Murphy v. Colson

2013 IL App (2d) 130291

• Court: Appellate Court of Illinois
• Decided: October 24, 2013
• Docket: 2-13-0291
• Status: Unpublished

Opinion

2013 IL App (2d) 130291 No. 2-13-0291 Opinion filed October 24, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

DEAN MURPHY, ) Appeal from the Circuit Court ) of Boone County. Plaintiff-Appellant, ) ) v. ) No. 10-L-49 ) DAN COLSON, ) Honorable ) Brendan A. Maher, Defendant-Appellee. ) Judge, Presiding. ___________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Dean Murphy, filed a complaint against defendant, Dan Colson, and the trial court

granted defendant’s motion for partial summary judgment, finding constitutional the statutory

exclusion of certain noneconomic compensatory damages under the Alienation of Affections Act

(740 ILCS 5/1 et seq. (West 2008)) and the Criminal Conversation Act (740 ILCS 5/50 et seq. (West

2008)). Upon the court’s Rule 304(a) finding (Ill. S. Ct. R. 304(a) (eff. Sept. 20, 2006)), plaintiff

appealed. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 In 1991, plaintiff, a dentist, married Dawn Murphy. They had six children together, and they 2013 IL App (2d) 130291

raised their family in the Catholic faith. According to the complaint, in August 2008, Dawn hired

defendant as her personal trainer at the Cross Fit gym. Defendant knew that Dawn was married to

plaintiff. Nevertheless, in December 2008, defendant began a course of conduct that included

purchasing gifts for Dawn, taking Dawn on dates, and engaging in sexual relations with Dawn.

¶4 In November 2009, Dawn petitioned for a divorce from plaintiff. In September 2010, the

court granted dissolution on the ground of irreconcilable differences.

¶5 In November 2010, plaintiff filed a three-count civil complaint against defendant for: (1)

alienation of affection; (2) criminal conversation; and (3) intentional infliction of emotional distress

(intentional infliction of emotional distress is not at issue in this appeal).

¶6 In December 2011, plaintiff amended his complaint. As to damages, plaintiff broadly alleged

that he cannot marry again, because to do so would be in direct contradiction to his Catholic faith.

Specifically, plaintiff sought damages for: (a) marital counseling expenses; (b) loss of value of his

dental practice (presumably through the distribution of property in the divorce case); (c) loss of value

of a second dental business (again, presumably through the distribution of property in the divorce

case); (d) maintenance payments to Dawn as ordered in the divorce case; (e) loss of an individual

retirement account in his name (again, presumably through the distribution of property in the divorce

case); (f) loss of Dawn’s business referrals to his dental practice; (g) loss of income due to time spent

away from work to address the family problems; (h) residential rental expenses during the divorce

proceedings; (i) guardian ad litem and mediator expenses; (j) loss of consortium; (k) loss of society;

(l) mental anguish; (m) injured feelings; (n) shame, humiliation, sorrow, and mortification; (o)

defamation and injury to his good name and character; and (p) dishonor to his family.1

1 In his brief, plaintiff discusses certain damages stricken by the trial court. However, those

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¶7 As is at issue in this appeal, plaintiff also amended his complaint to seek a declaration that

the statutory exclusion of certain noneconomic compensatory damages, under the Alienation of

Affections Act and the Criminal Conversation Act, is unconstitutional.2 The nature of the exclusion

and the constitutionality arguments will be set forth in detail in our analysis section.

¶8 In May 2012, plaintiff filed a motion for partial summary judgment, seeking a declaration

of unconstitutionality as to the statutory exclusion. The trial court denied plaintiff’s motion. In

ruling, the court noted that plaintiff had set forth many constitutional arguments but had developed

only those concerning the separation of powers clause and the special legislation clause (and, as a

component of that argument, the equal protection clause).

