services Ad., 462

F.Supp. 289 (S.D.W.Va 1978) .0000000.....

5,

Page

18

v

Page

Steffa v. Stanley, 39 Ill. App. 3d 915, 350

N.E.2d 886 (1976). .....cccccccssscsrsesssssereees 3, 4, 9, 12,

19

Surratt v. Thompson, 212 Va. 191, 183

SEA FOO CEST LD .. ciccsassissovessvevccrssenersess 10

Thompson v. Thompson, 218 U.S. 611

OTN a ssvcaseesesseesenresnseattaveasscossarsarevcsenases 4, 6-7, 9,

19

Tyrken v. Tyrken, 63 Ill. App. 3d 199, 379

WEE Fe OE 19 TO De vacteesecsastetierertsrcesse 3, 4, S,

12-13

Varholla v. Varholla, 56 Ohio St. 2d 269,

383 N.E.2d 888 (1978). .....cccccseesesseeeees 10, 19

Vogel v. Robison, 80 Ill. App. 3d 312, 399

WY EB.26 GES C USB ) x sscsccossescsasssaessteessores 2, 3, 4, 9,

12

Wartell v. Formusa, 34 Ill. 2d 57, 213

PEF. 7b S661 1906). eisccconcmanaieness 3, 4,9, 12

Webster v. Snyder, 103 Fla. 1131, 138 So.

TES 0 UDI Do cersveavctassnczncavenensssetneatssenrsanes 9

Wright v. Wright, 85 Ga. App. 721, 70

S.E.26 152 € 1952) cscesssictascessvercees weeentis 9

Zablocki v. Redhail, 434 US. 374

COTS D arcrvecnrsensessyextansancsyssceatanacseosvasiecest 5, 16-17,

18

Constitutional Provision

U.S. Constitution, Amend. 14, § 1............. passim

Statute

Ill. Rev. Stat. ch. 40, § 1001 (1979).......... passim

Miscellaneous

Annot. Jnterspousal Tort Immunity, 92

A.L.R. 3rd 9O1 (1979). sccscessscssssesecccceess 12,19

McCurdy, Personal Injury Torts Between

Spouses, 4 Vill. L.Rev. 303, 308-13

CU DID Y . socscsssveaveosvessssecnessesensessaninnenassisnsis 6

No. 80-377

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

AGNES VOGEL,

Appellant

On Appeal From

Vv. The Supreme Court

i of the State

JAMES L. ROBISON and of Illinois

BERNARD J. VOGEL,

Appellees. |

MOTION OF APPELLEE BERNARD J.

VOGEL TO DISMISS OR AFFIRM

MOTION OF APPELLEE BERNARD J.

VOGEL TO DISMISS OR AFFIRM

Appellee Bernard J. Vogel moves this Court, pursuant to

Supreme Court Rule 16, to dismiss the appeal herein or, in the

alternative, to affirm the Order of the Supreme Court of Illinois

entered on May 29, 1980, which denied Appellant leave to

appeal from the Order of the Appellate Court of Illinois, Third

District, on January 15, 1980, on the ground that the appeal

does not present a substantial federal question.

2

OPINION BELOW

The opinion of the Appellate Court of Illinois, Third

District, in Cause No. 79-318, which affirmed the Order of the

Circuit Court of LaSalle County dismissing the complaint of

Agnes Vogel as to her husband Bernard J. Vogel is reported at

80 Ill.App.3d 312, 399 N.E.2d 688 (1980), and is set forth in

the Appellant’s Appendix at page A-3.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Equal Protection Clause of § | of the

Fourteenth Amendment to the Constitution of the United

States:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal protection

of the laws.” (emphasis added).

This case also involves the common law doctrine of

interspousal tort immunity as adopted by the Illinois legislature

and embodied in Ill. Rev. Stat. 1977, ch. 40 par. 1001:

‘“‘A married woman may, in all cases, sue and be sued

without joining her hushand with her, to the same extent as

if she were unmarried; provided, that neither husband nor

wife may sue the other for a tort to the person committed

during ceveriure. An attachment or judgment in such

action may be enforced by or against her as if she were a

single woman.” (emphasis added ).

3

STATEMENT OF THE CASE

On December 2, 1976, Appellant and Appellee were

husband and wife. On that date, Appellant Agnes Vogel was a

passenger in an automobile operated by her husband, Bernard

J. Vogel, when that automobile collided with an automobile

driven by Defendant James J. Robison. On November 22,

1978, Appellant filed a complaint against her hus>xand and

Defendant Robison for damages allegedly incurred as a resi:it

of the automobile collision.

