Find Legal Information

THIRD DIVISION
Filing Date: June 28, 2002

PRESIDING JUSTICE HALL delivered the opinion of the court:

Count II of the complaint sought a declaratory judgment thatcertain provisions of the Illinois Consumer Fraud and DeceptiveBusiness Practices Act (the Act) (815 ILCS 505/1 et seq. (West1996)) are unconstitutional.

The plaintiffs filed a motion for judgment on the pleadingsas to count II of their complaint. The circuit court denied themotion, and subsequently, entered judgment for Woodfield on countII. Following the dismissals of counts I, III and IV, theplaintiffs filed a timely notice of appeal.

This appeal concerns only count II of the complaint and onlydefendant Woodfield.

The sole issue raised on appeal is whether the 1993 and 1996amendments to the Act are unconstitutional as either speciallegislation or as violative of equal protection.

The following facts are taken from the plaintiffs'complaint.

On or about April 2, 1996, the plaintiffs purchased a 1993Nissan Pickup 4 by 4 vehicle from Woodfield for $15,495. Becauseof a problem with the vehicle, they returned it to Woodfield afew days later. While there, they noticed an advertisement for a1993 Nissan Pickup 4 by 4 for $10,900. When they inquired as to the difference in price between the vehicle they had purchasedand the advertised vehicle, they were told that, while it was thesame make and model as the one they had purchased, it was adifferent vehicle and had a different stock number.

After determining from the odometer disclosure statementthat the vehicle they had purchased had the same stock number asthe vehicle advertised, they returned to Woodfield and demanded areduction in price for the vehicle they had purchased. They weretold that it was not possible to obtain a reduction in the price.

The plaintiffs filed a four-count complaint againstWoodfield and Widermyre Associates, who, on behalf of Woodfield,had attempted to collect the debt owed by the plaintiffs on thevehicle they purchased.

Count II of the complaint alleges that subsections (f), (g)and (h) of section 10a of the Act (815 ILCS 505/10a(f), (g), (h)(West 1996)), violates the 1970 Illinois Constitution'sprohibition against special legislation and violates the equalprotection provisions of the 1970 Illinois Constitution andUnited States Constitution. The plaintiffs acknowledged thatAllen did not comply with the pre-suit notification required bysection 10a(h) of the Act.

The plaintiffs filed a motion for judgment on the pleadingssolely as to count II of the complaint. In their memorandum oflaw, they also raised the unconstitutionality of section 10a(a)of the Act as special legislation and violative of equalprotection. In their memorandum of law, the plaintiffs arguedthat the above amendments are special legislation in that theybenefit only dealers of new and used vehicles and are not basedon any real or substantial differences between that group andothers who are alleged to have committed consumer fraud under theAct. They also argued that the above amendments violate equalprotection in that there is no rational difference between a consumer bringing a fraud action under the Act against a cardealer and any other dealers of goods who are not car dealers.

Woodfield filed a response to the plaintiffs' motion forjudgment on the pleadings. Woodfield argued that, under therational basis test applicable to both equal protection andspecial legislation challenges to statutory enactments, theamendments were necessary to correct the practice of utilizingthe Act to discourage resolution of disputes and to generateattorney fees, which were burdening the automobile industry.

The circuit court denied the plaintiffs' motion for judgmenton the pleadings. Subsequently, the circuit court enteredjudgment for Woodfield on count II and granted the plaintiffs'motion to voluntarily dismiss counts III and IV againstWidermyre. On July 26, 2001, the circuit court dismissed count Iof the complaint on the basis that the plaintiffs did not providepre-suit notice as required by the Act. See 815 ILCS 505/10a(h)(West 1996). This timely appeal followed.

In 1993, the Illinois legislature amended section 10a of theAct by adding the following subsections:

"(f) At any time more than 30 days before thecommencement of trial, a party, who is a new vehicle dealeror used vehicle dealer within the meaning of Chapter 5 ofthe Illinois Vehicle Code and who is defending a claim underthis Act, may serve upon the party seeking relief under thisAct an offer to allow judgment to be taken against thedefending party to the effect specified in the offer withcosts then accrued. If within 10 days after service of theoffer, the offeree serves written notice that the offer isaccepted, either party may then file the offer and notice ofacceptance together with proof of service of the notice; thecourt shall then enter judgment. An offer not acceptedshall be deemed withdrawn and evidence of the offer is notadmissible except in a proceeding to determine costs. Whena party seeking relief under this Act does not accept anoffer filed with the clerk and served upon the attorney forthat party more than 30 days before the commencement oftrial and when that party fails to obtain a judgment in anamount more than the total offer of settlement, that partyshall forfeit and the court may not award any compensationfor attorney's fees and costs incurred after the date of theoffer.