¶9 In November 2012, defendant filed his own motion for partial summary judgment, seeking

a declaration that the statutory exclusion was indeed constitutional. The trial court granted

defendant’s motion and entered a Rule 304(a) finding. This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 A. Overview of Plaintiff’s Argument

¶ 12 Plaintiff argues that the trial court erred in granting summary judgment to defendant and

declaring constitutional the statutory exclusion of certain noneconomic compensatory damages under

the Alienation of Affections Act and the Criminal Conversation Act (the Acts). Plaintiff accepts that

the Acts’ exclusion of punitive damages is constitutional. Of course, we review de novo both an

damages were stricken from only the initial complaint. The trial court has not (yet) stricken damages

from the amended complaint. In any case, an application of the statutory exclusion is not at issue

in this case. Rather, the constitutionality of the exclusion itself is at issue. 2 Defendant responded with affirmative defenses and a counterclaim not at issue here.

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order granting summary judgment and the question of a statute’s constitutionality. Lebron v. Gottlieb

Memorial Hospital, 237 Ill. 2d 217, 227 (2010) (constitutionality); Hall v. Henn, 208 Ill. 2d 325, 328

(2003) (summary judgment). As plaintiff agrees, a finding on the issue of constitutionality controls

the propriety of the summary judgment ruling, and so we focus our analysis there.

¶ 13 Specifically, plaintiff contends that the statutory exclusion of the noneconomic compensatory

damages at issue here is unconstitutional in that it: (1) violates the separation of powers clause (Ill.

Const. 1970, art. II, § 1); (2) is special legislation (Ill. Const. 1970, art. IV, § 13) (and, as a

component of that, denies plaintiff his right to equal protection (Ill. Const. 1970, Article I, § 2)); (3)

denies him his right to complete remedy (Ill. Const. 1970, art. I, § 12); (4) denies him his right to a

jury trial (Ill. Const. 1970, art. I, § 13); and (5) denies him his right to due process (Ill. Const. 1970,

art. I, § 2). However, plaintiff develops argument on only the first two of these claims, and therefore

he forfeits the remaining three claims. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

¶ 14 Essentially, plaintiff acknowledges that, in Siegall v. Solomon, 19 Ill. 2d 145, 148-51 (1960),

the supreme court expressly upheld the constitutionality of the Acts’ exclusion of certain

noneconomic compensatory damages. However, he argues that Siegall has been implicitly overruled

by subsequent supreme court rulings, such as Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997)

(personal injury), and Lebron, 237 Ill. 2d 217 (medical malpractice), which held unconstitutional the

caps on noneconomic compensatory recovery in the causes of action at issue there. Plaintiff further

acknowledges that Lebron specifically distinguished itself from Siegall, but he contends that the

distinction was not wholly sound. For the reasons that follow, we do not find Best or Lebron

controlling, and we reject plaintiff’s separation of powers and special legislation arguments.

¶ 15 B. History of the Acts

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¶ 16 We first examine how the Acts’ exclusion of certain noneconomic compensatory damages

came to be. The causes of action at issue here, alienation of affections and criminal conversation,

arose in common law and, along with breach of contract to marry, have been treated

“indistinguishabl[y]” (Siegall, 19 Ill. 2d at 149), at least on questions of statutory exclusions of

certain types of damages. Still, for context, we set forth the elements comprising each respective

common-law cause of action. To sustain a cause of action for alienation of affection, the plaintiff

must allege and prove: (a) love and affection of the spouse for the plaintiff; (b) overt acts, conduct,

or enticement on the part of the defendant causing these affections to depart; and (c) actual damages.

Kniznik v. Quick, 130 Ill. App. 2d 273, 276 (1970). The tort of criminal conversation “consists of

a violation of a spouse’s right to the exclusive privilege of sexual intercourse, and it is thus a

common law tort claim[] for adultery.” 21 Ill. L. and Prac., Husband & Wife § 5 (____). To sustain

a cause of action for criminal conversation, the plaintiff must allege and prove: (a) a valid marriage

between spouses; and (b) the occurrence of sexual intercourse between the plaintiff’s spouse and the

defendant. Id. (citing Hardy v. Bach, 173 Ill. App. 123 (1912)).

