Rivard v. Chicago Fire Fighters Union, Local No. 2

• Decision Date: 23 March 1988
• Docket Number: Nos. 63713,A,AFL-CI,63787,s. 63713
• Citation: 522 N.E.2d 1195,122 Ill.2d 303,119 Ill.Dec. 336
• Parties: , 119 Ill.Dec. 336 April RIVARD et al., Appellees, v. CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2 et al., Appellants. Bonnell CARTER, Adm'r of the Estates of Martha Carter et al. v. CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2 et al. (International Association of Fire fighters,ppellant).
• Court: Illinois Supreme Court

Page 1195

522 N.E.2d 1195

122 Ill.2d 303, 119 Ill.Dec. 336

April RIVARD et al., Appellees, v. CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2 et al., Appellants.

Bonnell CARTER, Adm'r of the Estates of Martha Carter et al. v. CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2 et al.

(International Association of Fire fighters,

AFL-CIO, Appellant).

Nos. 63713, 63787.

Supreme Court of Illinois.

March 23, 1988.

Rehearing Denied May 31, 1988.

Gilbert Feldman, Cornfield and Feldman, Chicago, for petitioners.

Stephen B. Rubin and Michael S. Wolly, for petitioner, International Ass'n of Fire Fighters, AFL-CIO; Mulholland and Hickey, Washington, D.C., Asher, Pavalon, Gittler and Greenfield, Ltd., Chicago, of counsel.

Joel A. D'Alba, Stephen B. Rubin and Michael S. Wolly, for appellant, International Ass'n of Fire Fighters, AFL-CIO.

Roger H. Williams, Thomas Forgue, Katherine A. Williams, Chicago, for plaintiffs, April Rivard and Robert Oliver.

Justice CLARK delivered the opinion of the court:

This case poses the issue of whether a statute allowing voluntary, unincorporated associations to sue and to be sued in their own names should be retroactively applied to a suit against such an association where the cause of action arose before the statute's effective date. We answer this question in the negative.

The plaintiffs in the two actions consolidated below sought damages from the defendant, a fire fighters union, for death and injuries suffered in fires which occurred during a strike called by the union in 1980. The plaintiffs are: April Rivard; Robert Oliver, administrator of the estate of Latrice Louis Rivard, deceased; Bonnell Carter, administrator of the estates of Martha Carter, Caenezell Carter, Harvey Carter, and Henry Carter, deceased; and Harvey and Martha Teague, administrators of the estate of Harvey Teague II, deceased. The defendants are the Chicago Fire fighters Union, Local No. 2, and the International Association of Fire fighters, AFL-CIO, and certain of its officers in a representative capacity. The circuit court granted the defendant's motion to dismiss on the grounds that, under the common law, a voluntary unincorporated association could not be sued in its own name in an action at law. (See American Federation of Technical Engineers, Local 144 v. La Jeunesse (1976), 63 Ill.2d 263, 347 N.E.2d 712.) The plaintiffs appealed to the appellate court. While the appeal was pending, the General Assembly amended the Code of Civil Procedure to allow voluntary unincorporated associations to sue and be sued in their own names (Ill.Rev.Stat.1985, ch. 110, par. 2-209.1). The appellate court, holding that section 2-209.1 should be applied retroactively, then reversed. (145 Ill.App.3d 207, 98 Ill.Dec. 634, 494 N.E.2d 756.) This decision directly conflicted with a previous decision of the appellate court. (See Brucato v. Edgar (1984), 128 Ill.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615.) We granted the defendant's petition for leave to appeal (107 Ill.2d R. 315(a)).

The remainder of the facts pertinent to this appeal are contained in the legislative history of section 2-209.1.

The bill which enacted section 2-209.1, Public Act 83-901, was originally passed by both houses of the General Assembly with no dissenting votes. It was then presented to the Governor.

On September 19, 1983, the Governor amendatorily vetoed the bill. (See Ill. Const.1970, art. IV, § 9(e).) His amendatory veto recommended that section 2-209.1 should be prospective rather than retroactive, that its prospective nature should be clearly stated in that statute itself, and that it should "apply only to causes of action accruing after the effective date of this Amendatory Act of 1983," or January 1, 1984.

Shortly thereafter, both houses of the General Assembly voted to override the Governor's amendatory veto. Senator Bloom, the author, chief sponsor, and a member of the judiciary committee that reported the bill, stated that the bill:

"would allow voluntary associations to sue and be sued. By his amendatory veto, [the Governor] made it prospective in application, and what it does, it harms a large class of persons by excluding worthy suits, and * * * arbitrarily killing some pending cases; and it creates another undesirable precedent in that 581 is clearly procedural in nature * * * in fact it doesn't create or delete any legal rights but does create procedures making that preexisting right to litigate available to all members of society including these associations." (83d Ill.Gen.Assem., Senate Proceedings, October 20, 1983, at 35-38.)