Appellee Bernard J. Vogel moved to dismiss all counts

against him contending that the actions were barred by the

Illinois statute which embodies the common law doctrine of

interspousal immunity and prohibits a husband or wife from

suing the other for tort to the person committed during

coverture. Ill. Rev. Stat. 1977, ch. 4 par. 1001. The motion was

granted and the order of the Circuit Court of LaSalle County,

Illinois, dismissing the complaint of Agnes Vogel as to Bernard

J. Vogel with prejudice was entered February 15, 1979.

On appeal to the Third District of the Appellate Court of

Illinois, Agnes Vogel admitted that Ill. Rev. Stat. 1977, ch. 40

par. 1001 would, if applied to the facts of the case, bar her

action because she alleged a tort committed during coverture.

399 N.E.2d at 689. She asked the Court to find the statute

unconstitutional under the equal protection clauses of the

United States and Illinois constitutions.

The Appellate Court affirmed the Circuit Court on January

15, 1980, finding that the statute had withstood all prior

constitutional challenges. The statute had been upheld twice on

due process grounds (Heckendorn v. First National Bank of

Ottawa, 19 Ill.2d 190, 166 N.E.2d 571 cert. den. 364 U.S. 882

(1960); Wartell v. Formusa, 34 Ill.2d 57, 213 N.E.2d 544

(1966)) and twice on equal protection grounds ( Steffa v.

Stanley, 39 Ill.App.3d 915, 350 N.E.2d 886 (1976); Tyrken v.

Tyrken, 63 Ill.App.3d 199, 379 N.E.2d 804 (1978)). In both of

4

the equal protection cases, the Illinois Supreme Court denied

petitions for leave to appeal.

On May 29, 1980 the Illinois Supreme Court also denied

Agnes Vogel’s petition for leave to appeal in this case, and this

appeal followed.

Agnes Vogel’s action against Defendant Robison is cur-

rently pending in the Circuit Court of LaSalle County, Illinois.

SUMMARY OF ARGUMENT

At common law one spouse could not maintain a legal

action against the other to recover for a tort against the person

committed during coverture. Thompson v. Thompson, 218 US.

611 (1910). In response to a movement by the states to change

the common law rule through married women’s statutes, this

Court held that such statutes would not abrogate common law

interspousal tort immunity in the absence of a clear and plain

statement of legislative intent. Jd.

Rather than abandon the common law doctrine, the

Illinois legislature chose to explicitly confirm interspousal tort

immunity as the law of Illinois. Ill. Rev. Stat., ch. 40, par. 1001.

In addition to Illinois, at least twenty-four other jurisdictions

follow the common law rule.

The Illinois statute has consistently withstood con-

stitutional challenges on both due process and equal protection

grounds. Heckendorn v. First National Bank of Ottawa, 19

Ill.2d 190, 166 N.E.2d 571, cert. den. 364 U.S. 882 (1960);

Wartell v. Formusa, 34 Ill.2d 57, 213 N.E.2d 544 (1966);

Steffa v. Stanley, 39 Ill.App.3d 915, 350 N.E.2d 886 (1976);

Tyrken v. Tyrken, 63 Ill.App.3d 199, 379 N.E.2d 804 (1978);

Vogel v. Robison, 80 Ill.App.3d 312, 399 N.E.2d 688 (1980).

Interspousal tort immunity has also withstood federal

equal protection challenges in every other federal and state

court that has considered the issue. Alfree v. Alfree, Del.Supr.,

5

410 A.2d 161 (1979), appeal dismissed, U.S. ___, 100

S.Ct. 2145 (1980); Paiewonsky v. Paiewonsky, 466 F.2d 178

(3d. Cir. 1971), cert. denied, 405 U.S. 919 (1972); Locklair v.

Locklair, 256 F.Supp. 530 (D.S.C. 1966); Brawner v. Brawner,

Mo.Supr. 327 S.W.2d 808 (1959); Smith v. Smith, 240 Pa

Super.

The recent appeal to this Court in Alfree v. Alfree raised

the same issues presented by this appeal, and was dismissed for

want of a substantial federal question.

Contrary to Appellant’s contention, the interspousal immu-

nity doctrine embodied in Ill. Rev. Stat., ch. 40, par. 1001 does

not interfere with the right of marriage. Califano v. Jobst, 434

U.S. 47 (1977); Zablocki v. Redhail, 434 U.S. 374 (1978);

Mapes v. United States, 576 F.2d 896 (Ct. Cl. 1978), cert. den.,

439 U.S. 1046 (1978). Consequently, the Illinois statute is not

to be subjected to rigorous scrutiny.

When viewed by other than the strict scrutiny standard, it

is clear that the State of Illinois’ interest in promoting domestic

tranquility is sufficiently compelling to support the classification

in question. Recently, this state interest was resoundingly

reaffirmed by the Illinois Supreme Court in Hewitt v. Hewitt, 77

Ill.2d 49, 394 N.E.2d 1204 (1979).

