POINTS AND AUTHORITIES

NATURE OF THE CASE...................................................................................... 1

JURISDICTIONAL STATEMENT....................................................................... 2

ISSUES PRESENTED FOR REVIEW.. 2

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED............... 2

STATEMENT OF FACTS. 2

Wackrow v. Niemi, 231 Ill.2d 418 (2008). 5, 6

Best v. Taylor Machine Works, 179 Ill.2d 367 (1997) 6

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002).. 6, 7

STANDARD OF REVIEW..................................................................................... 8

People v. Shephard, 152 Ill. 2d 489 (1992) 8

Bernier v. Burris, 113 Ill. 2d 219 (1986) 8

People v. Chicago Transit Auth., 392 Ill. 77 (1945) 8

Italia Am. Shipping Corp. v. Nelson, 323 Ill. 427 (1926) 8

Taylorville Sanitary Dist. v. Winslow, 317 Ill. 25 (1925) 8

People ex rel. Huempfner v. Benson, 294 Ill. 236 (1920) 8

Wilson v. Dept. of Revenue, 169 Ill. 2d 306 (1996). 8

Grasse v. Dealer's Trans. Co., 412 Ill. 179 (1952)........... 9

Yang v. City of Chicago, 195 Ill.2d 96 (2001). 9

Blum v. Koster, 235 Ill.2d 21 (2009) 9

In re Application of the County Collector of DuPage County for Judgment for

Delinquent Taxes for the Year 1992, 181 Ill.2d 237 (1998) 9

Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc.,
158 Ill.2d 76 (1994). 9
Michigan Avenue Natl. Bank v. County of Cook, 191 Ill.2d 493 (2000). 9

Sheffler v. Commonwealth Edison Co., 2011 IL 110166 .. 9

Van Meter v. Darien Park Dist., 207 Ill.2d 359 (2003).. 9

Porter v. Decatur Mem. Hosp., 227 Ill.2d 343 (2008). 9

Thurman v. Champaign Park Dist., 2011 IL App (4th) 101024.. 9

ARGUMENT............................................................................................................ 10

Wackrow v. Niemi, 231 Ill.2d 418 (2008). 10

Peterson v. Wallach, 198 Ill.2d 439 (2002) 10

Snyder v. Heidelberger, 2011 IL 111052.. 10

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002). 11

I. The Estate Planning Statute of Repose Violates the Due Process and
Equal Protection Clause of the Illinois Constitution...... 11

People v. Kimbrough, 163 Ill.2d 231 (1994).. 11, 12

Poullette v. Silverstein, 328 Ill. App. 3d 797 (1st Dist. 2002).. 12

People v. Reed, 148 Ill.2d 1(1992) 12

Grace v. Howlett, 51 Ill.2d 478 (1972). 12

Ill. Polygraph Society v. Pellicano, 83 Ill.2d 130 (1980) 12

Ill. House. Dev. Auth. v. Meter, 82 Ill.2d 116 (1980). 12

A. The Estate Planning Statute of Repose Has No Rational Relationship To

Any Legitimate Legislative Purpose 13

People v. Carpenter, 228 Ill.2d 250 (2008). 13

People v. Rizzo, 2016 IL 118599... 13

People v. Alcozer, 241 Ill.2d 248 (2011)......... 13

People v. Brown, 407 Ill. 565 (1950) 13

ii
B. The Decision in Poulette v. Silverstein Incorrectly Concluded That a
Rational Relationship Existed and Should Be Reversed.. 14

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002)14, 16, 17

Wackrow v. Niemi, 231 Ill.2d 418 (2008). 15

Peterson v. Wallach, 198 Ill.2d 439 (2002) 15, 16

Pugsley v. Tueth, 2012 IL App (4th) 110070 16

Zelenka v. Krone, 294 Ill. App. 3d 248 (3d Dist. 1997) 16

Romano v. Morrisoe, 326 Ill. App. 3d 26 (2d Dist. 2001).. 17

C. The requirement to file two lawsuits at the same time is unfair and
Contrary to Rule 137.. 18

D. Policy... 19

Pugsley v. Tueth, 2012 IL App (4th) 110070 19

Peterson v. Wallach, 198 Ill.2d 439 (2002)..... 19

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002) 20

Romano v. Morrisoe, 326 Ill. App. 3d 26, 32 (2d Dist. 2001).. 20

II. Special Legislation 20

Sidney Z. Karasik, Equal Protection of the Law under the Federal and
Illinois Constitutions: A Contrast in Unequal Treatment.. 21

30 DePaul Law Review 263 (1982).. 21

Bridgewater v. Holtz, 51 Ill.2d 103 (1972).. 21

In re the Petition of the Village of Vernon Hills, 168 Ill.2d 117 (1995). 21

Chi. Natl. League Ball Club, Inc. v. Thompson, 108 Ill.2d 357 (1985). . 21

In re Vernon Hills, 168 Ill.2d at 117 (1995) 21

Grasse v. Dealers Transport Co., 412 Ill. 179 (1952) 21

I Debates and Proceedings of the 1870 Constitutional Convention of the State

iii
of Illinois 578.. 22

People v. Wilcox, 237 Ill. 421 (1908)... 22

In re Belmont Fire Prot. Dist., 111 Ill.2d 373 (1986) ....... 22

Best v. Taylor Machine Works, 179 Ill.2d 367, 383 (1997) 22, 23, 24, 27

S. Grove & R. Carlson, The Legislature, in Con-Con: Issues for the

Illinois Constitutional Convention 101 (1970) 22

Brown's Furniture, Inc. v. Wagner, 171 Ill.2d 410 (1996)... 22

Cutinello v. Whitley, 161 Ill.2d 409 (1994).. 23

People v. Shephard, 152 Ill.2d 489 (1992) 23

Chicago Natl. League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, (1985). 23

Bilyk v. Chicago Transit Auth., 125 Ill.2d 230 (1988) 23

In re Belmont Fire Prot. Dist., 111. Ill.2d 373 (1986). 23

Wright v. Cent. Du Page Hosp. Ass'n, 63 Ill.2d 313 (1976)... 23, 24, 25, 27

Grace v. Howlett, 51 Ill.2d 478 (1972)23, 25

Skinner v. Anderson, 38 Ill.2d 455 (1967) .. 23

Lorton v. Brown Cty. Comm. Unit Sch. Dist. No. 1, 35 Ill.2d 362 (1966).23

Hutchings v. Kraject, 34 Ill. 2d 379 (1966).. 23

Harvey v. Clyde Park Dist., 32 Ill.2d 60 (1964) 23, 26, 27

People v. Wilcox, 237 Ill. 421 (1908) 24

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002) 23, 26, 27

Grasse v. Dealers Transport Co., 412 Ill. 179 (1952).. 26

III. Remedy Clause. 27

Wackrow v. Niemi, 231 Ill.2d 418 (2008) 28, 29

iv
Folta v. Ferro Engg, 2015 IL 118070.. 28

Cassens Trans. Co. v. Ill. Indust. Commn, 218 Ill.2d 519 (2006).. 28

Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353 (1979). 28, 29

25 C.J.S. Damages 17 (1966). 28

Bilyk v. Chicago Transit Auth., 125 Ill.2d 230 (1988).28, 29

Boddie v. Connecticut, 401 U.S. 371 (1971) 29

Wilson v. Iseminger, 185 U.S. 55 (1902) 29

IV. Equal Protection Under the U.S. Constitution 30

Poullette v. Silverstein, 328 Ill. App. 3d 791 (1st Dist. 2002). 30

Plyler v. Doe, 457 U.S. 202 (1982)............. 30

Plessy v. Ferguson, 163 U.S. 537 (1896). 30

City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985)... 30

United States v. Virginia, 518 U.S. 515 (1996)... 30

Trimble v. Gordon, 430 U.S. 762 (1977) 30

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166 (1980)... 30

Romer v. Evans, 517 U.S. 620 (1996).. 31

New Orleans v. Dukes, 427 U.S. 297 (1976) 31

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). 31

Rwy. Express Agency, Inc. v. New York, 336 U.S. 106 (1949). 31

Kotch v. Bd. of River Port Pilot Comm'rs for Port of New Orleans, 330 U.S. 552
(1947). 31