¶ 17 In 1935, the Illinois legislature abolished the aforementioned causes of action with what

became known as the “Heart Balm” Act. Ill. Rev. Stat. 1943, ch.. 38, ¶¶ 246.1, 246.2 (officially

titled “An Act in relation to certain causes of action conducive to extortion and blackmail, and to

declare illegal, contracts and acts made and done in pursuance thereof”). The Heart Balm Act

declared it unlawful for any person to file or threaten to file a cause of action for alienation of

affections, criminal conversation, or breach of promise to marry. The legislature’s stated purpose

in abolishing the aforementioned causes of action was that they were “conducive to extortion and

blackmail.” Id.

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¶ 18 In 1946, the supreme court, in Heck v. Schupp, 394 Ill. 296, 299 (1946), declared

unconstitutional the Heart Balm Act’s abolishment of the aforementioned causes of action. The

court held, inter alia, that the Heart Balm Act violated article II, section 19, of the Illinois

Constitution of 1870, which provided that “ ‘every person ought to find a certain remedy in the laws

for all injury and wrongs which he may receive in his person, property, or reputation.’ ” Id. at 299

(quoting Ill. Const. 1870, art. II, § 19).3 The court reasoned that “[t]he contract of marriage ***

involv[es] civil rights just as other contracts involve such rights, and no reason appears why, under

section 19 of article II of our constitution, such rights should not have their day in court.” Id. at 300.

Additionally, the court questioned the Heart Balm Act’s stated purpose, noting that almost any

common-law cause of action could be used by extortionists and blackmailers. Id.

¶ 19 In 1947, presumably in response to Heck, the Illinois legislature passed three companion acts:

the Alienation of Affections Act (now 740 ILCS 5/1 et seq. (West 2008)), the Breach of Promise

(also known as Agreement to Marry) Act (now 740 ILCS 15/1 et seq. (West 2008)), and the Criminal

Conversation Act (now 740 ILCS 50/1 et seq. (West 2008)). For the purposes of this appeal, of

course, we are concerned with the Alienation of Affections Act and the Criminal Conversation Act.

The Acts contain parallel language, and we quote below that from the Alienation of Affections Act.

¶ 20 Section 1 of the Alienation of Affections Act provides:

“It is hereby declared, as a matter of legislative determination, that the remedy heretofore

provided by law for the enforcement of the action for alienation of affections has been

subjected to grave abuses and has been used as an instrument for blackmail by unscrupulous

persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in

3 The Heck court also addressed problems with the title of the Heart Balm Act.

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such actions and the consequent fear of persons threatened with such actions that exorbitant

damages might be assessed against them. It is also hereby declared that the award of

monetary damages in such actions is ineffective as a recompense for genuine mental or

emotional distress. Accordingly, it is hereby declared as the public policy of the state that

the best interests of the people of the state will be served by limiting the damages recoverable

in such actions and by leaving any punishment of wrongdoers guilty of alienation of

affections to proceedings under the criminal laws of the state, rather than to the imposition

of punitive, exemplary, vindictive, or aggravated damages in actions for alienation of

affections. Consequently, in the public interest, the necessity for the enactment of this

chapter is hereby declared as a matter of legislative determination.” 740 ILCS 5/1 (West

2008).

¶ 21 Section 2 of the Alienation of Affections Act provides:

“The damages to be recovered in any action for alienation of affections shall be limited to

actual damages sustained as a result of the injury complained of.” 740 ILCS 5/2 (West

¶ 22 Section 3 of the Alienation of Affections Act provides:

“No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action

for alienation of affections.” 740 ILCS 5/3 (West 2008).

¶ 23 Section 4 of the Alienation of Affections Act provides:

“In determining the damages to be allowed in any action for alienation of affections, none

of the following elements shall be considered: the wealth or position of defendant or the

defendant’s prospects of wealth or position; mental anguish suffered by plaintiff; any injury

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to plaintiff’s feelings; shame, humiliation, sorrow or mortification suffered by plaintiff;

defamation or injury to the good name or character of plaintiff or his or her spouse resulting

from the alienation of affections complained of; or dishonor to plaintiff’s family resulting

from the alienation of affections.” 740 ILCS 5/4 (West 2008).