Accordingly, this appeal, like the appeal to this Court in

Alfree v. Alfree, should be dismissed or summarily affirmed

because it fails to present a substantial federal question.

6

ARGUMENT

A.

The Illinois Statute Preventing One Spouse From Suing

The Other Spouse In Tort Reflects The Clear Intent Of The

Illinois Legislature To Follow The Common Law Rule.

At common law one spouse could not maintain a legal

action against the other to recover for a tort against the person

committed during coverture. In Thompson v. Thompson, 218

U.S. 611 (1910), where this Court upheld the dismissal of a

wife’s tort action against her husband on the basis of the

interspousal immunity doctrine then extant in the District of

Columbia, the common law rule was recognized as follows:

“At the common law the husband and wife were

regarded as one,—the legal existence of the wife during

coverture being merged in that of the husband; and

generally speaking, the wife was incapable of making

contracts, of acquiring property or disposing of the same

without her husband’s consent. They could not enter into

contracts with each other, nor were they liable for torts

committed by one against the other.” 218 U.S. at ___..

Beginning in the mid-nineteenth century, a trend began to

change the common law by means of state married women’s

statutes. These statutes were intended to secure a separate legal

estate for women based on the equitable separate estate

doctrine, and their chief effect was to create substantive rights in

the wife to protect her property. McCurdy, Personal Injury

Torts Between Spouses, 4 Vill. L.Rev. 303, 308-313 (1959).

Ultimately, married women’s statutes were passed in every

jurisdiction.

This Court has made it clear, however, that such statutes

would not abrogate common law interspousal tort immunity in

the absence of a clear and plain statement of legislative intent.

In Thompson v. Thompson, supra, this Court had before it the

Married Women’s Act of the District of Columbia. The Court

held that the language of the Act did not change the common

7

law rule; and therefore a wife could not maintain a personal

tort action against her husband:

It must be presumed that the legislators who enacted

this statute were familiar with the long-established policy

of the common law, and were not unmindful of the radical

changes in the policy of centuries which such legislation as

is here suggested would bring about. Conceding it to be

within the power of the legislature to make this alteration

of the law, if it saw fit to do so, nevertheless such radical

and far-reaching changes should only be wrought by

language so clear and plain as to be unmistakable evidence

of the legislative intention. Had it been the legislative

purpose not only to permit the wife to bring suits free from

her husbana’s participation and control, but to bring actions

against him also for injuries to person or property as though

they were strangers, thus emphasizing and publishing differ-

ences which otherwise might not be serious, it would have

been easy to have expressed that intent in terms of irresist-

ible clearness. 218 U.S. at 618 (emphasis added ).

Rather than abolish common law interspousal tort immu-

nity, the Illinois legislature clearly and unequivocally confirmed

the common law rule as the law of Illinois by expressly

prohibiting personal tort actions by one spouse against another.

The key developments in the Illinois Married Women’s Act

in the 1860’s and 1870’s are aptly summarized as follows:

The Married Women’s Acts of the 1860* altered the

common law by conferring upon the married woman the

right to bring suit. The Act of 1861 (Laws 1861, p. 143,

§ 1), by implication enabled the married woman to bring

actions, against third persons as well as her husband, to

assert her separate property rights. Emerson v. Clayton, 32

Ill. 493 (1863). The Act of 1869 explicitly allowed for

support and maintenance actions to be brought by a

married woman living apart from her husband without

fault. Laws 1869, p. 439, §6. The Act of 1869 also

provided that a married woman could sue for her earnings.

Laws 1869, p. 440, § 13.

8

The Husband and Wife Act of 1874 for the first time

established the general right of the married woman to sue

and be sued. Ill. Rev. Stat. ch. 68, § 1 (1874). The

provision enabling the enforcement of an attachment or

judgment, by or against the married woman, gave sub-

stance to the right to sue and be sued. The current statute

retains this same provision. S.H.A. 1980, ch. 40, par. 1001,

Hist. and Prac. Note at p. 180.

The 1874 Act did not explicitly deal with the issue of

interspousal immunity. The viability of the doctrine under the

1874 Act was first before the Illinois Supreme Court in Brandt

v. Keller, 413 Ill. 503, 109 N.E.2d 729 (1953). The Court

recognized the common law rule that a wife cannot sue her

husband:

“*At common law a married woman had no separate

identity before the law; she was regarded as a chattel with

neither property or other rights against anyone, for her

husband owned all her property and asserted all her legal

and equitable rights (Snell v. Snell, 123 Ill. 403, 407 et

seq.; Hoder v. Boggs, 63 Ill. 161.) As a consequence of this

status, which was founded upon the prevailing feudal

economy, the rule evolved that the husband was immune

to all suits by his wife, including actions for personal

injuries he might inflict upon her.” 413 Ill. at 505, 109

N.E.2d at 730.