McGowan v. Maryland, 366 U.S. 420 (1961),,,,,, 31

Ross v. Moffitt, 417 U.S. 600 (1974).. 31

v
San Antonio Ind. Sch. Dist. V. Rodriguez, 411 U.S. 1 (1973). 31

Personnel Admin. of Mass. v. Feeney, 442 U.S. 93 (1979).. 31

Engquist v. Or. Dept. of Agriculture, 553 U.S. __, 128 S.Ct. 2146 (2008).. .. 32

Vance v. Bradley, 440 U.S. at 111. 32

Poullette, 328 Ill. App. 3d at 797.. 32

Romer v. Evans, 517 U.S. 620 (1996)32

CONCLUSION... 33

CERTIFICATE OF COMPLIACE. 34

CERTIFICATE OF SERVICE . 35

APPENDIX

vi
 NATURE OF THE CASE

The instant appeal arises out a legal malpractice action brought by an intended

beneficiary of an estate, the Plaintiff/Appellant, DAVID SHUTACK (hereinafter

David), against the attorney and law firm, Defendants/Appellees, SUSAN T. BART,

(hereinafter Attorney Bart) and SIDLEY AUSTIN, LLP, (hereinafter Sidley Austin)

(hereinafter collectively referred to as Appellees) that represented his father, JOHN

SHUTACK (hereinafter John), in his estate planning by failing to disclose or obtain a

waiver of consent from John that Appellees concurrently had an attorney-client

relationship with Johns stepdaughter from a later marriage, KATHLEEN McDONNELL

(hereinafter Kathleen). Appellees moved to dismiss pursuant to 735 ILCS 5/2-619.1

(West 2016) claiming the Complaint alleged insufficient facts to establish the presence of

a duty owed by Appellees to David and that Davids Complaint for Legal Malpractice

was time barred by the Statute of Repose contained in 735 ILCS 5/13-214.3(d) (West

2016) (hereinafter the Estate Planning Statute of Repose). Davids Response

contended that sufficient facts were plead in the Complaint to establish that a duty

existed, or in the alternative, asked to file an Amended Complaint. Davids Response

also challenged the constitutionality of the Estate Planning Statute of Repose because it

violated the Due Process, Equal Protection, Remedy, and Special Legislation Clauses of

the Illinois Constitution since it acts to protect a specific class of attorneys from suit. On

February 18, 2016, the trial court granted Appellees Motion to Dismiss pursuant to 735

ILCS 5/2-619(a)(5) (West 2016) holding that the Estate Planning Statute of Repose time-

barred Johns Complaint. David filed a Notice of Appeal on March 11, 2016 (C00109-

113; A7-111) within thirty (30) days of the February 18, 2016 Order (C00105-108)
 JURISDICTIONAL STATEMENT

Pursuant to Illinois Supreme Court Rule 303(a), this Court has jurisdiction to hear the
appeal of a final judgment. David filed his Notice of Appeal on March 11, 2016, within
thirty (30) days of the entry of the trial courts February 18, 2016 Order. (C105-108) A3-
A-6.
ISSUES PRESENTED FOR REVIEW
1. Whether 735 ILCS 5/14-214.3(d) violates the Due Process, Equal Protection,
Remedy or Special Litigation Clauses of the Illinois Constitution by providing a separate
Statute of Repose protecting estate planning attorneys?
2. Whether 735 ILCS 5/14-214.3(d) violates the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution by treating estate planning
attorneys differently from others situated?
STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED
The instant Appeal involves the construction, interpretation, and constitutionality
of 835 ILCS 5/14-214.3(d) pursuant to the Due Process and Equal Protection Clause of
the Illinois Constitution (ILL. CONST. Art. I, Sec. 2), the Remedy Clause of the Illinois
Constitution (ILL. CONST. Art. I, Sec. 12), the Special Litigation Clause of the Illinois
Constitution (ILL. CONST. Art. IV, Sec. 13), and the Equal Protection Clause of the
United States Constitution (U.S. CONST. Amend. XIV, Sec. 1). A copy of the full text of
each of the relevant statutes and constitutional provisions are included in the Appendix at
A33-34.
STATEMENT OF FACTS

In 2011, Davids father, JOHN SHUTACK communicated his intent to Attorney

Bart that he wished to modify his earlier estate plan. Complaint, C00003, A13. At the
time, Johns estate plan called for David, and Johns four (4) stepchildren from a later

2
marriage to each receive a twenty (20%) percent share of Johns estate. C00003; A11.
John communicated his intent to Attorney Bart that he wished to modify his earlier estate
plan to provide that his son, David, would receive fifty (50%) percent of his estate.
C00003-4; A13-A14. His four (4) stepchildren, including Kathleen, would then each
receive a twelve point five (12.5%) percent share of his estate. C00004, A14. Instead of
complying with Johns simple, uncomplicated request, and without notifying John that
Appellees also represented Kathleen, or obtaining a waiver from John consenting to the
conflict, on August 4, 2011 Attorney Bart defamed David and advocated for the benefit
of their client, Kathleen. C00003-4; A13-14.
Attorney Bart wrote to John:
You made a thoughtful decision about wanting to treat all five children
equally. It is not unusual for clients who have long second marriages to
treat their stepchildren equally, although it is a personal decision. The
only thing that has changed since you made your decision is that David
had a tantrum. For you to change your mind in light to this sounds like
undue influence to me. David needs to understand that the fact that you
also care for Pats children does not mean that you care any less for him.
You love David, and he should know that from how you have treated
him during your life to this point. All children should understand that they
have no entitlement to their parents money. David should respect your
relationship with Pats children, even if he does not share a similar
relationship with them.
C00004 (Complaint 14); A14. At this time, neither Attorney Bart nor did any other
person employed by Sidley Austin inform John that they had an attorney-client
relationship with Kathleen that was directly adverse to Johns wishes. C00003-4; A13-14.
On September 9, 2011, John wrote to Appellees via electronic mail, stating Considering
going back to David and Pat (now her descendants). That is what we had
originally. C00004 (Complaint 16); A14.
Attorney Bart responded shortly thereafter to John:
If David hadnt made a fuss, how would you want to treat Pats children?
You told me that they were very important to you and like your own
children. I think you[r] inclination earlier this year to treat them equally
3
 was closer to what you wanted. If you were not pressured by David
You also told Pats children you would split the estate with them. It is not
fair to them to completely back off of what you told them, even if they
will all behave better than David about it. If they wanted to they might
have a reason for arguing that David exerted undue influence over you.
For that reason alone I would recommend against reverting to exactly the
same estate plan you had previously.
C00004 (Complaint 17) A14. Again, Attorney Barts communication with John
advocated on behalf of Sidley Austins client, Kathleen, and against John and Davids
interests. C00005; A13. This conflict was not waivable because Appellees encouraged
John to protect the economic interests of their other clients, including Kathleen. C00005;

A15.
Based upon Attorney Barts advice, John did not change his estate plan causing
David to receive only twenty (20%) percent of his fathers estate upon his passing on July
28, 2013. C00005; A15; C00019. Johns will was admitted to probate on September 5,
2013. The first publication of the notice of Johns death to creditors occurred on
September 10, 2013. C00019-20.
David filed his Complaint for legal malpractice on July 8, 2015, within the two
(2) year statute of limitations. C00002-9; A10-17. See 735 ILCS 5/13-214.3(b) (West
2016). On September 23, 2015, Appellees filed a Combined Motion to Dismiss
Plaintiffs Complaint pursuant to 735 ILCS 5/2-619.1 (West 2016) with a supporting
Memorandum of Law. C0014-39. First, Appellees alleged that Plaintiffs Complaint
plead insufficient facts to establish that an attorney-client relationship existed between
David and Appellees and Davids Complaint did not establish that he was an intended
third-party beneficiary of Johns attorney-client relationship with Appellees. Because of
this, no duty existed from Appellees to David, either directly or as a third-party
beneficiary, requiring the trial court to dismiss the action pursuant to 735 ILCS 5/2-615
(West 2016). C00020-28.