¶ 24 In other words, while each act expressly limits the damages to actual (i.e., compensatory

rather than punitive) damages (740 ILCS 5/2 (West 2008); 740 ILCS 50/2 (West 2008)), each act

does not guarantee compensation for all actual damages. To the contrary, each act excludes certain

noneconomic compensatory damages, stating that “monetary damages in such actions [are]

ineffective as a recompense for genuine mental or emotional distress” (740 ILCS 5/1 (West 2008);

740 ILCS 50/1 (West 2008)) and stating that the plaintiff’s resulting mental anguish, injury to

feelings, shame, humiliation, sorrow, mortification, defamation or dishonor cannot be considered

in determining damages (740 ILCS 5/4 (West 2008); 740 ILCS 50/4 (West 2008)).

¶ 25 In 1958, with one justice dissenting, the supreme court, in Smith v. Hill, 12 Ill. 2d 588 (1958)

(abstract of op.), upheld the constitutionality of the Breach of Promise Act’s express exclusion of

“punitive, exemplary, vindictive, [and] aggravated” damages.

¶ 26 In 1960, the supreme court, in Siegall, upheld the constitutionality of the Alienation of

Affections Act’s limitations on recoverable damages, including the (1) limitation to actual damages

(now 740 ILCS 5/2 (West 2008)); (2) exclusion of punitive, exemplary, vindictive, and aggravated

damages (now 740 ILCS 5/3 (West 2008)); and (3) prohibition of consideration of the enumerated

elements, such as the defendant’s wealth or position and the plaintiff’s resulting mental anguish,

injury to feelings, shame, humiliation, sorrow, mortification, defamation, or dishonor (now 740 ILCS

5/4 (West 2008)). Siegall, 19 Ill. 2d at 148-51.

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¶ 27 In Siegall, the plaintiff contended that statutory limitations on recoverable damages violated

section 19 of article II of the Illinois Constitution of 1870, which, as noted, provided that “every

person ought to find a certain remedy in the laws for all injury and wrongs which he may receive in

his person, property, or reputation.” Id. at 148 (quoting Ill. Const., 1870, art. II, § 19); Heck, 394 Ill.

at 299-300 (discussing section 19). The plaintiff argued that the legislature’s 1947 enactment of the

Alienation of Affections Act, setting forth limitations on recoverable damages, did not correct the

problems concerning the right to a remedy that had caused the Heck court to declare the Heart Balm

Act unconstitutional. Id. The plaintiff reasoned:

“[T]he very foundation of the cause of action for alienation of affections is mental anguish,

shame, humiliation, injured feelings, as well as defamation of name and character of a

plaintiff or his family, and *** the 1947 act, by expressly removing such elements of

damage, leaves only a nominal cause of action without possibility of recovering damages.

This result *** circumvents the decision in [Heck] and renders the present act subject to

constitutional infirmities in that it violates section 19 *** and destroys vested rights and

impairs the obligation of contract ***.” Siegall, 19 Ill. 2d at 148-49.

¶ 28 The Siegall court rejected the plaintiff’s argument. The court noted that, in Smith, it had

addressed “an almost identical act” and found that “a statute which does not prohibit [or abolish] an

action, but merely denies certain damages as a basis for recovery, could not be in contravention of

section 19.” Id. at 149. As to the plaintiff’s reference to allegedly vested rights, the court noted that

there is “no vested right in any plaintiff to exemplary, punitive, vindictive[,] or aggravated damages

leaving the legislature free to restrict or deny such damages at its pleasure.” Id. (citing Smith, 12 Ill.

2d 588).

