Jeschke v. Ruhlow, 77-834

• Citation: 376 N.E.2d 15,17 Ill.Dec. 122,59 Ill.App.3d 125
• Decision Date: 04 April 1978
• Docket Number: No. 77-834,77-834
• Parties: , 17 Ill.Dec. 122 Kathy JESCHKE, Plaintiff-Appellant, v. Billy J. RUHLOW and Sarah Ruhlow, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 15

376 N.E.2d 15

59 Ill.App.3d 125, 17 Ill.Dec. 122

Kathy JESCHKE, Plaintiff-Appellant, v. Billy J. RUHLOW and Sarah Ruhlow, Defendants-Appellees.

No. 77-834.

Appellate Court of Illinois, First District, Second Division.

April 4, 1978.

Cooney & Stenn, Chicago, for plaintiff-appellant; Robert S. Minetz, Neil D. O'Connor, Chicago, of counsel.

Meyers & Matthias, Chicago, for defendants-appellees.

STAMOS, Presiding Justice:

Plaintiff, Kathy Jeschke, brought an action seeking to recover damages allegedly sustained as a result of a collision with an automobile owned and operated by defendants, Billy J. and Sarah Ruhlow, and allegedly occasioned by defendants' negligence. Defendants filed a motion to dismiss contending that the action was not timely filed. Plaintiff thereafter filed a motion for partial summary judgment seeking a finding that Ill.Rev.Stat.1969, ch. 83, par. 22 is unconstitutional as applied on the ground that such application would violate the equal protection of the law guarantees of the United States and Illinois Constitutions. The trial court denied plaintiff's motion and approved the following question for review pursuant to Ill.Rev.Stat.1973, ch. 110A, par. 308:

Whether a lawsuit filed on August 14, 1973 by a female born on May 19, 1953 concerning an injury occurring to her in an automobile accident on July 9, 1970 is barred by Ill.Rev.Stat.1969, ch. 83, par. 22 or whether this statute would be unconstitutional if applied to these facts to bar her cause of action.

At all times pertinent herein, the general assembly has provided for a general two year statute of limitations for injury to the person. (Ill.Rev.Stat.1973, ch. 83, par. 15.) At the time such injury was allegedly inflicted in the instant case, section 131 of the Probate Act provided:

Males of the age of 21 and females of the age of 18 shall be considered of legal age for all purposes, * * *, and until those ages are attained, they shall be considered minors. (Ill.Rev.Stat.1969, ch. 3, par. 131.)

During this time, section 22 of the Limitations Act provided:

If a person entitled to bring an action, * * *, is, at the time of the cause of action accrued, within the age of twenty-one years, or if a female, within the age of eighteen years, * * *, he or she may bring the action within two years after the disability is removed. (Ill.Rev.Stat.1969, ch. 83, par. 22.)

Effective August 24, 1971, section 131 of the Probate Act was amended to read as follows:

Persons of the age of 18 shall be considered of legal age for all purposes, * * *, and until this age is attained, they shall be considered minors.

Thereafter, and effective July 1, 1972, section 22 of the Limitations Act was amended to read as follows:

If the person entitled to bring an action, * * *, is, at the time the cause of action accrued, within the age of 18 years, * * *, he or she may bring the action within 2 years after the disability is removed.

The first of several issues raised by defendants suggests that plaintiff lacked standing to challenge the constitutionality of the former majority statute or its application in connection with the Limitations Act. It is well established that a court will not entertain a challenge to the constitutionality of a statute by a party who is not affected by the statute or aggrieved by its operation. (Edelen v. Hogsett (1969), 44 Ill.2d 215, 254 N.E.2d 435.) Defendant asserts that the statutory provisions in question discriminate, if at all, against males.

We find this argument to be without merit. A party has standing to challenge the validity of a statute if he has sustained or if he is in immediate danger of sustaining some direct injury as a result of enforcement of the statute. (Walker v. State Board of Elections (1976), 65 Ill.2d 543, 3 Ill.Dec. 703, 359 N.E.2d 113.) Application of the former majority statute to the facts of this case would effectively preclude plaintiff from asserting her claim for damages to her manifest prejudice. Therefore, although plaintiff is not a member of the class which was allegedly unfairly burdened by the majority statute (i. e. males between eighteen and twenty years of age), she has a sufficient personal interest in the matter to raise the constitutional question. See Harrigfeld v. District Court of the Seventh Judicial District (1973), 95 Idaho 540, 511 P.2d 822.

We agree with plaintiff that the former Illinois majority statute, which provided for different ages of majority for men and women, constituted a violation of the equal protection clause of the fourteenth amendment as well as Article I, section 2 of the Illinois Constitution of 1970.

In Frontiero v. Richardson (1973), 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, a plurality of the United States Supreme Court held that:

classifications based upon sex, like classifications based upon race, alienage or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. 93 S.Ct. at 1771.

In the landmark case of Reed v. Reed (1971), 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225, a "traditional" standard was applied so that in order to pass constitutional muster such a classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Id. 92 S.Ct. at 254.

In Illinois, classifications which were arguably based solely upon sex have been held to be suspect classifications under the present Illinois Constitution. (People v. Ellis (1974), ...