4
 Second, Appellees claimed that Davids Complaint was time barred by the Estate
Planning Statute of Repose. C00028. Appellees argued that because Johns will was
submitted to the Probate Court on September 5, 2013 and the first publication of notice to
creditors was made on September 10, 2013, the Estate Planning Statute of Repose
required David to bring his action for legal malpractice by the later of either the
deadlines for filing claims against Johns estate (March 11, 2014) or the deadline for
contesting Johns will (March 5, 2014). C0029-30. Because Davids Complaint for
Legal Malpractice was not filed by March 11, 2014, it was time-barred by the Estate
Planning Statute of Repose and Appellees Motion to Dismiss pursuant to 735 ILCS 5/2-
619(a)(5) should be granted. C00029-30.
After obtaining an extension of time to file his Response, David filed his
Response to Defendants Motion to Dismiss on December 3, 2015. C00043-55; A14-30.
David argued that Sidley Austin owed him a duty because he was an intended third-party
beneficiary of the relationship between John and Sidley Austin. C00045-47; A20-22.
The cases cited by Appellees in their 735 ILCS 5/2-615 Motion to Dismiss pre-dated the
Illinois Supreme Courts move to join the courts of other states in rejecting a privity
defense to legal malpractice actions. C00045-47; A20-22.
David also argued that it was premature to apply the Estate Planning Statute of
Repose to the present suit, because at the pleadings stage and without further discovery, it
was not possible to determine if certain trusts were revocable or irrevocable. C00047-48;
A18-19. If irrevocable, Johns injury did not occur upon death and the Estate Planning
Statute of Repose would not apply, rather 735 ILCS 5/13-214.3(b) would apply. C00048;
A25.
Finally, David attacked the constitutionality of the Estate Planning Statute of
Repose. C00048-55; A25-32. While the Illinois Supreme Courts most recent decision
on the statute in Wackrow v. Niemi, 231 Ill.2d 418 (2008) upheld its constitutionality, the
5
statute has been highly controversial because it may shorten the limitation for legal
malpractice complaints and may mean that a plaintiffs action is barred before she learns
of her injury. C00049; A26. Wackrow v. Niemi, 231 Ill.2d 418 (2008). David argued
that the Estate Planning Statute of Repose violated the Due Process and Equal Protection
Clauses of the Illinois Constitution because they create[d] a distinction between
malpractice claims where the decedents will was admitted to probate (six months) and
two years where the decedents will was not admitted to probate without any rational
basis for this distinction. C00050-51; A27-28..
David next argued that the Estate Planning Statute of Repose violated the Remedy
Clause of the Illinois Constitution, because it denied recovery to those injured by poor
drafting of trust documents any remedy for legal malpractice. C00050; A27. Living
trusts, for instance, need not be filed with the Court and beneficiaries may not have
access, such as here, to the living trust or irrevocable trusts created by attorneys. C00050;
A27.
David also argued that the Estate Planning Statute of Repose violated the Special
Legislation Clause of the Illinois Constitution since it applied to only a small class of
attorneys fortunate enough to have a former client die and his or her executor open an
estate. C00052; A29. The arbitrary benefit conferred upon these attorneys without any
justification or purpose identified in the statute is the hallmark of an unconstitutional
classification. C00052; A29. Best v. Taylor Machine Works, 179 Ill.2d 367, 383 (1997).
Finally, David pointed to the policy reasons why the current interpretation of the Estate
Planning Statute of Repose results in unjust and unfair benefits for estate planners that
they do not deserve and should not retain, requiring that the decisions in Wackrow and
Poulette be reconsidered. C00052-55; A29-32.
Appellees filed their Reply Memorandum in Support of Combined Motion to
Dismiss Pursuant to Section 2-619.1 of the Code of Civil Procedure on December 29,
6
2015. C00059. Appellees again restated their original argument that David had failed to
allege facts demonstrating he was an intended third-party beneficiary of the attorney-
client relationship between John and Sidley Austin. C00061-65. Because John was the
client, not David, the duty owed by Sidley Austin and Attorney Bart was to him alone.
C00063-64. Thus, no duty arose from Sidley Austin to David and he could not state a
cause of action for legal malpractice. C00065.
Appellees also briefed and responded to the constitutional attacks made by David
against the Estate Planning Statute of Repose. C0066-71. Appellees cited this Courts
ruling in Poullette v. Silverstein, 328 Ill. App. 3d 791, 797 (1st Dist. 2002) where the
Court found that the distinction drawn by the Estate Planning Statute of Repose was
rationally related to a legitimate governmental purpose. C00067. Appellees argued
that David was bound by this Courts earlier decision. C00067.
Appellees also contended that Davids argument that the Estate Planning Statute
of Repose violated the Special Legislation Clause of the Illinois Constitution failed for
the same reason. C00067-68. Because it is judged under the same standard as an equal
protection challenge, the same review as that performed in Poullette would apply.
C00068. Appellees argued that Davids challenge based on the Remedy Clause of the
Illinois Constitution because the legislature may enact a statute of repose without
violating the certain remedy clause. C00068-69.
Finally, Appellees argued that the Estate Planning Statute of Repose can actually
extend the time for filing legal malpractice claims and [f]ar from serving as a windfall
to estate planning lawyers, section 214.3(d) permits legal malpractice claims against such
attorneys to go forward where such claims would otherwise be barred by the six-year
statute of repose for legal malpractice claims generally. C00069-71. Appellees also
argued that the Estate Planning Statute of Repose applied to all attorneys, not just estate

7
planning lawyers, and devised a hypothetical where an attorney who drafted a corporate
buyout for a business would also be subject to section 214.3(d). C00070-71.
On February 18, 2016, the trial court, the Honorable James N. OHara presiding,
issued a written Order summarizing the factual and legal arguments made by the parties
in Davids Complaint for Legal Malpractice, Appellees Motion to Dismiss Plaintiffs
Complaint pursuant to 735 ILCS 5/2-619.1, Davids Response to Appellees Motion to
Dismiss and the Appellees Reply in Support of their Section 2-619.1 Motion to Dismiss.
C00105-108; A3-6. The Court found that pursuant to 735 ILCS 5/13-214.3(d), the last
day for challenging Johns will was March 5, 2014 and the last date for creditors to file a
claim against Johns estate was March 11, 2014. C00107; A5. Johns Complaint for
Legal Malpractice was filed on July 8, 2015, making it untimely pursuant to the Estate
Planning Statute of Repose. C00107; A3. The trial court was compelled to dismiss
Plaintiffs 735 ILCS 5/13-214.3(d) because it is nonetheless the law of the State of
Illinois. C00107; A5.
STANDARD OF REVIEW
Courts should begin any constitutional analysis with the presumption that the
challenged legislation is constitutional (People v. Shephard, 152 Ill. 2d 489 (1992)), and
it is the plaintiff's burden to clearly establish that the challenged provisions are
unconstitutional. Bernier v. Burris, 113 Ill. 2d 219 (1986). However, the Illinois
Constitution is not a grant, but a limitation on legislative power. People v. Chicago
Transit Auth., 392 Ill. 77 (1945); Italia Am. Shipping Corp. v. Nelson, 323 Ill. 427
(1926); Taylorville Sanitary Dist. v. Winslow, 317 Ill. 25 (1925). It is the court's duty to
interpret the law and to protect the rights of individuals against acts beyond the scope of
the legislative power. People ex rel. Huempfner v. Benson, 294 Ill. 236 (1920). If a
statute is unconstitutional, this court is obligated to declare it invalid. Wilson v. Dept. of
Revenue, 169 Ill. 2d 306 (1996). This duty cannot be evaded or neglected, no matter how
8
desirable or beneficial the legislation may appear to be. Id. at 310; Grasse v. Dealer's
Trans. Co. p. 190 (1952).
The interpretation of a statute is a question of law, subject to de novo review.
Yang v. City of Chicago, 195 Ill.2d 96, 103 (2001). The fundamental purpose of statutory
construction is to determine and give effect to the intent of the legislature. Blum v.
Koster, 235 Ill.2d 21, 29 (2009). The best means of determining legislative intent is
through the statutory language. In re Application of the County Collector of DuPage
County for Judgment for Delinquent Taxes for the Year 1992, 181 Ill.2d 237, 244 (1998).
When the meaning of a statute is not clearly expressed in the statutory language, a court
may look beyond the language employed and consider the purpose behind the law and the
evils the law was designed to remedy. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill.2d 76, 81 (1994). When the language of an
enactment is clear, it will be given effect without resort to other interpretative aids.
Michigan Avenue Natl. Bank v. County of Cook, 191 Ill.2d 493, 504 (2000).
The appellate court reviews a trial courts decision to dismiss a complaint
pursuant to 735 ILCS 5/2-619 de novo. Sheffler v. Commonwealth Edison Co., 2011 IL
110166, 23. A section 2-619 Motion to Dismiss disposes of issues of law and easily
provides issues of fact at the outset of litigation. Van Meter v. Darien Park Dist., 207
Ill.2d 359, 367 (2003). The motion admits as true all well-plead facts and all reasonable
inferences that can be determined from those facts. Porter v. Decatur Mem. Hosp., 227
Ill.2d 343, 352 (2008). When considering an appeal on a section 2-619 Motion to
Dismiss, the reviewing court must consider whether there exists a disputed issue of
material fact or whether dismissal is proper as a matter of law. Thurman v. Champaign
Park Dist., 2011 IL App (4th) 101024, 18.