(g) At any time more than 30 days before thecommencement of trial, a party who is seeking relief underthis Act from a new vehicle dealer or used vehicle dealerwithin the meaning of Chapter 5 of the Illinois Vehicle Codemay serve the dealer an offer to allow judgment to be takenagainst the dealer to the effect specified in the offer withcosts then accrued. If within 10 days after service of theoffer, the offeree serves written notice that the offer isaccepted, either party may then file the offer and notice ofacceptance together with proof of service of the notice; thecourt shall then enter judgment. An offer not acceptedshall be deemed withdrawn and evidence of the offer is notadmissible except in a proceeding to determine costs. Whena dealer does not accept an offer filed with the clerk andserved upon the attorney for the dealer more than 30 daysbefore the commencement of trial and if the party seekingrelief against a dealer obtains a judgment in an amountequal to or in excess of the offer amount, the party seekingrelief shall be paid interest on the offer amount at therate as provided in Section 2-1303 of the Code of CivilProcedure from the date of the offer until the judgment ispaid." Pub. Act 87-1140, eff. Jan. 1, 1993 (amending 815ILCS 505/10a (West 1994)).

Subsequently, in 1996, the legislature amended section 10a(a) and added subsection (h) as follows:

"10a. Action for actual damages.

(a) Any person who suffers actual damages as aresult of a violation of this Act committed by anyother person may bring an action against such person. The court, in its discretion may award actual economicdamages or any other relief which the court deemsproper; provided, however, that no award of punitivedamages may be assessed under this Section against aparty defendant who is a new vehicle dealer or usedvehicle dealer within the meaning of Chapter 5 of theIllinois Vehicle Code, unless the conduct engaged inwas willful or intentional and done with evil motive orreckless indifference to the rights of others. Proofof a public injury, a pattern, or an effect onconsumers and the public interest shall be required inorder to state a cause of action under this Sectionagainst a party defendant who is a new vehicle dealeror used vehicle dealer within the meaning of Chapter 5of the Illinois Vehicle Code. Proof of such publicinjury may be shown by any one of the followingfactors:

(1) Violation of a statute that has a publicinterest impact.

(2) Repeated acts prior to the act involving theplaintiff.

(3) Potential for repetition.

(h) At least 30 days prior to the filing of an actionunder this Section, a party who is seeking relief shallserve a written notice of the nature of the allegedviolation and demand for relief upon the prospective party,who is a new vehicle dealer or used vehicle dealer withinthe meaning of Chapter 5 of the Illinois Vehicle Code,against whom such action will be commenced. Any personreceiving such a demand for relief may, within 30 days ofservice of the demand for relief, submit a written offer ofsettlement, which offer is to be exclusive of attorney'sfees, to the party serving the notice and demand. The partywho is seeking relief must certify in any cause of actionthat the notice and demand was served upon the nameddefendants and the substance of their response, if any. Ifthe offer of settlement is rejected in writing by the partywho is seeking relief, then, in any subsequent action, thecourt shall deny any award of attorney's fees and costsrequested by the party seeking relief under this Actincurred after the rejection of the written offer ofsettlement, if the judgment is less than the amountcontained within the offer of settlement. All writtenoffers of settlement under this subsection shall be presumedto be offered without prejudice in compromise of a disputedmatter." Pub. Act 89-144, eff. January 1, 1996) (amending815 ILCS 505/10a(a) (West 1996)).

The constitutionality of a statute is a question of lawsubject to de novo review. Miller v. Rosenberg, 196 Ill. 2d 50,57, 749 N.E.2d 946, 951 (2001)

Courts should begin any constitutional analysis with thepresumption that the challenged legislation is constitutional andthat it is the plaintiff's burden to clearly establish that thechallenged provisions are unconstitutional. Best v. TaylorMachine Works, 179 Ill. 2d 367, 689 N.E.2d 1057, 1063 (1997). The legislature has broad discretion to determine not only whatthe public interest and welfare require but to determine themeasures needed to secure such interest. Chicago National LeagueBall Club, Inc. v. Thompson, 108 Ill. 2d 357, 364, 483 N.E.2d1245, 1248 (1985). Whether the course chosen by the legislature"'is wise or whether it is the best means to achieve the desiredresult is not a proper subject of judicial inquiry.' [Citation.]"Fireside Chrysler-Plymouth Mazda, Inc. v. Edgar, 102 Ill. 2d 1,7, 464 N.E.2d 275, 278 (1984). The legislative history of anenactment may be considered if the resolution of an issue sorequires. Best, 179 Ill. 2d at 382, 689 N.E.2d at 1065.

The special legislation clause of the 1970 IllinoisConstitution provides:

"'The General Assembly shall pass no special or locallaw when a general law is or can be made applicable. Whether a general law is or can be made applicable shall bea matter for judicial determination.' (Emphasis added.)"Best, 179 Ill. 2d at 390-91, 689 N.E.2d at 1069; Ill. Const.1970, art. IV,