The Court went on to hold that the 1874 Act abrogated the

common law rule, interpreting a married woman’s right to “in

all cases sue and be sued” (Ill. Rev. Stat. 1951, ch. 68, par. 1)

as an authorization for her to bring a tort action against her

husband.

Mindful of the effect of the decision in Brandt v. Keller, the

Illinois legislature at its next session amended the Married

Women’s Act by adding the proviso which expressly restored

interspousal immunity as the rule of law in Illinois:

A married woman may, in all cases, sue and be sued

without joining her husband with her, to the same extent as

if she were unmarried; provided, that neither husband nor

9

wife may sue the other for a tort to the person committed

during coverture. An attachment or judgment in such

action may be enforced by or against her as if she were a

single woman. Ill. Rev. Stat. 1953, ch. 68, par. 1!

(emphasis added ).

Since the 1953 amendment, Illinois courts have uniformly

followed the legislature’s mandate and have barred tort actions

between spouses. Heckendorn v. First National Bank of

Ottawa, 19 Ill.2d 190, 166 N.E.2d 571, cert. den. 364 U.S. 882

(1960); Wartell v. Formusa, 34 Jll.2d 57, 213 N.E.2d 5644

(1966); Steffa v. Stanley, 39 Ill.App.3d 915, 350 N.E.2d 886

(1976); Tyrken v. Tyrken, 63 Ill.App.3d 199, 379 N.E.2d 804

(1978); Vogel v. Robison, 80 Ill.App.3d 312, 399 N.E.2d 688

(1980).

In addition to Illinois, at least 24 other jurisdictions follow

the common law rule of interspousal immunity and preclude

tort actions, in whole? or in part,? between spouses. Further-

1 This statute has not been further amended since 1953. Re-

cently, however, the entire Husband and Wife Act was transferred

and recodified from Ill. Rev. Stat., ch. 68, par | ef seg. to Ill. Rev. Stat.

ch. 40, par. 1001 ef seg., and paragraph | was renumbered Ill. Rev.

Stat., ch. 40, par. 1001.

2 Thompson vy. Thompson, 218 U.S. 611 (1910) (District of

Columbia); Burns v. Burns, 111 Ariz. 178, 526 P.2d 717 (1974);

Ferguson v. Davis, 48 Del. 299, 102 A.2d 707 (1954); Webster v.

Snyder, 103 Fla. 1131, 138 So. 755 (1932); Wright v. Wright, 85

Ga.App. 721, 70 S.E.2d 152 (1952); Sink v. Sink, 172 Kan. 217, 239

P.2d 933 (1952); Edwards v. Royal Indem. Co., 182 La. 171, 161 So.

191 (1935); Austin v. Austin, 136 Miss. 61, 100 So. 592 (1924);

Conley v. Conley, 92 Mont. 425, 15 P.2d 922 (1932); DiGirolamo v.

Apanavage, 454 Pa. 557, 312 A.2d 382 (1973); McKelvey v.

McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903); Rubalcava v. Gisse-

man, 14 Utah2d 344, 384 P.2d 389 (1963); Paiewonsky v. Paie-

wonsky, 466 F.2d 178 (3d Cir. 1978) ( Virgin Islands), cert. den., 405

U.S. 919 (1972); McKinney v. McKinney, 59 Wyo. 204, 135 P.2d 940

(1943); Haw. Rev. Stat. § 573-5 (1976).

3Some courts have abrogated interspousal tort immunity as

applied to intentional torts only. See Lusby v. Lusby, 283 Md. 334,

(Footnote continued on following page.)

10

more, the highest courts of several of these states have recently

reaffirmed the continued vitality of the doctrine. See, e.g.

Alfree v. Alfree, Del. Supr. 410 A.2d 161 (1979), appeal

dismissed, __. U.S. —_—._ 100 S.Ct. 2145 (1980); Varholla v.

Varholla, 56 Ohio St.2d 269, 383 N.E.2d 888 (1978); Raisen v.

Raisen, So.2d 352 (Fla.Sup.Ct. 1980).

The Constitutionality Of The Illinois Statute Barring

Interspousal Suits For Torts Has Consistently Been Upheld.

The constitutionality of the Illinois legislature’s policy of

interspousal immunity—as embodied in Ill. Rev. Stat., ch. 40,

par. 1001—has been challenged several times; and on each

such occasion the constitutionality of the statute has been

upheld.

In the leading case of Heckendorn v. First National Bank

of Ottawa, 19 Ill.2d 190, 166 N.E.2d 571, cert. den. 364 US.

(Footnote continued from preceding page.)