9
 ARGUMENT

The statute of repose contained in 735 ILCS 5/13-213.4(d) serves no purpose,

other than to protect a specific class of attorneys, those who provide estate planning
services, from potential liability for legal malpractice by manipulating the date by which
a potential plaintiff must bring suit based on an arbitrary and unrelated timeline. It
essentially forces a potential plaintiff to run to the courthouse when a beneficiary of a
decedents estate, presumably a loved one, remotely questions problems on how that
estate will be divided or the potential liability of the estate based on the negligence of the
drafting attorney. Moreover, the Estate Planning Statute of Repose creates additional and
duplicative litigation costs with its relation to the timelines for filing a legal malpractice
claim to the dates for contesting the validity of a will or filing a claim against the
decedents estate; a party may essentially have to contest the validity of the will or file a
claim against the decedents estate while simultaneously maintaining a legal malpractice
action against the attorney who drafted the decedents estate planning documents
resulting in duplicative litigation.
The Illinois Supreme Courts rulings in Wackrow v. Niemi and Petersen v.
Wallach, while allegedly confirming the purpose, validity, and constitutionality of the
Estate Planning Statute of Repose, have done little to provide a remedy or justice for
those who have suffered harm due to attorney malpractice in estate planning. The statute
and the Illinois Supreme Courts attempts to uphold its validity have created a patchwork
of untenable case law where courts stretch the facts in order to avoid unequitable results.
See Snyder v. Heidelberger, 2011 IL 111052, 39, Freeman, J., dissenting ([r]ather than
embrace an analysis that is inconsistent with Illinois case law and produces not just
absurd, but unjust, results, I submit that the better approach in this case is to acknowledge
the fact that while [the decedent] was alive, [the beneficiary] suffered no injury as a result

10
of the [attorneys] negligence); see also Poullette v. Silverstein, 328 Ill. App. 3d 791, 794
(1st Dist. 2002) ([w]hile we are cognizant that the effect on plaintiff in this case was to
shorten the period of time in which she had to file her claim, we can neither restrict nor
enlarge the meaning of an unambiguous statute) (internal quotations omitted).
The six (6) month deadline to bring an action for legal malpractice when the cause
of action accrues at upon the death of an individual sets an arbitrary and capricious
deadline, shortening the amount of time for many in which to bring a legal malpractice
claim, and denying them recovery. For these reasons, 735 ILCS 5/13-213.4(d) violates
the Due Process and Equal Protection Clause of the Illinois Constitution (ILL. CONST. art.
I, Sec. 2), the Remedy Clause of the Illinois Constitution (ILL. CONST. art. I, Sec. 12), the
Special Litigation Clause of the Illinois Constitution (ILL. CONST. art. IV, Sec. 13), and
the Equal Protection Clause of the United States Constitution (U.S. CONST. amend. XIV,
Sec. 1).

I. The estate planning statute of repose violates the due process

and equal protection clause of the Illinois Constitution.
The Estate Planning Statute of Repose Violates the Due Process and Equal
Protection Clauses of the Illinois Constitution because it divides a certain subset of
attorneys and litigants into a specific class and provides wholly different treatment for
that class of attorneys and litigants, providing a distinct benefit for attorneys and a
detriment to those injured by attorney malpractice. See People v. Kimbrough, 163 Ill.2d
231, 237 (1994). This suspect class of estate planning attorneys, who receive a distinct
benefit by having a six (6) month statute of repose from the date letters of office are
issued or the date the notice to creditors is published, has no rational relationship to any
legitimate state interest. See id. Thus, the Estate Planning Statute of Repose is
unconstitutional.

11
 Article I, Section 2 of the Illinois Constitution states, No person shall be
deprived of life, liberty or property without due process of law nor be denied the equal
protection of the laws. The constitutional right to equal protection of the law
guarantees that the State must treat similarly situated persons in a similar manner.
Poullette v. Silverstein, 328 Ill. App. 3d 791, 796 (1st Dist. 2002) citing Kimbrough, 163
Ill.2d at 237. The guarantee of the equal protection clause prohibits the State from
statutorily dividing persons into different classes and providing for different treatment of
each class for reasons wholly unrelated to the purpose of the litigation. Id. Where a
statutory classification neither impinges on a fundamental constitutional right nor is
based on a suspect class, a court will use the rational basis test to review the statutes
validity. Id. Under the rational basis test, the statutory classification is constitutional if
it bears a rational basis to a legitimate state interest. Id. citing Kimbrough, 163 Ill.2d at
237. A suspect class includes those based on race. People v. Reed, 148 Ill.2d 1, 7
(1992). For the purposes of this Appeal, David concedes that he is not part of a suspect
class nor does the classification impinge a fundamental constitutional right, therefore the
rational basis test is proper for the court to apply. Poullette, 328 Ill. App. 3d at 796.
While the Special Legislation and Equal Protection Clauses of the Illinois
Constitution cover much of the same terrain, they are not duplicates. Grace v. Howlett,
51 Ill.2d 478, 487 (1972). Special legislation differs from a violation of equal protection
in that the latter consists of arbitrary and invidious discrimination against a person or
class of persons. Ill. Polygraph Society v. Pellicano, 83 Ill.2d 130, 137-38 (1980). It is
the duty of the courts to decide whether the classification is reasonable in that it
preferentially and arbitrarily includes a class (special legislation) to the exclusion of all
others, or improperly denies a benefit to a class (equal protection). Id. A legislative
classification will be upheld if it bears a rational relationship to a legitimate legislative
purpose. Ill. House. Dev. Auth. V. Meter, 82 Ill.2d 116, 121 (1980). Here, the arbitrary
12
deadlines set by the Estate Planning Statute of Repose bear no rational relationship to any
legitimate legislative purpose and merely provide a benefit to a specific class of attorneys
to prevent those harmed from their malpractice from receiving a remedy.

A. The Estate Planning Statute of Repose has no rational

relationship to any legitimate legislative purpose.
The Estate Planning Statute of Repose has no rational relationship to any
legitimate legislative purpose, because the deadlines for bringing an action are arbitrary
and bears no rational relationship to any purpose, other than to benefit a class of estate
planning attorneys from being held accountable for their legal malpractice.
A statute attacked on due process grounds will be upheld so long as (1) it bears a
reasonable relationship to the public interest sought to be protected and (2) the means
employed are a reasonable method of achieving the desired method. People v.
Carpenter, 228 Ill.2d 250, 267-68 (2008). When applying the rational basis test the
court is highly deferential to the findings of the legislature. People v. Rizzo, 2016 IL
118599, 45. If any state of facts can reasonably be conceived of to justify the
enactment, it must be upheld. Id. citing People v. Alcozer, 241 Ill.2d 248, 263 (2011). If
the government treats groups of people differently, the classification must rest on
material distinctions in the situation and in the circumstances of the individuals whom
the law effects. People v. Brown, 407 Ill. 565, 584 (1950).
Here, there have been no findings concerning the effect of the statute on any
persons, save for David in this case. As applied to David however, the effect of the
Estate Planning Statute of Repose are devastating, he has no remedy against an attorney
and a law firm that engaged in the mutual representation of clients that had adverse
interests and actively lobbied against Davids interests concerning his fathers estate
planning. Without one shred of evidence, Attorney Bart accused David of using undue
influence upon his father, throwing a tantrum and that David pressured John into

13
changing his estate planning wishes. These acts materially benefitted Sidley Austins
client, Kathleen, while harming David. Attorney Bart and Sidley Austin could not waive
this material conflict of interest because the interests of David, as an intended third-party
beneficiary of John, were directly adverse to Kathleens interests, as she stood much to
lose if John changed his estate planning wishes.

The Estate Planning Statute of Repose states,

[w]hen the injury cause by the act or omission does not occur until the
death of the person for whom the professional services were rendered, the
action may be commenced within 2 years after the date of the persons
death unless letters of office are issued or the persons will is admitted to
probate within the 2 year period, in which case the action must be
commenced within the time for filing claims against the estate or a petition
contesting the validity of the will of the deceased person, whichever is
later, as provided in the Probate Act of 1975.
Thus, on its face, the statute provides for two (2) different deadlines. If a will is not
admitted to probate within two (2) years or letters of office are issued, then an action for
legal malpractice that accrues upon a persons death must be brought within two (2) years
of the date of the persons death. Id. However, if the will is admitted to probate or letters
of office are issued, which could be entirely different dates depending on the
proceedings, then six (6) months from the latter of these dates is the date upon which a
suit for legal malpractice must be brought. This confusing, unnecessary and arbitrary set
of dates has no rational relationship to any legitimate state interest.

