The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendants' Motion to Dismiss or Motion
for Partial Summary Judgment as to Count III of Plaintiff's Third
Amended Complaint [Doc. # 66]. Count III alleges an action under
the Illinois Structural Work Act (SWA). Defendant contends that
because the Act was repealed as of February 14, 1995, P.A. 89-2,
§ 5, Plaintiff can no longer bring such an action. The Court
agrees.
Illinois law is clear on this point:
The unconditional repeal of a special remedial
statute without a saving clause stops all pending
actions where the repeal finds them. If final
relief has not been granted before the repeal goes
into effect it cannot be granted afterwards, even
if a judgment has been entered and the cause is
pending on appeal. The reviewing court must dispose
of the case under the law in force when its
decision is rendered.
People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318,
321, appeal dismissed, 308 U.S. 505, 60 S.Ct. 112, 84 L.Ed. 432
(1939); see also Isenstein v. Rosewell, 106 Ill.2d 301, 88
Ill.Dec. 15, 20, 478 N.E.2d 330, 335 (1985); Shelton v. City of
Chicago, 42 Ill.2d 468, 248 N.E.2d 121, 123-24 cert. denied,
396 U.S. 906, 90 S.Ct. 222, 24 L.Ed.2d 182 (1969). The Structural
Work Act was repealed without an express savings clause in the
statutory language; it merely stated, "The Structural Work Act is
repealed." P.A. 89-2, § 5. Thus, it would appear that Eitel and
its progeny directly foreclose a suit under that Act.
However, the preamble to the repealing statute gives the
Court pause. It states:
WHEREAS, It is the intent of the General Assembly
that the repeal of the Structural Work Act shall
operate as a bar to any action accruing on or after
the effective date of this Public Act; and
Yet, a preamble is not part of the Act itself; it may only be
used to clarify ambiguous provisions of a statute. Triple A
Servs., Inc. v. Rice, 131 Ill.2d 217, 137 Ill.Dec. 53, 56,
545 N.E.2d 706, 709 (1989); Brown v. Kirk, 64 Ill.2d 144,
355 N.E.2d 12, 16-17 (1976); Illinois Independent Tel. Assoc. v. Illinois
Commerce Commission, 183 Ill.App.3d 220, 132 Ill.Dec. 154, 163,
539 N.E.2d 717, 726 (4th Dist. 1988), appeal denied, 127 Ill.2d 616,
136 Ill.Dec. 587, 545 N.E.2d 111 (1989). Where, as here, the
statutory enacting language simply states, "The Structural Work
Act is repealed,"*fn1 there is no ambiguity and the preamble may not
be used to depart from its plain language.*fn2 Under Illinois law,
the legislature is presumed to be aware of such judicial
decisions concerning prior and existing law and legislation.
Kozak v. Retirement Bd. of Firemen's Annuity & Benefit Fund of
Chicago, 95 Ill.2d 211, 69 Ill.Dec. 177, 181, 447 N.E.2d 394, 398
(1983); Heineman v. Hermann, 385 Ill. 191, 52 N.E.2d 263, 265
(1943).
Furthermore, the Illinois Supreme Court has recently refused
to divine the legislature's intent in order to determine the
retroactive effect of statutory amendments. First of Am. Trust
Co. v. Armstead, 171 Ill.2d 282, 215 Ill.Dec. 639, 642-643,
664 N.E.2d 36, 39-40 (1996). Instead, the court has opted for a
"vested rights approach," in which it merely applies the law as
it exists at the time unless doing so would interfere with a
"vested right." Id. A vested right is a "complete and
unconditional demand or exemption that may be equated with a
property interest." Id. 215 Ill.Dec. at 643, 664 N.E.2d at 40.
There is no vested right in the mere continuance of a law; the
legislature has an ongoing right to amend a statute. Id.
Similarly, here, Plaintiff has no vested right in the mere
continuance of his rights under the Structural Work Act. The
legislature had every right to repeal the statute. It cannot be
said that the Structural Work Act bestowed a property interest
upon Plaintiff under the due process clause. This is all the more
clear when considered in light of the Illinois Supreme Court's
refusal to give a special remedial statute (such as the SWA)
vested rights upon its repeal. See Eitel, 21 N.E.2d at 321.
Plaintiff points out that a number of Illinois appellate
courts have decided cases involving the Structural Work Act even
after the date of its repeal. See, e.g., Duncan v. Church of the
Living God, 278 Ill.App.3d 588, 215 Ill.Dec. 231, 662 N.E.2d 1371
(1st Dist. 1996); Natalino v. JMB Realty Corp., 277 Ill. App.3d 270,
213 Ill.Dec. 881, 660 N.E.2d 138 (1st Dist. 1995); Boyce v.
Risch, 276 Ill.App.3d 274, 212 Ill.Dec. 800, 657 N.E.2d 1145 (1st
Dist. 1995); Donovan v. Beloit Corp., 275 Ill.App.3d 25, 211
Ill.Dec. 410, 655 N.E.2d 313 (2d Dist. 1995). However, this Court
is not obligated in a diversity case to follow the opinions of
Illinois appellate courts; rather, the Court must divine what the
Illinois Supreme Court would hold in such a situation. The
analysis set forth above is founded upon decisions of the
Illinois Supreme Court and should be followed in this case.
Moreover, the parties did not raise the issue of the statute's
repeal in any of the appellate court cases cited by Plaintiff;
thus, they are not conclusive one way or the other on this issue.
For these reasons, Defendant's motion to dismiss Count III must
be granted.
IT IS THEREFORE ORDERED that Defendant's Motion to Dismiss or
Motion for Partial Summary Judgment as to Count III of
Plaintiff's Third Amended Complaint [Doc. # 66] is GRANTED. This
case is referred
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