390 A.2d 77 (1978); Ennis v. Truhite, 306 S.W.2d 549 (Mo. 1957);

Apitz v. Dames, 205 Or. 242, 287 P.2d 585 (1955); Bounds v. Caudle,

560 S.W.2d 925 (Tex. 1977).

In some states the doctrine has been abolished only with regard

to torts arising from automobile accidents. See Rupert v. Stienne, 90

Nev. 397, 528 P.2d 1013 (1974); Richard v. Richard, 131 Vt. 98, 300

A.2d 637 (1973).

In Rhode Island interspousal tort immunity has been abrogated

as applied to intentional torts, Digby v. Digby, 388 A.2d 1 (R.I. 1978),

and as applied to actions brought after one or both spouses are dead,

Asplin vy. Amica Mut. Ins. Co., 394 A.2d 1353 (R.I. 1978).

In Virginia the immunity has been abandoned for tort actions

arising from automobile accidents, Surratt v. Thompson, 212 Va. 191,

183 S.E.2d 209 (1971), and for wrongful death actions in which the

tortious act resulted in the termination of the marriage by death,

Korman v. Carpenter, 216 Va. 86, 216 S.E.2d 195 (1975).

1]

882 (1960), the Illinois Supreme Court upheld the con-

stitutionality of the statute finding that it was not arbitrary and

had the following rational basis:

“Nor do we believe that the statutory proviso of 1953

violates the due process clauses of either the State or

Federal constitutions, Const. art. 2, §2; U.S. Const.

Amend. 14. It is a legislative determination of public

policy and a command to return to the basic common-law

doctrine which immunized the husband from suits by his

wife for a tort to her person. In Brandt v. Keller, 413 Ill.

503, 109 N.E.2d, 729, we held that by the adoption of the

Married Women’s Act of 1874, the legislature intended to

abolish the common-law disability of a wife to sue her

husband in tort. We there acknowledged that such action

was in derogation of the common law and that the

legislature thereby created a new right and remedy un-

known to the common law.

As it was within the power of the legislature to

determine public policy and grant such right in 1874, it was

also within its authority in 1953 to change this policy

concept and to partially withdraw such right. This it did by

a proviso which applies equally to husband and wife and is

consonant with a widely held view of public policy as

enunciated in a majority of decisions in this country. See:

Annotation 43 A.L.R.2d 632.

It is not our place to criticize the policy determination

of the legislature. Nor need we surmise our decision had

this case come before us in the absence of legislation. We

are only concerned with the authority of the legislature to

abolish or limit, by a nonarbitrary statute, a right unknown

to common law, which it had previously created. In this

case, where no rights had vested, we are neither aware of a

constitutional ban, (cf. Hall v. Gillins, 13 Tll.2d 26, 147

N.E.2d 352; Clarke v. Storchak, 384 Ill. 564, 52 N.E.2d

229,) nor do we know of a court which has abolished the

doctrine of marital disability in the absence of an appli-

cable statute.

We therefore conclude that the 1953 proviso of section

1 is valid and bars this action. The judgment of the trial

~~

12

court is accordingly affirmed.’’4 19 Ill.2d at 194-195, 166

N.E.2d at 574 (emphasis added).

Although the Plaintiffs challenge in Heckendorn was on

due process grounds, the Court’s analysis applies equally well to

Appellant Vogel’s equal protection challenge.

The Illinois Supreme Court had another occasion to pass

on the constitutionality of the challenged proviso in Wartell v.

Formusa, 34 Ill.2d 57, 213 N.E.2d 544 (1966). Again, the

statute was upheld and determined to be “a valid exercise of

the legislature’s power to enact legislation in furtherance of

public policy and the general welfare of its citizens.” 213

N.E.2d at 546.

Subsequent to Heckendorn and Wartell, Illinois Appellate

Courts have upheld the constitutionality of paragraph 1001 on

equal protection grounds on three separate occasions. Steffa v.

Stanley, 39 Ill.App.3d 915, 350 N.E.2d 886 (1976); Tyrken v.

Tyrken, 63 Ill.App.3d 199, 379 N.E.2d 804 (1978); Vogel v.

Robison, 80 Ill.App.3d 312, 399 N.E.2d 688 (1980). The

Tyrken court, relying on the reasoning in Steffa held as fol! ws:

“Plaintiff next contends that the Act violates the equal

protection clauses of the Illinois Constitution and the

United States Constitution because it discriminates against

persons of the same class. A similar argument was raised

in Steffa v. Stanley (2d Dist. 1976), 39 Ill.App.3d 915, 350

N.E.2d 886, where the court stated:

“Although the legislature may, in certain in-

stances, classify persons for the purposes of legislative

4The public policies discussed in Annotation 43 A.L.R.2d 632

and relied on by the Court in Heckendorn include the following: | )

preservation of domestic tranquility, 2) prevention of a deluge of

spurious litigation, 3) protection of insurance companies from collu-

sive suits, 4) ample protection is otherwise afforded the spouse

through the criminal and divorce laws, and 5) danger such suits

would unjustly reward the husband, since if the spouses were still

living together the husband would share in the judgment. See also

Annotation, Interspousal Tort Immunity, 92 A.L.R.3rd 901 (1979).