B. The decision in Poullette v. Silverstein incorrectly concluded

that a rational relationship existed and should be reversed.
In Poullette v. Silverstein, this Court considered an equal protection challenge to
the Estate Planning Statute of Repose and found that the statute was rationally related to
a legitimate governmental interest. 328 Ill. App. 3d 791, 797 (1st Dist. 2002). The
Court acknowledged the plaintiffs argument that when a malpractice claim is filed
against an attorney arising out of the preparation of a will is not admitted to probate he

14
has two (2) years to bring suit while if the will is submitted to probate the person has
significantly less time to file their claim. Id. However, this Court found that the Estate
Planning Statute of Repose reflects a policy of law intended to balance several different
interests: it provides a claimant with a reasonable time after the decedents death to
pursue a cause of action; it balances the defendants right to be free of stale claims; and
address the need for closure with respect to matters related to a decedents estate as
necessitated by the Probate Act. Id.
However, this decision provided no basis why a suspect class of attorneys should
be granted disparate and far better treatment than other attorneys, other than a
defendants right to be free of stale claims. Id. The cases decided under the Estate
Planning Statute of Repose bear the fruit of this argument. In Wackrow v. Niemi, an
attorney prepared an amendment to a living trust to bequeath a property from a decedent
to a beneficiary. 231 Ill.2d at 420. However, because the attorney preparing the
amendment had failed to perform a title search, he did not identify that the decedent did
not own the property, but rather it was owned by another of the decedents trusts. Id.
The intended beneficiary made a timely claim against the decedents estate for either the
property or the value thereof, which was denied by the Probate Court six months later.
Id. The intended beneficiary then sued the attorney who had prepared the amendment for
legal malpractice. Id. The Illinois Supreme Court held that, despite the uncontroverted
evidence of the timely claim against the decedents estate and the negligence of the
preparing attorney, that the injury occurred upon the decedents death and a claim for
legal malpractice was required to have been filed within six (6) months of the submission
of the decedents will to the Probate Court, making plaintiffs complaint for legal
malpractice, filed after the claim against the estate had been decided, untimely. Id. at
425.

15
 An equally inequitable set of facts was reached in Peterson v. Wallach, wherein
an attorneys advice to minimize the tax ramifications from distributions from the
decedents estate by making inter vivos gifts while the decedent was still alive in 1990
and 1991 instead caused the estate taxes to increase by approximately $238,000.00 upon
her passing on November 10, 1996. 314 Ill. App. 3d 823, 825 (1st Dist. 2000). Although
the opinion does not state as much, it is highly unlikely this tax burden was discovered
until the six (6) month statute of limitations to bring suit against the deficient attorney
had already passed. Despite the facts, this Court found that the Estate Planning Statute of
Repose applied to an inter vivos trust, disagreeing with the decision reached in Zelenka v.
Krone, 294 Ill. App. 3d 248 (3d Dist. 1997) overruled in Peterson v. Wallach, 198 Ill.2d
439 (2002). Id.
The facts from these cited cases make one point clear, the purpose and effect of
the Estate Planning Statute of Repose have not provided a reasonable time after the
decedents death to pursue a cause of action while it has allowed attorneys who were
well aware of cases that could have been brought against them for legal malpractice to
avoid the ramifications of their negligence. Poullette, 328 Ill. App. 3d at 797. Not a
single published case has provided any support for this Courts conclusion that the Estate
Planning Statute of Repose address[es] the need for closure with respect to matters
related to a decedents estate as necessitated by the Probate Act. Id. Rather, the
opposite has occurred.
As Justice Cook wrote in Pugsley v. Tueth, [s]tatutes of repose set an outside
limit on actions, not a short limit. 2012 IL App (4th) 110070, 30, specially
concurring. It is important that statutes of limitation and statutes of repose be clear and
definite. Id. at 35. The moving target provided in the Estate Planning Statute of
Repose addressed none of the balances this Court described in Poullette. 328 Ill. App.
3d at 797. It forces a claimant or plaintiff to bring multiple cases against both the
16
decedents estate for a claim or to contest a will while simultaneously bringing an action
for legal malpractice against the estate planning attorney.
If David would have successfully challenged his fathers estate planning as
provided in the Probate Act, David would have suffered no injury in this matter. See
Romano v. Morrisoe, 326 Ill. App. 3d 26, 32 (2d Dist. 2001) (had the [underlying]
action been decided in [plaintiffs] favor, there would have been no valid malpractice
claim, and the malpractice case would have spent over two years on a court docket
wasting judicial resources on a case in which no one was injured.). However, the Estate
Planning Statute of Repose requires him to bring this waste of judicial resources
against the attorneys or be foreclosed from doing so at a later time. See id.
There is no rational basis for making the distinction drawn by the legislature or
ascribed in Poullette. Plaintiffs are often unaware of their injury until after the six (6)
month statute of repose has lapsed. Defendant estate planning attorneys whose clients
submit their wills to probate or issue letters of office reap an enormous benefit while, for
some reason, a distinction is drawn against attorneys whose clients do not perform these
tasks. While this Court advanced the benefit of the defendants right to be free of stale
claims there have been no cited cases wherein Defendant attorneys made such a
contention. Finally, while this Court cited the need for closure with respect to matters
related to a decedents estate as an additional interest, that very closure is required for a
case of legal malpractice against an estate planning attorney to move forward or for
damages against the attorney to be certain. See Romano, 326 Ill. App. 3d at 32. Instead,
the current arbitrary statute requires a plaintiff to bring multiple actions, bearing
additional costs and legal expenses, with the legal malpractice action wholly dependent
on the outcome of a challenge to a will or claim against an estate. See Wackrow, 231
Ill.2d at 420. As such, the decision and reasoning in Poullette v. Silverstein was incorrect
and should be overruled by this Court.
17
 C. The requirement to file two lawsuits at the same time is
unfair and contrary to Rule 137.

The practical effect of the six-month limitation period is that a claimant against an

estate, who believes that there was a drafting error by the estate planner, must file two

claims at the same time. The first claim is a claim in the probate estate. The second claim,

of course, is a malpractice claim against the lawyer who made an error in drafting the

documents. This requirement of Illinois law imposes an undue and unfair burden on the

litigant seeking adjudication. It is also inconsistent with the requirements of Illinois

Supreme Court Rule 137. Rule 137(a) provides in part:

(a) Signature requirement/certification. Every pleading, motion

and other document of a party represented by an attorney shall be signed
by at least one attorney of record in his individual name, whose address
shall be stated. A party who is not represented by an attorney shall sign his
pleading, motion, or other document and state his address. Except when
otherwise specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. The signature of an attorney or party
constitutes a certificate by him that he has read the pleading, motion or
other document; that to the best of his knowledge, information, and belief
formed after reasonable inquiry it is well grounded in fact and is
warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for
any improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. If a pleading, motion, or other
document is not signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the pleader or movant. If a
pleading, motion, or other document is signed in violation of this rule, the
court, upon motion or upon its own initiative, may impose upon the person
who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of
reasonable expenses incurred because of the filing of the pleading, motion
or other document, including a reasonable attorney fee. (italics supplied).

Rule 137 requires the lawyer for the claimant to do research and take discovery

before filing suit against the estate planning attorney. It is common knowledge that this

research often takes more than six months. By that time, of course, the six-month statute
18
of limitations has expired and the malpractice claim cannot be brought. Rule 137 is good

policy. It requires lawyers to make sure that they file truthful pleadings. But the

requirements of Rule 137, as a practical matter, make it virtually impossible to file a legal

malpractice claim against the estate planning attorney at the same time that the probate

claim is filed. This requirement of Illinois law is unjust because it requires filing two

lawsuits at the same time. Frequently, the legal malpractice case will be baseless and

unsupported by facts because the lawyer did not have time to take discovery in the

Probate matter before filing the malpractice action. The extra burden imposed by Rule

137 on.

D. Policy

The incorrect and harsh consequences for clients who have suffered damages as a
result of their attorneys professional negligence must be considered by this Court in
determining whether disparate and beneficial treatment should be given to estate planning
attorneys. As Justice Cook wrote in Pugsley v. Tueth, [i]f section 13-214.3(d) was
intended only to extend the statute of repose, there was no reason to apply it to the two-
year statute of limitations, which would not expire anyway until there was knowledge of
the injury. What sense does it make for the statute of repose to be shortened to the time
for filing claims or renouncing a will? 2012 IL App (4th) 110070, 30, specially
concurring. Many clients would not even be aware of their attorneys malpractice until
after the six (6) month period had even expired. See Peterson v. Wallach, 198 Ill.2d 439
(2002) (plaintiff become aware of attorneys malpractice after taxes prepared for the
decedents estate demonstrated an increase of $238,000 in tax liability based on advice of
attorney to make substantial inter vivos gifts from the decedent to the beneficiary before
decedents passing).