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¶ 29 Moreover, as pertaining to the special case of marriage and any accompanying vested rights

and contractual obligations, the Siegall court noted:

“[T]he modern view [is] that [the] rights of a husband in his wife’s affections and society are

not property within the due process clause, so as to prevent a State’s regulation and control

of such rights ***. ***

***

*** While the marriage contract is properly regarded *** as a civil contract for some

purposes, it is at the same time a contract which has always been regarded as subject to the

plenary control of the legislature, and subject to controls based upon principles of public

policy *** [citation]. Indeed, it has been expressly held that marriage is not a contract within

the constitutional provision prohibiting the impairment by a State of the obligation of

contract, inasmuch as the rights, duties, and obligations of the parties do not rest upon the

agreement of the parties alone, but upon the general law of the State, statutory and common,

which defines and prescribes those rights, duties[,] and obligations. [Citations.] Actions for

alienation of affection are considered as incident to, or as arising from, the marriage relation,

and are likewise subject to the basic power of the legislature to enact reasonable police

regulations for the public welfare.” (Emphases added.) Id. at 149-50.

¶ 30 Before concluding, the Siegall court summarily rejected, as having been decided in Smith,

the plaintiff’s remaining arguments, holding that the Alienation of Affections Act’s limitations did

not: (1) violate the separation of powers clause by invading the province of the jury; or (2) constitute

special legislation by favoring one group of persons over another group of similarly situated persons.

Id. at 150-51.

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¶ 31 After the Siegall court upheld the constitutionality of the Alienation of Affections Act’s

limitations on damages, appellate courts applied the limitations in a series of cases, developing a

body of law on what types of damages are not recoverable under the statutory exclusion. See, e.g.,

Coulter v. Renshaw, 94 Ill. App. 3d 93, 95-96 (1981) (damages for loss of spouse’s monthly income

recoverable; damages for loss of consortium, i.e., loss of companionship, felicity, and sexual

intercourse, not recoverable);4 Wheeler v. Fox, 16 Ill. App. 3d 1089, 1093 (1974) (damages for

mental illness and lost occupational earnings not recoverable);5 and Kniznik, 130 Ill. App. 2d at 279

(damages for mental illness and lost occupational earnings not recoverable).6,7 Again, these cases

4 The Coulter court also ruled other damages not recoverable, such as attorney fees from a

dissolution case and the loss of (presumably housekeeping) services, for reasons other than the

statutory exclusion, such as the inapplicability of the rules in dissolution actions to alienation of

affections suits and the plaintiff’s failure to adequately plead an actual pecuniary loss. Id. 5 The Wheeler court’s recitation of nonrecoverable damages under the statutory exclusion was

judicial dicta. Its primary basis for reversing the trial court was that there was no evidence to support

the first element of an action for alienation of affections—that the plaintiff had the spouse’s love and

affection to lose. Id. at 1092. Additionally, the Wheeler court cited without discussing Kniznik’s

recitation, which was problematic for its own reasons, as discussed in the next footnote. Id. at 1093.

Finally, the Wheeler court also ruled other damages not recoverable, such as loss of consortium, loss

of health, unemployment, and loss of the spouse’s (presumably housekeeping) services, due to

reasons other than the statutory exclusion, such as deficiencies in the pleadings. 6 Similarly, the Kniznik court’s recitation of nonrecoverable damages was judicial dicta. Its

primary basis for affirming the dismissal of the action for alienation of affections was due to the

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merely applied the limitations. They did not revisit the previously settled constitutional challenges.

¶ 32 C. Separation of Powers

¶ 33 Plaintiff argues that Siegall has been implicitly overruled by subsequent supreme court

rulings that discuss in more detail the two constitutional arguments that Siegall summarily rejected:

separation of powers and special legislation. Here, we address the separation of powers argument.

The separation of powers clause prohibits one branch of government from exercising the powers

properly belonging to another. Ill. Const. 1970, art. II, § 1. Plaintiff believes that the Lebron

separation of powers analysis can be applied to the Alienation of Affections Act and the Criminal

Conversation Act. We disagree.