Senator Bloom went on to note that:

"Similar laws in other states have regularly been interpreted to be retrospective, and that is the overwhelming majority rule. By his amendatory veto making it prospective, it excludes large classes of worthy people and absolutely * * * throws the crimp into several pending cases * * *. And that affects existing litigants, and that is why, after consulting with various legal experts, I'd go for the total override to go with the bill as it was recommended by the Illinois Supreme Court." (83d Ill.Gen.Assem., Senate Proceedings, October 20, 1983, at 35-38.)

(It should be noted parenthetically that this was not an accurate statement of the official position of the court. While the court has recommended legislative action to abrogate the common law rule in every year from 1976 until the statute was passed (see 1978 Report of the Chief Justice to the General Assembly (Ill. Const.1970, art. VI, § 17), reprinted in Administrative Office of the Illinois Courts, 1978 Annual Report to the Supreme Court of Illinois 19; 1979 Report of the Chief Justice to the General Assembly, reprinted in Administrative Office of the Illinois Courts, 1979 Annual Report to the Supreme Court of Illinois 17; 1980 Report of the Chief Justice to the General Assembly, reprinted in Administrative Office of the Illinois Courts, 1980 Annual Report to the Supreme Court of Illinois 21; 1981 Report of the Chief Justice to the General Assembly, reprinted in Administrative Office of the Illinois Courts, 1981 Annual Report to the Supreme Court of Illinois 21), the court has taken no official position on whether the change should be prospective or retroactive.)

In the House, the House sponsor of the bill, Representative McCracken, stated:

"I move to override the Governor's amendatory veto of 581 for the reason that the Governor has amended this procedural change in the law to apply prospectively only, even to causes of action which have already arisen but not yet been filed. That is in contravention of the historical practice of making procedural changes in the law to apply both retroactively and prospectively. This does not create any new rights under the law. It merely facilitates the bringing of a suit and the defense of a suit relative to unincorporated associations. Essentially, it places them in the same posture as other entities under the law." 83d Ill.Gen.Assem., House Proceedings, November 1, 1983, at 26-29.

On this appeal the appellant union maintains that the statute should not be retroactively applied because: (1) the legislature did not intend the statute to have retroactive effect, (2) retroactivity, even if intended, should not be granted because it would lead to unreasonable and unjust results, and (3) retroactive application to this case would violate the constitutional separation of powers by abrogating a final judgment of the circuit court.

The principles governing our interpretation of statutes with respect to their prospective or retroactive operation have been stated a number of times. Because this case poses a difficult question with respect to these principles, we take this opportunity to review their origin and rationale.

As a general matter it is clear that prospective application of statutes is to be preferred to retroactive, or retrospective, application. This preference has existed from time out of mind. "The doctrine that legislation must be prospective in character is traceable to Coke and Bracton, who recognized it as a rule of construction founded on doctrines of natural law, and it was incorporated into American jurisprudence by the learned jurists Kent and Story." (Orlicki v. McCarthy (1954), 4 Ill.2d 342, 346, 122 N.E.2d 513.) The doctrine has sometimes been treated as a constitutional restraint on legislation, and sometimes as a rule of statutory construction. 4 Ill.2d at 346, 122 N.E.2d 513; compare 2 A. Sutherland, Statutes and Statutory Construction § 41.03, at 343-45 (4th ed. 1986) (prospectivity as a constitutional limitation) with 2 A. Sutherland, Statutes and Statutory Construction § 41.04, at 348-50 (4th ed. 1986) (prospectivity as a rule of statutory construction).

The preference for prospectivity is founded upon:

"[the] fundamental principle of jurisprudence that retroactive application of new laws is usually unfair. There is a general consensus that notice or warning of the rule should be given in advance of the actions whose effects are to be judged * * *. [Jeremy] Bentham stated the case against retroactivity when he likened it to 'dog law.' He was referring to age-old method of training dogs by waiting until they do what they are to be forbidden to do and then kicking them." 1A A. Sutherland, Statutory Construction § 41.02, at 340-41 (4th ed. 1986).

It has thus been our general rule of construction that an amendatory act will be construed as prospective. (Maiter v. Chicago Board of Education (1980), 82 Ill.2d 373, 390, 47 Ill.Dec. 721, 415 N.E.2d 1034; Orlicki v. McCarthy (1954), 4 Ill.2d 342, 346, 122 N.E.2d 513.) The presumption of prospectivity is rebuttable, but only by the act itself. Either by express language or necessary implication, the act must clearly indicate that the legislature intended a retroactive application. People v. Kellick (1984), 102 Ill.2d 162, 180, 80 Ill.Dec. 54, 464 N.E.2d 1037; United States Steel Credit Union v. Knight (1965), 32...