19
 This Court has found that the estate planning attorneys need to be free of stale
claims is a sufficient legitimate legislative purpose and rationally related to the statute.
Poullette, 328 Ill. App. 3d at 797. However, that benefit, bestowed to a select group of
attorneys that particularly practice in one small area of law cannot support the harsh
consequences and burden a prospective plaintiff must bear in relation. As noted above,
the Estate Planning Statute of Repose currently would require a plaintiff to bring both
their claim against the estate or challenge to the validity of a will and their claim for legal
malpractice against the attorney who drafted the will or trust. See supra paragraph
(I)(B), pp. 15-16. However, they need not do this if the will has not been submitted to
probate or letters of office issued. See 735 ILCS 5/13-214.3(d). No court has ever
advanced any reasoning for these separate moving targets except for the need for
closure with respect to matters related to a decedents estate as necessitated by the
Probate Act. Poullette, 328 Ill. App. 3d at 797. This need for closure has little to no
effect upon a claim for legal malpractice, except that it must be determined for damages
against the negligent attorney to be certain. See Romano, 326 Ill. App. 3d at 32. Given
the harsh and unjust consequences that result from application of the Estate Planning
Statute of Repose and the complete lack of any legitimate legislative purpose in its
enacting, 735 ILCS 5/13-214.3(d) violates the Illinois Equal Protection Clause by
providing beneficial treatment to a specific class of attorneys and is unconstitutional.

II. Special legislation

The Estate Planning Statute of Repose provides a distinct and special benefit to a
certain subset of attorneys, those whose clients submit their wills to probate or open
letters of office on behalf of an estate. Only in cases where estates perform one of those
two (2) actions, does it allow for a six (6) month statute of repose from the occurrence of
those actions. See 735 ILCS 5/13-214.3(d). Because this benefit to some attorneys, but

not others, even within a subset of Illinois attorneys at large, is based on an arbitrary and
20
fortuitous action, while all victims of legal malpractice are equally damaged and bear the
burden of this benefit provided to a subset of attorneys that commit legal malpractice, it
violates the Special Legislation Clause of the Illinois Constitution.
Article IV, Section 13 of the Illinois Constitution states, [t]he General Assembly
shall pass no special or local law when a general law is or can be made applicable. ILL.
CONST. art. IV, 13. Illinois courts have a well-established duty to invalidate special
legislation, regarding of the desires or motivations behind such enactments. Sidney Z.
Karasik, Equal Protection of the Law Under the Federal and Illinois Constitutions: A
Contrast in Unequal Treatment, 30 DePaul Law Review 263, 279 (1982); see also
Bridgewater v. Holtz, 51 Ill.2d 103, 110 (1972). The Special Legislation Clause does not
prohibit all legislative classifications, merely those, like in the Estate Planning Statute of
Repose, that are drawn arbitrarily. See In re the Petition of the Village of Vernon Hills,
168 Ill.2d 117, 122 (1995). There must be a reasonable basis upon which the legislature
has enacted a classification in favor of a select group, as opposed to the standard drawn
by the Illinois Equal Protection Clause. Chi. Natl. League Ball Club, Inc. v. Thompson,
108 Ill.2d 357, 363 (1985). Whether a general law is or can be made applicable shall be
a matter for judicial determination. Ill. Const., art. IV, 13. Classifications drawn by
the General Assembly enjoy are presumably constitutional, and any doubts are resolved
in favor of finding such classifications to be constitutional. In re Vernon Hills, 168 Ill.2d
at 119. However, in evaluating a challenged provision the court must consider the natural
and reasonable effect of the legislation on the rights affected by the provision. Grasse v.
Dealers Transport Co., 412 Ill. 179, 193 (1952).
Dating back to Illinois Constitutional Convention in 1870, it has been recognized
that laws benefitting a specific class of person(s) run afoul of the Illinois Constitution
when it was recognized:

21
 Governments were not made to make the rich richer and the poor poorer,
nor to advance the interest of the few against the many; but that the weak
might be protected from the will of the strong; that the poor might enjoy
the same rights as the rich; that one species of property might be as fee as
another-that one class or interest should not flourish by the aid of
government, whilst another is oppressed with all the burdens.
I Debates and Proceedings of the 1870 Constitutional Convention of the State of Illinois
578 (remarks of Delegate Anderson). A special law confers some special right,
privilege, or immunity or impose[s] some particular burden upon some portion of the
people of the State less than all. People v. Wilcox, 237 Ill. 421 (1908). Statutory
classifications will survive a special legislation challenge only if: (1) they are founded

upon a rational difference of situation or condition existing in the persons or objects upon
which the classification rests, and (2) there is a rational and proper basis for the
classification in view of the objects and purposes to be accomplished. See In re Belmont
Fire Prot. Dist., 111. Ill.2d 373, 377 (1986). The hallmark of an unconstitutional
classification is its arbitrary application to similarly situated individuals without adequate
justification or connection to the purposes of the statute. Best v. Taylor Machine Works,
179 Ill.2d 367, 383 (1997).
Determining whether a particular statute constitutes special legislation has been
described as:
It is impossible to conceive of a law that has universal impact and affects
everyone or everything in the same way. By enacting laws, the legislature
can hardly avoid excluding some category of people or objects. In
enforcing this prohibition, the courts must decide if the legislature has
made a reasonable classification. Differences of opinion are bound to exist
in such situations and the ultimate decision must rest with some judgment
as to the soundness of the legislature's action.
Best, 179 Ill.2d at 385 quoting S. Grove & R. Carlson, The Legislature, in Con-Con:
Issues for the Illinois Constitutional Convention 101, 106 (1970).
The Illinois Supreme Court has rejected challenges to legislation on special
legislation and equal protection grounds. See, e.g., Brown's Furniture, Inc. v. Wagner,

22
171 Ill.2d 410 (1996) (upholding constitutionality of a use tax); Cutinello v. Whitley, 161
Ill.2d 409 (1994) (upholding constitutionality of a county motor fuel tax law); People v.
Shephard, 152 Ill.2d 489 (1992) (upholding constitutionality of criminal statute which
allowed an enhanced penalty for selling narcotics with an intent to deliver if the situs of
the crime is within 1,000 feet of public housing); Chicago Natl. League Ball Club, Inc. v.
Thompson, 108 Ill.2d 357 (1985) (upholding constitutionality of an environmental
regulation which monitored nighttime baseball games); Bilyk v. Chicago Transit Auth.,
125 Ill.2d 230 (1988) (upholding constitutionality of immunity for a transit authority for
failure to protect against criminal acts of third parties).
However, the Illinois Supreme Court has invalidated legislative classifications
under the special legislation clause where they have an artificially narrow focus and
which appear to be designed primarily to confer a benefit on a particular private group
without a reasonable basis, rather than to promote the general welfare. Best, 179 Ill.2d
at 383-84; see also, e.g., In re Belmont Fire Prot. Dist., 111 Ill.2d 373, 381-86 (1986)
(invalidating a statute which authorized only counties with populations of between
600,000 and 1 million residents to consolidate all fire protection services into one
district); Wright v. Cent. Du Page Hosp. Ass'n, 63 Ill.2d 313, 325-30 (1976) (invalidating
$500,000 limit on compensatory damages in medical malpractice actions); Grace v.
Howlett, 51 Ill.2d 478, 486-87 (1972) (invalidating a limit on recovery applicable to
damages inflicted by commercial motorists, but not private motorists); Skinner v.
Anderson, 38 Ill.2d 455, 459-60 (1967) (invalidating a statute of repose for construction-
related injuries for architects and contractors, but not other potential defendants in the
construction process); see also Lorton v. Brown Cty. Comm. Unit Sch. Dist. No. 1, 35
Ill.2d 362, 364-66 (1966); Hutchings v. Kraject, 34 Ill. 2d 379, 380-82 (1966); Harvey v.
Clyde Park Dist., 32 Ill.2d 60, 64-67 (1964).