13

regulation or control ( Youhas v. Ice, 56 Ill.2d 497,

500, 309 N.E.2d 6 (1974) ), the Act does not present

us with the question of whether the classification of

married women is constitutionally permissible. Its

purpose was not to control or otherwise abridge the

rights of married women but, rather, to allow rights

denied under the common law and elevate married

women to a legal parity with married men.” ( Steffa,

at 918, 350 N.E.2d at 889.)

The bar against tort actions between spouses during cov-

erture applies equally to husband and wife and cannot

therefore be said to violate plaintiff's right to equal protec-

tion.” 379 N.E.2d at 935.6.°

The Illinois Appellate Court in this case followed the

decisions in Steffa and Tyrken. It is of particular significance

that the Illinois Supreme Court denied petitions for leave to

appeal from the appellate decisions in each of Steffa, Tyrken

and Vogel.

Cc,

The Constitutionality Of The Interspousal Immunity

Doctrine Has Been Upheld In All Other Jurisdictions Where

It Has Been Challenged.

Every federal and state court which has had occasion to

consider a constitutional challenge to the interspousal immunity

doctrine has found that the doctrine is not constitutionally

infirm. In Locklair v. Locklair, 256 F.Supp. 530 (D.S.C. 1966),

the plaintiff, a South Carolina resident, sought to sue her

husband as a result. of injuries sustained in an automobile

accident which occurred in Georgia. Georgia had retained the

common law doctrine of interspousal tort immunity. The Court

held that Georgia law applied and that the immunity doctrine

was not constitutionally suspect, noting:

“..[{T]here is no discrimination nor denial of equal

protection of the laws insofar as plaintiff is concerned,

14

inasmuch as the Georgia law applies equally to husbands

as well as to wives.” 256 F.Supp. at 533.

In Paiewonsky v. Paiewonsky, 466 F.2d 178 (3d Cir. 1971);

cert. den. 405 U.S. 919 (1972), the Third Circuit Court of

Appeals upheld the interspousal tort immunity doctrine of the

Virgin Islands against a constitutional challenge. The plaintiff

in Paiewonsky, like Appellant Vogel argued that the doctrine

constituted a classification violative of the Equal Protection

Clause of the Fourteenth Amendment. In rejecting that

contention, the Court stated:

“Since we have not been convinced that the immunity

doctrine lacks substantial vitality, we think it follows that it

has a reasonable relationship to the interest sought to be

furthered by it. In sum, we believe that the legislative

interest in promoting domestic tranquility is sufficiently

compelling upon the facts of this case to support the

classification in question.” 466 F.2d at 182.

Alfree v. Alfree, Del.Supr., 410 A.2d 161 (1979), appeal

dismissed, __. U.S. —___, 100 S.Ct. 2145 (1980), involved

issues identical to those presented by this case. The plaintiff

wife brought suit against her husband for personal injuries

arising out of an automobile accident. The trial court granted

the husband’s motion for summary judgment on the ground of

the interspousal immunity doctrine. The plaintiff appealed and

a three-justice panel of the Delaware Supreme Court affirmed.

The Court granted plaintiff's motion for rehearing en Banc and

sua sponte directed the parties to brief the question of whether

the interspousal immunity doctrine violated plaintiffs due

process or equal protection rights under the Fourteenth Amend-

ment.

In a unanimous decision upholding the constitutionality of

the common law doctrine, the Court analyzed the equal protec-

tion issue as follows:

“Finally, as to the Federal due process and equal

protection clauses, little law directly applicable has been

15

brought to our attention. The strongest precedent is

Paiewonsky v. Paiewonsky, 3rd Cir., 446 F.2d 178, 181-182

(1971), cert. den., 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d

788 (1972). In that case, our former Chancellor, now

Chief Judge Seitz of the Federal Circuit which includes

Delaware, writing for the three judge panel, found no

violation of equal protection in the alleged discrimination

resulting from the doctrine of interspousal immunity. The

Court said it “[had] not been convinced that the immunity

doctrine lacks substantial vitality” and “it follows that it

has a reasonable relationship to the [ promotion of domes-

tic tranquility] interest sought to be furthered by it.” See

also Brawner v. Brawner, Mo. Supr., 327 S.W.2d 808, 815

(1959). Other courts in rejecting equal protection claims

have noted the doctrine applies to husbands as well as

wives. See Locklair v. Locklair, D.S.C., 256 F.Supp. 530

(1960); Smith v. Smith, 240 Pa. Super. 97, 361 A.2d 756,

757 (1976).... Thus, based on current precedent, there

appears to be no Federal constitutional limitation on the

interspousal immunity doctrine. We so hold.” 410 A.2d at

163.