¶ 34 The Lebron court, relying on judicial dicta in Best, held unconstitutional as a violation of

separation of powers the statute that capped noneconomic damages in medical malpractice actions.

Lebron, 237 Ill. 2d at 250. The Lebron court noted that this cap trumped a jury’s deliberative

process in assessing damages and required the reduction of any noneconomic damages in excess of

the cap, irrespective of the particular facts and circumstances. Id. at 238. The statute, therefore,

conclusory nature of the pleadings. Id. 7 The parties also cite and discuss Lo Cascio v. Kiousis, 9 Ill. App. 3d 919 (1973) (abstract

of op.), but, as only the abstract has been published, it is impossible to discern the basis upon which

the damages were deemed nonrecoverable, i.e., whether the denial was based on the statutory

exclusion or not. At least some of the damages facially appear to have been denied for reasons aside

from the statutory exclusion (denial of attorney fees from a dissolution case, based on the

inapplicability of the rules in dissolution actions to alienation of affections suits, and denial of the

cost of child support, as public policy demanded support of the children).

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acted as an unconstitutional “legislative remittitur” in that it “ ‘unduly encroache[d] upon the

fundamentally judicial prerogative of determining whether a jury’s assessment of damages is

excessive within the meaning of the law.’ ” Id. (quoting Best, 179 Ill. 2d at 414). Interestingly, the

dissent noted that “[n]othing in the majority’s separation of powers analysis would preclude” the

Legislature from “eliminating all non-economic damages” in an effort to cut healthcare costs.

(Emphasis in original.) Id. at 283 (Karmeier, J., concurring in part and dissenting in part, joined by

Garman, J.). In the dissent’s view, the potential for some recovery of noneconomic damages was

better than no potential recovery. Id.

¶ 35 As recognized by the Lebron dissent, a damages cap is not necessarily analogous to a

damages exclusion. Therefore, our case, which involves an exclusion of certain noneconomic

compensatory damages, is not perfectly analogous to Lebron, which involved a cap. The Lebron

court found that the cap invaded the province of the court by encroaching on its traditional power

to exercise a remittitur on the jury’s award. Id. at 238. Remittitur allows the court to reduce a jury’s

award where it falls outside the range of fair and reasonable compensation or results from passion

or prejudice or where it is so large that it shocks the judicial conscience. Id. at 234. Here, such

judicial authority is not at issue. In the face of the exclusion, the jury would not have been able to

assess in the first place the noneconomic damages enumerated in section four of each Act.

¶ 36 More importantly, Lebron cannot be said to have implicitly overruled Siegall, because the

Lebron court expressly distinguished its case from Siegall. Id. at 246. Plaintiff complains that the

distinction was imprecise, because the court commented that Siegall involved a ban on punitive

damages, not a cap on noneconomic compensatory damages. Id. As plaintiff notes, Siegall involved

a ban on punitive damages and certain noneconomic compensatory damages. However, the Lebron

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court’s statement that Siegall did not involve a cap is accurate. In any case, the point is that the

supreme court was presented with its prior ruling in Siegall and expressly stated that its invalidation

of the medical malpractice damages cap did not undermine its precedents. Id.

¶ 37 D. Special Legislation

¶ 38 Alternatively, plaintiff argues that the Best special legislation analysis can be applied to the

instant case. For the reasons that follow, we disagree.

¶ 39 A special legislation challenge generally is evaluated according to the same standards as an

equal protection challenge. Best, 179 Ill. 2d at 393. The special legislation clause states:

“The General Assembly shall pass no special or local law when a general law is or

can be made applicable. Whether a general law is or can be made applicable shall be a

matter for judicial determination.” Ill. Const. 1970, art. IV, § 13.

The legislature may not confer a special benefit or privilege upon one group and exclude others that

are similarly situated unless there is a rational basis to do so. Best, 179 Ill. 2d at 391. In other

words, the special legislation clause prevents the legislature from making classifications that

arbitrarily discriminate in favor of a select group. Big Sky Excavating, Inc. v. Illinois Bell Telephone

Co., 217 Ill. 2d 221, 235 (2005). To show a violation of the special legislation clause, two prongs

must be met: (1) the statutory classification discriminates in favor of a select group to the exclusion

of those that are similarly situated; and (2) the classification is arbitrary. Id.