23
 Here, there is little question that the Estate Planning Statute of Repose confers
some special right, privilege, or immunity or impose[s] some particular burden upon
some portion of the people of the State less than all. People v. Wilcox, 237 Ill. 421
(1908). It applies to a specific subset of attorneys, those who primarily practice in estate
planning and prepare wills and trusts for their clients, since the cause of action it deals
with does not accrue except upon a persons death. Victims of legal malpractice are
equally injured whether or not an estate is opened or letters of office are issued, yet the
statute provides a particular and shorter statute of repose upon the occurrence of a
particular event. See 735 ILCS 5/13-214.3(d). This provides a distinct privilege and
immunity for those attorneys and imposes an additional burden upon the victims of legal
malpractice.
The provisions of the Estate Planning Statute of Repose are most similar to those
invalidated by the Court that artificially narrow focus and which appear to be designed
primarily to confer a benefit on a particular private group without a reasonable basis,
rather than to promote the general welfare. Best, 179 Ill.2d at 383-84. For instance, in
Wright, the Court struck down a provision limiting compensatory damages to
$500,000.00 in medical malpractice cases based on the Equal Protection and Special
Legislation Clauses of the Illinois Constitution. 63 Ill.2d at 329-30. While the legislature
had attempted to manage a medical malpractice crisis, the arbitrary and special benefit
conferred upon possible tortfeasors and the burden of the legislative efforts to reduce
medical malpractice premiums fell upon the victims of medical malpractice. Id.
Likewise, the Estate Planning Statute of Repose, while having the laudable goal
of providing closure with respect to matters related to a decedents estate as necessitated
by the Probate Act and protecting defendant attorneys with finality the ability to be free
of stale claims puts the burden squarely upon the victims of legal malpractice.
Compare Poullette, 328 Ill. App. 3d at 797 with Wright, 63 Ill.2d at 329-30. In addition,
24
the arbitrary deadlines of the Estate Planning Statute of Repose, as discussed above,
differing from the general Statute of Limitations and Statute of Repose for attorney
malpractice, have yet another date by which suit must be brought if an estate is not
submitted to probate or subject to a will being challenged. See 735 ILCS 5/13-214.3(b)-
(d). Moreover, there is no legal malpractice crisis the legislature was addressing in
creating this classification for estate planning attorneys, a particular class of attorneys as
a whole, although a special benefit is conferred upon them. See Wright, 63 Ill.2d at 329-
30. The Statute has the effect of insulating legal malpractice tortfeasors from
compensating plaintiffs depend[ent] solely on an arbitrary classification, in violation
of the prohibition on special legislation. Best, 179 Ill.2d at 375 citing Wright, 63 Ill.2d at
329-30.
In Grace v. Howlett, the Illinois Supreme Court struck down a statute that limited
recovery for certain automobile accident victims. 51 Ill.2d at 490. While the defendant
insurance carriers in Grace argued that small, personal injury actions created an
enormous legal, social, and economic problem and the changes to the Insurance Code
were rationally related to legitimate legislative concerns therefrom, the Court determined
that the mere existence of a problem did not allow the Legislature to adopt an arbitrary or
unrelated means of addressing the problem. Id. at 484-85. The Court stated, this court
cannot rule that the legislature is free to enact special legislation simply because reform
may take one step at a time. Id. at 487 (citation omitted).
Likewise, in this matter, while the legislature may have enacted the Estate
Planning Statute of Repose based on some concern for closure with respect to matters
related to a decedents estate as necessitated by the Probate Act and protecting
defendant attorneys with finality the ability to be free of stale claims the means by
which they have chosen to address these concerns is arbitrary and not related to the

25
problem the Legislature was attempting to solve. Compare Poullette, 328 Ill. App. 3d at
797 with Grace, 51 Ill.2d at 487; see supra paragraphs (I)(B)(C).
In Grasse v. Dealers Transport Co, the Illinois Supreme Court invalidated a
statute of the Legislature wherein a plaintiffs ability to recover complete compensation
was based on fortuitous circumstances. 412 Ill. at 199. The Court determined that a
statute dividing employees and their compensation for Workmans Compensation claims
against their employers wherein some employees were allowed to receive compensatory
damages while others were not was arbitrary. Id. The Court further reasoned that
creating separate classes of tortfeasors where some were bound by the Workmans
Compensation provision and had to pay damages while others were not bound, while still
others were liable for the full assessed compensatory damages created arbitrary
distinctions and violated the Special Legislation Clause. Id.
Likewise, the Estate Planning Statute of Repose creates a special class of attorney
tortfeasors who are given a specific benefit based on the existence of an arbitrary and
uncertain happening, whether a will is submitted to the Probate Court and letters of office
are issued. If such an event occurs, this small class of attorneys is subject to merely a six
(6) month statute of repose, whilst other attorneys not so fortunate still face a two (2) year
statute of repose. See Grasse, 412 Ill. at 199.
In Harvey v. Clyde Park Dist., the Illinois Supreme Court struck down a provision
where certain governmental units were granted immunity from torts while others
remained subject to liability. 32 Ill.2d 60, 67 (1964). The court stated that those
persons who are injured by the negligence of particular governmental units are also
classified and [the Special Legislation Clause] prohibits the granting of special or
exclusive privileges to individuals. Id. at 65. From the perspective of the injured party
there is no reason why one who is injured by a park district truck should be barred
from recovery while one who is injured by a city or village truck is allowed to recover.
26
Id. Similarly, there is no reason why a potential plaintiff who files suit within two (2)
years of the decedents death is allowed recovery while a similar plaintiff who files the
same suit within the same time period is denied recovery merely upon a will being
submitted to the Probate Court or letters of office issued. Compare Harvey, 32 Ill.2d at
65 with 735 ILCS 5/13-214.3(d).
While the legislature has the power to change the common law and change or
limit available remedies the legislature is not free to enact changes to the common law
which are not rationally related to a legitimate governmental interest. Best, 179 Ill. 2d at
XXX. The Legislatures attempt to address a perceived problem related to claims of
legal malpractice which accrue upon a persons death and provide a six (6) month statute
of repose by which a potential plaintiff must bring a claim bears no rational relationship
to any legitimate governmental interest in promoting finality or allowing potential
tortfeasors to be free from stale claims. Poullette, 328 Ill. App. 3d at 797. Requiring
those that are harmed by the very professional negligence that caused their harm to bear
the brunt of this harm in accepting no relief based on whether a will is submitted to
probate or letters of office issued is the very hallmark of an unconstitutional
classification is its arbitrary application to similarly situated individuals without adequate
justification or connection to the purposes of the statute. Best, 179 Ill.2d at 383; Wright,
63 Ill.2d at 329-30. Because the Estate Planning Statute of Repose benefits some
attorneys, but not others, merely by chance or coincidence, and is therefore arbitrary, it
violates the Special Legislation Clause of the Illinois Constitution and is unconstitutional.

III. Remedy clause

The Estate Planning Statute of Repose, with its harsh results and unjust six (6)
month period of time to bring a claim for legal malpractice from the date the will is
submitted to the Probate Court or letters of office are issued also violates the Remedy