The plaintiff then appealed to this Court on the federal

equal protection and due process issues. As in this case, the

plaintiff contended that the interspousal immunity doctrine was

an impermissible burden on the right to marry. Plaintiff

Alfree’s appeal was dismissed on May 12, 1980 for want of a

substantial federal question. U.S. —_—, 100 S.Ct. 2145

(1980). This appeal should be similarly dismissed.

D.

The Illinois Statute Barring Interspousal Suits For Torts

Does Not Impermissibly Interfere With The Fundamental

Right Of Marriage.

Appellant Vogel contends that the interspousal immunity

doctrine embodied in Ill. Rev. Stat., ch. 40 par. 1001 impermis-

sibly interferes with the fundamental right of marriage. Appel-

16

lant’s support for this proposition is a rambling narrative that is

virtually devoid of legal analysis.

This Court has recently considered the degree and content

of permissible restrictions on the right to marry in Califano v.

Jobst, 434 U.S. 47 (1977) and Zablocki v. Redhail, 434 US.

374 (1978). In Jobst this Court upheid certain sections of the

Social Security Act which provided for the termination of a

dependent child’s benefits upon his marriage to an individual

not entitled to benefits under the Act. Justice Stevens, applying

a rational basis test, found that those provisions did not impose

an undue burden upon the decision to marry:

“Since it was rational for Congress to assume that marital

status is a relevant test of probable dependency, the

general rule which obtained before 1958, terminating all

child’s benefits when the beneficiary married, satisfied the

constitutional test normally applied in cases like this.

[Citations omitted]. That general rule is not rendered

invalid simply because some persons who might otherwise

have married were deterred by the rule or because some

who did marry were burdened thereby. For the marriage

rule cannot be criticized as merely an unthinking response to

stereotyped generalizations about a traditionally dis-

advantaged group, or as an attempt to interfere with the

individual’s freedom to make a decision as important as

marriage.

The general rule, terminating upon marriage the

benefits payable to a secondary beneficiary, is unquestion-

ably valid.” 434 U.S. at 53-54 (footnotes omitted) (em-

phasis added ).

Zablocki was decided just two months after Jobst. In

Zablocki this Court struck down a Wisconsin statute which

provided that any resident having minor issue in his custody

when he was under an obligation to support could not marry

without court approval. Applying a strict scrutiny standard,

Justice Marshall found the statute invalid because of the “direct

and substantial” burden which it imposed upon the decision.

17

However, he recognized that strict scrutiny was not appropriate

for all official decisions which might have some incidental effect

upon the marriage relationship:

“By reaffirming the fundamental character of the right to

marry, we do not mean to suggest that every state regu-

lation which relates in any way to the incidents of or

prerequisites for marriage must be subjected to rigorous

scrutiny. To the contrary, reasonable regulations that do

not significantly interfere with the decisions to enter into

the marital relationship may legitimately be imposed. See

Califano v. Jobst [citations omitted]. The statutory

classification at issue here, however, clearly does interfere

directly and substantially with the right to marry.” 434

U.S. at 386-7.

The Zablocki Court specifically distinguished Califano v.

Jobst:

“The directness and substantiality of the interference with

the freedom to marry distinguish the instant case from

Califano v. Jobst .... As the opinion for the Court [in

Jobst| expressly noted, the rule terminating benefits upon

marriage was not “an attempt to interfere with the individ-

ual’s freedom to make a decision as important as mar-

riage.” ... The Social Security provisions placed no direct

legal obstacle in the path of persons desiring to get

married, and ... there was no evidence that the laws

significantly discouraged, let alone made “practically

impossible,” any marriages. Indeed, the provisions had

not deterred the individual who challenged the statute

from getting married, even though he and his wife were

both disabled.” 434 U.S. at 387 n.12.§

The central teaching of Zablocki and Jobst is that strict

scrutiny will be applied to a marriage-related law only when

that law directly and significantly interferes with the decision to

marry or the right of marriage; and for such an interference to

be direct and significant, as in Zablocki, it must effectively bar

5 Similarly, the interspousal immunity doctrine did not deter

Appellant Vogel from getting married.

18

marriage. In Mapes v. United States, 576 F.2d 896 (Ct. Cl.

1978), cert. den., 439 U.S. 1046 (1978), a married couple

challenged certain provisions of the Internal Revenue Code on

the ground, inter alia, that married couples could not take

advantage of the lower combined tax rates applicable ito

unmarried taxpayers. The Court of Claims, using a rational

basis test, concluded that the challenged sections of the Internal

Revenue Code did not impose an impermissible burden upon

the right to marry under the Fifth Amendment:

“Admittedly, the right to marry is a fundamental right.