¶ 40 Plaintiff notes that plaintiffs in other tort actions, such as for intentional infliction of

emotional distress, invasion of privacy, and damage to reputation, are not restricted in their ability

to recover noneconomic compensatory damages. However, even if we accept that plaintiff is

similarly situated with plaintiffs in other types of tort actions, which we do not, plaintiff cannot meet

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the second prong. The statutory exclusion here is not arbitrary. In Siegall, the supreme court

discussed in detail the rationale for treating those torts that arise out of the marriage contract as a

special group. Siegall, 19 Ill. 2d at 149-50 (as discussed above in paragraph 30). Plaintiff does not

address any of the Siegall court’s statements concerning the special nature of these marriage torts.

In fact, as no supreme court case (or any case) since Siegall has called into question its rationale on

this point, we are bound to uphold it.

¶ 41 We acknowledge plaintiff’s point that one of the Acts’ stated rationales for excluding

damages is arguably quite weak (i.e., that these torts are especially susceptible to being “used as an

instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the

indefiniteness of the damages recoverable in such actions and the consequent fear of persons

threatened with such actions that exorbitant damages might be assessed against them” (740 ILCS 5/1

(West 2008); 740 ILCS 50/1 (West 2008))). As plaintiff notes, other torts, again such as intentional

infliction of emotional distress, invasion of privacy, and damage to reputation, are also susceptible

to being used for blackmail and might result in damages that are difficult to calculate, yet plaintiffs

in those causes of action are not restricted in their ability to recover noneconomic compensatory

damages. Still, the weakness of one stated rationale is not enough to rebut the presumption of

constitutionality, nor is it enough to break from the authority of the supreme court.

¶ 42 The parties have focused their arguments on the second prong, and our above analysis on that

point is dispositive. However, we take time to note that plaintiff has not convinced us that he has

met the first prong, i.e., that the statutory exclusion discriminates against him as compared to

similarly situated individuals. To determine whether one person or group is similarly situated to

another, one must look to the purpose of the law. People v. Masterson, 2011 IL 110072, ¶ 25. If,

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as stated in Heck, a purpose of the common-law marriage torts is to validate and/or protect the

marital and familial interests accompanying the institution of marriage, the collective of similarly

situated individuals are those whose marital and familial interests are at stake. Here, the imposition

of the statutory exclusion does not discriminate against any one person or group within the larger

collective of those similarly situated individuals whose marital and familial interests are at stake.

Again, plaintiff notes that plaintiffs in other tort actions, such as for intentional infliction of

emotional distress, invasion of privacy, and damage to reputation, are not restricted in their ability

to recover noneconomic compensatory damages. However, this mere assertion does not establish

that he is similarly situated to plaintiffs in those other tort actions. Case law does not support the

presumption that a party in one cause of action is similarly situated to a party in a different cause of

action. See, e.g., Montgomery v. Roudez, 156 Ill. App. 3d 262, 269 (1987) (parties pursuing a

finding of fitness under the Juvenile Court Act are not similarly situated to parties pursuing a finding

of fitness under the Marriage and Dissolution of Marriage Act). Indeed, the Best court did not

compare plaintiffs in one tort to plaintiffs in another tort who had endured a similar level and type

of harm. Best, 179 Ill. 2d 367. Rather, the Best court held that the damages cap prevented plaintiffs

who had been greatly harmed from being fully compensated but did not prevent plaintiffs who had

been minimally harmed from being fully compensated. Id. at 406.

¶ 43 We raise these concerns, but we leave them for another day. For now, we resolve this case

by affirming the constitutionality of the statutory exclusion of damages at issue.

¶ 44 III. CONCLUSION

¶ 45 The trial court’s grant of partial summary judgment is affirmed.

¶ 46 Affirmed.

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