Legal Malpractice Action Changes the Application of the Void Ab Initio Doctrine in Illinois
This week the Illinois Supreme Court rendered an opinion in a legal malpractice case which changes the way the doctrine of void ab initio will be applied in Illinois. Perlstein v. Wolk, Ill S.Ct., February 17, 2006, opinion here. For 92 years the Illinois courts have followed the U.S. Supreme Court case Norton v. Shelby County which states,
An unconstitutional act is not law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Norton, 118 U.S. 425, 6 S.Ct. 1121 (1886).This case led to the Norton rule which states that an unconstitutional statute is void ab initio or void "from the beginning." The Perlstein case challenged the application of this doctrine and has altered the way the rule will be applied in Illinois from here forth.
Ms. Perlstein and her son filed a legal malpractice case against an attorney Maurice Wolk and the law firm Ross & Hardies for negligently preparing the will of Ms. Perlstein's deceased husband, Lawrence, thereby preventing the Lawrence A. Perlstein Trust from being funded. When the plaintiffs filed their lawsuit they relied on the limitations period for malpractice actions set forth in section 13-214.3 of the Code of Civil Procedure, as amended by Public Act 89-7 (commonly referred to as the Tort Reform Act). See Pub. Act 89-7, eff. March 9, 1995 (amending, 735 ILCS 5/13-214.3 (West 1994)). The complaint was filed on January 8, 1998. However, 3 weeks prior to the filing, on December 18, 1997, the Illinois Supreme Court rendered its decision in Best v. Taylor Machine Works, 179 Ill. 2d 367 (1997) where the court declared Public Act 89-7 "void in its entirety" because some of the core provisions were unconstitutional. This, the defendants argued, meant that in effect, Public Act 89-7 "never was" and thus the legal malpractice complaint was filed 20 months late.
Arguments over the application of the void ab initio doctrine ensued. The plaintiffs argued the court should apply an equitable approach - that their complaint, filed 3 weeks following the court's decision in Best, was filed within a reasonable period of time after the change in the law. The defendant's argued the court should apply a strict analysis - Best declared Public Act 89-7 unconstitutional, and therefore, the act was void ab initio. In effect, it never was so the legal malpractice complaint was untimely filed.
While acknowledging that the result might be harsh, the circuit court, nonetheless, applied the void ab initio doctrine and dismissed the plaintiff's legal malpractice complaint with prejudice. The appellate court reversed, holding that such a result would be unfair and the case went up to the Illinois Supreme Court.
In affirming the appellate court's decision, the Illinois Supreme Court stated they were reluctant to extend void ab initio beyond cases involving criminal prosecutions. The court went on to explain that strict application of the doctrine creates a "Catch-22" -individuals are entitled to rely on a legislative enactment, presuming it is valid, but must suffer the consequences of doing so should the court later hold that law unconstitutional. In adopting the "modern trend" or "moderate approach" the court moved away from void ab initio doctrine toward a more equitable and realistic approach that takes into account considerations of reasonableness and good-faith reliance on the purportedly valid statute. In doing so, the court noted, however, that it was not abandoning the Norton rule by stating
in cases where a defendant's constitutionally guaranteed rights are in need of vindication, strict application of the void ab initio doctrine is appropriate, however, where no rights are at stake, other equitable and practical factors are appropriate for consideration by the court.