Page 25 - John Hundley 2008

Sharp Thinking

No. 15 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. December 2008
‘Morning After’ Case

Clarifies Rules on Right

to Sue in Illinois

By John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

The Illinois Supreme Court this month handed down an important decision on when plaintiffs may
sue in Illinois courts.
Although the decision – Morr-Fitz, Inc. v. Blagojevich, No. 104692, 2008 WL 5246307 (Dec. 18,
2008) – attracted much media attention because it reinstated a suit challenging regulations requiring
that pharmacists dispense the so-called “Plan B” or “morning after” contraceptive, the decision did not
reach the ultimate issues in that case. That’s because the lower courts had thrown the suit out on
procedural issues relating to when a plaintiff can sue.

Specifically, the trial court had dismissed the suit on grounds of standing, ripe-
ness and failure to exhaust administrative remedies. Rejecting those rulings, the
Supreme Court charged into the confusing thicket of “justiciability” questions
and recognized several exceptions to the usual rule that one must exhaust all
possible administrative remedies before turning to the courts.

“Justiciability” refers to a collection of considerations relating to whether a court may hear a case.
These include principles that courts will not hear cases that seek merely an advisory opinion, or that
involve purely political questions; cases that are not yet “ripe” for decision or which
have become moot by the time the case can be decided; and cases where the
particular plaintiff lacks such an interest as to give it “standing” to bring the case and-
or to raise the issue for decision.

Because the Illinois Constitution expressly confers on the judiciary the power to
hear “justiciable matters”, such factors are viewed as jurisdictional in Illinois courts.
Similarly, because justiciability issues are viewed as implied elements of the “cases”
and “controversies” clauses of the U.S. Constitution, they are viewed as jurisdictional in federal courts
also, although the standards applied under the federal and state doctrines are not always the same.

In Morr-Fitz, the Supreme Court said that ripeness concerns will be met when the case is in a
procedural posture that permits a legal decision and one or more parties will suffer imminent harm if
the case is thrown out. It also said that the latter test necessarily surpasses that involved in the
“standing” doctrine. Noting that the plaintiff pharmacists were presenting essentially legal

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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