Nevertheless, we read the Jobst and Zablocki cases togeth-

er to imply that the application of strict scrutiny is appro-

priate where the obstacle to marriage ‘s a direct one, i.e.,

one that operates to preclude mair.age entirely for a

certain class of people, as in Zablocki. The effect of the

rates of Code Section | is somewhat analogous to the effect

of the termination of social security benefits in Jobst: the

eiewated tax burden might in fact dissuade some couples

from entering into matrimony, but does not present an

insuperable barrier to marriage.” 576 F.2d at 901.

See also: Ensminger v. CIR, 610 F.2d 189, 192-94 (4th Cir.

1979); Southwestern Community Action Council, Inc. v. Com-

munity Services Administration, 462 F.Supp. 289 (S.D.W.Va

1978).

The interspousal tort immunity doctrine in no way inter-

feres with the right to marry and is certainly not a preclusion of

that right for some persons, as were the challenged laws in the

cases cited by Appellant: Zablocki, Loving v. Virginia, 388 US.

1 (1967); and Boddie v. Connecticut, 401 U.S. 371 (1971).

Appellant has produced no support for his bald conclusion that

the immunity doctrine has impaired or interfered with anyone’s

right to marry. Indeed, it is extremely doubtful that the ability

to sue one’s spouse in tort enters the marriage decision making

process at all. Consequently, the strict scrutiny test is not to be

applied.

19

E.

The Illinois Statute Barring Interspousal Suits For Per-

sonal Torts Bears A Rational Relationship To Legitimate

State laterests.

When viewed by other than the strict scrutiny standard, it

cannot be said that the interspousal tort immunity doctrine

lacks any rational basis or that it does not bear a substantial

relation to legitimate state interests. As noted in Appellant’s

jurisdictional statement, some states have judicially abandoned

the interspousal tort immunity doctrine. Illinois and a large

number of other states, however, have found a rational basis for

the doctrine and have chosen to retain it and to leave any

changes to the will of the legislature. Steffa v. Stanley, 39

Ill. App.3d 915, 350 N.E.2d 886, 889 (1976); Alfree v. Alfree,

Del. Supr., 410 A.2d 161 (1979), appeal dismissed, US.

___., 100 S.Ct. 2145 (1980); Thompson v. Thompson, 218 U.S.

611 (1910); Varholla v. Varholla, 56 Ohio St.2d 269, 383

N.E.2d 888 (1978); Raisen: v. Raisen, 379 So.2d 352

(Fla.Sup.Ct. 1980); Martinez v. Lankster, 595 S.W.2d 316

(Mo. 1980); see generally, Annotation, Interspousal Tort

Immunity, 92 A.L.R. 3rd 901 (1979) and footnote 2 supra.

Appellant’s entire argument that a rational basis for the

statute no longer exists is premised on the Appellant’s personal

and speculative opinion concerning the current social and legal

status of married and unmarried persons:

“Aside from the right to share future acquisition of

property and earnings, married persons stand before this

court in exactly the same position as individuals who elect

to cohabit without the formality of marriage.”

(Jurisdictiona! Statement at p. 19).

* + +

“... [T]here is now a social parity between married

and unmarried couples.” (Jurisdictional Statement at p.

20).

20

In a recent unanimous opinion the Illinois Supreme Court

flatly rejected the propositions urged upon this Court by

Appellant, and reaffirmed the sanctity of the marital relation-

ship and the rights emanating therefrom. Hewitt v. Hewitt, 77

Ill.2d 49, 394 N.E.2d 1204 (1979). Describing marriage as

“the foundation of our family-based society” the Court ex-

pressly declined to grant legal status to the relationship of

unmarried cohabitants. Thus, contrary to the view of Appel-

lant, married persons do not “... stand before this court in

exactly the same position as individuals who elect to cohabit

without the formality of marriage” (Jurisdictional Statement, p.

19).

Illinois law attributes many protective features to the

marital relation which are not available to non-married per-

sons, including the duty of support, the right to inherit, survival

rights, rights to workmen’s compensation, property rights and

custody rights. Hewitt v. Hewitt, supra, 394 N.E.2d at 1207-08.

In this context of special rights and disabilities flowing from the

marital relation, it is rational for the State of Illinois to bar

interspousal tort action as being a potential source of marital

disharmony.

21

CONCLUSION

For all of the foregoing reasons, this appeal should be

dismissed or the decision below affirmed because the appeal

does not present a substantial federal question.

Respectfully submitted,

ANDREW J. O’CONOR

130 East Madison Street

Ottawa, Illinois 61350

(815) 434-6206

SANFORD R. GAIL

150 North Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

Of Counsel:

A. BRUCE WHITE

150 North Wacker Drive

Chicago, Illinois 60606

(312) 782-1905

September 26, 1980