27
Clause of the Illinois Constitution. As the Illinois Supreme Court noted in Wackrow v.
Niemi, the brief period of time in which to bring an action for legal malpractice means
that potential plaintiffs may not be aware of their injury, let alone that he or she had a
claim for legal malpractice. 231 Ill.2d 418, 427 (2008). This failure to provide a remedy
for an injured party unreasonably breaches the goal of tort law that an injured plaintiff be
made whole. For this reason, this Court should find that the Estate Planning Statute of
Repose is unconstitutional.
The Remedy Clause of the Illinois Constitution states, [e]very person shall find a
certain remedy in the laws for all injuries and wrongs which he receives to his person,
privacy, property or reputation. He shall obtain justice by law freely, completely, and
promptly. ILL. CONST. art. I, Sec. 12. While the clause is merely an expression of a
philosophy and not a mandate that a certain remedy be provided in any specific form
(Folta v. Ferro Engg, 2015 IL 118070, 49, quoting Cassens Trans. Co. v. Ill. Indust.
Commn, 218 Ill.2d 519, 532 (2006)), there is universal agreement that the compensatory
goal of tort law requires that an injured plaintiff be made whole. See, e.g., Peterson v.
Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353, 363 (1979); 25 C.J.S. Damages 17 (1966).
The legislature may restrict the class of potential defendants from whom a plaintiff may
seek a remedy or may restrict the type or amount of damages a party may recover
without violating the certain remedy clause. Bilyk v. Chi. Transit Auth., 125 Ill.2d 230,
246 (1988).
The Estate Planning Statute of Repose requires a potential plaintiff to bring their
cause of action for legal malpractice against the offending attorney within two (2) years
of the decedents death, when the cause of action accrued at the time of death, or within
six (6) months of submission of the decedents will to the Probate Court or letters of
office are issued, whichever is the latter of the two (2) occurrences. See 735 ILCS 5/13-
214.3(d). However, for certain causes of action that accrue upon death, there is no
28
requirement that a will be filed with the Probate Court. For instance, when the decedent
used a living trust to maintain his or her assets and provided for their distribution upon
his or her death, the trust document need not be submitted to the Court. The same is true
for irrevocable trusts. These documents, not in the possession of the potential plaintiff or
beneficiary would require additional time to procure, in excess of the six (6) month
statute of repose, denying recovery to these individuals.
However, the Illinois Supreme Court has held that when the alleged injury
caused by the malpractice does not occur until the death of the client the Estate Planning
Statute of Repose applies regardless of the mechanism by which the clients assets are
distributed, i.e. probate, inter vivos trust, or some other form. Peterson v. Wallach, 198
Ill.2d 439, 448 (2002). The Court has even acknowledged that the effect of Section 13-
214.3(d) exception may shorten the limitation period for legal malpractice complaints and
may mean that a plaintiffs action is barred before she learns of her injury. Wackrow v.
Niemi, 231 Ill.2d 418, 427 (2008). This has the effect of barring a plaintiff from any
remedy, not merely restrict[ing] the class of potential defendants from whom a plaintiff
may seek a remedy or may the type or amount of damages a party may recover without
violating the certain remedy clause. Bilyk, 125 Ill.2d at 246.
The Constitution requires an opportunity [to be heard] granted a meaningful
time and in a meaningful manner. Boddie v. Connecticut, 401 U.S. 371, 378 (1971). A
statute cannot bar the existing rights of claimants without affording this opportunity; if it
should attempt to do so, it would not be a statute of limitations, but an unlawful attempt
to extinguish rights arbitrarily, whatever might be the purport of its provisions. Wilson
v. Iseminger, 185 U.S. 55, 62 (1902). While the two (2) year statute of repose may
provide a reasonable time to be heard, the six (6) month Estate Planning Statute of
Repose does not. This denies a remedy to many individuals in violation the Remedy
Clause of the Illinois Constitution and the case law derived therefrom.
29
 IV. Equal protection under the U.S. Constitution
The Estate Planning Statute of Repose impermissibly separates potential plaintiffs
and their defendant tortfeasor attorneys into distinct classifications without providing any
rational or reasonable basis for doing so related to a legitimate governmental interest. As
noted above, the disparate and arbitrary treatment of a particular class based on the mere
fortuitous (especially for a negligent estate planning attorney) event of a will being
submitted to the Probate Court or letters of office issued has no rational relationship to
the legitimate governmental interest of providing closure for the Probate proceedings or
protecting potential defendants from stale claims. See supra paragraph (II), pp. 22-25;
see also Poullette, 328 Ill. App. 3d at 797. Because of this, the statute violates the
Fourteenth Amendments Equal Protection Clause requiring equal protection of the
laws. U.S. CONST. amend. XIV, 1.
The Equal Protection Clause of the Fourteenth Amendment provides that no state
shall deny to any person within its jurisdiction the equal protection of the laws. U.S.
CONST. amend. XIV, 1. Equal protection requires that all persons similarly
circumstanced shall be treated alike, (Plyler v. Doe, 457 U.S. 202, 216 (1982)) as the
Constitution neither knows nor tolerates classes among citizens. Plessy v. Ferguson,
163 U.S. 537, 559 (1896) (Harlan, J., dissenting). The Courts, through their decisions,
have created three (3) tiers of increasing scrutiny. If the classification results in a suspect
class or involves a fundamental Constitutional right, the classification is subject to strict
scrutiny. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440-41
(1985). Classifications based on gender or illegitimacy are subject to intermediate
scrutiny. See United States v. Virginia, 518 U.S. 515, 531 (1996); Trimble v. Gordon,
430 U.S. 762 (1977). All other classifications are reviewed under the rational basis test.
See, e.g. U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175 (1980). Again, as noted above,

David concedes he is not a member of a suspect class, no fundamental Constitutional

30
right is implicated in this matter, nor is gender discrimination at issue. Therefore, the
rational basis test is properly applied to this matter.
Under the rational basis test, a law will be sustained if it can be said to advance a
legitimate government interest, even if the law seems unwise or works to the
disadvantage of a particular group, or if the rationale for it seems tenuous. Romer v.
Evans, 517 U.S. 620 (1996); see also New Orleans v. Dukes, 427 U.S. 297 (1976)
(tourism benefits justified classification favoring pushcart vendors of certain longevity);
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955) (assumed health concerns
justified law favoring optometrists over opticians); Rwy. Express Agency, Inc. v. New
York, 336 U.S. 106 (1949) (potential traffic hazards justified exemption of vehicles
advertising the owner's products from general advertising ban); Kotch v. Bd. of River Port
Pilot Comm'rs for Port of New Orleans, 330 U.S. 552 (1947) (licensing scheme that
disfavored persons unrelated to current river boat pilots justified by possible efficiency
and safety benefits of a closely knit pilotage system).
Equal protection jurisprudence has typically been concerned with governmental
classifications that "affect some groups of citizens differently than others." McGowan v.
Maryland, 366 U.S. 420, 425 (1961); see, e.g., Ross v. Moffitt, 417 U.S. 600, 609 (1974)
("`Equal Protection' . . . emphasizes disparity in treatment by a State between classes of
individuals whose situations are arguably indistinguishable"); San Antonio Ind. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 60 (1973) (Stewart, J., concurring) ("[T]he basic concern of the
Equal Protection Clause is with state legislation whose purpose or effect is to create
discrete and objectively identifiable classes"). Plaintiffs in such cases generally allege
that they have been arbitrarily classified as members of an "identifiable group."
Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979). When those who appear
similarly situated are nevertheless treated differently, the Equal Protection Clause
requires at least a rational reason for the difference, to assure that all persons subject to
31
legislation or regulation are indeed being "treated alike, under like circumstances and
conditions." Engquist v. Or. Dept. of Agriculture, 553 U.S. ____, 128 S.Ct. 2146, 2153
(2008). States are not required to convince the courts of the correctness of their
legislative judgments; "those challenging the legislative judgment must convince the
court that the legislative facts on which the classification is apparently based could not
reasonably be conceived to be true by the governmental decisionmaker." Vance v.
Bradley, 440 U.S. at 111.
Here, there is no conceivable causal connection between the purported
governmental interest, promoting finality in the Probate proceedings and removing stale
claims from possible defendants, and the means by which the Legislature has chosen to
address those concerns. Poullette, 328 Ill. App. 3d at 797. Instead of a single statute of
repose for all claims that accrue upon a persons death, the legislature inserted a special
provision creating an additional class of potential plaintiffs and tortfeasors, wherein if the
will was submitted to the Probate Court or letters of office were issued, the statute of
repose shortened by approximately seventy-five (75%) percent. See 735 ILCS 5/13-
214.3(d). The only purpose behind this dramatically shortened statute of repose can be
that negligent estate planning attorneys, who would submit wills to probate on behalf of
their clients, are protected from possible liability. Not a single reported case concerning
the Estate Planning Statute of Repose demonstrates any of the alleged governmental
interests in promoting finality in the Probate proceedings or protecting defendants from
stale claims. Poullette, 328 Ill. App. 3d at 797. The connection between the alleged
governmental interest is far from tenuous, it is nonexistent. See Romer v. Evans, 517
U.S. 620 (1996). For these reasons, and the reasons cited elsewhere in this brief, the
Estate Planning Statute of Repose violates the Fourteenth Amendment to the United
States Constitution, Section 1, because it provides for disparate treatment of a particular

32
group of plaintiffs and tortfeasors with no rational basis between the alleged
governmental purpose and the means chosen to advance that purpose.
CONCLUSION

WHEREFORE, Appellant David Shutack, respectfully requests that this Court

reverse the February 18, 2016 Order from the Circuit Court of Cook County and enter

judgment in his favor and remand this case back to the Circuit Court.

DATED: July 29, 2016 Respectfully submitted,

By: _____________________________
One of Plaintiffs/Appellants Attorneys

Edward X. Clinton Jr.

The Clinton Law Firm
111 West Washington Street
Suite 1437
Chicago, IL 60602
Phone: 312.357.1515
edwardclinton@icloud.com

33
 CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and (b). The
length of this brief, excluding the pages containing the Rule 341(d) cover, the Rule
341(h)(1) statement of points and authorities, the Rule 341(c) certificate of compliance,
the certificate of service, and those matters appended to the brief under Rule 342(a) is 33
pages.

July 29, 2016 _____________________________

Edward X. Clinton, Jr.

34
 CERTIFICATE OF SERVICE

The undersigned, on oath, states that on July 29, 2016, he caused to be served the
foregoing Notice Of Filing and Appellants Brief and Argument upon counsel listed
below by enclosing three (3) copies thereof in an envelope, addressed as shown below
and hand delivered to:

Richard J. Prendergast
Michael T. Layden
Richard J. Prendergast, Ltd.
111 W Washington Street
Suite 1100
Chicago, IL 60602

______________________________
Edward X. Clinton, Jr.

35